Civil Procedure Code (Amendment) Act 2017

This Act may be cited as the Civil Procedure Code

(Amendment) Act, No. 8 of 2017.

Section 5 of the Civil Procedure Code (Chapter 101)

(hereinafter referred to as the “principal enactment”) is hereby amended as follows:—

by the insertion, immediately after the definition of the expression “court”, of the following definition:–

by the insertion, immediately after the definition of the expression “legal document”, of the following new definition:–

by the insertion, immediately after the definition of the expression “original court”, of the following new definitions:–

Section 27 of the principal enactment is hereby repealed and the following section, substituted therefor:-

27. (1) The appointment of a registered attorney to make any appearance or application, or to do any act as aforesaid, shall:-

be substantially in such form specified in Form No. 7 of the First

contain an address at which service of any process under the provisions of this Chapter may be served on such registered attorney, instead of the party whom he represents; and

include an electronic mail address if any, to which service of any process,

When an appointment under subsection (1) is filed, an appointment of a registered attorney shall be in force until –

No Counsel shall be required to present any document empowering him to make any appearance or application or to do any act. The

Section 29 of the principal enactment is hereby amended as follows:-

by the renumbering of that section as subsection (1) thereof;

by the addition immediately after the renumbered subsection (1) thereof, of the following subsections which shall be numbered as subsections (2) and (3)

Service of process, notice or any other document at the address given in the memorandum submitted under section 27(2) shall be deemed to be sufficient delivery to the nominee or nominees appointed under section 393.”.

The following new chapter is hereby inserted immediately after Chapter X of the principal enactment and shall have effect as Chapter XA of that enactment:-

“CHAPTER XA

OF FIXING DAY OF PRE-TRIAL

79A. (1) The court shall –

forthwith on the expiration of the time allowed for the filing of the answer; or

where a replication is permitted, on the last day of the time allowed for the filing of that replication, and whether the same is filed or not, appoint a date not earlier than three weeks and not exceeding two months from such date for pre-trial hearing to be commenced, either in the presence of all parties to the action or such parties as are present.

The court shall, prior to appointing a date, satisfy itself that the absent parties have been duly notified of the proceedings.”.

Section 80 of the principal enactment is hereby repealed and the following section is substituted therefor:-

80. On the date fixed for the case to be called to fix the date of trial of the action in the trial court, the court shall appoint a date for the trial of the action and shall give notice thereof in writing by registered post to all parties who have furnished a registered address and tendered the cost of service of such notice as provided by subsection (2) of section 55.”.

“Fixing date of trial.

Date for pre-trial proceedings.

The following new section is hereby inserted immediately after section 80 of the principal enactment and shall have effect as section 80A of that enactment :-

80A. (1) (a) On or after the date fixed for the trial of the action, no application for pre-trial steps shall be allowed, unless the court is satisfied for reasons to be recorded, that a grave and irremediable injustice would be caused if such steps are not permitted.

In such event, the court may impose such terms as to costs or otherwise as it thinks fit against the party who makes such application.

Where the issues upon which the trial of the action is to proceed have been settled by the Judge conducting the Pre-Trial hearing, no amendment thereto shall be made at the trial, save in special circumstances and unless the court is satisfied that a refusal to permit such amendment would result in manifest injustice to the party applying for the amendment.

Where issues both of law and facts arise in the same action, and the court is of the opinion that the case may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.”.

Section 93 of the principal enactment is hereby amended, as follows:-

by the substitution, in subsection (1) thereof, for the words “first fixed for trial” of the words “first fixed for Pre-Trial”; and

by the substitution, in subsection (2) thereof, for the words “first fixed for the trial” of the words

The following new chapter is hereby inserted immediately after Chapter XVII of the principal enactment and shall have effect as Chapter XVIIA of that enactment:-

“CHAPTER XVIIA

OF THE PRE TRIAL

142A.The parties shall tender their proposed admissions and issues in writing to the court registry, fourteen days prior to the date fixed for the pre-trial hearing with the proof of service by the submission of a copy of such admissions and issues to all other parties.

142B. Subject to the provisions of section 142A the Judge conducting the Pre-Trial hearing may either on his own motion or on the application of any party and for sufficient cause shown, advance or postpone the date fixed for the pre-trial hearing:

Provided that, the Judge conducting the

Pre-Trial hearing shall conclude the hearing within three months from the commencement of such hearing, unless the Judge conducting the Pre-Trial hearing is prevented from acting accordingly for reasons to be recorded by him and no adjournment in excess of four weeks may be granted, unless in exceptional circumstances.

