PLEADINGS Flashcards
Functions of pleadings?
PINGOS
1. permanent records
2. issues for determination
3. Notice-To the court & parties
4. Guide
5. Onus of Proof
6. Steps to be taken
What are matters that must be specifically pleaded?
- matters that will take the other party by surprise
- Defamation
- Set Off
- Allegations of Fraud
- Traditional history of a land
- Foreign laws and customs
- Insanity in Probate Matters
- Adultery in Matrimonial causes
Difference between general & special damages?
General damages are the direct result or such as did in fact result from the wrong or injury complained of. In assessing general damages, the quantum is left at the discretion of the court.
Special damages are the loss or injury suffered from the wrong or injury complained of, which are capable of being quantified in monetary terms.
what’s the relationship between statement of claim & writ of summons?
-Writ of summons initiates proceedings and states the nature of the claim and reliefs sought, while statement of claim elaborates the claims earlier set out in the writ.
b. Once statement of claim has been filed it supercedes the writ of summons –EKPAN V UYO
c. Reliefs in the statement of claim supercedes the reliefs in the writ of summons whenever there is conflict.
d. Relief in the writ of summons omitted in the statement of claim will be deemed abandoned
Draft the general traverse of Statement of Defence?
Save and except as hereinafter expressly admitted, the defendant denies each and every allegation of facts contained in the statement of claim as if same were herein set out and traversed sertiam.
Difference between counter claim and set off?
-Set off is a cross claim, CC is a cross action
-Set off is used for monetary claims, CC has unlimited usage
-Set off dies with the main suit, CC can still exist.
-Set off is a shield, CC is a sword
-Set off is not an independent suit, CC is an independent suit
-Set off is made to the claimant alone. CC can be made to other persons apart from the claimant.
Time to file SOD in ABUJA AND LAGOS?
21 days in Abuja
42 days in Lagos
Who files a reply?
The claimant where the defendant raises new issues in his statement of defence
7 days
However where the def counterclaim- 14 days for the claimant to file his reply.
When are pleadings deemed closed?
- After the expiration of 42 days where the defendant fails to file his SOD
- After the expiration of 7 days after the claimant files his reply
- After the expiration of 14 days if there is a CC
When must a court set a matter down for hearing?
Declaratory reliefs and where damages are to be ascertained, default judgment cannot be entered into
When can pleadings be amended?
-Before the close of the CMC (Lagos) or
PTC (Abuja)-you can amend as much as you want.
-Not more than twice during the trial but before close of his case (Abuja)
-Before judgment (Lagos).
when will amendment of pleadings be allowed?
- To determine the real question or issue between the parties.
- To secure substantial justice
- To settle the controversy between the parties and related issues
- To introduce a claim or relief that is covered by evidence and does not go outside the cause of action.
- To correct a misnomer
proceedings in lieu of demurrer?
The general rule is that no party is allowed to raise objection before pleadings are exchanged(demurrer).
However, PO on point of law (jurisdiction) are allowed as an exception. Thus, a defendant may still raise preliminary objection before pleadings are exchanged; especially on ground of lack of substantive jurisdiction.
ORDER 23 LAG, 24 ABJ
When can pleadings be struck out!
- Frivolous, scandalous and vexatious
- An abuse of court processes
- No reasonable cause of action
When a claimant’s case is struck out for want of diligent prosecution, can such case be relisted?
Where the case is struck out, party can apply within 7 days for it to be relisted on cause list
MON+A+WA
