UNDERSTANDING PLEADINGS II
BASIC DEFENCES IN PLEADINGS IN NIGERIA
BY T.K.GONTUL ESQ, S.F MOLWUS ESQ, O.P. OLORUNYOMI ESQ, A.F. SALIFU, A.O.B AZI & A.S MUHAMMAD.
TRAVERSE IN PLEADINGS
Traverse simply is the mere denial or non-admission of pleaded facts either expressly or by necessary implication. The law is that any traverse must be specifically pleaded so that the claimant is put on sufficient notice of the case he is to meet. There are general and specific traverse; a general traverse ought not be adopted; essential allegations should be specifically traversed, see the case of ADESANYA V OTUEWU (1993) 1 NWLR (Pt. 270) pg 414 and TAJUDEEN SULEMAN &3 ORS V. ADE UKANA & 2 ORS (2019)LPELR -46827(CA)
An averment not specifically denied by the Defendant in the statement of Defence taken as admitted, such denial must not be general or evasive, but specific, as one is not limited to just a particular paragraph of the statement of Defence but to the entire Defence. A defendant is only expected to make a specific denial where there is a specific averment in the statement of claim as to a particular issue as this will help in determining whether an issue has been joined on a point by such parties.
REPLY IN PLEADINGS WHEN NECESSARY
A reply’s proper function is to raise in an answer to the Defence, any matter which makes the Defence not maintainable or might otherwise take such Defence by surprise or which raised issues of fact not arising from such Defence. Where averments in pleadings are not denied or controverted by the claimant who foes not file a reply to a statement of Defence, he is deemed to have admitted the assertions in those paragraphs of Defence and not adducing evidence in proof of them.
A reply does not need/require any document or statement to accompany it as held in the case of CHIEF NKPA V. CHAMPION NEWS PAOERS LTD &ANOR (2016) MGCA 75.
COUNTER-CLAIM
A counter-claim is an independent and separate claim for relief asserted against an opposing party after an original claim his been made; a Defendants claim in opposition to or as a set off against the claim. It is not only a claim by the Defendant against the Plaintiff in the same proceedings but it is regarded as an independent and separate action in which the Defendant and counter-claimant is in opposition of the Plaintiff in the same proceedings. When the court lacks jurisdiction to entertain the main claim, a counter-claim cannot stand on its own even being a separate and independent claim See the case of ABERUAGBA V. OYEKAN (2020) 2 NWLR (Pt. 1707) at 173. However a counter claim will subsists even where the main claim is discontinued, withdrawn, dismissed or struck out but not on grounds of jurisdiction OBOLO V ILUKOYENIKAN (2013) LPELR 20324
A counter claimant only starts his claim after the main claimant to the substantive suit concludes his case, but he lays foundation in respect to the counter claim during his Defence in the substantive suit. The claimant also has the right to respond to the counter claim, and if he fails to file a Defence to the counter claim, the court will give judgment as per the evidence of counter-claim before it.
Where a Plaintiff’s claim in an action in the substantive suit fails and the Defendant doesn’t have a counterclaim, the Defendant will not be entitled to any declaration of title; see the case of BIKO & ANOR V AMAECHI & ORS (2018) LPELR-45069(CA).
SET-OFF
Set-off in law is the reduction of the discharge of a debt by setting against it a claim in the favour of the debtor.
Unliquidated damages may be set-off as between the original parties and also against an assignee. This principle has extended to allow set off in respect of a claim for damages and even where the claim , the basis of the set-off arises from a different transaction.
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