142C. (1) If any party–

fails to diligently prosecute his or her case; or

fails to appear on the day fixed for the pre-trial hearing or on any other day to which it is adjourned, the Judge conducting the Pre-Trial hearing may, taking into consideration all appropriate circumstances -

proceed to dispose of the action in one of the methods specified in Chapter XII of this

make such other order as he may think fit.

In the event, the Judge conducting the

ascertaining jurisdictional issues;

elucidating the matters in dispute;

obtaining admissions of facts and of documents;

consolidating two or more pending cases;

identifying the number of witnesses based on admissibility and relevancy inclusive of expert witnesses;

appointing a court Expert;

assisting the parties to arrive at an adjustment, settlement, compromise or other agreement, with regard to the matter in issue in such action and may, for that purpose, suggest terms of settlement which in his view is reasonable, having regard to all the circumstances of the case;

ascertaining and recording any other matters which would be helpful in the speedy disposal of the action;

to take all steps and make all such orders as may appear to him to be necessary or desirable, for the expeditious and inexpensive disposal of the action.

regarding any question of fact determined by a written report from a person having special and independent knowledge of that fact;

for the issue of a commission under

an order to issue certified copies of any documents in the custody of any

At the Pre-Trial, the Judge conducting the Pre-Trial hearing shall record:-

the admissions by the parties of facts or documents or contents of documents;

the agreement of the parties with regard to any matter;

the agreement of parties to accept and to abide by:-

any decision of the Judge conducting the Pre-Trial hearing arrived at in such manner as may be agreed upon between the parties and entering of judgment in accordance with such decision;

any decision of the Judge conducting the Pre-Trial hearing on any or all issues of fact or law and entering of the judgment in accordance with such decision;

any agreement of the parties:-

with regard to the mode of proof of any fact or document;

as to the number of witnesses to be called;

to consolidate two or more pending actions;

withdrawal of actions; and

adjustment, settlement or compromise of actions.

When the Judge conducting the Pre-Trial hearing records an agreement of the parties under paragraph (c) of subsection (1) such Judge shall also read out and explain the effect of such agreement to the parties concerned and record the fact that the parties do understand the contents of such agreement and the effect thereof. The parties shall be required to sign the agreement.

After the issues are settled, and –

on the parties informing the Judge conducting the Pre-Trial hearing that all the Pre-Trial steps had been taken; and be appointed.

where the Judge conducting the

Sections 146, 147 and 148 of the principal enactment are hereby repealed.

The following new section is hereby inserted immediately after section 149 of the principal enactment and shall have effect as section 149A of that enactment:-

149A. (1) The court may order, two or more actions in which the questions of law or fact in issue are substantially the same, to be consolidated upon such terms as the court may deem fit and on the agreement of Parties.

The Court may order –

several actions to be tried at the same time and on the same evidence; or

the evidence in one action to be used as evidence in another; or

one of several actions to be tried and other actions to be stayed to abide by the result, with the consent of the parties:

The following new section is hereby inserted immediately after section 151 of the principal enactment and shall have effect as section 151A of that enactment:-

151A. (1) Notwithstanding the provisions of section 151, the court may, on its own motion or at the request of one of the parties to the action, order that an affidavit be substituted for an oral examination in chief of a witness and direct the party calling such witness to tender such affidavit on a date fixed by the court which date shall be at least one month prior to the date of trial, to enable the opposite party to prepare for the trial.

Where an order is made by the court under subsection (1), the party who is responsible for tendering the affidavit shall tender it together with the documents referred to therein, to the Registrar of the court with the proof of service of a copy of the affidavit with copies of all documents of the opposite party.

On the date of the trial, the party tendering the affidavit shall produce the affidavit through the witness who has affirmed to or sworn to it, including all documents referred therein. The opposite party is entitled to object to its being received, either on the inadmissibility of such evidence or a part of the evidence or on the inadmissibility or

If an affidavit contains evidence of matters of hearsay or any matter which is scandalous, the court may order deletion of such matters and may proceed with the rest of the matters in the affidavit or may order the party who filed such affidavit to tender a fresh admissible affidavit and the party filing such inadmissible affidavit shall be liable to the payment of costs.”.

Sections 393 to 398 (both inclusive) of the principal enactment are hereby repealed and the following new sections substituted therefor:-

393. (1) A party who appoints a registered

Attorney under section 27(2) (hereinafter referred to as the “nominator party”), shall nominate at least one person and not more than three persons, in order of preference, to be his legal representative for the purpose of proceeding with the action, in the event of his death pending the final determination of the action:

Provided that the court may, in the event the memorandum is not filed at any time before the final determination of an action, on its own motion or on the application made by any

“Memorandum.

party, require a party to the action or any person eligible to file a memorandum under the provisions of this Code, to file such memorandum on or before a date appointed for such purpose by the court. In the event of failure to file such memorandum the court may impose an appropriate cost on the defaulting party.

