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Summary Civil Procedure
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Summary of 24 pages for the course Land Law at OX (Civil Procedure)
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22/23Civil Procedure
Introduction
As it stated above, the first chapter of this Material deals with the Pre-Trial Proceedings.
Under this chapter, the role of the court is mainly hearing the parties to the suit,
determining the issues and preparing the case for trail. However, there are possibilities
whereby the court may adjudicate the case with out trial. Hence, the discussion of this
chapter will revolve around those issues.
Besides, we would like to remind you that the discussion in this material is entirely
dependent on your previous studies of the civil procedure. So, you need to refer once
again to your material to recapitulate and to easily understand it.
Objectives:
After you have completed studying this chapter, you will be able to:
determine the power of the court in hearing suits;
explain the effects of appearance and non-appearance of a party;
list down procedural problems before trial;
understand the effect of non appearance of parties to litigation;
identify when to raise an objection;
discuss the effect of failure to raise such objections in the first hearing;
describe the procedural issues that must be solved during the first hearing;
identify cases that can be adjudicated with out the need for full scale trial; and
differentiate between the advantages of going to trial and discontinue a suit before
trial.
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CHAPTER ONE
PRE -TRIAL PROCEEDINGS
1.1. The First Hearing
,Overview
Under this topic, we are going to discuss the procedural steps that will be applicable
during the first hearing. In the first hearing, parties to litigation, mainly, party plaintiff
and party defendant, are expected to appear. If both parties appear as ordered by the
court, the court then will examine them. This is to clearly identify the controversial point
of the dispute. If the defendant has raised objections, the court will give a ruling on the
objection and if the objection will not result in striking out or dismissal of the suit, it will
proceed and frame the issues. However, some times, one or both of the parties may fail to
appear in the court of law at first hearing. In such cases, the court will order based on the
procedure.
In generall, at first hearing, the court reads the statement of defense, examines both
parties to determine their respective positions, rules on any preliminary objections, and
frames the issues for trial. In certain circumstances, the court may adjudicate the case at
the first hearing without requiring a full-scale trial. If the proceeding is transferred to the
trial stage, the court sets a date for the trial and at the trial it hears evidence and decides
the issues. Here under, we are going to discuss the procedural steps to be applied during
first hearing.
1.1.1. Non -Appearance of parties
As we have seen above, if a defendant appears in the first hearing with his statement of
defense, will the court holds what is called the first hearing. However, a question like the
following one may arise: ―what will happen where a party does not appear before the
court at the required time?‖ The problem of non-appearance may arise throughout the
proceeding and the provisions may be applicable to all stages of the proceedings. i.e. the
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first hearing, the trial and review. But the problem of non-appearance usually happens at
the first hearing.
An appearance involves coming before the court so that the court can adjudicate the case
or take any other action it deems necessary. A party to a suit is not mandatorily required
, to appear personally at the hearing.
A party may appear through an agent or pleader. However, the court may require that the
party should appear in person, and if a party who has been ordered to appear fails without
good cause, it is considered as if there was no appearance. Where there are several
plaintiffs or defendants, anyone of them may be authorized to appear on behalf of them
all. (Art.66 (1). Such authority must be in writing and signed by the party giving it, and
filed in the court (Art. 66(2)). Where persons are sued as partners in the name of the firm,
each must appear individually in his own name. But subsequent proceedings will
continue in the firm name. So, if a partnership is sued in the firm name, all the partners
must appear individually at the first hearing (Art. 67). Where a body corporate is sued,
the court may require the personal appearance of the secretary, any director or other
principal officer who can answer questions relating to the suit (Art. 68(1)). The same is
true with government employees who may be able to answer questions in a suit involving
to government (Art 68(2)). In other words, while a personal appearance is not ordinarily
required, the court has the power to compel the personal attendance of parties or agents
where it concludes that such attendance is necessary for the determination of the
questions in the suit. Where a party appears through a pleader, the pleader must be able to
answer such questions or be accompanied by a person who can.
Action upon Non-appearance
The Civil Procedure Code is strict on the requirement of appearance. Of course, it has its
own rational. If one of the parties ordered by the court fails to appear and if the court
does not take immediate action, then the case would be delayed and the court would
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adjourn the case to a later date. This will create a lot of problems to the parties, and to the
court. This is not permitted under the code. Hence, if a party is ordered by the court to
appear on a certain date, he has to appear. Non appearance results in affirmative action on
the part of the court depending on who appears or who fail to appear the court will either
struck out, dismiss, adjourn or proceed to hear the case in the absence of the nonappearing party.
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