When you use a writ of summons as originating process, a vital document is your statement of claim. Statement of claim is a pleading.Averments are used in pleadings, depositions are used in affidavits.

A writ of summons contain a summary of your reliefs. It’s a brief summary of their claim alone, it does not tell a story. It only indorses their claim. When it comes to telling a story about how they came about that claim its pleadings – statement of claim – the story is told in the chronological order. Story can only be told in the pleadings. If the other party does not agree with the statement of claim, the defendant files a statement of defence and if new issues come up in the statement of defence then the claimant files a reply. A statement of claim must be drafted in the right sequence.

Statement of claim is in 3 parts:

• Introduction - this says their own status, where he resides, the work he does if it affects his claim. He will also introduce the defendant(s). It is also known as matters of inducement
• Body of the statement of claim – this tells the story, but the story must be in chronological order, in a sequence.
• Reliefs sought from court

 

Every statement of claim must contain these 3 parts.

BODY

The body must contain the material facts. Not all facts are material to the cause of action, so it must relate to the cause of action. These material facts must be arranged in sequence and must be numbered. Before pleadings/statement of claim can be drafted well, the substantive law of the cause of action of must be known. E.g. in trespass the material facts must show that the claimant was in possession of the property, and the defendant went into the property without consent; in a negligence claim, the pleadings must disclose that there was a duty of care, breach of that duty and that the breach resulted in injury or damage.

You don’t have to state evidence in your pleadings, just state the facts, evidence is for trial. You don’t state the evidence by which such material facts would be proved.

 You put numbers in figures.

Its also not advised to use pronouns, use defendant or claimant. Stick with the terms used at first, be consistent with the nomenclatures.

There are parts of a claim that must be specifically pleaded so the attention of the defendant can be drawn e.g. any ground that makes the transaction void or voidable, performance, release, any relevant statute or limitation, fraud or any fact showing illegality, payment, facts showing insufficiency in contract Or 23 R6 Abuja, Or 15 R 7 Lagos

Order 23 rule 5 Abuja and order 15 Lagos states that when it comes to libel, slander, fraud, misrepresentation, breach of trust, wilful default or undue influence particulars (with dates and items if necessary) in the body of the pleadings must be stated. When it comes to libel or slander and the plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies, in support of his allegation. So after giving the averment of facts in the pleadings, you will now state the particulars.  In particulars, you now make an indent of (a),(b),(c) under the numbered paragraph. The particulars must disclose that the claim e.g. negligence has happened: Res ipsaloquiteur- the thing speaks for itself is a particular of negligence; medical negligence.

You averments must introduce the subject. A cause of action must have been disclosed in your body.

When you want to plead a document, you don’t have to set out the contents of the document in your pleadings, you just state the documents and say that you’re relying on it. You don’t refer to documents pleaded as exhibits, you only exhibit documents in  affidavits. Simply just refer to the document.

In your statement of claim never anticipate your defendants defence – that’s bad drafting.

You don’t plead law but you can plead facts from which laws can be inferred.Good pleadings must not be unyielding, it should be concise.

 

RELIEF

Every pleading must have a prayer or a relief. This is the last part of the pleading. The relief in a statement of claim is actually a repetition of the short relief contained in the writ of summons but it can be expanded and built on. The law says that even if what is contained in your statement of claim is more than what was in your writ of summons, you relief in the statement of claim supersedes that of the writ of summons.

Note: In breach of contract damages cannot be general because the idea behind awarding damages is to position the wronged party in the place he would have been had the breach not occurred.

 

“WHEREOF the claimant claims as follows:”

 

All pleadings must be dated and signed. An unsigned pleading is worthless. Your signature must be to the right, and address FOR SERVICE must be to the left. Note: remember to put the name of the person before the name of the firm. For your address to be complete you have to include the email address and telephone number.

 

 

Damages 

Your pleadings must show the dichotomy between what constitutes the general damage and what constitutes special damages.

