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UNDERSTANDING PLEADINGS III
AMENDMENTS OF 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.

AMENDMENTS IN PLEADINGS
The amendment of a pleading for the purpose of determining the real question in controversy between parties ought to be allowed at any stage of the proceedings before judgment unless such amendment will entail injustice or surprise on the other party or if such application is done mala fide (maliciously) as each case must be considered on its merit. The court will look into some major principles for such amendment to include the attitude of the party, nature of amendment, question of controversy and the time sought for such amendment which all falls back to the discretion of the court to grant such amendment or not(AKANINWO V NSIRIM (2008) 9 NWLR (Pt. 1093) pg 439.

WHEN TO AMEND PLEADINGS
In the case of OKOYE & ANOR v. OKONKWO & ANOR (2006) LPELR-11785(CA) the Court on whether pleadings can be amended with respect to evidence already led held that :
Amendment of the pleadings can be made at any stage of the proceedings before judgment in line with evidence that has been adduced in the course of proceedings: Amendment in the pleadings of a party can be made after the close of evidence by one party or both parties in order to bring the evidence in line with the evidence already led on record.
There must be good and cogent reasons before the Court can grant the leave for amendment of pleadings after close of a case and before judgment. Overwhelmingly, the Court in such instance, must seek to prevent the obvious justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of counsel. Conversely, any amendment which will result in injustice to the other party or which will violate the rule of audi alteram partem (listening to both parties) ought not be allowed.

WHEN AMENDMENT TAKES EFFECT
The amendment of a process takes effect from the date of the original document. Once such pleadings are amended, what stood before the amendment is no longer a material fact before the court as a consequential order will be made for the Defence to amend their own Defence too. However, a it is the duty of such respondent to such application for amendment to also seek the leave of court to amend his own processes; see the case of OBIALOR & ANOR V. UCHENDU & ORS (2013) LPELR-22048(CA) . Failure of Defence to amend their statement of Defence will be deemed an admittance of the amended statement of claim to which the Claimant is meant to file his own Reply to the Statement of Defence when necessary to do so and will be deemed to have admitted any assertions by the Defendant if he doesn’t reply to which the Defendant will need no further evidence to proof his case; see the case of UNION BANK OF NIG PLS V OSAZEE (2011) 7 NWLR (Pt. 1251) 89.

WHEN A COURT MAY REFUSE AN APPLICATION FOR AMENDMENT
The locus clasicus as to when a court may refuse the grant of an application for amended is cited in the case of ADEDAPO ADEKEYE V. CHIEF O. B. AKIN-OLUGBADE (1987) 3 NWLR (Pt. 60)214 SC
NOTE: It is settled law that a non-juristic person, generally, cannot sue or be sued. Naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute to a juristic person. Also if such application is to plead a new cause of action, such is not allowed; see the case of GOWON V IKE OKONGWU (1994) 2 NWLR (Pt. 326) 355.

CONCLUSION
Amendment of Pleadings is a legal device invented for the purpose of ease of adjudication and it does not change the actual date of filing of the amended process, and does not pretend that nothing existed before the amended process was filed. Hence, the Courts have stated repeatedly that a statement of claim or Defence which has been amended with leave of Court does not disappear into thin air and cease to exist and it is still part of the proceedings and can be properly looked at or referred to by the trial Court. See SALAMI VS OKE (1987) 4 NWLR (PT 63) 11. In other words; because a pleading has been amended does not mean that it is expunged or struck out and the Court can rightly refer to it though it cannot consider it as the basis of the claim or Defence in the action. Thus, pleading amended does not cease to be part of the evidence.

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.

UNDERSTANDING THE BASICS OF PLEADINGS (PART 1)
BY T.K.GONTUL ESQ, S.F.MOLWUS ESQ, O.P OLORUNYOMI ESQ, A.F. SALIFU AND A.O.B AZI

