Lord Denning in Re Vandervell s Trusts (No.2) (supra): “Mr. Balcanbe for the executors stressed that the point taken by Mr. Mills was ‘not covered by the pleadings. He said time and again: This way of putting the case was not pleaded. No such trust was pleaded.” And so forth. The more he argued, the more technical he became. I began to think we were back in the bad old days before the Common Law Procedure Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the omission of a single averment. See Bullen and Leake’s precedent of pleadings, 3rd ed. (1868), P. 147. All that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present in argument any legal consequence of which the facts permit. The pleadings in this case contained all material facts. It does not appear that Mr. Mills put the case before the Judge; but this does not entail any difference in the facts only a difference in stating the legal consequences. So it was quite open to him.”
GENERAL TRAVERSE IS NOT AN EFFECTIVE DENIAL
A general traverse is not an effective denial of essential or material averments in the opposing party’s pleading. – Kekere-Ekun, J.S.C. Union Bank v. Chimaeze (2014) Was this dictum helpful? Yes 0 No 0...