Special damages – cost of repair of the vehicle, cost of hiring taxi for the days it will take to repair, general damages for the distress and inconvenience of being without the car – 500,000. Total sum of ……

The dichotomy is relevant because special damages must be strictly proved on the balance of the probabilities. E.g. the receipt of repair of vehicle must be brought to court and frontloaded. It is special because it is capable of being calculated, it’s a liquidated sum.  While general damages are at the discretion of the court, special damages if sufficiently proven must be paid because it is money that has been expended.

So the special and general damages must be itemised and broken down.

 

A statement of claim is different from witness statement of oath.

 

STATEMENT OF DEFENCE

This is an answer to the statement of claim. It also has three parts – so it also has relief. This is the defendants story. The story must answer the claim else it is no defence. When a defendant wants to file a defence, it means he wants to traverse. There are two main ways of a traverse: General traverse or specific traverse.

General traverse – “Save as in hereafter expressly admitted the defendant denies each and every material allegation of fact contained in the statement of claim as if the same was set out herein and traversed seriatim”

So they’re putting in issue all that has been said by the claimant/plaintiff. It’s a general denial without touching the specifics. In proper drafting its usually at the opening of a statement of defence.

Specific traverse means Specific denial of what has been stated. The heading must be statement of defence.

The specific denial would now address the statement of claim point by point according to the paragraphs contained in the statement of claim.

Statement of defence is to be served on the claimants counsel.

There are six ways for specific traverse

• By admission – e.g. the defendant admits that between the parties there was actually a contract …..; the defendant admits para 1,2,4 and 5 of the statement of claim
• Denial e.g. the defendant denies para 1,3,5 of the statement of claim. But the denial must not be evasive. It should be a full denial. A denial is evasive when .A negative pregnant traverse is when you deny something but is not a full denial so its possible that it occurred but with different variable. So its not a full denial but capable of raising further inferences e.g. I never slapped supreme on the left cheek. A full denial is I never slapped supreme on his left cheek or on any other part of his body.

Louis v Pitts – states that a party cannot say that he’s not in the position to admit or deny, this would be taken as an admission. Subsequent authorities have said that you cannot conclude that that’s an admission unless you look at the entire pleadings Ugochukwu v CCB** .except there are other averments in the pleading that show a denial.

“The defendant denies para 8 and further states that….”

• Confession and avoidance – this is agreeing to what the claimant/plaintiff states but goes further to state the circumstance under which it happened e.g. in defamation the defendant can say yes it is true he published the material but it was under qualified privilege; in trespass the person can admit that yes he came unto the land but he had a licence. This must be pleaded specifically. So its avoiding the effect of the claim. It’s a shield and not a sword
• Set off – this is limited to a liquidated money demand and it must be between the same parties. These two conditions must be present for there to a set off. A defendant must be able to show the circumstances under which it arose. What happens if the set off is more than the initial claim? No you cant get the amount from the mere set off, it just becomes an answer to the claim. If they want to get the balance they must include in their defence a counterclaim in addition to the statement of defence. Its not a sword it’s a shield.

You can state a point of law in the statement of defence under order 22 Lagos and the court will dispose of it. The effect of order 22 is 

A demurrer – it admits everything said but he has a single point that will dispose if it

• Preliminary points – When it is matter of law that does not require facts you use a preliminary objection. Preliminary objections are on points of law and its by motion on notice supported by written address.
• Counter claim – this simply means that defendant also has a claim against the claimant that is related to the matter.

Order 17 rule 7 Lagos. The counter claim would have two titles. The file would be headed as “STATEMENT OF DEFENCE AND COUNTERCLAIM” and also once you’ve concluded your statement of defence and state your prayer/relief, you now put another heading saying counter claim. This counterclaim is like your statement of claim, here you can admit the introductory paragraph in your statement of defence, and it will have the body and relief. Then it would be filed as defendant/counterclaimant

Difference between set-off and counter claim – Order 17 rule 6 Lagos, order 23 rule 16 Abuja. If a claim is struck out then the set off is cancelled because its not an independent claim, it depends on the existing claim and if the existing claim is struck out the defence of set off goes away as well however a counterclaim is an independent claim and so still subsists, Or 17 rule11. Because a counter claim is independent it must have these three stages of introduction, body and relief.

The counterclaim must state its own case.