INTRODUCTION
Pleadings are written facts alleged by parties which should comprehensively present the material facts in dispute and highlight the issues between the parties to an action (its like each parties side of the same story) The court held in the case of BRAWAL SHIPPING NIG LTD V OMETRACO INTERNATIONAL LTD (2011) NWLR (PT. 1255)that;
‘the primary purpose of pleadings is to prepare the minds of the parties and indeed the court to know the case to be presented at the trial by each party and to narrow down the matters in controversy in respect of which evidence is led to proof these averment in the parties respective pleadings”
Pleadings comprises wholly the statement of claim, statement of Defence, counter claim, set-off, reply, and further and better particulars commenced by way of Writ of summons. Pleadings are not started by way of Originating Summons or Originating Motions and Petitions
Summarily, the aim of pleading is to allow the case of each party to be stated clearly without ambiguity so that the opponent will know precisely the issues he is facing and how to respond to same, also, parties must indeed confine their evidence to those issues. The most important point of pleadings is to avoid surprise on respective parties when the matter is heard in court. The major function of pleadings is to define and delimit with clarity and precision the real issues in contention. It is meant to be comprehensive and accurate because issues that are not pleaded cannot be raised in the cause of trial as parties are by their pleadings and parties cannot go outside it to lead evidence or rely on the facts which are extraneous to those pleaded as evidence adduced to determine the outcome of the trial; cited in the case of KYARI V ALKALI (2001) 11 NWLR (pt. 724) 412
“To succeed in a claim for special damages or exemplary damages , a party must plead with particulars or itemize such damages these must be claimed specially; Also, evidence in support of facts not pleaded goes to no issue and ought to be discountenanced as cases must be determined only on legally received evidence.
NOTE: Facts are to be pleaded and evidence is led in support of the pleadings to which the court will adjudicate upon; where evidence led is not based on facts pleaded, such evidence goes to no issue(ADESANYA V OTUEWU (1993) 1 NWLR (Pt. 270) 414.

AVERMENTS IN PLEADINGS
It is law that averment in pleadings is not evidence even if duly pleaded as it would be deemed abandoned , to prove such averments it must be admitted or denied in the pleadings UNION BANK PLC V ASTRA BUILDERS (W/A) LTD (2005) 5 NWLR (Pt. 1186) 1 at 27. The court stated that, even where a particular averment is admitted, a Claimant may nevertheless be required to tender evidence in proof of admitted facts as averments in pleadings, unless admitted by the opposite party must be established or proved by evidence. BRAWAL SHIPPING NIG LTD V OMETRACO INTERNATIONAL LTD (2011) NWLR (PT. 1255).
Pleadings (statement of facts) are the body and soul of any suit they are the foundation of the case and are gradually built upon by the provision of evidence to support such pleadings before a court of justice. Allegations no matter how strong in their wording cannot amount to averments( statements in a pleading) unless they are sufficiently particularized. Parties are bound by their pleadings and any evidence which is at variance with averments made in the pleadings goes to no issue and should be disregarded by the court. It is trite law that what is admitted need not be proved and that parties are bound by their pleadings; AGHANELO V UBN LTD (2002) 7 NWLR (Pt.666)
NOTE: A claim made on the writ of summons, which is not repeated or reclaimed in the statement of claim will be deemed abandoned or varied; BRAWAL SHIPPING NIG LTD V OMETRACO INTERNATIONAL LTD (2011) NWLR (PT. 1255)

CONTENTS OF PLEADINGS
Good pleadings must contain material facts only, to be relied upon by parties. Facts must always be positive, precise and succinctly stated, unambiguous. it is unnecessary to plead law, statutes or sections; the court must always be guided to avoid being distracted from the substantive issues presented by each party in their respective pleadings. A pleadings process should contain (1)The name of court,(2) Suit number (3) Names of party (s) (4) The title/Heading i.e Statement of claim (5) Reliefs sought containing just material facts (6) Pleadings should be dated (7)Address for service.

HOW TO MOVE MOTIONS IN COURT
Processes on a daily are being filed in court to enable the court carefully analyze the true position of matters before it and doing justice in the determination of the suit before it. Motions are documents in court praying the court for certain prayers/orders on a particular issue(s) before it, which can range from order(s) for major injunctions etc. There are basically two parties to a motion which are the Applicant (s) and the Respondents (s).
Technically a motion is written document. However there are instances where a lawyer may make oral applications before the court. However in this article we shall discussing Motions in its strict sense of being a written document.
In practice, there are two types of motions to which can be moved before any court of law in Nigeria which are;

1. Motion Exparte
2. Motion on Notice

MOTION EXPARTE
A motion exparte is an application before a court to which only the part who filed such process is entitled to be heard(Applicant); it is an unchallenged document to which only the court and the party who served same can hear same. Though most motion exparte’s are to be moved in open court, some courts prefer to hear same in chamber as there would be no room for a Respondent to file counter affidavit to challenge the prayers contained in the motion and subjected to the courts discretion to hear same and grant the said prayers in the affidavit. A motion exparte is an application of urgency especially when such res (subject matter) is in fear or danger.

