Responding to the claimEarly steps available
What steps are open to a defendant in the early part of a case?
Generally, the defendant files a statement of defence in answer to the statement of claim. In the statement of defence, the defendant can plead the following:
- traverse: this is a denial of any fact in the statement of claim;
- admission: this is an admission of any fact in the statement of claim;
- confession and avoidance: the defendant can admit to any fact but proceed to avoid the effect of the admission by raising new facts that result in a different consequence to the admission;
- set-off: this is a monetary claim pleaded by the defendant in defence of the claimant’s monetary claim;
- counterclaim: this is a separate and independent cross-action included in a statement of defence, where the defendant has a cause of action against the claimant; or
- objection on a point of law: the defendant may plead a point of law in the statement of defence that the defendant intends to raise before or after the trial of the suit.
The other options available to the defendant are as follows:
- filing of a notice of preliminary objection: the notice can be filed to challenge the jurisdiction of the court to hear the suit on various grounds such as lack of locus standi, lack of subject matter jurisdiction, abuse of court process and failure to comply with a condition precedent;
- third-party notice: this notice is served on a third-party defendant where a defendant claims against a party not already a party to the action that he or she is entitled to contribution or indemnity; or where he or she is entitled to any relief or remedy relating to, or connected with, the original subject matter of the action, and substantially the same as the relief or remedy claimed by the claimant; or that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined not only as between the plaintiff and defendant but as between the plaintiff and the defendant and the third party, or between any or either of them;
- filing an application for joinder: if the defendant is of the opinion that the necessary parties are not before the court, the defendant can file an application joining another party to the suit; or
- proposing settlement.
How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
In a statement of defence, the defendant pleads facts that form the basis of its defence against the claim of the claimant; in other words, the grounds upon which the claim should not be granted. The rules of court usually stipulate the time limit within which the defendant must file and serve its defence. For example, the Lagos State High Court (Civil Procedure) Rules 2019 provide that a statement of defence must be filed and served within 42 days of service of the statement of claim on the defendant by the claimant. Documents that the defendant intends to rely upon at the trial must be appended or submitted along with the statement of defence.Changing defence
Under what circumstances may a defendant change a defence at a later stage in the proceedings?
A defendant seeking to change its defence must file an application for amendment. The defendant may change its defence if it intends to rely on different facts or grounds for refuting the claimant’s claim or if it intends to rely on further and better particulars or pleadings. Under the civil procedure rules of most High Courts in Nigeria, a defendant is able to change its defence twice upon commencement of trial.Sharing liability
How can a defendant establish the passing on or sharing of liability?
A defendant passes on or shares liability with a third-party defendant (or more than one) by filing and serving a third-party notice on a third-party defendant. The defendant must, however, establish through its pleadings and cogent evidence that the third-party defendant ought to share or assume liability for the claim.Avoiding trial
How can a defendant avoid trial?
A defendant can avoid trial through:
- settlement: the parties can decide to settle the matter out of court and file the terms of settlement in court, which will be entered as the judgment of the court in the suit and will therefore be enforceable; or
- a preliminary objection: depending on the circumstances of the case, the defendant can apply to dismiss the case without a trial on the grounds that the court does not have jurisdiction to hear the matter; that the matter constitutes an abuse of court process; or that the matter discloses no reasonable cause of action.
What happens in the case of a no-show or if no defence is offered?
Where the defendant fails to show up or file a defence in response to the claimant’s claims, the claimant can apply to the court for a judgment in default of appearance. Depending on the nature of the claim, the claimant might be required to make an application for the matter to be set down for trial and go ahead with proving its case before judgment is given notwithstanding the absence of a defendant or a defence. Where the claimant’s claim is for declaratory relief, for example, the matter must be set down for trial and the claimant must establish its claim notwithstanding the absence of a defendant or defence.Claiming security
Can a defendant claim security for costs? If so, what form of security can be provided?
Under the civil procedure rules of most High Courts in Nigeria, a defendant is able to make an application to the court for the claimant to provide security for its costs, especially in a case where the claimant resides outside the jurisdiction. The form and amount of security are at the discretion of the court.