by By Tayo Oyetibo, SAN, FCIArb, FNIALS
Definition
Pleadings are the formal allegations by the parties to a law suit of their respective claims and defence.
In the Federal High Court; however, “pleading” does not include a petition, summons or preliminary act. A pleading could be in the form of Statement of Claim, Statement of Defence, Reply to Statement of Defence, Counter-claim, Defence to counter-claim and Reply to Defence to counter-claim or even Statement of Facts as provided for in Or R 4 (i) of the National Industrial Court Rules (2007).
Can a Plaintiff who is a defendant to a Counterclaim raise a Counterclaim against the Defendant/Counterclaimant?
The Rules of Court do not provide a direct answer as almost all the High Court Civil Procedure Rules in force in the country only provide that a Defendant in an action may include a Counterclaim in his defence.
However in OGBONNA v. ATTORNEY-GENERAL IMO STATE4 , the Supreme Court, per NNAEMEKA-AGU, J.S.C observed, albeit obiter, that a Plaintiff is entitled to Counterclaim on a Defendant’s Counterclaim. In justifying this principle, the Supreme Court based the rationale on the principle that a Counterclaim is a separate action.
Also in the old English case of RENTON GIBBS & CO. v. NEVILLE & CO5 , the Court of Appeal in England affirmed the decision of the High Court which allowed the filing by a Plaintiff of a Counterclaim against a Defendant who had counter-claimed against the Plaintiff. 2 Black’s Law Dictionary, 8th Edition p.1191 3 See definition of “pleading” in Order 1 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 Order 1 Rule 5 of the Federal High Court (Civil Procedure) Rules 2019 4 (1992) 1 NWLR (Pt.220) 647 @ 675 5 (1900) 2 QB 181 1 of 38.
This principle was applied recently by the High Court of Lagos State where OBADINA, J allowed a Claimant whose claim had been struck out to bring the same claim by way of counterclaim against the Defendant who had earlier filed a Counterclaim against the Claimant.
The nature of a Counterclaim is such that it is to be treated for all purposes which justice requires it to be treated as an independent action. The fate of a counterclaim being of an independent action does not depend on the outcome of the plaintiff’s claim.
If the plaintiff’s claim is dismissed, stayed or discontinued, the counterclaim may nevertheless be proceeded with. The Court of Appeal held in the case of NDUKWE V EKUMA & ANOR, that:
“……..a counter – claim is separate and independent of the main claim and must be determined on its own merit as obtains in a cross – appeal. A counter – claim may not even relate to, connect with or arise from the same transaction from the plaintiff’s case. So a counter – claim is not only a defence to the plaintiff action, but essentially a cross – action. Thus, the fate of a counter – claim does not depend on the plaintiff’s claim. The defendant(s) to a counterclaim would depend on the cause(s) of action of the counterclaimant. In ESUWOYE V BOSERE9 the Supreme Court per Peter-Odili JSC said: “The defendants to a counter claim depend on the people that the counter claimant has a cause(s) of action against, which may even extend to other person(s) who is/are not parties to the original action either as plaintiffs or defendants. Definitely a defendant in an action can counter claim against the plaintiff and/or co-defendants depending on his cause of action and the relief(s) he seeks.” See GYMBIA LTD V. UBN PLC (SUIT NO. LD/72/2004- unreported of 26 June 2015) 7 OROJA V ADENIYI (2017) 6 NWLR (PT. 1560) 138 @ 151-152 8 (2018) LPELR – 43762 (CA) PER SHUAIBU J.C.A 9 (2017) 1 NWLR (Pt. 1546) 256 at 309 2 of 38.
It is important to note that where there is a counterclaim, there must be two judgments, one for the main claim and the other for the counterclaim though they have both been brought together in the same suit. See OROJA V. ADENIYI10 , BIKO & ANOR V. AMAECHI11.
The court is entitled to enter Judgment against a plaintiff who fails to file a defence to the defendant’s counterclaim. This was the decision of the Supreme Court in NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD V. MUMUNI12 .
