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AVERMENTS IN PLEADINGS WITHOUT EVIDENCE TO SUBSTANTIATE ARE USELESS

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Mere averments in pleadings, no matter how impressive they may be are useless if no evidence is led to prove them. Such averments in the pleadings unless, they are admitted, are regarded as mere suggestions of counsel and if they are not proved by evidence of witnesses are deemed to have been abandoned. [Adegbite v. Ogunfaolu (1990) 4 NW1,11 (Pt.146) 578; Balogun v. Amubikanhun (1985) 3 NWLR(Pt.11)27; Obmiami BrickAND Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260;Ayeniv. Sowemimo (1982) 5 SC 60; Idesoh v. Ordia (1997) 3 NWLR (Pt.491) 17 referred to].

— Adeyemo v. Ida & Ors. (1998) – CA/1/6/92

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PLEADINGS ARE TO CONTAIN THE MATERIAL FACTS, NOT THE LEGAL RESULT

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.”

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THE NATURE OF PLEADINGS – IMPORTANCE

In the case of Osondu Co Ltd. and Anor v. Akhigbe (1999) LPELR – 1433 (SC), the Supreme Court per Uwaifo, JSC, held as follows: “It must be realized that pleadings is a statement of candour as to what a party to a case relies on to prove or defend a cause. It ought to be made as clear as it possibly can, not evasive or misleading or ambiguous. Each party must endeavor to place and must be presumed to have placed, all necessary pleadable acts on record the best way it can in order to achieve the best of its case. It must put the other party and the Court on a firm understanding of what the issues joined or denied, or issues admitted or not admitted. Pleadings are the guiding light by which all concerned trace the path to the justice of a case. That path should not be hampered by and littered with stumbling blocks of uncertainties, misrepresentations and ambushes embedded in the averments. That will be an effort to spring surprises and will not be proper pleadings. As was said by Phillimore J., in The Why Not (1888) LR 2A and E. 265 and quoted with approval in Enwezor v. Central Bank of Nigeria (1976) 3 SC 45 at 56 Per Madarikan, JSC, pleadings “…are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants.”

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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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THE IMPRECISENESS IN PLEADING NON-QUALIFICATION WITHOUT SUFFICIENT PARTICULARS

It must be noted, too, that under Section 131 of the 1999 Constitution of this country, there are as many as four different qualifications a person must possess before he can contest presidential election and another 10 different grounds that can disqualify such a candidate who has all the four qualifications of section 131. Therefore, an assertion that merely says that a person is not qualified to contest election by reason of non qualification, will leave not just the person so assailed but every other person involved, including the court, at a loss as to what the pleader has in mind. In fact, to allow such pleading will amount to upsetting the very essence of filing pleadings in a case, which is to give the adversary and the court a clear notice of the pleader’s case a point further fortified in Paragraph 16(1)(a) of the First Schedule to the Electoral Act 2022.

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

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THE FUNCTION OF PLEADING IS TO DEFINE & DELIMIT REAL MATTERS IN CONTROVERSY

Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365 where Coker, J.S.C. in dealing with the main function of pleadings in the trial of an action had this to say: – “The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the court will adjudicate between them party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded.”

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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)

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