CIVIL PROCEDURE LECTURE 10 7TH July 2006.doc

Where all the parties attend and ready the next thing

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Where all the parties attend and ready, the next thing is to conduct the trial. One has to worry about who begins and how to proceed The order of proceedings depends on whether the defendant will adduce evidence or not where he elects not to call evidence whether or not he will have given notice in support 1. The Plaintif or advocate makes opening submissions 2. Plaintif’s witness are called, examined and cross examined 3. Plaintif’s advocate sums up the case 4. then the defendant states the case for the defence and makes closing submissions. This closes the case where the defendant does not wish to call evidence. 5. If the defendant elects to call evidence then the proceedings (a) Defendant or his advocate makes opening submissions (b) Call the witness for the defendant (c) Defendant makes a brief submission stating their defence (d) Witnesses are called, examined and cross examined. Every witness must be examined in chief, cross examined and re- examined. After this the Defendant will make closing submission and the Plaintif’s advocate will then make submissions and then close. ORDER XVII Rule 1 the Plaintif has a right to begin but this requirement has exceptions 1. Where the defendant admits but raises objection on a point of law, then the defendant is required to make submissions on
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the point of law upon which the plaintif’s advocate will called to reply. If the court finds in favour of the point of law which has been raised, then the efect would be that the suit may be terminated at this point. Things dealing with jurisdiction, res judicata, sub judice etc. fall in this category. When a defendant raises a point of law, isolate the point of law from the pleadings to give notice to the other party. Points of law are not points of evidence and therefore one will be entitled to raise the point even where it is not included in the pleadings. In the event it is not raised in the pleadings, one can give notice to the other side by filing in court and serving, it is called a point of preliminary objection. 2. Where the defendants admits the facts alleged but avers that the plaintif is not entitled to the reliefs he is seeking either on point of law or on further facts which the defendant has stated, in this case the defendant will be entitled to begin. For example where there is an admission that the Plaintif has paid some money to the defendant, then there is obligation on the defendant to pay and the onus is on the defendant to show why the money should not be repaid to the plaintif, the burden is on the defendant to begin and prove why the money ought not to be paid to the defendant. Seldon v Davidson [1968] 1 WLR 1083 (CA) - Plaintif had brought proceedings for recovery for 1550 pounds which he had lent to the defendant, defendant admitted having receiving the money but pleaded to the court that it was a gift. Then the plaintif replied that there were no circumstances which could have given rise to the presumption of a gift and in those circumstances felt the onus to begin was on the defendant so he could demonstrate how it should be treated as a gift.
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