LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Statement of Claim — Reliefs — Incorporation by Reference
PRINCIPLE STATEMENT
Incorporating the writ of summons into the statement of claim by reference is an irregularity, but if not objected to at the earliest opportunity and no prejudice results, it is too late to raise the issue at the address stage.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Ajayi & Ors v. Yemi (2001) NLC-51997(SC) at pp. 13–16; Paras D–A.
"Admittedly there has been no strict compliance with the above rule. What the plaintiff has done in paragraph 19 of his statement of claim was to incorporate the writ of summons in the said statement of claim. There is at the worst an irregularity here. This irregularity was not objected to at the earliest opportunity... The 1st Defendant ought to have raised this objection before pleading to the statement of claim. Having pleaded to it and having allowed a full blown trial to be held, I think it is too late for 1st defendant to raise the issue at the address stage. This is more so that at no time was 1st defendant misled as to the claims of the plaintiff which he answered fully to both in his pleadings and evidence."
EXPLANATION / SCOPE
Incorporating reliefs by reference to the writ of summons is an irregularity, not a nullity. The defect must be objected to at the earliest opportunity—before pleading to the statement of claim. If the defendant pleads to the merits without objection, the right to challenge the irregularity is waived. The court will not allow a party to wait until final address to raise the issue, especially where no prejudice or miscarriage of justice occurred. The principle promotes fairness and prevents tactical ambush. The court may allow amendment to cure the irregularity if objection had been timely. The defendant must have been misled to succeed.
