CIVIL PROCEDURE II Lecture 1
ORDER OF PROCEEDINGS
The place and mode of trial is usually determined by type of trial and proceedings. If you make an application by summons, then you will be heard in Chambers.
Procedure 1 – where defendant elects not to call evidence
The Plaintiff or advocate makes an opening speech referred to sometimes as an opening statement. After that the plaintiff witnesses are called, examined cross examined and re-examined. After that the plaintiff or his advocate sums up the case by making a closing speech. After that the Defendant states their case and makes a closing speech.
Procedure 2 – Defence elects to call evidence
Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called, examined, cross-examined and re-examined. After that the defendant’s counsel makes an opening statement. After that the defendant’s witnesses are called, examined, cross examined and re examined. After the Plaintiff or his advocate sums up the case by making the closing speech. Thereafter the defendant sums up the case and makes a closing speech also. The Defendant can reply to the plaintiff’s closing. The reply only covers new ground.
In cases where there are many defendants and many plaintiffs the same procedure will apply but if the defendants are represented separately, then the counsels will separately make their submissions separately by order of appearance. Cross examination of witness will also follow the order in which they proceed. Co plaintiffs will normally be represented by the same counsel.
Who has the right to begin the case? Order XVII Rule 1
The plaintiff or the applicant has the right to begin. Of course there are certain exceptions to that right to begin. 1.
Where the Defendant admits the facts alleged by the plaintiff but raises an objection on a part of law. In such a case the defendant should be entitled to begin by submitting on that part of the law. For example, suppose one raises a plea of Res Judicata? In such a case one can say that they have sued the defendant by they have raised an objection on the part of the law a and in this case, the Defendant has the right to begin on a plea of res judicata. Or the Defendant raises the plea of limitation, they have the right to submit on that point of law. However it is advisable that one should always put it in the pleadings whatever plea they intend to raise.
Where the Defendants admits the facts alleged by the plaintiff but states that the plaintiff is not entitled to the relief that they seek for example drawn from Seldon v. Davidson in which case the plaintiff brought proceedings for recovery of a debt. In their defence the defendants admitted that they received the money from the plaintiff but pleaded that the money was a gift. In this case the defendant has a right to begin.
Suppose there are several issues? May be it could be many different parties and there is a dispute as to who should have the right to begin? The court will direct that the party with the burden of proving the majority of issues shall begin. OPENING STATEMENT
What should it contain
It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it will state the facts simply. They will be telling the court the witness that they intend to call and will be giving a preview of what they intend to prove. Usually this is an introduction to the entire trial and it is important that it is interesting, logical, believable and in a narrative form. Usually it is not necessary for the Judge to record the opening speeches unless one raises a point of law. It is important that a note should be made in the court record that an opening speech was made. an opening speech must not contain evidence. It should just be limited to a statement of basic facts that the parties intend to prove or rely on as defence.
After you make the opening statements, you move...
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