Pleadings Principles And Techniques By Mela Nunghe, SAN

•Pleadings are written statements of facts filed by parties in an action and served between the opposing parties stating concisely or succinctly the facts upon which the parties base their case. The parties are not able to know or defend assertions or allegations without pleadings.

•Pleadings are set out in summary form which is filed and exchanged by the parties in a civil action commenced by writ of summons. Pleadings usually contain the material facts which the party serving it intends to use in proof of his case. They are used only in actions commenced by writ of summons. However, it must be noted that the court may order pleadings to be filed and exchanged in an action wrongly commenced by originating summons where there are disputes of facts.

•The various rules of court make provisions for pleadings.
1.In Abuja, the provisions are in Order15- 18 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018,.
2.In Lagos, the provisions are in Order 17 – 22 of the High Court of Lagos State (Civil Procedure) Rules 2019.
3.In the Federal High Court of Nigeria, pleadings are provided for under Order 13 & 14 of the Federal High Court (Civil Procedure)Rules 2019,
4.In the National Industrial Court, pleadings are covered under Rules 30-35 of the National Industrial Court (Civil Procedure) Rules 2017.

•Statement of Claim
•Statement of Defence
•Reply
•Counterclaim
•Defence to Counterclaim
•Further and better particulars

•It is pertinent to note that, while Petitions in Electoral Matters and Matrimonial Causes don’t come with separate pleadings per se, they do contain within them “Facts in support of the grounds for petition”, which for all intents and purposes, function as and are subject to the same principles as pleadings.

•The statement of claim is an elucidation and amplification of the claim of the plaintiff/claimant as summarily endorsed on the writ. It is an elaboration of what you have on the writ.
•The statement of Claim is the first pleading and it is usually contained in a separate document from the writ and filed simultaneously with the writ. The writ merely states the nature of the claim and the relief claimed while the statement of claim gives details of the claim and alleges facts on which it is based.
•When the statement of claim is filed, it supersedes the writ (See Elf (Nig.) Ltd. V. Sillo [1994] 7 – 8 SCNJ 119). This means that any matter which is stated in the writ but omitted in the statement of claim is deemed to have been abandoned. However, it must be noted that although the statement of claim supersedes the writ, it must confine itself to the cause of action endorsed upon the writ of summons.

•A statement of claim has 3 important parts viz. 

1.Introductory Averments
2.Body
3.Prayers/Relief

•This is the pleading filed by the Defendant in response to the allegations of fact in the Claimant’s statement of claim. It may, therefore, respond to allegations in the statement of claim in the following ways:
1.Admission
2.Traverse
3.Confession and Avoidance
4.Objections on Points of Law
5.Set-off or Counterclaim
•Admission: The Defendant may wish to admit in his pleadings allegations of fact which are true or which are intended to be taken as admitted during trial. In doing so, he may admit whole or part of such facts. Such admitted facts need not be proved at trial, as provided in section 123 of the Evidence Act 2011
•Traverse: In simple terms, to traverse means to deny the allegations in the statement of claim. Any allegation not traversed is deemed to be admitted. By common practice a general traverse in the following form is accepted and when it is employed; it puts the opponent to the proof of the facts stated or alleged in the statement of claim. It is employed where a legal practitioner has no instructions on particular allegation and it is usually put at the beginning of the pleading.
•Confessions and Avoidance: This is a type of pleading in which the defendant admits an allegation in the statement of claim but proceeds to allege new facts which give entirely different consequences to such admission. The new facts may constitute defence to a particular allegation or to the entire action.
•Objection on Points of Law: This is an objection raised on the statement of defence by the defendant on a point of law and if sustained, could terminate the proceedings. This is normally raised by way of preliminary objection in proceedings in lieu of demurrer, jurisdiction, etc.
•Set-off and Counterclaim: A set –off is a monetary claim set up as defence, to a claim contained in the statement of claim whilst a counterclaim is in fact a claim by defendant against the plaintiff or claimant in the same proceedings. The life of a set-off revolves around the claimant’s claim. If the claimant’s claim is terminated, the set-off abates. Therefore, while the claimant need not make a reply to a set-off he must set out in his reply a defence to a counter-claim. A counter-claim from the point of view of pleading is like statement of claim and is governed by the same rules of pleading.
•A counter-claim should for all practical purposes be regarded and treated as an independent action. Therefore, whether the original action is stayed, discontinued or dismissed the counter-claim may proceed to trial.  The usual practice is to separate the facts relied upon to sustain a counter-claim from the remaining part of the statement of defence and to arrange them in numbered paragraphs under the heading “Counter-claim”.

