PLEADINGS

INTRODUCTION

1. The Editorial Introduction to Order 18 of the Rules of the Supreme Court of England states that:

“The general import of the rules in this order may be explained as follows….the statement of
claim, the defence and the reply constitute the “pleadings” in the action. An originating
summons is not a pleading nor is the affidavit in support thereof (lewis v packer (1960) 1 W.L.R
452; (1960) 1 All E.R 720n. The term “pleading” does not include a petition, summons or
preliminary act.

The purpose of pleadings is to ensure that, in advance of trial, “the issues in dispute between
the parties can be defined thereby enabling those matters on which issue is “joined” to be
identified. There are certain formal requirements. A statement of claim must state specifically
the relief or remedy which the Plaintiff claims. Generally, pleadings should contain only the
material facts relied on, but not the evidence by which those facts are to be proved, with
necessary particulars and may include any matter which has arisen at any time, whether before
or since the issue of the writ. A party by his pleading may raise any point of law. Certain
matters must be specifically pleaded. Any allegation of fact made by a party in his pleadings is
deemed to be admitted by the opposite party unless it is traversed by that party in his
pleadings. If there is no reply to a defence a denial of the defence is implied and issue is joined.
For the purpose of pleadings, a defendant’s counterclaim is treated as a statement of claim and
a plaintiff’s defence to counterclaim as a defence. There comes a point where the pleadings
are “closed” or deemed to be closed.

The court may order that the action be tried without pleadings or without further pleadings, but
on the basis of a “statement of issues in dispute”.

SERVICE

1
Statement of Claim

2. The Plaintiff must serve a statement of claim on the defendant or, if there are two or more
defendants, on each defendant, and must do so when the writ is served on that defendant. 1

Defence

3. A defendant who gives notice of intention to defend an action must, unless the Court gives leave to
the contrary, serve a defence on every other party to the action who may be affected thereby
before the expiration of 14 days after the time limited for acknowledging service of the writ and the
statement of claim.2

4. If there are several defendants and their interests are not identical, if for instance, one has a special
defence peculiar to himself, they should sever (i.e they should serve separate defences). 3

5. Quite clearly, if an action has several Defendants who all have peculiar defences to the Plaintiff’s
claims, each one of them must file and serve their own separate defence before the expiration of
14 days after the time limited for acknowledging service of the writ.

Reply and Defence to Counterclaim

6. (1) A plaintiff on whom a defendant serves a defence must serve a reply on that defendant.
(2) A plaintiff on whom a defendant serves a counterclaim must, if he intends to defend it, serve on
that defendant a defence to counterclaim.
(3) Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must
include them in the same document.
(4) A reply to any defence must be served by the plaintiff before the expiration of the period stated
in the orders for directions for trial, and a defence to counterclaim must be served by the plaintiff
before the expiration of the period stated in the order for directions for trial. 4
7. The defence to counterclaim must be pleaded in accordance with the rules applicable to the
defence to a statement of claim. Unless the plaintiff serves a defence to counterclaim, and

1
Order 18 rule 1 of the Rules of the Supreme Court of England, 1965 Edition.
2
Order 18 rule 2 of the RSC
3
Order 18/2/3 of the RSC
4
Order 18 rule 3 of the RSC

2
 specifically traverses every allegation of fact which he does not intend to admit, he will be deemed
to admit them. The plaintiff may also in his defence to counterclaim himself counterclaim against
the defendant or he may issue a third party notice in respect of the counterclaim against a person
not a party to the action. A person brought into the action by the counterclaim must also serve a
defence to counterclaim.”5

8. Therefore, where a defendant serves a counterclaim, a plaintiff who intends to defend the action
must serve a defence to counterclaim. Further, if a plaintiff serves a reply in addition to the defence
to the counterclaim, he must serve both the reply and defence to counterclaim in one document.

PLEADINGS SUBSEQUENT TO REPLY

9. No pleading subsequent to a reply or a defence to counterclaim shall be served except with the
leave of the court.6

FORMAL REQUIREMENTS OF PLEADINGS

10. (1) Every pleading in an action must bear on its face-

(a) The year in which the writ in the action was issued and the letter and number of the action,
(b) The title of the action,
(c) The division of the High Court to which the action is assigned,
(d) The description of the pleading.

(2) Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each
allegation being so far as convenient contained in a separate paragraph.

(3) Dates, sums and other numbers must be expressed in a pleading in figures and not in words.

