The topographic point and manner of test is normally determined by type of test and proceedings. If you make an application by biddings. so you will be heard in Chambers.
Procedure 1 – where suspect elects non to name grounds
The Plaintiff or recommend makes an gap address referred to sometimes as an gap statement. After that the complainant informants are called. examined cross examined and re-examined. After that the complainant or his advocator amounts up the instance by doing a shutting address. After that the Defendant states their instance and makes a shutting address.
Procedure 2 – Defence elects to name grounds
Advocates for the complainant makes an opening statement. the complainant informants are called. examined. cross-examined and re-examined. After that the defendant’s advocate makes an opening statement. After that the defendant’s informants are called. examined. cross examined and rhenium examined. After the Plaintiff or his advocator amounts up the instance by doing the shutting address. Thereafter the suspect sums up the instance and makes a shutting address besides. The Defendant can answer to the plaintiff’s shutting. The answer merely covers new land.
In instances where there are many suspects and many complainants the same process will use but if the suspects are represented individually. so the advocates will individually do their entries individually by order of visual aspect. Cross scrutiny of informant will besides follow the order in which they proceed. Co complainants will usually be represented by the same advocate.
Who has the right to get down the instance? Order XVII Rule 1
The complainant or the applier has the right to get down. Of class there are certain exclusions to that right to get down. 1. Where the Defendant admits the facts alleged by the complainant but raises an expostulation on a portion of jurisprudence. In such a instance the suspect should be entitled to get down by subjecting on that portion of the jurisprudence. For illustration. say one raises a supplication of Res Judicata? In such a instance one can state that they have sued the suspect by they have raised an expostulation on the portion of the jurisprudence a and in this instance. the Defendant has the right to get down on a supplication of RESs judicata. Or the Defendant raises the supplication of restriction. they have the right to subject on that point of jurisprudence. However it is advisable that one should ever set it in the pleadings whatever supplication they intend to raise.
2. Where the Defendants admits the facts alleged by the complainant but states that the complainant is non entitled to the alleviation that they seek for illustration drawn from Seldon v. Davidson in which instance the complainant brought proceedings for recovery of a debt. In their defense mechanism the suspects admitted that they received the money from the complainant but pleaded that the money was a gift. In this instance the suspect has a right to get down.
Suppose there are several issues? May be it could be many different parties and there is a difference as to who should hold the right to get down? The tribunal will direct that the party with the load of turn outing the bulk of issues shall get down. Opening Statement
What should it incorporate
It is normally a brief lineation of either the defendant’s or the plaintiff’s instance. normally it will province the facts merely. They will be stating the tribunal the informant that they intend to name and will be giving a prevue of what they intend to turn out. Normally this is an debut to the full test and it is of import that it is interesting. logical. credible and in a narrative signifier. Usually it is non necessary for the Judge to enter the gap addresss unless one raises a point of jurisprudence. It is of import that a note should be made in the tribunal record that an gap address was made. an gap address must non incorporate grounds. It should merely be limited to a statement of basic facts that the parties intend to turn out or trust on as defense mechanism.
After you make the gap statements. you move on to scrutiny in head.
Examination OF WITNESSES
Examination in Chief
When you call a informant there are 3 phases
1. Examination in head
2. Cross Examination
3. Re scrutiny
Examination in Chief
The object of scrutiny in head is to arouse facts that are favorable to the instance of the party naming the informant. In other words the test in head is when you question your first informant. Sometimes the plaintiffs themselves. Normally they will be giving grounds that will be favorable to their instance. It is governed by two regulations ( a ) The informant can non be asked prima inquiries – these are inquiries that suggest the reply expected of that individual. For illustration you can non inquire Was your concern running into fiscal troubles last twelvemonth? You should inquire what was the fiscal place of your concern last twelvemonth? The art of cognizing whether a inquiry is taking is learnt with experience. ( B ) The scrutiny must non be conducted in an assaultive mode. Normally at cross scrutiny you can assail but you can non make that to your ain informant. If your informant turns hostile. you can inquire the tribunal to declare the informant a hostile informant and one time the tribunal does that. you can so assail the informant.
When a informant is declared hostile
( I ) You will be allowed to impeach the creditability of that informant ; ( two ) You can inquire prima inquiries ( three ) You can inquire them inquiries that touch on their truthfulness and even their past character and old strong beliefs. ( four ) You can besides be able to analyze on certain issues by leave of the justice e. g. you can oppugn the hostile informant on statements they made antecedently which is inconsistent with their present testimony. This can assist to demo that the witne3ss is giving conflicting grounds which the tribunal is allowed to decide when they are taking the grounds into history. You must take witness statements. If they give grounds inconsistent with the statement that they signed. you can impeach their credibleness and bring forth the informant statement.