MOTION ON NOTICE
A motion on notice is an application made by an Applicant to which the other party known as the Respondent in the suit is notified of such process via service. This gives the Respondent an opportunity to challenge such process (application) served on him ( brought to his notice) through a “counter affidavit”. Upon receipt of the counter affidavit, the applicant will file a “reply” if new issues are being raised in the counter affidavit to the motion on notice.

Where no counter affidavit has been filed nor served on the Applicant , the Respondent is said to have waived his right and is deemed to have admitted to the facts supporting the motion. Unless the Respondent applies to the court for a leave to do the needful with sufficient grounds as to why such counter was not filed on time as prescribed by law. At this point it is the courts discretion to grant the said motion for extension of time to file such process out of time.

MOVING A MOTION IN COURT
A motion is an application meant to be moved/adopted in court, unless the reliefs/ prayers/orders being sought is overtaken by events, in this case withdrawal of such application would be the best option. A motion exparte can be moved by adopting the written application proper or since it’s not being opposed, be moved in terms.
When a lawyers case is called, the first thing to do after announcing appearance in court is for the Applicant Counsel to first introduce the motion, this is done by notifying the court that an application was filed on a certain date and when such process was served on the Respondent. The court will then confirm such service on the respondent
Example: May it please this Honorable court, my name is J.J. Kuturu, my appearance is for the Plaintiff/Applicant(the other counsel will then introduce himself to the court too). Before this honourable court, my lord is a motion on notice/applicaiton dated and filed 21/03/2020, party(s) have been served and the motion is ripe for hearing, we are ready to proceed with same subject to the courts overriding convenience (The court will then confirm service, and if respondent is opposing to the application, if such is being opposed the court the applicant the applicant then goes ahead to move the application thus) The applicant prays the court for the following others 1…..2….. also my lord, the motion is supported by an affidavit deposed to by one ChinChin Dogo, it is a 7 paragraph affidavit (if there are exhibits/annextures, applicant will then notify the court about the attachments) there are also annextures to the affidavit marked as Exhibits A1 and A2 respectively, we most humbly rely on all the averments in the said affidavit and urge this court to grant same, also my lord, we have filed our written address to the application and most humbly adopt same as our oral argument to our application and urge my lord to grant same (if the Respondent have served the counter on the Applicant, you then go ahead to notify the court about it) My lord, we have also been served with a copy of the counter affidavit by the Respondent to our application dated ……………and we have also filed our reply dated…………to the counter affidavit and urge my lord to discountenance the counter affidavit and grant our application. The court will then give audience to the Respondent to adopt his counter affidavit and the court will go ahead to either deliver a bench ruling or adjourn the matter for ruling proper.

MOVING IN TERMS
Moving in terms is usually an oral application made by an Applicant to the court, especially if such application is not being opposed, be it a motion exparte or a motion on notice. It is an oral application for the leave of court to allow Applicant to summarily adopt the application, when making such application, all that is need is to first introduce the motion as above and then the court will ask is same motion has been served and confirm the service of the process on the respondent who then notifies the court that he is not opposing the said application, giving room for the application to be moved in terms, unless the court refuse the grant of such leave to move in terms. all that is needed to be said after the leave to move in terms have been granted by the court is to say
“i humbly move in terms of the prayers as contained on the face of the motion paper and urge this honourable court to grant this application”
the court will then go ahead to give a bench ruling as to the application.
In the case of SAVANNAH BANK OF NIGERIA PLC V. JATAU KYENTU (1998) 2 NWLR (Pt. 536) 41 at 55 the court held that :
“the court cannot be expected to rule on a motion that was not moved. it is safe to assume that as the motion was not moved, counsel who filed it had abandoned it”.

