ORDER 24 - PLEADINGS

ADAMAWA
ORDER 24 - PLEADINGS

1. Unless the Court gives leave to the contrary, or a statement of claim is endorsed on the writ, the plaintiff shall serve a statement of claim on the defendant, or, if there are two or more defendants, on each defendant and shall do so either when the writ, or notice of the writ, is served on that defendant or at any time after service of the writ or notice but before the expiration of 30 days after the defendant enters an appearance:

Provided that in land cases, the plaintiff shall serve his statement of claim on the defendant not later than 60 days after the defendant enters an appearance, unless the Court gives leave to the contrary.

2.-(1) Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action shall, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 30 days after the statement of claim is served on him:

Provided that in land cases, unless the Court gives leave to the contrary, a defendant shall serve his defence on the plaintiff not later than 60 days after the statement of claim is served on him.

(2) If a summons under Order 21 rule 1 is served on a defendant, paragraph (1) shall not have effect in relation to him unless by the order of Court made on a motion on notice he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 30 days after the making of the order or within such other period as may be specified in the order.

3.-(1) A plaintiff on whom a defendant serves a defence shall serve a reply on that defendant if it is needed for compliance with rule 6, and, if no reply is served, rule 10 shall apply.

(2) A plaintiff on whom a defendant serves a counter-claim shall, if he intends to defend it, served on that defendant a defence to counter-claim.

(3) Where a plaintiff serves both a reply and a defence to counter-claim on any defendant, he shall include them in the same document.

(4) A reply to any defence shall be served by the plaintiff before the expiration of 30 days after the service on him of the defence, and a defence to a counter-claim shall be served by the plaintiff before the expiration of 30 days after the service on him of the counter-claim to which it relates.

4.-(1) Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies or his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures but may also be expressed in words. Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.

(2) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement.

5.-(1) In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust; willful default, or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings.

(2) In an action for libel or slander, if 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.

6.-(1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality- which, if not specifically pleaded might take the opposite party by surprise.

(2) Any condition precedent, the Performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.

(3) Without prejudice to paragraph (1), a defendant in an action for the recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.

7.-(1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered upon such terms as to costs and otherwise, as may be just.

(2) Before applying for particulars by summons or notice, a party may apply for them by letter. The costs of the letter and of any particulars delivered pursuant thereto shall be allowable on taxation.

In dealing with the costs of any application for particulars by summons or notice, the provisions of rule shall be taken into consideration by the Court or Judge in Chambers.

(3) Particulars of a claim shall not be judged under this rule to be filed before defence unless the Court or Judge in Chambers shall be of the opinion that they are necessary or desirable to enable the defendant to plead, or ought for any other special reason to be so delivered.

8. The party at whose instance particulars have been filed under a Judges order shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars upon him that he had initially. Save as provided in this rule, an order for particulars shall not unless the order otherwise provides, operate as a stay of proceedings or give any extension of time.

9. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic or person of unsound mind not adjudged a lunatic.

10.-(1) If there is no reply to a defence there is an implied joinder of issue on that defence.

(2) Subject to paragraph (3)

(a) there is at the close of the pleadings an implied joinder of issue on the pleadings last served; and

(b) a party may in his pleading expressly join issue on the next preceding pleading.

(3) There can be no joinder of issue, implied or expressed, on a statement of claim or counter-claim.

(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder, of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.

11. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

12.-(1) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be: separately and distinctly. The same rule shall apply where the defendant relies on several distinct grounds of set-off or counter-claim founded upon separate and distinct facts.

(2) Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief; and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his defence.

13. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each, is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or otherwise.

14. When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance. And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.

15. The defence shall admit such material allegations in the statement of claim as the defendant knows to be true, or desires to be taken as established without proof thereof.

16. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case may be, and the particulars of such set off or counter-claim shall be given.

17. The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as, in the opinion of the Court, ought to have been expressly set up by the defence, or is inconsistent with the statements thereof , or is, in the opinion of the Court, likely to take the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to meet.

18. The Court, if it considers that the statement of claim and the defence filed in any suit insufficiently disclose and fix the real issues between the parties, may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.

19. Where the Court is of opinion that any allegations of fact, denied or not admitted by any pleading, ought to have been admitted, the Court shall make such order as may be just with respect to costs.

20. The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case maybe, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the Court; and the Court may either give leave to amend such pleading, or may proceed to give judgment, for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions, as may seem just.

21. When a contract, promise, or agreements is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise or agree-ment alleged, or the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law, of such contract, promise, or agreement; whether with reference to any statute or otherwise.

22. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

23.-(1) Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

(2) Notwithstanding paragraph (1), where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privileged occasion, the plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice is to be inferred.

(3) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

24. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege that notice as a fact, unless the form or the precise terms of such notice or the circumstances from which that notice is to be inferred, is material.

25. Whenever any contract or any relation between any persons is to be implied from a series of letter or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege that contract or relation as a fact, and to refer generally to such latters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he may state them in the alternative.

26. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g. consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim). 

27.-(1) In probate actions it shall be stated with regard to every defence which is pleaded what is the substance of the case on which it is intended to rely; and further where it is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instances of delusion shall be delivered before the case is set down for trial, and, except by leave of the Court or a Judge in Chambers, no evidence shall be given of any other instances at the trial.

(2) In a probate action the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will; and he shall thereupon be at liberty to do so, and shall not in any event be liable to pay the costs of the other side unless the Judge shall be of opinion that there was no reasonable ground for opposing the will.

28. No technical objection shall be raised to any pleading on the ground of any alleged want of form.

29. The provisions of the foregoing rules of this Order shall not apply in actions where a summons has been issued before the date of commencement of these rules. In such cases, the former High Court rules shall be applied as if they were still in force.

30. Whenever a statement of claim is filed, the plaintiff may therein alter, modify, or extend his claim without any amendment of the endorsement of the writ:

Provided that this rule shall not apply where the writ has been specially endorsed:

Provided further that the plaintiff may not completely change the cause of action endorsed on the writ without amending the writ.

31. In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars: but in case in which a statement of account is relied by way of evidence or admission of any other cause of action which is pleaded, the same need not be alleged in the pleadings.

32. Where in any action a defence of tender before action is pleaded, the defendant shall pay into Court in accordance with rule 1 of Order 31 the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into Court has been made.

33. Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiffs claim, whether or not it is also added as a counter-claim.

34.-(1) Where in any action a set-off or counter-claim is established as a defence against the plaintiffs claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance or otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

(2) Paragraph (1) shall apply mutatis mutandis where the balance is in favour of the plaintiff. 

35.-(1) The pleadings in an action are deemed to be closed:-

(a) at the expiration of 30 days after service of the reply or, if there is no reply but only a defence to counter-claim, after service of the defence to counter-claim; or

(b) if neither a reply nor a defence to counter-claim is served, at the expiration of 30 days after service of the defence.

(2) The pleadings in an action are deemed to be closed at the time provided by paragraph (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.

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