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WHAT IS A NEW ISSUE INTRODUCED IN STATEMENT OF DEFENCE

Dictum

Indeed, in succinctly explaining the new issue which should attract a reply, the Supreme Court had held in EGESIMBA v ONUZURIKI (2002) 15 NWLR (Pt. 791) 466 at 518, thus: “A new issue to attract a reply must in law be really new in the sense of being brand and fresh. The issue must be really new to the statement of claim, in that it was not existing therein and was therefore brought into existence or introduced for the first time in the statement of defence by the defendant. The new issue, both in its content and materiality, must be further and additional to the statement of claim. Thus, the mere fact that a defendant states his own side of the case does not necessarily make it new, particularly when the plaintiff has told a contrary story in his statement of claim. In such a situation, the case stated by the defendant amounts to joining issues with the plaintiff and that does not bear the name of a new issue in law. A new issue arises where the plaintiff did not avert to or touch the content of the defendant’s averments in anticipation, and the defendant’s averment was introduced to the pleadings for the first time and therefore unique and novel to his pleadings.”

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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NEW FACTS SHOULD NOT BE INTRODUCED IN THE COURSE OF REPLY BY THE PETITIONER

By the provision of paragraph 16(1) (a) above reproduced, a petitioner is permitted to file a reply if the Respondent to the petition in his reply raises new issues of fact in defence of his case which the petition has not dealt with, but in doing so, the Petitioners’ reply shall not bring in new facts, grounds or prayer which tend to amend or add to the contents of the petition. See MADUABUM V NWOSU (SUPRA).

— K.M. Akano, J. Edeoga v Mbah (2023) – EPT/EN/GOV/01/2023

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ISSUES ARE IMPLIEDLY JOINED ON STATEMENT OF DEFENCE

The facts constituting the defence of laches and acquiescence can be gleaned from paragraphs 13, 14, 19, 24, 29, 31, 32, 42 and 48 of the Statement of defence of the defendant/appellant. The contention of the appellant is that the weighty averments made in these paragraphs were not in any way controverted by the plaintiff/respondent. It is trite principle of law that any fact in a pleading that is not denied or controverted is deemed admitted. However, where issues have been joined between the parties by the averments in the statement of defence, a reply on any such issue joined is unnecessary.

— T. Akomolafe-Wilson, JCA. Alabi v Audu (2017) – CA/A/494/2014

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A REPLY TO STATEMENT OF DEFENCE MAY NOT BE NEEDED

In fact, the settled position of the law is that except in some well-defined situations, a Reply to Statement of defence is not even permitted where no counterclaim is served. This is so because there is in law an implied joinder of issues on any fact raised in the statement of defence and any averment contained therein is deemed denied: see Bakare & Anor v. Ibrahim (1973) 6 S.C. 205, Akeredolu v. Akinremi (1989) 3 NWLR (PT 108) 164 @ 172; Egesimba v. Onuzuruike (2002) FWLR (PT 128) @ 1407; Spasco v. Alraine (1995) 9 SCNJ 288 @ 301, Ishola v. S.G.B.N. (1997) 2 NWLR (PT 488) 405; Obot v. C.B.N (1994) 8 NWLR (PT 310) 140 @ 159 … It is also not the law, as erroneously argued by petitioner’s counsel, that failure to reply to facts averred by 3rd Respondent in his Reply to the petition would mean admission of those facts. Failure to deny averments contained in a statement of defence does not imply admission like it does with failure to deny averments in a statement of claim: see Egesimba’s case (Ayoola, J.S.C.) at pages 14 to 15 of LPELR).

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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