Order 17 rule 7 and 8 – persons who are not parties to the substantive suit may be made defendants in the counter claim. When you’re adding other parties that are not subject of the original claim you must make another parties under the counter claim headings. So it’s a fresh constitution of parties.

See Ogbona v A.G. Imo state;Unokanentr Ltd v Omuvie (2005) 1 NWLR (PT 907).

A claimant in the original claim will file a defence to the counter claim. If new issues are raised he will then file reply and defence to counter claim

 

REPLY

Order 15 rule 9 Lagos and order 23 rule 10 Abuja

Respond to new facts or issues in the statement of defence such as cases of confession and avoidance or make admissions.

Failure to file a new reply to new issues – the new issues are deemed admitted. It is not necessary in all cases because of implied joinder of issues

Draft

“The claimant joins issues with the defendant upon paragraphs ------ of the statement of defence”

Reply and Counterclaim Order 18 rule 2 Lagos – a reply to a counter claim is called defence to counter claim.

 

Filing and service of pleadings

Abuja

• SOC along with writ – order 23 rule 1
• SOD within 14 days – order 23 rule 2
• Reply within 7 days – Order 23 RULE 3(1)
• Defence to counter claim 14 days – order 23 r3(4)

Lagos

• SOD – 42 days
• Reply – 14 days
• Order 3 r 2 & order 15

 

Default of pleadings

See or 3 r 2 & or 20 r 1 Lagos; order23 & 25 Abuja

• Default of SOD the plaintiff may apply to court for judgment – o 20 r 9 (Lagos); o25 r 6&7 (Abuja)
• Note interlocutory or final judgment – order 20 rule 3 & 5 (Lagos). Its final in Lagos and can only be set aside on those 3 grounds, however its not final in Abuja
• Default of reply
• Default of defence to counterclaim – o25 r 8 (Abuja)

 

Extension of time to file pleadings

• Pleadings filed out of time only voidable, not void. See UBA v Dike Nworah (1978) 2 LRN 149
• Extension of time may be granted
• Motion for judgment/striking out vs motion for extension of time .see NALSA & Team ASS v NPPC (1991) 11 SCNJ 51

 

Types of Pleadings

• Statement of claim
• Statement of defence
• Reply
• Statement of defence and counter claim
• Defence to counter claim
• Reply and defence to counter claim

 

When are pleadings deemed to have closed – because the time limited for it to take place has expired, it has not actually taken place but the time has expired and that’s why it is deemed to have closed

 

CLOSE OF PLEADINGS

Lagos: order 15 rule 9 & 19 Lagos

Abuja: order 23 rule 35

• Stage in the filing and service of pleadings when further pleadings are no longer allowed.
• Lagos: where failure to file Statement of Defence within 42 days and no application for extension of time
• After 7 days after service of defence or reply (where applicable) and pleading subsequent to reply not ordered
• Where further pleadings ordered after reply, after the period limited for filing
• Counter claim – 14 days unless extension is sought
• Joinder of issues

 

Why is it important to close pleadings- in Lagos case management conference would not start until it has been shown that pleadings have closed. While in Abuja it is important so parties can formulate issues for the court to determine

Purpose – enables court to determine the real question in controversy – Mobil Oil v Nabsons (1995)

 

Stage of amendment

Lagos:

• Any time before the close of case management conference
• Not more than 2 times (twice) during the trial before judgment – order 24 rule 1 (Lagos)

 

Abuja:

• Any stage of the proceedings / any time (before judgment – order 24 r 1&2 (Abuja))

 

Order 25 Lagos – sanctions for not complying with schedule of case management conference

 

Procedure for amendment

Motion on notice supported by affidavit – and this affidavit must show the reason for amendment and attached to the affidavit must be the proposed amendment statement and the areas to be amended must be underlined in the proposed amended statement, and a written address.“An order granting leave to amend statement of claim dated …8^th of August 2016”

Note: all motions are the same, its only the prayers are different, and you add the omnibus prayer.

Prayer 

 

An affidavit must be headed in court, with suit number and the heading must show “affidavit in support of motion for amendment”. Write the purpose of the affidavit. So you’ll state the proposed amendment is annexed as Exhibit A1.