By S.O. GIWA ESQ. a.k.a. pentalk (Ibadan based Legal Practitioner)
It is an indisputable fact that the filing of a reply to defence to counter-claim in court is a ubiquitous practice of some lawyers who do firmly believe that filing such reply to defence to counter-claim is the right of defendant to file reply to defence to counter-claim and this stand of some lawyers is premised on the principle of law that failure to respond to allegations in the adverse party’s pleading amounts to admission. Therefore to those lawyers, there is the need for the Defendant to file a reply to Claimant’s defence to counter-claim. How correct is this act?
It is not in doubt that defendant is permitted to counter-claim in an action filed by the Claimant to enable the court pronounce a final judgment in the same proceedings and incorporating Defendant’s counter-claim in his statement of defence is provided for in the respective States High Court (Civil Procedure) Rules.
It is against this background that this piece is written with utmost view to finding out if the practice of filing of reply to defence to counter-claim is in conformity to the provisions of the State High Court (Civil Procedure) Rules in force in the South West States in focus and to give an indisputable answer to the question posed as the topic of this piece which some readers might think it is not necessary for the stand that the question is too elementary and answer according to those readers is affirmative. How right is their answer?
It is no gainsaying that the Rules of Court are not only made as a road map for steering parties’ cases through trial and beyond, but the set of rules are also provided to govern business before the court on procedural matters and set out procedural pathways or guidelines for the conduct of litigation in order to allow the business of the courts to be carried on in an orderly manner and also made as guidelines for each step which parties are to follow in the litigation process and the prescribed time within which parties are to take the step.
One intends to rush to pose a question thus: Is there any provision in the Rules of Court for filing a reply to the defence filed by the Claimant(s) to the Defendants’ Counter-Claim?
Doing justice to the aforesaid question prompted the Writer to meticulously comb the extant applicable High Court Rules in South West States viz: Ogun, Oyo, Ondo, Ekiti State, Osun, and Lagos States of Nigeria and the outcome of the said combing with omnivorous reading the extant provisions on pleadings in the High Court (Civil Procedure) Rules applicable in the aforementioned South West States evinced that the aforesaid Rules make express provisions as to time pleadings should be deemed closed.
Before providing the provisions in the High Court of Ekiti (Civil Procedure) Rules 2011; the High Court of Ogun State (Civil Procedure) Rules 2014; the Osun State High Court (Civil Procedure) Rules 2023; the High Court of Lagos State 2019 and the High Court of Oyo State (Civil Procedure) Rules 2022, it is important to say here that in the High Court (Civil Procedure) Rules 2019, there is provision of filing of reply to the defence to counter and it is after the filing of same that the pleadings are said to be closed in Ondo State. For easy reference, order 9 rule 37 of Ondo State High Court (Civil Procedure) Rules 2019 provides thus:
Pleadings shall be deemed closed upon the filing of reply to the statement of defence or reply to the defence to counter-claim as the case may be or after the expiration of the time limited for filing either of such’
Further reading the Rules of the High Court (Civil Procedure) Rules in Ekiti, Ogun, Osun, Lagos and Oyo States in focus evinced that rule 19 of Order 15 of the High Court of Ekiti (Civil Procedure) Rules 2011; rule 19 of Order 15 of the High Court of Ogun State (Civil Procedure) Rules 2014; rule 18 of Order 15 of the Osun State High Court (Civil Procedure) Rules 2023; rule 18 of Order 17 of the High Court of Lagos State 2019 and rule 19 of Order 21 of the High Court of Oyo State (Civil Procedure) Rules 2022 provide thus:
‘Where a pleading subsequent to reply is not ordered, then, at the expiration of 7 days from the service of the defence or reply (if a reply has been filed), pleading shall be deemed closed.’
‘Where a pleading subsequent to reply is not ordered, and party who has been ordered or given leave to file the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited the pleadings shall be deemed closed;
Provided that this rule shall not apply to a defence to counterclaim, the statements of fact contained in such counterclaim shall at the expiration of 14 days from the service thereof or of such time (if any) as may by order be allowed for filing of a defence thereto be deemed to be admitted, but the Judge may at any subsequent time give leave to the Claimant to file a defence to counterclaim.’
Deducible from the above express provisions of the High Court (Civil Procedure) Rules in the aforesaid States in focus is that the pleadings are deemed to be closed:
- at the expiration of seven (7) days after service of the statement of defence if no reply or counterclaim is served
- at the expiration of seven (7) days after service of a reply if one has been filed
- where pleading subsequent to a reply is ordered and the party ordered or given leave to file the same fails to do so within the time limited for that purpose, then at the expiration of the period so limited
Flowing further from the above is that a reply is allowed to be filed by the Claimant after the statement of defence has been seved on him which is the second pleading by the Claimant and in such a case, the pleadings close with the reply to defendant’s statement of defence, hence the joinder of issues. To put in another words, once the Claimant has filed his reply to the Defendant’s Statement of Defence and filed Defence to Defendant’s Counter-Claim, there is no subsequent pleading to be filed by the Defendant.
The rationale is that if the process of pleadings is allowed to continue endlessly with the parties alternating with each other in the service of further pleadings, the suit will not likely get to the trial stage in time. This is the reason for the above provision in the Rules of Court that put a halt to endless exchange of pleadings in an action by fixing times when pleadings are said to be closed/concluded by parties.
It is worth saying emphatically that pleadings would be deemed closed at the expiration of seven (7) days after service of the statement of defence, if there is no reply or counter-claim being served but where a reply is filed by the Claimant to the Defendant’s statement of defence and no counter-claim being incorporated in the Defendant’s statement of defence, pleading is said to be closed after expiration of seven (7) days.
It is further needed to say that there is a prescribed time in the Rules of Court for the closure of pleadings in an action and a claimant who is diligent in prosecuting his case need not wait beyond the prescribed time to apply for the issuance of forms for Pre-Trial Conference now called Case Management Conference in some jurisdictions.
It is equally worth saying that once the prescribed time which is seven (7) days after service of the statement of defence by the Defendant where there is no reply or counter-claim being filed or seven (7) days after service of a reply to statement of defence by the Claimant or seven (7) days after service of defence to counter-claim by the Claimant. There is no further pleading including so called ‘reply to defence to counter-claim’ often filed by some lawyers in court, except with the leave of court.
It is important to re-echo that much as there is no further pleadings after the service of reply to the statement of defence and the defence to counter-claim, the court is empowered to grant leave for filing a pleading subsequent to a reply which could be a reply to defence to counter-claim within time given and once such order is made by granting leave to file such within time limited, the party to whom the leave is granted must afford himself of filing same within the time given and where the party fails to file same within the prescribed time, the pleading is deemed closed at the expiration of the period so limited
It is finally advised and recommended at this juncture that if need arises for replying to defence to counter-claim in Ekiti, Ogun, Osun, Lagos and Oyo States High Court, leave must first be sought and obtained except leave is granted, filing of a reply to defence to counter-claim is not allowed and a stop should be put to filing of such in court in those aforementioned States.
Watch out for:
- A NEGLECT OF MANDATORY PROVISION OF THE CIVIL PROCEDURE RULES
- INNOCENT RISK IN INCORPORATING COUNTER-CLAIM IN A DEFENCE