Order 13 — Pleadings

Unless the Court gives leave to the contrary the plaintiff shall serve a statement of claim in the manner prescribed in order 3 rule 3 (1) of these Rules with copies of documentary evidence therein mentioned on the defendant, or, if there are two or more defendants, on each defendant, and shall do so either when the writ, or notice of the writ, is served on the defendant unless the Court or Judge in Chambers otherwise orders.

(1) Subject to sub-rule (2) of this rule, a defendant who enters an appearance and intends to defend the action shall, unless the Court gives leave to the contrary, serve:

(a) a statement of defence which may include any preliminary objection he wishes to raise to the plaintiff’s action;

(b) a list of witnesses to be called at the trial;

(c) a written statement on oath of the witnesses;

(d) copies of every document to be relied on at the trial; and

(e) a list of non-documentary exhibits at the time he files his memorandum of appearance.

(2) If a summons under order 12 rule 1 of these Rules is served on a defendant, sub-rule (1) of this rule shall not have effect in relation to him unless by the order of Court made on a motion on notice he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within fourteen days after the making of the order of within such other period as may be specified in the order.

(1) A plaintiff on whom a defendant serves a defence shall serve a reply on that defendant within fourteen days of service of the defence on him if it is needed for compliance with rule 6 of this order and, if no reply is served, rule 10 of this order shall apply.

(2) A plaintiff on whom a defendant serves a counter-claim as in Form 14 in Appendix 6 to these Rules, shall, if he intends to defend it, serve on that defendant within fourteen days a defence to counter-claim.

(3) Where a plaintiff intends to file both a reply and a defence to counter-claim, he shall include them in the same document.

(4) A reply to any defence shall be served by the plaintiff before the expiration of fourteen days after the service on him of that defence, and a defence to a counter-claim shall be served by the plaintiff before the expiration of fourteen days after the service on him of the counter-claim to which it relates.

(1) Every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, and numbered consecutively.

(2) Any date, sum and number shall be expressed in figures but may also be expressed in words.

(3) Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.

(4) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement.

In any case in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in any other case in which particulars may be necessary, particulars, with dates and items if necessary, shall be stated in the pleadings.

(1) A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded might take the opposite party by surprise.

(2) Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.

(3) Without prejudice to sub-rule (1) of this rule, a defendant in an action for the recovery of land shall plead specifically every ground of defence on which he relies and a plea that he is in possession of the land by himself or his tenant is not sufficient.

(1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.

(2) Before applying for particulars by summons or notice, a party may apply for them by letter and the costs of the letter and of such particulars delivered pursuant to the delivery of the letter shall be allowable on taxation.

(3) Particulars of a claim shall not be ordered under this rule to be filed before defence unless the Court or Judge in Chambers is of the opinion that they are necessary or desirable to enable the defendant to plead or not for any other special reason to be so delivered.

(1) The party at whose instance particulars have been filed under a Judge’s order shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars upon him that he had initially.

(2) Except as provided in this rule, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings or give any extension of time.

An allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted, in the pleading of the opposite party, shall be taken to be admitted, except as against persons under legal disabilities.

(1) Where there is no reply to a defence, there shall be an implied joinder of issues on that defence.

(2) Subject to sub-rule (3) of this rule:

(a) there is at the close of the pleadings an implied joinder of issues on the pleadings last served; or

(b) a party may in his pleadings expressly join issues on the last preceding pleading.

(3) There shall be no joinder of issues, implied or expressed, on a statement of claim or counter-claim.

(4) A joinder of issues operates as a denial of any material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, where in the case of an express joinder of issue, an allegation is exempted from the joinder and is stated to be admitted, in which case, the express joinder of issue operates as a denial of every other allegation.

A pleading, not being a petition or summons, shall not, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

(1) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, the relief shall be stated, as far as may be, separately and distinctly.

(2) The same rule shall apply where the defendant relies upon several distinct grounds of set-off or counter-claim founded upon separate and distinct facts.

(3) A statement of claim shall state specifically the relief, which the plaintiff claims, either simply or in the alternative, and may also ask for general relief.

It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or as the case may be stating that he does not know whether any given allegation is true or otherwise.

(1) Where a party denies any allegation of fact he shall not do so evasively, but shall answer the point of substance.

(2) Where a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.

The defence shall admit such material allegations in the statement of claim as the defendant knows to be true, or desires to be taken as established without proof.

Where any defendant seeks to rely upon any fact as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case may be, and the particulars of such set-off or counter-claim and the written statements of witnesses shall be given.

The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence, in the opinion of the Court, ought to have been expressly set up by the defence, or is inconsistent with the statements thereof, or is, in the opinion of the Court, likely to take the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to meet.

The Court, where it considers that the statement of claim and the defence filed in any suit insufficiently disclose and fix the real issues between the parties, may order further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.

Where the Court is of the opinion that any allegation of fact, denied or not admitted by any pleading, ought to have been admitted, the Court shall make such order as may be just with respect to costs.

(1) The Court may at any time, on the application of either party, strike out any pleading or part of it, on the grounds that it:

(a) discloses no cause of action, or no defence to the action, as the case may be; or

(b) is scandalous, frivolous or vexatious; or

(c) may prejudice, embarrass or delay the fair trial of the action; or

(d) is otherwise an abuse of the process of the Court.

A denial of a contract shall be accompanied by a statement of the facts relied upon.

Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred are material.

Wherever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact and to refer generally to such letters, conversations or circumstances without setting them out in detail. If in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

A party may not allege in any pleadings any matter or fact which the law presumes in his favour or as to which the burden of proof lies upon the other party, unless the same had first been specifically denied.

A technical objection shall not be raised in any pleading on the ground of an alleged want of form.