Aims/Objectives of Pleadings
The aim of pleadings is to give notice to the other party of the case which the pleader intends to put forward at the trial of the case. See also OLAJOGUN & ORS V. AGORO14 Its object is to fix the issues for trial accurately and to apprise the other side of the case which it would meet and thus afford it the opportunity to call evidence to controvert such case.15 See also SALAMI V UNION BANK OF NIGERIA PLC.
Pleadings compel the parties to define the issues upon which the case is to be contested thereby preventing one party from taking the other by surprise.
Effect of Pleadings
In view of the aim of pleadings, the effect is that the contents of a pleading are binding on the pleader 10 Ibid at page 154 11 (2018) LPELR-45069 (CA) PER lOKULO-Sodipe J.CA 12 (1977) 2 SC 30 at 44; Ogbonna v. A.G Imo State supra; Maobison Interlink Ltd V. UTC Nig. Plc (2013) 9 NWLR (PT 1359) 197 @ 209 13 EJIKE V. EGBUABA (2008) 11 NWLR (Pt.1099) 627 14 (2014) LPELR – 24040 (CA) Per ONIYANGI, J.C.A. (P. 19, paras. B-C) 15 OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt.114) 172 @ 208 16 (2010) LPELR – 8975 (CA) Per LOKULO-SODIPE, J.C.A. (P 37, Paras.B-D) 17 GEORGE V. DOMINION FLOUR MILLS LTD (1965) 1 All NLR 71 18 IKOTUN V. OYEKANMI (2008) 10 NWLR (Pt.1094) 100
He will not be allowed to depart from the facts, notice of which he has given to the other side as the case to be put forward at the trial.
In ABUBAKAR V WAZIRI & ORS19 the court said: ‘It is settled that parties are bound by their pleading and evidence which is at variance with or contrary to the averments in the pleading, goes to no issue and should be disregarded by the court… it has been a long standing principle of our law that pleadings must not be evasive; it must be cogent and pungent.
One of the objects of pleadings is to settle the issues to be tried and it must be taken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded.”
One of the significant effects of pleadings is that it binds the pleader up to the Supreme Court. Thus an appeal is deemed to be a continuation of the original suit and not an inception of a new action.
In FCDA & ORS V. UNIQUE FUTURE LEADERS INTERNATIONAL LTD21 it was held as follows: “Generally, an appeal is regarded as a continuation of the original suit, rather than the inception of a new action…in an appeal parties are confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case…without the express leave of court…Adegoke Motors Ltd v Adesanya & Anor (1989) LPELR 94 (SC).”
This means that a party cannot depart at the appellate court from the case which he had pleaded at the trial Court.
In the case of KUBOR V. DICKSON the Appellants pleaded in their Petition that the 1st Respondent who was sponsored by his political party – PDP at the Bayelsa State Governorship Election held in February 2012 was not qualified to contest the election because prior to and up till the date of the holding of the election, there was pending litigation in the Supreme Court over 19 2008 LPELR – 54 (SC) Per ADEREMI, JSC. (Pp.12-13, Paras.G-B) 20 OREDOYIN V. AROWOLO [supra] @ 211 21 (2014) LPELR-23170 (CA) Per MUSTAPHA J.C.A. (P.22,paras.A-C) 22 [2013] 4 NWLR (Pt. 1345) 534 the question of who the candidate of PDP for the election was and that the question had not been resolved by the Court at the time the election was held. They lost in the Election Tribunal and the Court of Appeal whereupon a further appeal was lodged to the Supreme Court. At the apex Court, they sought to argue that the 1st Respondent was not validly sponsored by his political party. They were disallowed. The Supreme Court held that the Appellants could not be allowed to approbate and reprobate. Having pleaded at the trial that the 1st Respondent was sponsored by the PDP, it was no longer open to the Appellants to contend on appeal that he was not validly sponsored.