(a) In the event of the death of the nominator party, pending the final determination of the action, the person nominated under subsection (1) shall, in the order of preference in which his name is set out in the memorandum, be deemed to be the legal representative of the party for the purposes of the action.

In the event of the death or incapacity of the legal representative whose name is set out in the memorandum, the person nominated next in order of preference shall be deemed to be the legal representative for the purposes of the action.

The person nominated as legal representative shall subscribe his or her signature to the memorandum, signifying consent to be so appointed. The signature of the nominator party and those of the nominee or nominees consenting to be appointed, shall be witnessed by an Attorney-at-law, a Justice of the Peace or a Commissioner of Oaths.

A nominee may at any time with notice to the nominator party, apply to court by way of a motion to withdraw his consent to be such nominee and in such event the court shall make an order that he ceases to be the nominee of the nominator and shall cause the name of such nominee to be removed.

Subject to the provisions of subsection (1) of this section, a nominator party may at any time before the final determination of the action, make an application with notice to the nominees, to tender a fresh memorandum nominating one or more nominees. On the filing of such new memorandum, the previous memorandum of such nominator party shall be deemed revoked and the nomination contained in such fresh memorandum shall forthwith take effect.

The legal representative of a deceased nominator shall be entitled to take all such steps as may be necessary, as the deceased nominator party would have been entitled to take, had he been alive, if the cause of action survives the death of the deceased nominator party.

(a) A nominee shall not refuse to act as the legal representative of a deceased nominator party. He may, with the leave of the court first had and obtained, by way of petition and after giving notice to the other nominees if any, apply for permission from court to be released from the office of legal representative of such nominator party.Such application may be made not later than two months from the date of the death of the nominator party.

Where the court grants permission to release from the office of legal representative, the nominee who is next in order of preference in the memorandum filed by the nominator party, shall be deemed to be the legal representative of such deceased nominator party, for the purposes of the action.

Where an application under paragraph (a) of this subsection is made by a nominee who is the sole nominee or the sole remaining nominee of deceased nominator party, such nominee shall notify the heirs of such deceased nominator party regarding his application and in the event of the court granting permission as aforesaid, the court shall appoint an heir of such deceased nominator party to act as the legal representative of such deceased nominator party for the purposes of the action.

On the death of a party to the action who had failed to file a memorandum, any party to the action may apply to the court by an ex parte application by way of a petition supported by an affidavit, requesting that an executor or administrator or in the case of an estate which is below the administrable value, the next of kin who have adiated the inheritance of the deceased party be substituted in the place of such deceased party.

The court may, on being satisfied that such appointment is necessary and the cause of action survives on the death of such party, shall appoint such person.

The person so appointed shall be bound by proceedings prior to his appointment:

(a) An executor or administrator or in the case of an estate which is below the administrable value the next of kin who have adiated the inheritance of the deceased party may apply to court for the removal of the legal representative of such deceased nominator and for the appointment of a person named in such application or the next person named in order of preference in the memorandum filed by the deceased nominator, as such legal representative. The person who is the legal representative of the deceased nominator for the time being, shall be the respondent to such application.

The court may, upon being satisfied that it is in the interests of an executor or administrator or in the case of an estate which is below the administrable value the next of kin who have adiated the inheritance of the deceased party may remove such legal representative and appoint the person named next in order of preference in the memorandum filed by the deceased nominator party or if there are sufficient grounds for doing so, appoint the person named in the application, as the legal representative of the deceased nominator party.

An application under this sub-section shall be by way of petition and affidavit and the court may issue notice of the application to the other heirs, if any, of the deceased nominator party.

No proceedings shall be postponed or adjourned or any step in the action postponed by reason of the death of a nominator party.

If there be more defendants than one, and any one of them die before entering a decree and the right to sue on the cause of action does not survive against the surviving defendant or defendants alone, without substitution of the legal representative of the deceased defendant and also in case of the death of a sole defendant, or sole surviving defendant, where the right to sue survives to the plaintiff, the plaintiff may apply to the court to substitute the legal representative of the deceased defendant in place of such deceased defendant for the purpose of the continuance representative representative of deceased sole plaintiff to apply to be made the plaintiff.

The legal representative of a deceased defendant nominated in the memorandum, may apply to be a defendant in place of the deceased defendant, and the provisions of this section, in so far as they are applicable, shall apply in respect of such application and to the proceedings and consequences ensuing thereon.”.

Section 405 of the principal enactment is hereby repealed.