Order 17 — Statement of Defence, Reply and Counterclaim

(1) The Statement of Defence shall be a statement in summary form and shall be supported by copies of documents to be relied upon, list of witnesses and their Written Statements on Oath.

(2) Where the Defendant relies on separate and distinct grounds of Defence, Set-off or Counterclaim founded upon separate and distinct fact, they shall be stated, as far as may be, separately and distinctly.

(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 must 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 Claimant.

(3) In an action for goods sold and delivered, the defence must 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 must deny the matter of fact, e.g. the drawing, making, indorsing, accepting, presenting or notice of dishonour of the bill or note.

No denial or defence shall be necessary as to damages claimed or their amount as they are deemed to be in issue in all cases, unless expressly admitted.

Where any Defendant seeks to rely upon any ground as supporting a right of Set-off or Counterclaim, he shall in his defence state specifically that he does so by way of supporting a right of Set-off or Counterclaim.

(1) Where a Defendant by his defence sets up any Counterclaim which raises questions between himself and the Claimant along with any other persons, he shall add to the title of his Defence a further title similar to the title in a Statement of Claim setting forth the names of all persons who, if such Counterclaim were to be enforced by cross-action would be Defendants to such cross-action.

(2) The Defendant shall deliver his Defence to such persons who are existing parties to the action within the period required for delivery of same to the Claimant.

Where any such person as in Rule 5 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 Counterclaim and such service shall be regulated by the same Rules as those governing the service of the Originating Process and every Defence and Counterclaim so served shall be indorsed as in Form 15 with such modifications or variations as circumstances may require.

Any person not already a party to the action who is served with a Defence and Counterclaim as aforesaid, must appear thereto as if he had been served with an Originating Process to appear in an action.

(1) Where a Counterclaim is pleaded, a Reply thereto is called a Defence to Counterclaim and shall be subject to the Rules applicable to Defences.

(2) Any person not already a party to the action who is named in a Defence as a party to a Counterclaim thereby made shall deliver a Defence in a mode and manner prescribed under this Order and the provisions of the Order shall apply to such a person.

Where, in any case in which the Defendant sets up a Counterclaim and the action of the Claimant is stayed, discontinued or dismissed, the Counterclaim may nevertheless be proceeded with.

Where in an action, a Set-off or Counterclaim is established as a defence against the Claimant’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 together with other grounds of defence.

(2) Where a Defence has been delivered along with a Set-off or Counterclaim, any basis for answer or ground of defence arises to any such Set-off or Counterclaim respectively, it may be raised by the Claimant in his Reply (in the case of a Set-off) or Defence to Counterclaim, either alone or together with any other ground, Reply or Defence to Counterclaim.

Where any ground of defence arises:
(a) after the Defendant has delivered a Defence, or after the time limited for his doing so has expired; or
(b) in respect of a Set-off or Counterclaim, after the Claimant has filed the Reply or after the time limited for delivery of Reply has expired, the Defendant or Claimant may within five 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 Rule 12 of this Order alleges any ground of defence which has arisen after the commencement of the action, the Claimant may concede to such defence (which concession may be as in Form 16 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.

Where the Claimant dsires to make a Reply, he shall file it within ten days from the service of the Defence with copies of documents to be relied upon and Written Statements on Oath of his witnesses.

A Defendant to an Originating Summons, Originating Motion or Petition, if within jurisdiction, shall file and serve a Counter-Affidavit together with all the exhibits he intends to rely upon and a Written Address within fourteen days after service of the Originating Summons, Originating Motion or Petition or within such abridged or extended time by the Judge and, if outside jurisdiction, shall file and serve a Counter-Affidavit and accompanying processes aforesaid, within 30 days.

A Claimant in an Originating Summons, Originating Motion or Petition may file a Reply to the Defendant’s Counter-Affidavit together with exhibits, if any, within seven days after service of the Defendant’s Counter-Affidavit or within such time as may be abridged or extended by the Judge.