Pleadings are written statements of facts filed and served by each party in civil proceedings, stating the facts relied on in order to establish their claim or defence as the case maybe.
That said, the general form of Pleadings are used in actions commenced by writ of summons in the High Court.
General Types of Pleadings
•Statement of Claim
•Statement of Defence
•Reply
•Counter-claim
•Set off
•Further and better particulars of pleadings
Notes on other kinds of pleadings
•It should be noted that there are other special civil proceedings with special kinds of pleadings, e.g.,
(a) Petition, Answer, Reply, etc (in matrimonial causes);
(b) Petition, Reply, Rejoinder, etc (in election petitions); and
(c) Petition, Reply and Rejoinder in companies’ winding-up proceedings.
Functions of Pleadings
The following are the functions of Pleadings
1. Definition and Clarity of Issues
Pleadings define the issues in dispute between the parties and also highlight matters in which there is agreement between them. Facts that are admitted need not be proved. Issues are thus narrowed down to disputed facts.
•By pleadings, each party gives a fair notice to the other, of the case he intends to put up in court. This enables the other party to prepare his own case in advance.
•Pleadings inform the court what dispute exists between the parties. The court is in turn, bound or guided by the pleadings in deciding whether or not it has jurisdiction over the matter.
•Pleadings constitute permanent records of what was decided in any particular case; and forms the basis on which a plea of estoppel per rem judicata may be raised in subsequent actions.
•Pleadings assist the court in determining the party on whom the onus of proof lies - Bakare v. ACB Ltd. [1986] 5 SC 48
Points on pleadings and evidence
(a) No party is allowed to adduce evidence on an issue not raised in the pleadings. Such evidence “goes to no issue.”
Vincent Bello v. Magnus Eweka (1981) 1 SC101
(b) Evidence that is adduced which is contrary to or at variance with pleadings also goes to no issue and must be expunged from the court’s record if already admitted - Ambrosini v. Tinko (1929) 9 NLR 8; Adegbenro v. AG (Fed) (1962) 1 All NLR 431
(c) A fact pleaded, on which no evidence is adduced, also goes to no issue - Olarewaju v. Afribank (Nig) Plc (2001) 7 SCNJ 493
Loading…
Formal Requirement of Pleadings
The following are the formal requirements for a pleading.
1. Heading
Every pleading must be correctly headed in the title of the court in which the action is filed, showing clearly, the parties to the suit, suit number, and where necessary, the capacities in which the parties are suing or being sued.
2. Description
Each pleading must state its description e.g. “Statement of Claim”, “Statement of Defence,” “Reply”, etc. When there are more than one Claimant or Defendant, the pleading shall indicate which of the parties are relying on it e.g. “Statement of Claim of 1st – 3rd Claimants” or “Statement of Defence of 5th – 7th Defendants”, or “Statement of Claim of the Claimants” and vice versa.
3. Paragraph
Every pleading shall be divided into paragraphs and numbered successively with each paragraph containing as much as may be a separate allegation of facts.
•Facts in pleadings shall be stated in chronological order (i.e. order of sequence). This makes for easy flow of evidence during trial and easy following by court and counsel.
•Allegations of fact shall be positive, precise, distinct and brief. Allegation of facts shall not be stated in an evasive manner. The indicative and not the passive voice should be used. For example, instead of pleading, “The car was unlawfully held unto by the Defendant”, plead, “The Defendant unlawfully held unto the car”.
Use of Pronouns
•Pronouns should be sparingly used as such use may lead to ambiguity. Say, “The Claimant” if you mean to say so; not “He”. Always maintain a nomenclature in your pleadings. If you have referred to a “deed of lease” in a paragraph, do not refer to the same document as “the indenture” or the “agreement” in another paragraph.
•Expression of dates, sums and numbers should be in figures e.g. N100,000.00; 30/7/2001; or 30th July, 2001 etc. but may also be expressed in words - O. 15 r. 2(2) (Abuja); O. 17 r. 2(2) (Lagos) This requirement is designed to simplify the ready appreciation of dates, sums and numbers in pleadings.
•Every pleading must be dated and signed by the legal practitioner settling same or by the party if he acts in person. O. 15 r. 2(3) (Abuja); O. 17 r. 2(3) (Lagos); Aiki v. Idowu (2006) All FWLR (Pt. 293) 361; Auman (Nig) Ltd. v. Leventis Motors (Nig) Ltd. [1990] 5 NWLR (Pt. 151) 458 at 568 Every pleading must contain the addresses for service on the parties.
•Every pleading like all other court processes must be printed, written clearly and legibly or typewritten, type-set by computer. The paper on which the pleading is written must be of durable quality.
