LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Illegality — Necessity to Plead Statute and Facts Constituting Illegality
PRINCIPLE STATEMENT
A defendant relying on illegality as a defence must specifically plead the statute contravened and the facts constituting the illegality; a cardinal rule of pleading is that a statute relied on as a bar must be specially pleaded.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Onwuchekwa v. Nigeria Deposit Insurance Corporation (2002) NLC-982000(SC) at p. 6; Paras A–B.
"A cardinal rule of pleading is that whenever a statute is relied on as a bar to the action it should be specially pleaded. Also, a defendant who relies upon the defence of illegality should state the facts on which he relies in his pleadings. A defendant who alleges that the plaintiff has acted illegally in the sense that he had acted in contravention of a statute must plead what statute had been contravened and in what regard."
EXPLANATION / SCOPE
Illegality must be specifically pleaded. The defendant must identify the statute contravened and the facts constituting the illegality. General allegations are insufficient. The principle ensures that the plaintiff has notice of the defence. The opposing party can prepare to meet the case. The rule applies to all statutory bars and illegality defences. The court will not consider illegality not properly pleaded. The defendant cannot rely on unpleaded illegality at trial. The principle is a cardinal rule of pleading. The defendant must provide particulars. The court may allow amendment in appropriate cases. The rule prevents trial by ambush.