There are 3 purposes of cross scrutiny
1. To arouse farther facts which are favorable to the cross analyzing party ; 2. To prove and if possible dramatis personae uncertainty on the grounds given by the informant in head ; 3. To impeach the credibleness of the informant.
Cross scrutiny – the range is broad one is allowed to inquire prima inquiries. inquiry a informant on old testimony. it is non restricted in any manner. A good Advocate will ne’er bury the virtuousness of courtesy.
Once you have examined your informant in head. the other side cross-examines your informant. The re scrutiny is a sort of retrieval procedure. This is when you try to mend the lesions that were opened up in cross scrutiny. Most of import. re-examination is purely restricted to affairs that arose at cross scrutiny. The tribunal besides has powers to inquire a witness inquiries for the intent of clear uping points.
SUBMISSION OF NO CASE TO ANSWER
The suspect may do a defense mechanism of no instance to reply after the entry by the complainant. The Judge must make up one’s mind whether there is any grounds that would warrant seting the suspects on their defense mechanism. Normally if the entry of no instance to reply is non upheld. the instance continues. If the tribunal says that there is no instance to reply. that governing can be challenged on Appeal.
Taking DOWN EVIDENCE
Normally grounds of informants is taken orally in unfastened tribunal under the way of a Magistrate or Judge. it is usually written down in narrative signifier i. e. non inquiry and reply signifier but where there is particular ground. the grounds may be in inquiry and reply signifier. The regulation is that the tribunal may on its gesture taken down a peculiar inquiry verbatim and the reply verbatim.
Where either party objects to a inquiry and the tribunal allows it. so the tribunal should enter the inquiry. the reply and the expostulation and the name of the individual raising the expostulation and if they make a opinion they must besides enter the opinion of the expostulation raised. Tact is required as you may happen that. Sometimes if you object excessively much you can annoy the Judge. Object merely for of import things.
In the class of taking grounds. the tribunal may besides enter comments made by informants while under scrutiny and usually after taking down the grounds the justice will subscribe that grounds. The tribunals can besides enter comments and demeanor of a informant.
PROSECUTION & A ; ADJOURNMENT OF SUITS
Public policy paperss that concern of the tribunal should be conducted efficiently. It is of great importance and in the involvement of justness that action should be brought to test and finalised with minimal hold. Order XVI Rule 1 requires that hearing of instances should be on a twenty-four hours to twenty-four hours footing until all informants have testified. However this is non ever possible and that is why the tribunal may recess a hearing on its ain gesture or upon application by either of the parties where good class is shown. The regulation requires that dissolutions can be granted where good cause is shown
Habib V Rajput the complainant instance came up for hearing. the advocators applied for dissolution on the evidences that their client was absent for some unexplained grounds. The respondent opposed stating that his informants were already in tribunal and had come from really far off and it was bing a few thousand shillings to maintain them there per twenty-four hours. Was the plaintiff’s ground good cause to recess. The tribunal ruled that no sufficient cause was shown and the application for dissolution was dismissed. Kamil V. Merali
NO STEPS TAKEN – Order XVI Rule 6
Under Rule 6. where no application has been made or stairss taken for 3 old ages by either party. the tribunal may order the suit to be dismissed but normally the application should demo do why the suit should non be dismissed. Any instance which is dismissed under Rule 6 can be instituted afresh topic to regulations of restriction.
Victoria Construction Co. V. Dugall
The tribunal considered the significance of stairss taken within the significance of Rule 6. the Case was filed in November 1958 and in 1960 the Applicant decided to mention the instance to an arbiter but efforts to decide the difference through arbitration failed. The affair went to kip until 1962 where the registrar asked the parties to demo cause why the suit should non be dismissed. The Plaintiff contended that the stairss to seek arbitration amounted to stairss taken. The inquiry was whether an understanding to mention the affair to arbitration was a measure taken and the tribunal held that that was non a measure taken and the instance was dismissed. In this instance. the tribunal explained
1. That one has to fulfill the tribunal that the suit is ready to continue without hold. 2. One has to fulfill the tribunal that the suspect will endure no adversity ; 3. That there has been none frequent inaction by the Plaintiff.
It is advisable at the clip the instance comes up for hearing to inquire that it be stood over by and large ( SOG ) to give you clip to travel to arbitration and if you are non ready. you can ever travel back to tribunal and seek an extension. This manner there is a measure taken.
You are stating the tribunal that you have presented your grounds. that you have proved that so and so is apt and you will besides be stating the tribunal that this is the jurisprudence and if applied to the facts of your instance so the jurisprudence should back up your supplications. You will be stating the tribunal of past determinations that support your instance. You will accommodate the facts. the jurisprudence and past determinations that support your instance. You make your instance in the shutting statements.