LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Illegality — Specific Pleading Required for Allegation of Illegality
PRINCIPLE STATEMENT
A party shall specifically plead any matter such as illegality which, if not specifically pleaded, might take the opposite party by surprise. Where both parties agree that consent to a mortgage was granted, raising illegality without specific pleading would cause surprise, and a court should refrain from deciding on matters not specifically pleaded.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Ishola v. UBN Ltd (2005) NLC-1251996(SC) at pp. 9–10; Paras D–A.
"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... In this case both parties agree that there was consent to the mortgage granted by the Governor without more. It would be a great surprise to raise any question of illegality without the allegation specifically made in the pleadings and a court should refrain from deciding on any matter not specifically pleaded."
EXPLANATION / SCOPE
Illegality must be specifically pleaded to avoid surprise to the opposite party. The court should not decide unpleaded illegality where facts suggest legality. The principle applies to civil procedure. The rule prevents ambush and ensures fair notice. A party cannot raise illegality for the first time on appeal or without pleading. The court will disregard unpleaded allegations of illegality.
