LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Statement of Claim — Reliefs — Reference to Writ of Summons by Incorporation Valid
PRINCIPLE STATEMENT
Where the statement of claim states that the plaintiff claims "as per writ of summons", the claim in the writ of summons is incorporated in the statement of claim and becomes part of it.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC (quoting Ubaezonu, JCA in Owena Bank (Nig.) Ltd. v. Nigerian Sweets and Confectionery Co. Ltd.), in Okomu Oil Palm Company Limited v. Iserhienrhien (2001) NLC-1211995(SC) at pp. 18–19; Paras E–A.
"Where the statement of claim states that the plaintiff claims 'as per writ of summons', the claim in the writ of summons is incorporated in the statement of claim and becomes part of it. Once there is such incorporation, the statement of claim is taken to contain the relief stated in the writ, which statement of claim would otherwise have been defective."
EXPLANATION / SCOPE
A statement of claim that states “as per writ of summons” validly incorporates the reliefs from the writ by reference. This cures what would otherwise be a defective statement of claim. The incorporation is effective; the reliefs become part of the statement of claim. The defendant is not misled because the writ has been served. The practice, while not ideal, is acceptable. The court will not strike out a statement of claim for this reason alone, especially where no prejudice results. The principle promotes substance over form. The opposing party must object early if prejudiced. The court may allow amendment if necessary, but incorporation by reference is generally sufficient.
CASES APPLYING THIS PRINCIPLE
None recorded.