In a case where the cause of action is stated or settled account, the same shall be alleged with particulars but in a case where a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same need not be alleged in the pleadings.

Where in any action a defence of tender before action is pleaded, the defendant shall pay into Court in accordance with order 15 rule 1 of these Rules the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into Court has been made.

Where a claim by a defendant to a sum of money whether of an ascertained amount or not is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set off against the plaintiff’s claim, whether or not it is also added as a counter-claim.

(1) Where in an action a set-off or counter-claim is established as a defence against the plaintiff’s claim, the Court may, if the balance is in favour of the defendant, give judgement for the defendant for the balance, or otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

(2) The provisions of sub-rule (1) of this rule shall apply mutatis mutandis where the balance is in favour of the plaintiff.

(1) The pleadings in an action is deemed to be closed:

(a) at the expiration of 14 days after service of the reply or, if there is no reply, but only a defence to counter-claim, after service of the defence to counter-claim; or

(b) where neither a reply nor a defence to counter-claim is served, at the expiration of fourteen days after service of the defence.

(2) The pleadings in an action is deemed to be closed at the time provided by sub-rule (1) of this rule, notwithstanding that any request or order for particulars has been made but has not been complied with at that time.

(1) A statement of claim or counter-claim shall state specifically the relief claimed either simply or in the alternative, and it shall include any general or other relief, which may be given as a Judge may think just as if it had been asked for.

(2) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, the claims or causes shall be stated separately and distinctly.

(3) The provisions of sub-rule (2) shall apply where the defendant relies upon several distinct grounds of defence, set-off or counter-claim founded upon separate and distinct facts.

Where a statement of claim is filed, the plaintiff may alter, modify or extend his claim without any amendment of the indorsement of the writ, endorsed on the writ without amending the writ, provided that the plaintiff may not completely change his cause of action.

The statement of defence shall be:

(a) a statement in summary form; and

(b) supported by copies of documentary evidence, list of witnesses and the written statements on oath of witnesses.

(a) a statement in summary form; and

(b) supported by copies of documentary evidence, list of witnesses and the written statements on oath of witnesses.

Where a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance and where an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

(1) In an action for debt or liquidated money demand, a mere denial of the debt shall not be sufficient defence.

(2) In an action for money had and received, a defence in denial shall deny the receipt of the money or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

(3) In an action for goods sold and delivered, the defence shall deny the order or contract, the delivery, or the amount claimed.

(4) In an action upon a bill of exchange, promissory note or cheque, a defence in denial shall deny the matter of fact e.g. the drawing, making, endorsing, accepting, presenting or notice of dishonour of the bill or note.

Where either party wishes to deny the right of any other party to claim as an executor or a trustee, in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.

A denial or defence shall not be necessary as to damages claimed or the amount that is deemed to be in issue in any case, unless expressly admitted.

Where a defendant seeks to rely upon any ground as supporting a right of set-off or counter-claim, he shall in his defence state specifically that he does so by way of supporting a right of set off or counter-claim

Where a defendant by his defence sets up any counter-claim which raises questions between himself and the plaintiff along with any other person, he shall add to the title of his defence a further title similar to the title in a statement of claim setting out the names of all persons who, if such counter-claim were to be enforced by cross-action, would be defendants to such cross action and shall deliver his defence to those that are parties to the action within the period which he is required to deliver it to the plaintiff.

Where a person in rule 41 of this order is not a party to the action he shall be summoned to appear by being served with a copy of the defence and counter-claim, and such service shall be regulated by the same rules as those governing the service of the originating process, and every defence and counter-claim so served shall be endorsed as specified in Form 14 in the Schedule to these Rules with such modifications or variations as the circumstances may require.

A person not a party to the action, who is served with a defence and counter-claim according to the provisions of rule 42 of this order, shall appear in an action as if he had been served with an originating process to appear in the action.

A person not a party to the action, who is named in a defence as a party to a counter-claim thereby made shall deliver a defence in a mode and manner prescribed under this order and the provisions of the order shall apply to the person.

Where in an action, a set off or counter-claim is established as a defence against the plaintiff’s claim, the Judge may, if the balance is in favour of the defendant, give Judgement for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

(1) Any ground of defence which arises after the action has been filed, but before the defendant has delivered his defence, and before the time limited for doing so has expired, may be raised by the defendant in his defence, either alone or with other grounds of defence.

(2) Where after a defence has been delivered along with a set-off or counter-claim, a basis for answer or ground of defence arises to such set-off or counter-claim respectively, it may be raised by the plaintiff in his reply in the case of a set-off or defence to counter-claim, either along or together with any other ground of reply or defence to counter-claim.

Where a ground of defence arises:

(a) after the defendant has delivered a defence, or after the time limited for his doing so has expired the defendant may; or

(b) in respect of a set-off or counter-claim, after the plaintiff has delivered a reply or after the time limited for delivery of a reply has expired the plaintiff may, within eight days after such ground of defence has arisen or at any subsequent time by leave of a Judge, deliver a further defence or further reply as the case may be, setting forth the same.

Whenever any defendant in his defence or in any further defence pursuant to rules 46 or 47 of this order alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may concede to such defence, which concession may be as specified in Form 15 in the Schedule to these Rules with such modification as circumstances may require and may thereupon obtain Judgement up to the time of the pleading of such defence, unless the Judge either before or after the delivery of such concession otherwise orders.

A defendant to an originating summons shall file a counter-affidavit with all the exhibits he intends to rely upon and a written address within 30 days after service of the originating summons.

Where the Plaintiff desires to make a reply, he shall file it within 14 days from the service of the defence.

Where a counter-claim is pleaded, the reply shall be called a defence to counter-claim and shall be subject to the rules applicable to defence in these Rules.