Matters that must be Specifically Pleaded
To specifically plead a fact? To ‘specifically plead’ a matter means to state the facts and also give detailed particulars of how it happened, where it happened, when it happened, and the circumstances under which it happened. The following matters must be specifically pleaded:
•Matters that will take the adversary by surprise if not pleaded shall be specifically pleaded, e.g. limitation of action, immunity, commission of crime, fraud, illegality, estoppel, etc
•Counterclaim or set-off must be specifically pleaded and relevant particulars furnished.
•Insanity must be specifically pleaded, e.g. in probate matters a party wishing to challenge a will on the ground that the testator was insane, of unsound mind, had memory loss, etc must specifically plead same and state particulars of such facts in his pleadings
•In matrimonial causes if adultery is being relied upon as a facts to prove that the marriage has broken down irretrievably, it must be specifically pleaded, giving particulars as to date, time and place of occurrence as well as particulars of the person with whom the adultery is allegedly committed.
•In defamation cases, the exact words alleged to be defamatory must be specifically pleaded and particulars of publication, the names of person(s) to whom the words were published, given. If the words were written or spoken in a foreign language, the exact foreign version must be pleaded, followed by its English interpretation/translation.
•Still on defamation: If the words complained of are ordinarily not defamatory or did not specifically refer to the Claimant, the fact from which the court can infer the innuendo or reference to the Claimant must be pleaded. Particulars of special damages if any, and any defence (e.g. qualified privilege or justification) must be pleaded.
•Equitable maxims and “special pleas” like estoppel, laches, undue influence, acquiescence, res ipsa loquitur, etc must be specifically pleaded or sufficient facts from which such maxims or doctrines could be implied, must be pleaded if intended to be relied on at the trial - Ololo v. NAOC Ltd. [2001] 6 SCNJ 124 at 131, [2001] 6 SC 136 at 140
•If evidence of traditional history is to be relied upon in land matters, it must be specifically pleaded by stating particulars of custom, family history, ancestral lineage and claimant’s long unchallenged usage.
Loading…
•Unenforceability of a document or waiver of a right must be pleaded specifically by party relying on same as defence.
•A purchaser of a legal estate, subject of a prior equitable mortgage must specifically plead that he is a purchaser for value without notice or else, notice will be imputed.
•Special damages must be specifically pleaded and particulars of same itemised and proved at the trial for the Claimant to succeed.
•Customary law, foreign law and Islamic law must be specifically pleaded unless already judicially noticed by the court.
•Documents that are material facts to the proof of a fact must be pleaded. Although many decided cases say it is not necessary to plead a document, it is however submitted that the guiding question is whether the document itself is a material fact.
Statement of Claim
•Introductory Averments (Matters of Inducement)
•Body
•Relief or Prayer : “WHEREOF the Claimant claims as follows:” or “AND the Claimant claims as follows:”
1.A declaration that the Claimant is entitled to all that piece and parcel of land, lying and situate at………
2.The sum of ₦25,000,000.00, being general damages for trespass.
3.Perpetual injunction against the Defendants, their agents, privies, etc from entering into and, or dealing with the land howsoever……..etc
•What if a Counsel writes: “WHEREOF the Claimant claims as per the writ of summons” ?
•In Okomu Oil Palm Co. Ltd. v. Iserhienrhien, (2001) 85 LRCN 873 at 895,[2001] 3 SCNJ 79 Uwaifo JSC held:
•I think reference in a statement of claim to the writ for the reliefs claimed makes the statement of claim complete as it incorporates the writ … Once there is such incorporation, the statement of claim is taken to contain the reliefs stated in the writ, which statement of claim would otherwise have been defective and contrary to the requirement of 0.13 r. 7.
•Cf Amusan v. Oluwani, [2002] 12 NWLR (Pt. 780) 30 at 51, Tabai, JCA, (as he then was), described the practice as “lazy and ought to be discouraged.”
Relationship b/w Statement of Claim & Writ of Summons
•The writ of summons (W/S) initiates proceedings and states the nature of the claim (cause of action) and reliefs sought from the court. The statement of claim (S/C) on the other hand, elaborates or amplifies the claims earlier on set out in the writ.
•Once the S/C is filed, it supersedes the writ. Elf (Nig.) Ltd. v. Sillo [1994] 7-8 SCNJ 119; Enigbokan v. AllCO (Nig.) Ltd. [1994] 6 SCNJ 168
How S/Defence responds to S/Claim)
•By admission of allegations of fact in the statement of claim;
•By traverse or denial of allegations of fact in the statement of claim;
•By confession and avoidance;
•By objection in point of law; and
•By set-off or counterclaim
Admission
•The Defendant may choose to admit facts which are true. He admits thus:
1.The defendant admits the facts averred in paragraph……..of the statement of claim; or
2.The defendant admits paragraph……….of the statement of claim.
