ORDER 26 - DEFAULT OF PLEADINGS

ADAMAWA
ORDER 26 - DEFAULT OF PLEADINGS

1. If the plaintiff, being bound by these rules or an order of Court or a Judge in Chambers to file a statement of claim, does not file it within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge in Chambers to dismiss the action with costs, for want of prosecution; and on hearing of such application the Court or Judge may, if no statement of claim shall have been filed, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or Judge shall think just.

2.-(1) If the plaintiffs claim be only for a debt or liquidated demand, and the defendant does not, within the time allowed by these rules or an order of Court or a Judge in Chambers for that purpose, file a defence, the plaintiff may, at the expiration of such time, apply for final judgment for the amount claimed, with costs.

(2) In actions by a money-lender or an assignee for the recovery of money lent by a money-lender or the enforcement of any agreement or security relating to any such money, judgment shall not be entered in default of defence except in accordance with the provisions of Order 14 rule 9.

3. When in any action for a debt or liquidated demand there are several defendants, if one of them makes default as mentioned in rule 2(l), the plaintiff may, subject to rule 2(2), have final judgment entered against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants.

4. Where the plaintiffs claim against a defendant is for unliquidated damages only, then, if that defendant makes default in pleading, the plaintiff may, after the expiration of the period fixed as aforesaid, for service of defence, have judgment entered against that defendant for damages to be assessed by the Court and costs, and may proceed with the action against the other defendants, if any.

5. Where the plaintiffs claim against the defendant relates to the detention of goods only, then, if the defendant makes default in pleading, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, have entered either:-

(a) judgment against the defendant for the delivery of the goods or their value to be assessed by the Court and costs; or

(b) judgment for the value of the goods to be assessed by the Court and costs; and,

in either case he may proceed with the action against the other defendants, if any.

6.-(1) Where the plaintiffs claims against a defendant is for the possession of land then, if that defendant makes default in pleading the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, and on producing a certificate by his legal practitioner or (if he sues in person) an affidavit stating that he is not claiming any relief in the action of the nature of mortgage action, have judgment entered for possession of the land as against that defendant and for costs, and proceed with the action against the other defendants, if any.

(2) Where there are more than one defendant, judgment entered under this rule shall not be enforced against any defendant unless and until judgment for the possession of the land has been entered against all the defendants.

7. Where the, plaintiff makes against a defendant two or more of the claims mentioned in rules 2 to 6, and no other claim then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, have entered against the defendant such judgment in respect of each such claim as he would be entitled to under those rules as if that were the only claim made, and proceed with the action against the other defendants, if any.

8.-(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 6, then if the defendant or all the defendants (where there are more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence apply to the Court for judgment and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may :-

(a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

(b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment against the other defendants.

(3) An application under paragraph (1) shall be by summons or motion on notice

9. A defendant who counter-claims against a plaintiff shall be treated for the purposes of rules 2 to 8 as if he were a plaintiff who had made against a defendant the claim made in the counter claim and, accordingly, where the plaintiff or any other person against whom the counter-claim is made fails to serve a defence to the counter-c1aim, those rules shall apply as if the counter-claim were a statement of claim, the defence to the counter-c1aim a defence and the parties making the counter-claim and against whom it is made were plaintiffs and defendants respectively, and, as if references to the period fixed by or under these rules for service of the defence were references to the period so fixed for service of the defence to the counter-claim.

10. The Court may, on such terms as it thinks just set aside or vary any judgment entered in pursuance of this Order.

11. In this Order, a party makes default in pleading when he fails to file and serve his statement of claim or defence, as the case may be, on the opposite party within the time fixed for doing so by these rules or by the order of the Court or a Judge in Chambers.

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