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A REPLY TO STATEMENT OF DEFENCE MUST NOT CONTAIN ANY NEW CLAIM

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Dictum

Adeniji v. Fetuga (1990) 5 WLR (Pt. 150) 375 this Court per Akanbi J.C.A. (as he then was) held thus:- “A reply is the Plaintiff’s answer or response to any issue raised by the Defendant in his defence and which the Plaintiff seeks to challenge, deny or admit or object to either or ground of law or a mis-statement of the cause of action and it is not permissible in a reply to the defence to raise a new cause of action not set out in the writ of summons, for a Plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim.”

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COUNTER CLAIM – BE RELATED TO THE PRINCIPAL CLAIM

A counter claim to quote from Bairamien, JSC in Oyegbola v. Esso WA (1966) 1 All NLR 170 is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. The counter-claim must be directly related to the principal claim but not outside of and independent of the subject matter of the claim. – Niki Tobi JSC. Okonkwo v. Cooperative Bank (2003)

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STATEMENT OF CLAIM IS NOT EVIDENCE; PARTY MUST LEAD EVIDENCE

The Statement of Claim of the plaintiff and co-plaintiffs was not evidence before the court of trial. Failure to lead evidence in line with their pleadings means simply this:- that the claim must fail.

— Katsina-Alu JSC. Chime v Chime (2001) – SC 179/1991

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IT IS FROM THE WRIT AND STATEMENT OF CLAIM THAT THE CLAIMANT’S CASE IS KNOWN

The cause of action is donated by the writ of summons and statement of claim and it is in those originating processes and any such similar process that a court of law will decipher what the complaint of a litigant before it is. See the decision of this court in Nduka v. Ogbonna (2011) 1 NWLR (Pt. 1227) 153 at 175, paragraphs B – C, Ariwoola JCA succinctly stated the position thus: “In the instant case, the cause of action as clearly shown on the statement of claim is for special and general damages for defamation and malicious prosecution.” The apex court has also reaffirmed this position of the law which has become trite: Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223) 547, wherein Adekeye JSC had this to say at 619, paragraphs G – 4 of the report: “… It is sufficient if prima facie the date of taking the cause of action is disclosed in the writ of summons and statement of claim … The trial court has a duty to confine itself to the pleadings filed by the parties.”

— Danjuma, JCA. Tony Anthony Nig. Ltd & Ors. v. NDIC (CA/L/630/2009 • 25 January 2011)

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PARTY CANNOT BE GRANTED WHAT HE DID NOT CLAIM

In this regard, the law is long and well settled that where a plaintiff claims, say, a declaration of title to land or whatever, and his claim is dismissed, it will be wrong to grant the declaration to the defendant if he did not ask for it by way of counter-claim. See: Ntiaro v. Akpam 3 N.L.R. 10; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 etc. As has been pointed out repeatedly by this and other courts, courts of law are no father Christmas and they must not grant to a party a relief which he has not sought or claimed or which is more than he has claimed. see: Ekpenyong v. Nyong (1975) 2 S.C. 71 at 81-82.

– Iguh JSC. Awoniyi v. AMORC (2000)

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DEFECT IN STATEMENT OF CLAIM DOES NOT MAKE THE SUIT A NULLITY, BUT THE MERE STRIKING OUT OF THE STATEMENT OF CLAIM

A Statement of Claim is not an originating process. It is a process filed subsequent to the Writ of Summons. In the Statement of Claim, the claimant or plaintiff articulates the allegations of facts for the defendant to answer. Without the Statement of Claim, there would be no allegation of facts for the defendant to answer. Thus, issues cannot be joined on any matters and therefore nothing for the Court to try: Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Ed. Page 442. A defect in the Statement of Claim results not in the striking out of the suit for being a nullity. Rather, it is only the offensive Statement of Claim, as a process or the part or portion thereof of the process that the defendant timeously takes steps to strike out. A defect in the settlement of the Statement of Claim or the Statement of Claim itself is generally regarded as a mere irregularity. The authors of the Supreme Court Practice 1979 [The White Book 1979 – English] opined in paragraph 18/9/1 at page 311 thereof and I agree “that every pleading which offend the rules will be struck out. The applicant must show that he is in some way prejudiced by the Irregularity”. They further opined in paragraph 18/9/2 ibid – Where the Statement of Claim is being attacked, the application may be made before the defence is served [A – G of DUCHY OF LANCASTER V.L. and N.W.L.R. (1892) 2 Ch. 274]. In other words, the objection must be made timeously before the defence is served; otherwise, the objection is deemed to have been waived or compromised.

— Ejembi Eko, JSC. Bakari v. Ogundipe (2020) – SC.514/2015

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CLAIM NOT ASKED FOR

It is trite law that the Court should not grant what was not asked for or claimed by a party to an action. – Uwaifo JSC. Ekpanya v. Akpan (1988)

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