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The Statement Of Defence
Published Sep 04, 2020 IN Column, LAW & SOCIETY,
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 A party served with a statement of claim is expected to file a state­ment of defence if he intends to fight the case. The defendant’s counsel is expected before filing the statement of defence to first scrutinize the state­ment of defence to see if there are errors therein which may make the statement of claim objectionable. If there exist serious error in the statement of claim and the defendant raises an objection, they may act as grounds to end the matter at the threshold. Such errors could be for ex­ample if the statement of claim discloses no reasonable cause of action or if it is clear from the nature of the claim that the court before which the case was brought lacks jurisdiction to entertain the action. Other objectionable errors include if the requisite pre-action notice was not given before commencing the action or where the entire action is statute barred.


If the defendant wants to object to the matter based on lack of jurisdiction of the court to entertain the matter, then he need not file a statement of defence before do­ing this. All he is to do is to immediately file a conditional memorandum of appear­ance and a notice of preliminary objection to strike out the matter based on lack of jurisdiction. If however the defence is going to rely on issues of facts and issues of law in the application to strikeout the matter for lack of jurisdiction, he should file a motion on notice, supported with an affidavit and a written address. The affidavit in support would state out the facts that the defence would rely on. If the defendant raises an objection not based on jurisdiction but on some other point of law, he should file a statement of defence and raise an objection on point of law in a paragraph therein as part of the defence.


The statement of defence should deal specifically with the alleged facts in the statement of claim. The alleged facts in the statement of claim must not be dealt with generally but point by point. Usu­ally the defendant deals with the alleged facts in the statement of claim in the same order in which they appear in the state­ment of claim by admitting or denying them seriatim. If any of the alleged facts are not within the knowledge of the de­fendant he has to so state as a matter of common practice. The paragraphs in the statement of defence are also numbered sequentially.


If there are many defendants and they file separate statements of defence, they are to be headed as being that of the particular defendant, for example “1st Defendant’s Statement of Defence.” If a joint statement of defence is filed, then it should be headed “Statement of Defence of the Defendants.” This is usually the case when a counsel represents all the defendants. The defendant must not have conflicting cases for this to be effective.


The allegations in a statement of claim can be answered in any of six different ways, to wit: 1).admission;2). Traverse; 3). Confession and avoidance; 4). Objec­tion on point of law; 5).set off; 6). Counter claim.


The defendants counsel may, after care­fully examining the statement of claim, admit certain alleged facts as contained therein. By section75 of the evidence Act2011, an admitted fact need not be proved. A party who fails to admit what ought to be admitted could be penalized in costs for wasting the courts time and that of the adverse party.


A traverse according to the learned author Odger, is an express contradiction of an allegation of fact in the statement of claim; it is generally a contradiction in the very terms of the allegation. There are two ways of denying an allegation of fact in a statement of claim. If the traverse is expressed thus : “the defendant denies paragraph 4 of the statement of claim”, it means that the defendant is traversing allegations that are within his personal knowledge. If the defendant is traversing allegations that are not necessarily within his knowledge, then the following method of traverse would be used: ”the defendant does not admit paragraph 4 of the state­ment of claim.” There is a presumption that allegations of facts in a pleading are admitted unless it is traversed. For this purpose, a general traverse is not sufficient.


There are however exceptions to this presumption. If a claimant pleads mat­ters of law, the defendant is not bound to traverse it because matters of law should not be traversed, only allegations of facts. Also damages and their quantum are al­ways in issue and need not be traversed unless the defendant wishes to make an admission. The defendant is not required to plead specifically to matters alleged under “Particulars” in the statement of claim. This is because in dealing with the substantive allegations which the particu­lars relate, he is expected to have covered the particulars by necessity. Introductory matters which are also referred to as mat­ters of inducement are not required to be traversed unless they are in issue. A tra­verse to be effective, must be unequivocal.


The statement of defence usually con­tains a general traverse which is placed as the first or last paragraph. It is expressed in the following terms: “Save and except as is hereinafter expressly admitted, the defendant denies each and every allega­tion of fact contained in the statement of claim as if same were set out herein and traversed seriatim.” The purpose of the general traverse is to ensure that all allegations in the statement of claim which are not admitted are traversed so that those allegations inadvertently not traversed are covered.


Order 15 rule 7 of the Delta State rules provides as follows: “Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the oppo­site party, shall be taken to be admitted, except as against an infant, lunatic or person of unsound mind not adjudged a lunatic.” General traverse alone is not sufficient to traverse material allega­tions of facts in the statement of claim. This the Supreme Court so held in LCC v. Ogunbiyi, (1969) 1 ALL NLR 29 at 299. The Supreme Court however in the lat­ter case of Umezie v Onuaguluchi (1995) 12 SCNJ 120, held that a general traverse when considered along with the “whole tenor” of other averments in the state­ment of defence may amount to a proper traverse of traditional history pleaded in the statement of claim.

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