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AVERMENTS IN PLEADINGS NOT ADMITTED MUST BE PROVED

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Dictum

An averment in pleadings is not and has never been considered as legal evidence unless the same has been admitted by the other side to the litigation. Accordingly an averment which is not admitted must be proved or established by evidence. An averment of a material fact in pleadings which is denied but is not established by evidence is worthless and must be discountenanced. In a sense, such an averment may in law be rightly regarded as abandoned. (See generally on the above, Akinfosile v. Ijose (1960) 5 F.S.C. 192; (1960) SCNLR 447; Muraina Akanmu v. Adigun (1993) 7 NWLR (Pt.304) 218 at 231; Obmiami Brick and Stone Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260 at 293 and Anyah v. A.N.N Ltd. (1992) 6 NWLR (Pt.247) 319 at 331.)

– Iguh, JSC. Magnusson v. Koiki (1993) – SC.119/1991

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PLEADINGS SHOULD NOT CONTAIN LAW OR MIXED LAW & FACT

It is well settled that every pleading must state facts and not law. A party is not expected to plead conclusions of law or mixed fact and law. However, conclusions of law can be drawn from material facts pleaded. It is also unnecessary to set out in a pleading content of a public statute.

– Karibe-Whyte, JSC. Finnih v. Imade (1992)

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STATUTES ARE NOT TO BE PLEADED IN PLEADINGS

The position of the Appellant’s learned Counsel that the Appellant did not need to plead the provisions of p.4 of the Chinese Regulation concerning the transport of hazardous goods stems from the stated position that pleadings need no longer be technical and that it is no longer necessary to plead statutes and sections of statutes but that it is sufficient if the material facts only are pleaded.

– O. Daniel-Kalio, JCA. Egypt v. Abdoulaye (2017) – CA/K/540/2014

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WHERE PLEADINGS RAISE NO TRIABLE ISSUE OR DEFENSE

Akinola & Anor. v. Solano (1986) 4 SC 106, where the Supreme Court per Oputa JSC, (God bless his soul) had stated inter alia thus: “It is time Courts…begin looking critically at the pleadings and where appropriate giving judgement on the pleadings, if no triable issue of fact, Plaintiff’s case should be considered on his pleading and the applicable law. Where the Plaintiffs statement of claim does not disclose a cause of action … instead of filing a Statement of Defense, the Defendant should move the Court to have the case dismissed. Alternatively, where the Statement of Defense does not answer, deny …. the essential facts on which the Plaintiff’s case rests, the Plaintiff should be courageous enough to ask for judgement on his Statement of Claim.”

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WHERE THERE IS VARIANCE IN PLEADINGS AND THE EVIDENCE, THE ACTION IS BOUND TO FAIL

It is clear from the foregoing that the claim of the plaintiffs as disclosed in the writ of summons and statement of claim was not supported by the evidence of the trial. It is well settled law that parties are bound by their pleadings. Where there is variance between the claim the pleadings and evidence, the action is bound to fail- See Ogiamen v. Ogiamen (1967) NMLR. 245.

— A.G. Karibi-Whyte, JSC. Olowosago V. Adebanjo (SC.134/86, 29 Sep 1988)

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EVIDENCE ON MATTER NOT PLEADED

It is settled that evidence led on any matter not pleaded goes to no issue and ought to be disregarded when giving judgment. – Kutigi JSC. Amadi v. Nwosu (1992)

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PLEADINGS ARE CLOSED WHEN PARTIES JOIN ISSUES – REPLY MAY BE UNNECESSARY

Pleadings are closed when parties join issues in a case. Where both the statement of claim and the statement of defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply. However, where no counter-claim is filed, further pleadings by way of reply to a statement of defence is unnecessary if the sole purpose is to deny the averments in the statement of defence. SeeIshola v. S.G.B. (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 SC. In Egesumba v. Onuzuryike (2002) 15 NWLR (Pt.791) 466 at 499 Ayoola JSC, expatiated thus “Where, of course, the plaintiff seeks to contradict the allegations in the statement of defence not merely by traverse but by raising issues of fact which would take the defendant by surprise, he should raise such issues by a reply. But, even then, the consequence of his not so raising it is not that he is taken to have admitted the truth of the allegations of fact in the statement of defence so as to free the defendant from the obligation to lead evidence in proof of what he alleges, but to deprive the plaintiff from adducing evidence of facts not pleaded or already raised by the pleadings as they stand. Tobi JSC at p. 519 of the report also clarified that:- “(iv) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an issue.”

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

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