•Admitted facts are deemed as established and needs no proof at the trial - s. 123 Evid. Act 2011; Egbunike v. ACB [1995] 2 SCNJ 58
Traverse
•An unequivocal denial of an allegation of fact in the statement of claim.
•Whatever is not traversed or denied expressly or by necessary implication is deemed to have been admitted and discharges the Claimant from the burden of proving such fact by evidence at the trial.
•Traverse or denial may be in any of two ways:
1.The Defendant denies the allegations of fact in paragraph…… of the statement of claim; or
2.The Defendant does not admit the allegations of fact in paragraph …… etc
•Negative Pregnant Traverse: This is a denial that is partly a denial, but it is incomplete because it does not make a total denial.
•Example A: Allegation – “The Defendant slapped the Claimant on his right cheek.”
•Example B: Negative Pregnant Traverse – “The Defendant avers that he did not slap the Claimant on his right cheek.”
•The implication of the above is that even if “the Defendant…..did not slap the Claimant on the right cheek” it is still possible that he slapped him on any other part of his body.
•Example C: How to avoid Negative Pregnant Traverse by using the expression “or at all”.
“The Defendant avers that he did not slap the Claimant on his right cheek or at all.”
OR
“The Defendant avers that he did not slap the Claimant on his right cheek or on any other part of the Claimant’s body.”
•The above is a total and unequivocal traverse as opposed to a negative pregnant traverse.
•Traverse of Allegations partly true and partly false, e.g.
The Defendant denies that he owes the Claimant the sum of ₦40, 000,000.00 as alleged by the Claimant, rather, the Defendant avers that he owes the Claimant the sum of ₦14, 000,000.00 being an outstanding balance of the original debt of ₦40, 000,000.00 .
•Sometimes we read in the pleadings that “the Defendant is not in a position to admit or deny…” This was clearly allowed under the old Rules in Or. 23 r. 13 , (Abuja Rules 2004). See Lewis & Peat (NRI) Ltd. v. Akhimien [1976] 7 SC 157 at 163; Aja v. Okoro [1991] 9-10 SCNJ I, [1991] 7 NWLR (Pt. 203) 260
•But this is omitted in new Rules (Abuja 2018; Lagos 2019). However, it is submitted that such averment can still be made if truly “the Defendant is not in a position to admit or deny…”
The General Traverse
•The General Traverse is used to avoid making inadvertent admissions, which should have been denied. It should not however, be used to traverse a material allegation of fact - Or. 15 r. 5(2) (Abuja 2018) and Or. 17 r. 5(2) (Lagos 2019). It is usually stated at the beginning of the Statement of Defence as follows: “SAVE AND EXCEPT as hereinafter expressly admitted, the Defendant denies each and every allegation of fact contained in the statement of claim as if same were herein set out and traversed seriatim.”
Confession and Avoidance
•Defendant admits an allegation in the Statement of Claim but alleges new facts which give entirely different consequences to such admission, probably a defence.
•E.g. A: “The Defendant admits that he evicted the Claimant without a lawful court order but the Defendant avers that Claimant was a trespasser”.
•E.g. B: “The Defendant admits that he owed Claimant the sum of ₦22,000,000.00 since 1st March 2013 but the Defendant avers that the debt is now statute barred.”
Set-Off
This is a monetary claim by the Defendant against the Claimant, which Defendant pleads in his defence against an equally monetary claim by the Claimant.
•The effect of a set-off is that if it succeeds, it mitigates the Defendant’s liability to the amount of the set-off; i.e. it reduces the Claimant’s claim by the amount of the set-off.
•Or. 17 rr. 6 & 12 (Abuja 2018) and Or. 19 rr. 6 & 12 (Lagos 2019).
Counterclaim
•A counterclaim is by nature, a cross-action raised in the Defendant’s Statement of Defence against the Claimant - O. 15 r. 1(2) (Abuja) and O. 17 r. 1(3) (Lagos)
•Unlike a set-off, a counterclaim needs not be a monetary claim. The Rules of court make it available for any claim either in law or equity, that the Defendant has against the Claimant; whether arising out of the same or series of transactions or not - O. 17 r. 6 (Abuja) and O. 19 r. 6 (Lagos)
•Important points on Counterclaim:
•Counterclaim can only be maintained in an action in which the Defendant can sue as Claimant.
•The Claimant in the substantive action must be a Defendant to the counterclaim.
•But it is possible to include some other persons who are not parties in the substantive action, in the counterclaim - O. 17 rr. 7 & 8 (Abuja) and O. 19 rr. 7 & 8 (Lagos).
•Since a counterclaim is a cross-action raised in the statement of defence in the substantive action, it must be one capable of being tried in the same action and by the same court.
•It must be pleaded separately, in paragraphs in the statement of defence.
