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22 Jan

CIVIL WEEK 9 PLEADINGS

WEEK 9

PLEADINGS.

Written allegations of parties which Comprehensively presents the material facts and highlight the issues between parties to an action.

Strict sensu, pleadings are the statement of claim, statement of defence, counter-claim, set-off, reply, and further and better particulars in an action started by writ of summons.

Pleadings are not used in actions commenced by Originating Summons, Originating Motions and petitions as the Affidavit/petition serves the purpose of pleadings.

A writ of summons is not a pleading until specially endorsed with a statement of claim.

:: FUNCTIONS OF PLEADINGS.

– Pleadings define the matters in dispute: to which parties must confine their arguments and evidence to (in the proceedings) and are bound by-Minister of Lands v Azikiwe ((1969) 1 All NLR 490.

– Helps prevent springing of surprises and avoids unnecessary waste of time and consequent costs as both parties are prepared. Akintola v Solano (1986) 2 NWLR 598. George v Dominion Flour Mills Ltd.

– show jurisdiction, substantiality of issues to be tried, who bears the burden of proof in a case.

– Show matters admitted, records which can form basis of estoppel and where there is no issue between the parties.

– Are permanent public records of the court’s decision on questions raised between parties (and can form the basis of res judicata in subsequent proceedings).

:: CONTENT AND FORMAL REQUIREMENT OF PLEADINGS:

– Headed in the title of the court in which the action is brought with its judicial division/magistrate district.

– Suit/plaint Number.

– Names of parties and designation.

– heading (statement of claim/defence, etc)

– It should be arranged in paragraphs and numbered consecutively.

– Very Important: Pleadings should concisely contain material facts (positively alleged) and should not contain law, legal arguments, evidence or conclusion[1].

Although foreign, Islamic and customary law may be pardoned. Else action may be discarded- Or 15 Lagos, 43 Abuja.

– Reliefs sought (prayers).

– Dates and Numbers are to be written in both words and figures.

– Pleading should be dated.

– Contain address of Counsel that settles it.

– Address for service on the other party.

– the paper used should be of good and durable quality.

:: FACTS THAT MUST BE SPECIFICALLY PLEADED

Are inexhaustible. As a rule any matter that could surprise the other party must be pleaded specially. Common examples are:

– Allegation of Fraud, Crime or illegality-George v Dominion Flour Mills.

– Where Adultery is alleged, particulars of adultery should be pleaded.

– Where libel alleged, particulars (time, place, words etc)  of alleged libel-Bruce v Oldham Press Ltd (1939) 1 KB (697). Defences thereof too.

– Claim for special damages should detail the damages.

– Equitable maxims like Estoppel must be specially pleade.

– Defence that purchaser for value without notice.

– That document is unenforceable

– Written agreement/documents must be pleaded. MAndila and Karaberis Ltd v Yesufu Otoikiti 1963 All NNLR 84.

– Defences of time bar, waiver, Laches, Acquiesance, Undue Influence, res ipsa loquitur, etc Adebisi v Oke (1967) NMLR 64.

– Foreign, Islamic and Customary law if no judicial notice has been taken of the custom. ANPP v Usman

– Special and exemplary damages: Set off: Forfeiture: Bona fide purchaser without notice, Mortgages. Etc.

– Statutory immunity and exception.

– Facts seeking to bring a transaction within the ambit of a particular Act-Yassin v Barclays Bank

– Claim for declaration of title to land based on inheritance from several ancestors.

– Claim for set off, forfeiture,

:: RAISING POINTS OF LAW IN PLEADINGS OR 22 LAGOS, 22 ABUJA.

:: WAYS OF RESPONDING TO A STATEMENT OF CLAIM (IN STATEMENT OF DEFENCE): I.E. TRAVERSE, DENIAL, ADMISSION, NEGATIVE PREGNANT TRAVERSE, CONFESSION AND AVOIDANCE, SET-OFF AND COUNTERCLAIM.

-TO TRAVERSE means to deny the allegation in the statement of claim in the absence of same, allegations may be deemed admitted. Traverse should not be evasive Traverse could be:

– General: denial in general terms. “SAVE OR EXCEPT as herein expressly admitted, the defendant denies each and every allegation of fact contained in the statement of claim as if same were set out and traversed seriatim”. Mandilas and Karaberis Ltd v Lamidi Apena (1969) NMLR 199.

Material facts must still be specifically denied (and not in an evasive manner but in its entirety) as general traverse may not suffice-Akintola v Solano (1986) 2 NWLR 598. Chief Ugochukwu v CCB (1996) 7 SCNJ 22.

– Special Travers: is an affirmative denial;

– Common traverse denies material allegations directly;

-Negative Pregnant Traverse.

– ADMISSION: defendant’s acceptance of a fact previously disputed either expressly or impliedly by not denying. Such fact needs no further proof-sc 121 and 123 EA.

– CONFESSION AND AVOIDANCE: The defendant confesses, but raises a new fact/defence to negate his confession.

– COUNTER CLAIM: the defendant’s claim against the plaintiff (independent of the plaintiff’s claim but) in the same proceeding to which plaintiff should file defence to counter claim within 14 days. Counter-claim can still stand notwithstanding stay or dismissal of action.

– SET OFF: is the defendant’s monetary cross-claim to reduce the plaintiff’s claim for money. Set–off revolves around plaintiff’s claim and ends with the action.

:: FILING AND SERVICE OF PLEADINGS.

In Lagos and Abuja statement of claim should be filed with writ of summons  and other frontloaded documents (i.e. list of witnesses[2], their statements on oath, copies of documents to be relied on and pre-action protocol form 01/ Pre-action counselling certificate) within a time determined by when the cause of action arose and any statute bar.

The Lagos defendant files his SOD and frontloaded document (with any set off or counter-claim) WITHIN 42 days-Or 15 Lagos of receiving the claimant’s writ of summons and statement of claim. Then claimant can file his reply within 14 days of service of defendant’s processes.

In Abuja, the defendant files SOD (and accompanying frontloading documents (list of witness is not included) WITHIN 14 days after service of SOC, but may enter appearance within 8 days.

The court usually extend time for filing pleadings after an application by motion on notice and written address. Pleadings filed outside time without leave of court are merely voidable.

In Lagos, claimant shall within 14 days of service of the defendant’s statement of defence and counter claim if any file his reply-Or 15 Lagos.

In Abuja, Claimant has 7 days to reply.

A party may by motion on notice supported by affidavit (and written address) disclosing reasons apply for extension of time to file pleadings. Or 44 Lagos. 20 Abuja.

:: AMENDMENT OF PLEADINGS: Or 24 Lagos Suo Moto or by a party motion on notice application for leave to amend (supported by affidavit disclosing cogent reasons and written addresses) is granted where necessary/material and bonafide to correct, edit, etc. Not more than twice for Lagos. Nalsa and Team Associates v NNPC. Post-judgment amendment is allowed for Misdescriptions and typographic errors

:: ETHICAL RESPONSIBILITY (HONEST REPRESENTATION, MISLEAD COURT, NOT FRIVOLOUS-OR 15-24 LAGOS, 23-25 ABUJA.

[1] These would be contained in the parties’ written addresses.

[2] List of Witnesses not needed in Abuja.

Isochukwu

Quite eccentric really

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