•This is used by the plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is not necessary to file a reply if its only purpose is to deny the allegations made in the statement of defence because of the principle of implied joinder of issues.

•Every pleading must contain only material facts but not law or legal arguments.
•It must contain only material fact, but must not state evidence by which the facts are to be proved.
•It must contain reliefs to sought by the parties. •The nature of pleadings served on the parties will determine the proper approach to be adopted in meeting the opponent’s case.
•Any judgment that does not answer or determine the issues raised as being in controversy between the parties is in error and bound to be set aside on appeal.

•Pleadings constitute permanent records of issues raised and determined by the court in each case, and forms the basis on which plea of estoppel per rem judicatam can be raised to bar subsequent relitigation of the case.
•Pleadings serve as notice to the adverse party of the case a party intends to put up in court.
•Pleadings determine the parties on whom the onus of proof lies (S.B. Bakare v. ACB Ltd. (1986) 5 SC 48)
•Pleadings determine the steps to be taken by parties.
•Pleadings serve as guide to the court as to the precise matters it is called upon to decide between the parties.
•Pleadings help to ascertain the various matters actually in dispute among the parties and those in which there is agreement between them (See Morinatu and Oduka v. Kasumu and Another (1966) N.M.L.R. 28 at 31)
•Parties are bound by their pleadings. A party will only be permitted to call evidence to support his pleadings. Evidence adduced contrary to his pleadings must be expunged. (See G.U.O.Okeke & Sons Ltd v. Usifor (2008) 1 All FWLR p. 280 )•Pleadings help to avoid springing off surprises.

•Before the actual hearing of the case, a party knows the case of his opponent and can thus prepare his own to meet it. This prevents unnecessary waste of time and costs. It may be that in some cases there is no dispute as to any facts of the case whatsoever, in which case only legal points will be argued thus reducing the time spent in hearing the case and therefore costs. (See Akintola v. Solano (1986) 2 N. W. L. R. 598.).
•It may also happen that through the pleadings the parties get to know that there is really nothing to fight about in which case the plaintiff or claimant may withdraw part of or all his claims or the defendant may submit to judgment in respect of some or all of the claims against him.

•Determination of issues of fact or points of law in the case based on the pleadings will form the basis of the plea of res judicata in any subsequent proceedings.
•A plaintiff must call evidence in support of his pleadings and evidence which is adduced which is contrary to his pleadings should never be admitted.
•If there is no issue between the parties in respect of matters expressly admitted on the pleadings, no evidence I required in reference to those matter as facts admitted need no further proof. (See The British India Insurance Company (Nig) Ltd v. Thawroles (1978) 35. SC.)

•Statement of claim is filed by the claimant along with the writ of summons and documents to be frontloaded.
•Defence: A defendant shall file his statement of defence, set-off or counterclaim (if any) not later than 21 days (Abuja) after service on him of the Originating Processes and Frontloaded Documents (within 42 days in Lagos)
•Reply: A claimant shall within 14 days (Lagos and Abuja) of service of the statement of defence and counterclaim, if any, file his reply and defence if any to such defence or counterclaim.
•Statement of defence and counterclaim are to be in one document and numbered consecutively. Reply and defence to counterclaim must be in the same document and also number consecutively.