•It must contain a relief or prayer; otherwise it would be deemed to have been abandoned - Isichei v. Allagoa [1998] 12 NWLR (Pt. 577) 196 at 207; Regd Trustees of Anglican Diocese of Ibadan v. Managing Proprietor, Liberty Secondary Commercial Academy (1971) I UILR 46.
•The fate of a counterclaim does not depend on the substantive claim. A counterclaim may still proceed and, or succeed even if the substantive action has been withdrawn or dismissed – R. Benkay (Nig) Ltd. v. Cadbury (Nig) Ltd. [2006] 6 NWLR (Pt. 976) 338 at 360-362
•A counterclaim must be in respect of a cause of action accruing to the Defendant at the time of issue of the writ. If it accrues subsequent to the issue of the writ, it will not be allowed - Gowon v. Ike-Okongwu, (2003) 104 LRCN 10 at 17
REPLY
•A reply is a second pleading that may be filed by the Claimant in answer to new issues raised in the Defendant’s Statement of Defence which were not originally contained in the Statement of Claim e.g. counterclaim.
•Traversed thus, “The Claimant joins issue with the Defendant upon his defence” or “upon paragraphs 5, 6 & 8 of his statement of defence and counterclaim”.
•If there is a defence to a counterclaim, it must be so stated and headed in a separate paragraph
Time for Filing Pleadings
•Statement of Claim shall be filed with writ of summons – Or. 3 r. 2(1) (Lagos 2019); Or. 2 r. 2(2) (Abuja 2018)
•Statement of Defence shall be filed within 42 days of the service of the writ and statement of claim on the Defendant - Or. 17 r. 1(2) (Lagos); or within 21 days of service of writ and S/C on Defendant - Or. 15 r. 1(2) (Abuja)
Time for Filing Pleadings
•Reply shall be filed within 14 days of service of defence – Or. 17 r. 1(4); Or. 20 r. 1 (Lagos); Or. 15 r. 1 (3) (Abuja).
•Within 7 days in Abuja where there is no counterclaim – Or. 18 r. 1 (Abuja)
•Defence to counterclaim filed within 14 days of service of defence – Or. 17 r. 1(4); Or. 20 r. 1 (Lagos)
Close of Pleadings
•Pleadings are deemed closed (in Lagos) upon the expiration of 42 days if no defence is filed – Or. 17 r. 18(1) (Lagos 2019)
•Pleadings are also deemed closed upon the expiration of 7 days after service of defence or reply where a pleading subsequent to reply is not ordered– Or. 17 r. 18(2) (Lagos); Or. 15 r. 19(1) (Abuja 2018)
•If there is a counterclaim, and the Claimant fails to file a defence to the counterclaim, upon the expiration of 14 days after service of counterclaim, facts therein shall be deemed admitted – proviso to Or. 17 r. 18(4) (Lagos); proviso to O. 15 r. 19 (2) (Abuja)
Default of Pleadings
•Judgment may be entered in favour of Claimant if Defendant defaults in filing a defence – See Or. 22 generally in Lagos and Or. 21 generally in Abuja
•Such judgments are final and valid and may only be set aside on grounds of fraud, non-service or lack of jurisdiction upon terms – Or. 22 r. 12 (Lagos); Or. 21 r. 12 (Abuja)
Amendment of Pleadings
Amendment of pleadings may be allowed in circumstances
- where its purpose is to determine the real question or issue between the parties.
- where it would ensure substantial justice;
- where it will settle the controversy between the parties and related issues;
- where it will bring pleadings in line with evidence already adduced on record.
- Where it would present a completely different case from the case before the court;
- Where it would cause injustice to the other party;
- Where application for amendment is brought mala fide;
- Where it would necessitate the hearing of further evidence especially on appeal;
- If it would not cure the defects in the procedure sought to be cured;
- If it is inconsistent and useless;
•If it would amount to over-reaching the other party;
•If it is an abuse of court process.
Amendment of Pleadings
Factors to consider in granting Amendment
•Attitude of the party making the application
•Reason for amendment
•Nature of amendment
•Stage and time of amendment
•All surrounding circumstances
•When any endorsement or pleading is amended, it shall be marked in the following manner:
“Amended………day of…….pursuant to Order of Hon. Justice Abojabo dated the ………day of ……..2021.”
See O26 R6 Lagos & O25 R6 Abuja.
•Thus the amended pleadings defines issues between parties.
Professional Responsibility on Pleading
•Read and analyse the following Rules:
●Rule 15(3)( e) RPC
● Rule 15 (3) (f) and (h)
● Rule 14 RPC.
● O2 r8
●Rule 15(3)(c ) RPC
● Rule 25(1) RPC
●Rule 24(2) RPC
●Rule 30 RPC
Post a Comment