Contents of Pleadings
Pleadings should contain facts and facts alone and not the evidence by which the facts are to be proved. But what are facts and what is evidence for the purpose of pleadings? It may not always be easy to draw the line of distinction between both. Ordinarily, it is the fact in issue that ought to be pleaded and not the evidence by which it is intended to prove the fact. But there might be cases in which facts and evidence are so mixed up as to be almost indistinguishable.
In such cases, it is safer to plead what appears to the pleader to be facts rather than exclude them and fall victim of the principle that facts not pleaded go to no issue.
The facts to be contained in pleadings should be material facts.26 See also AMINU & ORS V HASSAN & ORS27
Pleadings should contain the relief(s) sought by the party. Statement of claim supersedes the Writ. In WAMINI-EMI V. IYALI (2008) 11 NWLR (Pt.1097) the Court of Appeal held that pleadings are required to be statements of facts and not falsehood! Odgers on Pleadings and Practice 20th Edition p.102 citing SMITH V. WEST (1876) W.N.55 25 See OKPALA V. IBEME (1989) 2 NWLR (Pt.102) 208 26.
Material facts are facts necessary in law for a plaintiff to establish his claim or for the defendant to establish his defence. 27 (2014) LPELR – 22008 (SC) 28 Garan v. Olomu (2013) 11 NWLR (Pt. 1365) 227
In CHIEF J.O. LAHAN & ORS V. R. LAJOYETAN & ORS (1972) LPELR1748(SC), (1972) 1 ALL NLR 655 the Supreme Court said: “It is settled law that a statement of claim supersedes the writ; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken that so much of the claim is abandoned. So also where in the statement of claim a consequential relief is added to the claim in the writ such additional claim will be deemed as claimed before the court.” Per SOWEMIMO, JSC (P. 4, paras. A-B)
Admission of the Contents of an Adverse Party’s Pleadings
Admission of the contents of an adverse party’s pleadings may be express or implied. A party is said to expressly admit the contents of the pleadings of an adverse party where he gives notice by his pleadings or otherwise in writing that he admits the truth of the whole or part of the case of any other party and the court may receive such notice in evidence as an admission without further proof. See Order 15 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 and Order 21 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2019. •
The position of the law is that an implied admission of the contents of pleadings often times is in the nature of a general traverse.
In MEDITERRANEAN SHIPPING CO. SA v. ENEMAKU29, the Court of Appeal held that: “… it is trite that a general traverse is evasive and as such amounts to an implied admission and should be treated as placing no burden of proof on the plaintiff unless other paragraphs in the Statement of Defence contain a denial of the plaintiff’s averments.
A plaintiff’s averments must be met by a defendant frontally and specifically and any failure to do this, the defendant is taken to have admitted such averments.” See also STANBIC IBTC BANK V LONGTERM GLOBAL CAPITAL LTD & ORS30 29 (2012) 11 NWLR (PT 1312) 583 @ 600, See also LEWIS and PEAT (N.R.I) LTD V. AKHIMIEN (1976) ALL NLR 364 @ 369 30 (2018) LPELR – 44053 (CA) 6 of 38.
Also in MERIDIAN TRADE CORPORATION LTD. V. METAL CONSTRUCTION (W.A) LTD31, the Supreme Court held that a general traverse is not enough to controvert material and important averments in pleadings particularly where the claim is one of debt or liquidated demand for money.
Recently in the case of UBN PLC V CHIMAEZE,32 the Supreme Court held thus: “… A General Traverse Is Not An Effective Denial And Essential Or Material On The oppossing Parties Pleading.” Per Kekere-Ekun Jsc (P.48) Para A-B
But in OMORHIRHI v. ENATEVWERE33, the Supreme Court held that a general traverse which is usually set out in the first paragraph of pleadings is sufficient denial of an allegation contained in the Plaintiff’s Statement of Claim. See also MADILLAS & KARABERIS LTD V. APENA;34 COMPTROLLER GENERAL NIGERIA CUSTOMS SERVICE & ORS V MURRAY HOLDING LTD;35 ATTAH v. NNACHO.36
There are quite a number of conflicting decisions of the Supreme Court on this point. Thus, in UGOCHUKWU V. UNIPETROL NIGERIA PLC.22 the Supreme Court per MOHAMMED, JSC said as follows: ‘I do agree that allegations of fact in a statement of claim if not denied expressly or by implication by the defence, shall be deemed to be indirectly admitted.
However, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied …it is not correct that this court said that in the case of Lewis & peat (NRI) Ltd. V Akhimien that a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied …it is not correct that this court said that in the case of Lewis & peat (NRI) Ltd. V Akhimien that a mere traverse of material facts is not enough to deny such facts.’
31(1998) 4 NWLR (Pt.544) 1 @ 74. The traverse in this Case was that “the Defendant denies that the sum of N95,220.15, if any sum at all, remains unpaid. 32 (2014) LPELR 22699 (SC) 33 (1988) 1 NWLR (PART 73) 746 @ 761 34(1969) NNLR 199 35 (2017 LPELR – 43055 (CA) 36 (1965) NMLR 28 @ 31
But in BAMGBEGBIN v ORIARE37, TOBI, J.S.C said as follows:
‘It is the requirement of the law that a traverse must be concise and specific it must deny the statement of claim in it specific detail and not just rigmarole of or dancing around the averments. Where a traverse, as in paragraph 3 is generic and omnibus, a plaintiff is handicapped in a reply to the statement of defence. That is possibly one reason why the law requires a traverse to be specific and not general’.
• Recently in DAIRO & ORS v. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS38, the Supreme Court per NWEZE, J.S.C. remarked as follows:
“It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied.”
Specific Denial of Material Allegation in Pleadings
• Every allegation of fact in any pleading if not specifically denied in the pleading of opposite party shall be taken as admitted except in the cases involving certain classes of persons. See Order 13 Rule 939 Order 13 Rule 9 of the Federal High Court (Civil Procedure) Rules 2019 and Order 17 Rule 5 (1)40.
37 (2009)13 NWLR (PT.1158) 370 S.C. (P.405, Paras.C-D). See also BUHARI V. INEC (2009) ALL FWLR (PT.459) 419 S.C. (P.611, paras A-C); EKE V.OKWARANYIA (2001) 12B NWLR (PT.726) 181.S.C. (P.203, paras. D-E. 205 paras. C-E) 38 (2017) LPELR-42573(SC) at pp14-17 39Federal High Court (Civil Procedure) Rules 2009 Order 13 Rule 9 of the Federal High Court (Civil Procedure) Rules 2019 40High Court of Lagos State (Civil Procedure) Rules 2012
Exceptions to Specific Denial Rules
• The rule that every allegation of fact in any pleading if not denied specifically is deemed admitted does not apply to allegation of facts contained in a petition or summons. See Order 13 Rule 9 of Federal High Court Rules 41 The reason for this exception is because petitions and summons are not considered as pleadings by the Rules of that Court.
• Where an action involves an infant, lunatic, or person of unsound mind not adjudged a lunatic, there shall not be an implied admission of allegation of facts against him in a pleading by reason of his not specifically denying same. R 4 2
• Note that in the High Court of Lagos State, the classes of persons mentioned above are referred to as “persons under legal disability”43 and by Order 17 Rule 5 of the Rules of that Court, there is no such implied admission on the part of such persons in a suit involving them.
Joinder of Issues Operates as a Denial of Material Allegation
• Where a party by his pleading joins issues upon the pleading of an opposing party, such joinder of issues shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined save any fact which the party may be willing to admit. See Order 17 Rule 944 and Order 13 Rule 10 (4)45 Order 13 Rule 10 (4) of the Federal High Court (Civil Procedure) Rules 2019
41Supra 42 Order 13 Rule 9 of the Federal High Court Rules supra Order 13 Rule 9 of the Federal High Court (Civil Procedure) Rules 2019 43Order 1 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2019 44High Court of Lagos State Rules (supra) 45Federal High Court Rules (Supra)
Note that there shall be no joinder of issue, implied or expressed, on a statement of claim or counter claim in the Federal High Court.
…To be continued