•In the case of a counter claim, unless the claimant files a defence to the Counter Claim, on the expiration of 14 days after the service of the counter claim or such other time as the court may allow for filing Reply thereto, the facts contained in the counter claim shall be deemed to have been admitted but the court may, at any subsequent time, give leave to the claimant to file a Reply .
•If a pleading subsequent to a Reply is ordered, then pleadings shall be deemed closed on the expiration of the time limited by the court for doing so.

•Where a party is out of time to file pleadings, he may apply for extension of time to do so. The application is by motion on notice supported by affidavit which must disclose reasons for failing to file pleadings within time. The application must also be supported by a written address.

•In Lagos, where the defendant fails to file a statement of defence within the forty-two (42) days prescribed by the Rules, pleadings shall be deemed closed.
•This is the stage at which pleadings are no longer allowed except with the leave of court. The close of pleadings is very important because it is at that stage that the issues would be deemed to have been joined between the parties. That is, at the close of pleadings, the parties would be said to have joined issues.

•Where the claimant fails to file Statement of Claim and other accompanying document with the originating process, the writ of summons will not be accepted for filing at the Registry. Even if erroneously accepted, court may strike it out.
•The failure to file the Statement of Claim along with the writ may nullify the action.
•Where the claim is for the recovery of debt or a liquidated money demand and the defendant fails or defaults to file his statement of defence, then the claimant can apply for default judgment.
•The party in default can always bring an application for extension of time within which to file his pleadings.
•Pleadings filed out of time and without the leave of court are only voidable and not void thus can only be set aside by way of timeous objection by the other party.

•Allegation of fraud or the commission of crime or any fact showing illegality (Fabunmi v. Agbe (1985) 5 SC).
•In matrimonial cause or other cause based on adultery, the particulars of the alleged adultery. (Ikoku v. Oli (1962) 1 All N. L. R 194 at 199-200.)
•In libel case, the particulars of the alleged libel. The precise words used must be set out. (Okafor v. Ikeayi(1979) 3 and 4 S.C 99.)
•In slander cases, the precise words used and the names of the persons to whom they were uttered must be pleaded. (Bradbury v. Cooper (1884) 12 Q. B. D. 94).
•If special damages are claimed, the details of those must be specially pleaded. (Otaru & Sons v. Idris (1999) 68 LRCN 823.).
•Estoppel must be specially pleaded.
•A purchaser of legal estate, subject to a prior equitable mortgage must specially plead that he is a purchaser for value without notice.

•Unenforceability of a document must always be pleaded (N M Jebara v. Mercury Assurance Co. Ltd (1972) 2 U.L.L.R. 498)
•Where a contract is not ex facie illegal and the question of illegality depends on the circumstances, as a general rule, the Court will not entertain arguments on the question of illegality unless it was raised   by   the   pleading. (George & Ors.  v. Dominion Flour Mills Limited (1963)1 All N. L. R. at 72).
•A statutory exception to a general statutory immunity from liability must be specially pleaded by the party. (Moore v. News of the World Ltd and Another (1972) I. Q. B. 441 at 448.)
•Facts relied upon for bringing a particular transaction within the ambit of particular Act, e.g. Money Lenders Act (Cap) 124 should be specially pleaded.
•A written agreement must be pleaded.
•The defence of laches, acquiescence and undue influence    must    be    specially    pleaded.
•Items of loss alleged to constitute special damages have to be particularized in the plaintiffs pleading. (Odumosu v. A. C. B. Ltd (1976) 1. S.C. 55, 69)

•The very essence of pleadings, whether in civil or criminal proceedings, is audi alteram partem (to give notice to the other party of the matter one seeks determination of his civil rights or obligations against his adversary – Section 36(1) of the Constitution).
•The purpose of pleadings is to enable parties put forward their cases as formulated by them. The facts forming the cases of parties are put forward through their various pleadings and as such the constituents of the cases of parties are gleaned from their pleadings.
•Pleadings ought to be diligently and professionally drafted in order to clearly assist the court in doing justice. The forms, procedures and principles of Pleadings must be complied for a suit to be competent and to avoid abuse of court process.
•It is also trite that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Case succeeds or fails on the basis of pleadings and evidence led.