Civil Litigation: Pleadings

Flashcards about civil litigation pleadings based on lecture notes.

What are Pleadings?

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.

What are the general types of Pleadings?

Statement of Claim, Statement of Defence, Reply, Counter-claim, Set off, Further and better particulars of pleadings.

What are the special types of Pleadings?

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.

What are the functions of Pleadings?

Define issues in dispute, Serve as notice to opponent, Help determine jurisdiction of court, Constitute permanent record, Determine burden of proof.

What happens if evidence is on facts not pleaded?

No party is allowed to adduce evidence on an issue not raised in the pleadings. Such evidence “goes to no issue.”

What happens if the Evidence at variance with pleading?

Evidence that is adduced which is contrary to or at variance with pleadings goes to no issue and must be expunged from the court’s record if already admitted

What happens when a Pleading is not supported by Evidence?

A fact pleaded, on which no evidence is adduced, goes to no issue

Describe how a Pleading shall be appropriately headed

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.

Describe how a Pleading must state its 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.

Explain how a Pleading shall be divided into paragraphs

Every pleading shall be divided into paragraphs and numbered successively or consecutively with each paragraph containing as much as may be a separate allegation of facts. Facts must be stated in chronological order.

Explain how a Pleading shall contain a relief or prayer

Every pleading must contain the prayer that is sought by the party (claimant or defendant) in the event that the court agrees with their case as pleaded

Explain how a pleading must be dated, signed and contain address for service

Every pleading must be dated and signed by the legal practitioner settling same or by the party if he acts in person. Every pleading must contain the addresses for service on the parties.

Explain what Statement of facts must be positive, distinct, and precise

Allegations of fact made in pleading shall be positive, precise, distinct and brief. Allegation of facts shall not be stated in an evasive manner.

Explain how Pronouns should be sparingly used

Pronouns should be sparingly used as such use may lead to ambiguity.

Explain how There should be consistency in use of terms

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.

Explain how Dates, sums and numbers shall be expressed in figures

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

What are the requirements on how the Pleading shall be printed

Every pleading like all other court processes must be printed, written clearly and legibly or typewritten, type- set by computer.

What does it mean to ‘specifically plead’ a matter

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.

Explain what matters that constitutes a Surprise

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

Explain when Counterclaim or Set off should be pleaded

Counterclaim or set-off must be specifically pleaded and relevant particulars furnished.

Explain the process when pleading Insanity

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

Explain how adultery should be handled in matrimonial cases

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.

Explain how Defamatory words should be mentioned in defamation cases

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.

Explain the rule of Equitable maxims and special pleas

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

Explain the rule on Evidence of traditional or family history

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.

Explain the rule on Unenforceability of document

Unenforceability of a document or waiver of a right must be pleaded specifically by party relying on same as defence.

Explain the rule on pleading for a Purchaser for value

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.

Explain the rule on pleading for Special damages

Special damages must be specifically pleaded and particulars of same itemised and proved at the trial for the Claimant to succeed.

Explain the rule on Customary, Foreign and Islamic law

Customary law, foreign law and Islamic law must be specifically pleaded unless already judicially noticed by the court.

Explain how Documents that are material facts should be handled

Documents that are material facts to the proof of a fact must be pleaded.

What is the Statement of Claim?

This is the first in the series of pleadings which contains facts relied upon by the claimant for his case. It is filed by the claimant. It has to accompany the writ under the rules

What's the Relationship between SC and Writ?

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.

What are the Parts of a Statement of Claim?

Introductory Averments (Matters of Inducement)
Body
Relief or Prayer

What is the Meaning of Statement of Defence

This is filed by the defendant in answer or defence to the claimant’s statement of claim.

What are the different Ways of Responding to SC in the SD

By admission, By traverse, By confession and avoidance, By objection on point of law, By set-off, By counterclaim

Explain Admission in statement of defense

The Defendant may choose to admit facts which are true.

What is the meaning of traverse?

Traverse is an unequivocal denial of an allegation of fact in the statement of claim.

What is the Effect of traverse

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.

Explain How to traverse

The Defendant denies the allegations of fact in paragraph…… of the statement of claim; or The Defendant does not admit the allegations of fact in paragraph …… etc

What is a Negative Pregnant Traverse

This is a denial that is partly a denial, but it is incomplete because it does not make a total denial.

What does Confession and Avoidance mean?

This is where the defendant admits an allegation in the Statement of Claim but alleges new facts which give entirely different consequences to such admission, probably a defence.

Explain Objection on point of law

The rules require that all points of law may be raised in pleadings which point may be disposed of before or at the trial.

What does Set-off mean?

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.

What does Counterclaim mean?

A counterclaim is by nature, a cross-action raised in the Defendant’s Statement of Defence against the Claimant

What is the Meaning of 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.

How facts are traversed in Reply

Facts are 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”.

When should a Statement of Claim be filed?

Shall be filed with writ of summons

When should a Statement of Defence be filed?

In Lagos, shall be filed within 42 days of the service of the writ and statement of claim on the Defendant. In Abuja, shall be filed within 21 days after service of writ and S/C on Defendant

When should a Reply be filed

Shall be filed within:14 days of service of defence in Lagos and Abuja

What's the Meaning of close of pleading

This is the formal end of pleadings

What happens in Default of Pleadings

Judgment may be entered in favour of Claimant if Defendant defaults in filing a defence

What is the Purpose of Amendment

The purpose of amendment is to enable the court determine the real issues or questions in controversy between the parties.

What are PROFESSIONAL/ETHICAL RESPONSIBILITIES IN PLEADINGS?

Duty to disclose all necessary facts to enable the court reach just decision. Not to plead false facts or rely on false evidence in his pleading. To avoid preparing and filing frivolous pleading.