HOW TO MOVE MOTIONS IN COURT

Processes on a daily are being filed in court to enable the court carefully analyze the true position of matters before it and doing justice in the determination of the suit before it. Motions are documents in court praying the court for certain prayers/orders on a particular issue(s) before it, which can range from order(s) for major injunctions etc. There are basically two parties to a motion which are the Applicant (s) and the Respondents (s)
In practice, there are two types of motions to which can be moved before any court of law in Nigeria which are;

1. Motion Exparte
2. Motion on Notice

MOTION EXPARTE
A motion exparte is an application before a court to which only the part who filed such process is entitled to be heard(Applicant); it is an unchallenged document to which only the court and the party who served same can hear same. Though most motion exparte’s are to be moved in open court, some courts prefer to hear same in chamber as there would be no room for a Respondent to file counter affidavit to challenge the prayers contained in the motion and subjected to the courts discretion to hear same and grant the said prayers in the affidavit. A motion exparte is an application of urgency especially when such res (subject matter) is in fear or danger.

MOTION ON NOTICE
A motion on notice is an application made by an Applicant ( either written or oral) to which the other party known as the Respondent in the suit is notified of such process via service. This gives the Respondent an opportunity to challenge such process (application) served on him ( brought to his notice) through a “counter affidavit”. Upon receipt of the counter affidavit, the applicant will file a “reply” if new issues are being raised in the counter affidavit to the motion on notice.
Where no counter affidavit has been filed nor served on the Applicant , the Respondent is said to have waived his right and is deemed to have admitted to the facts supporting the motion. Unless the Respondent applies to the court for a leave to do the needful with sufficient grounds as to why such counter was not filed on time as prescribed by law. At this point it is the courts discretion to grant the said motion for extension of time to file such process out of time.

MOVING A MOTION IN COURT
A motion is an application meant to be moved/adopted in court, unless the reliefs/ prayers/orders being sought is overtaken by events, in this case withdrawal of such application would be the best option. A motion exparte can be moved by adopting the written application proper or since it’s not being opposed, be moved in terms.
When a lawyers case is called, the first thing to do after announcing appearance in court is for the Applicant Counsel to first introduce the motion, this is done by notifying the court that an application was filed on a certain date and when such process was served on the Respondent. The court will then confirm such service on the respondent
Example: May it please this Honorable court, my name is J.J. Kuturu, my appearance is for the Plaintiff/Applicant(the other counsel will then introduce himself to the court too). Before this Honourable court, my lord is a motion on notice/application dated and filed 21/03/2020, party(s) have been served and the motion is ripe for hearing, we are ready to proceed with same subject to the courts overriding convenience (The court will then confirm service, and if respondent is opposing to the application, if such is being opposed the court the applicant the applicant then goes ahead to move the application thus) The applicant prays the court for the following others 1…..2….. also my lord, the motion is supported by an affidavit deposed to by one ChinChin Dogo, it is a 7 paragraph affidavit (if there are exhibits/annextures, applicant will then notify the court about the attachments) there are also annextures to the affidavit marked as Exhibits A1 and A2 respectively, we most humbly rely on all the averments in the said affidavit and urge this court to grant same, also my lord, we have filed our written address to the application and most humbly adopt same as our oral argument to our application and urge my lord to grant same (if the Respondent have served the counter on the Applicant, you then go ahead to notify the court about it) My lord, we have also been served with a copy of the counter affidavit by the Respondent to our application dated ……………and we have also filed our reply dated…………to the counter affidavit and urge my lord to discountenance the counter affidavit and grant our application. The court will then give audience to the Respondent to adopt his counter affidavit and the court will go ahead to either deliver a bench ruling or adjourn the matter for ruling proper.

MOVING IN TERMS
Moving in terms is usually an oral application made by an Applicant to the court, especially if such application is not being opposed, be it a motion exparte or a motion on notice. It is an oral application for the leave of court to allow Applicant to summarily adopt the application, when making such application, all that is need is to first introduce the motion as above and then the court will ask is same motion has been served and confirm the service of the process on the respondent who then notifies the court that he is not opposing the said application, giving room for the application to be moved in terms, unless the court refuse the grant of such leave to move in terms. all that is needed to be said after the leave to move in terms have been granted by the court is to say
“i most humbly move in terms of the prayers as contained on the face of the motion paper and urge this Honourable court to grant this application”
the court will then go ahead to give a bench ruling as to the application.
In the case of SAVANNAH BANK OF NIGERIA PLC V. JATAU KYENTU (1998) 2 NWLR (Pt. 536) 41 at 55 the court held that :
The court cannot be expected to rule on a motion that was not moved. it is safe to assume that as the motion was not moved, counsel who filed it had abandoned it.