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Practical Study Civil Case

The document discusses the principles and process of pleadings in court cases. Pleadings must contain only material facts and avoid evidence. They must be precise and in simple language. Pleadings can generally be amended with court approval. Circumstances where amendment may not be allowed include after pre-trial conferences or preliminary objections. A suit can be withdrawn by the plaintiff before completion of hearings.

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9 views5 pages

Practical Study Civil Case

The document discusses the principles and process of pleadings in court cases. Pleadings must contain only material facts and avoid evidence. They must be precise and in simple language. Pleadings can generally be amended with court approval. Circumstances where amendment may not be allowed include after pre-trial conferences or preliminary objections. A suit can be withdrawn by the plaintiff before completion of hearings.

Uploaded by

Geaco
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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PLEADINGS

Pleading is always made by filing a PLANT, WSD AND REPLY


TO WSD. No pleading other than by way of Set- off or
counterclaim subsequent to WSD can be presented except by
LEAVE of the court as per Order VIII Rule 13 of the Civil
Procedure Code, Cap.33

Fundamental principles in drawing pleadings

In drawing pleadings every legal practitioner so to speak has to


abide with a certain legal principles, namely

Pleading must set- forth the material facts,

All pleading must set forth all the facts that the plaintiff or the
defendant rely for his claim or defense. From that lining, all
pleadings must state the material facts and not the evidence

Pleading not to contain matter of secondary facts which aims at


providing proof of material facts. This is because facts which aims
at providing proof of material facts are matter of evidence, which
ought to be produced in accordance with the rules of evidence.
Therefore, in pleadings there should be no evidence but only
matter of facts of dispute or defense.
All pleadings must state the material facts concisely but with
precision. Pleadings has to be precise, unambiguous and very
short paragraphed.

The drawer of the pleadings must narrate the material facts in


very simple and straight language

Note;

Request for better particulars by the party or court suo motto


under Order VI Rule 4.

No departure from pleadings (O.VI Rule 7), the rationale is to


avoid the court process, with the view to harass the opposite
party unless one apply for leave to make amendment of the filed
pleading within 14 days under Order VI Rule 18.

Amendment of the Pleadings

As a matter of principles, pleading can be amended at any time of


the suit. It is made upon an order of the court after application of
the party (O.VI Rule 16). The mischief is to enable the court to
determine the real issue in controversy between the parties as
per Order VI Rule 17. The court cannot suo motto order for
amendment of pleading.
An application for amendment of pleadings is done by filing
Chamber Summons and Affidavit and it is heard inter parties and
the Respondent is required to file Counter-Affidavit. If the
respondent fail to file Counter-Affidavit, the court presume to
have conceded to the application and thus, the court shall
proceeds to determine an application ex-parte. If the respondent
does not file Counter-Affidavit, the application become non-
contentious.

Circumstances where a court is not expected to order for


the amendment of pleadings

-Amendment of pleadings shall not be ordered after pre-trial


conference, because the party may obtain advantages of the
facts revealed during pre-trial conference which he may be
tempted to incorporate it when amending pleading.

-After preliminary point of objection, if the amendment intends to


cure the defect which is the subject of preliminary objection, it
shall render the preliminary objection nugatory. Once there is
preliminary objection, the adverse party to such objection cannot
apply for amendment of pleading before determination of such
objection.
To allow amendment of the pleading before determination of the
objection will have the effect of pre-empting the objection and
put the party who raised the objection to ridicule.

- After judgment, this is because there is no controversy between


the parties after the judgment. The amendment is allowed before
and not after the judgment.

Failure to make description of the parties in the pleadings


renders the suit incompetent. (page 18 Omaris’ Book ).

The Plaint which does not discloses the cause of action is


liable to be struck out for being incompetent filed.

Failure to state the value of the subject matter the suit is


liable to be struck out for being bad in law.

Rejection vs Dismissal of the plaint

Dismissal of the plaint or suit occur after the plaint has been
heard on merit while rejection is when the plaint runs short of
a certain requirements.

When the court reject the plaint, the plaintiff can amend and
refile it again subject to the law of limitation.

Withdraw of the suit under Order XXIII of the CPC


This is the power of the plaintiff exercisable before hearing
completes. This can be done by obtaining leave or without
leave, with the view to rectify the formal defect and
reinstitute ore refile again subject to the law of limitation. The
grounds for withdraw can be based on formal defect or any
other grounds.

An application for withdraw is done by Chamber Summons and


Affidavit. In the Chamber Summons, the plaintiff has to state
that, the court be pleased to grant leave to withdraw and
reinstitute. This is inter parties application.

The other way of withdraw is by neglect or abandonment of the


suit for a reasonable time. This has two disadvantages namely;
the plaintiff can be penalized to pay costs of the suit to the
Defendant and the other is that, the plaintiff will not be allowed
to reinstitute the suit, meaning that the principle of res judicata
applies.

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