(4) Every pleading of a party must be indorsed:

(a) Where the party sues or defends in person, with his name and address; and

(b) In any other case, with the name of the firm and business address of the solicitor by whom it
was served and also (if the solicitor is the agent of another) the name or firm and business
address of his principal.
5
Order 18/3/3 of the RSC
6
Order 18 rule 4 of the RSC

3
 (5) Every pleading of a party must be signed by counsel, if settled by him, and if not, by the
party’s solicitor or by the party, if he sues or defends in person. 7

11. Where a pleading does not comply with the stated formal requirements, it might be set aside for
irregularity pursuant to order 2 rule 2 of the RSC.

FACTS, NOT EVIDENCE, TO BE PLEADED

12. (1) Every pleading must contain, and contain only, a statement in a summary form of the material
facts on which the party relies for his claim or defence as the case may be, but not the evidence by
which those facts are to be proved and the statement must be as brief as the nature of the case
admits.
(2) Without prejudice to paragraph (1), the effect of any document or the purport of any
conversation referred to in the pleading must, if material, be briefly stated and the precise words of
the document or conversation shall not be stated except in so far as those words are themselves
material.
(3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving it
lies on the other party, unless the other party has specifically denied it in his pleading.

(4) A statement that a thing has been done or that an event has occurred, being a thing or event
the doing or occurrence of which as the case may be, constitutes a condition precedent necessary
for the case of a party is to be implied in his pleading. 8

13. Quite clearly therefore, pleadings must contain material facts only and they must be stated in a
summary form. The learned authors of Halsbury Laws of England9 define material facts as:

“All facts which must be proved in order to establish the ground of claim or defence are
material.”10

14. Further, a ‘material fact’ has been defined in Black’s Law Dictionary 11 as

“‘Matters significant or essential to the issue at hand.”

7
Order 18 rule 6 of the RSC
8
Order 18 rule 7 of the RSC
9
Vol 36, 4th Ed
10
ibid…page 12, paragraph 14
11
Bryan Garner, 8th Edition, page 629

4
15. These requirements should be strictly observed (per May L.J in Lipkin Gorman v Karpnale Ltd
(1989) 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions and their primary
function purpose is to define the issues and thereby inform the parties in advance of the case which
they have to meet, enabling them to take steps to deal with it; and such primary purpose remains
and can still prove of vital importance and therefore it is bad law and bad practice to shrug off
criticism as a mere pleading point. 12

16. It cannot be too often stated that the relevant matters must be stated briefly, succinctly and in strict
chronological order. Pleadings should be as brief as the nature of the case will admit. The court has
inherent jurisdiction to deal with prolix documents. But no document is prolix which merely states
facts that are material, however numerous. The same person or thing should be called by the same
name throughout the pleading.13

Facts not law to be pleaded

17. The rule prohibits the old practice of pleading the law affecting the case being raised. There is a
vital distinction between pleading law, which is not permitted, and raising a point of law in a
pleading which is both permitted and is frequently necessary. Pleading law tends to complicate the
pleading and obscure the facts giving rise to the case being advanced; raising a point of law may
define or isolate an issue or question arising on the facts as pleaded and indeed be essential if the
case is to be advanced properly. 14

Facts not evidence to be pleaded

18. Every pleading must contain only a statement of the material facts on which the party pleading
relies and not the evidence on which they are to be proved (per farwell L.J in N.W Salt Co. Ltd v
Electrolytic Alkali Co.Ltd (1913) 3 K.B 422 at 425). All facts which tend to prove the fact in issue will
be relevant at the trial, but they are not material facts for pleading purposes. It is an elementary rule
in pleading that, when a statement of facts is relied on, it is enough to allege it simply without
setting out the subordinate facts which are the means of proving it, or the evidence sustaining the
allegation.
It is wrong to set out in the pleading admissions made by the opponent.
12
Order 18/7/4 of the RSC
13
Order 18/7/7 of the RSC
14
Order 18/7/8 of the RSC

5
 Whenever any contract or any relation between any persons is to implied from a series of letters or
conversations or otherwise from a number of circumstances, the proper practice is to allege such
contract or relation as a fact and it is only necessary to set out the letters, conversations or
circumstances generally and not in detail.
It is not always easy to draw the line between facts and evidence (see Davy v Garret (1878) 7 Ch.D
473; Philips v Philips (1878) 4 Q.B.D 127; Re Dependable Upholstery Ltd (1936) 3 All E.R 741. 15

Facts must be material

19. The words “contain only” emphasise that only facts which are material should be stated in a
pleading. Accordingly statements of immaterial and unnecessary facts may be struck out: Davy v
Garret (1878) 7 Ch.D 473; Rassam v Budge (1893) 1 Q.B.571. The question whether a particular
fact is or is not material depends mainly on the special circumstances of the particular case . Thus
knowledge, notice, intention and, in a few cases, motive, are in some cases material, and if so,
must be pleaded as facts with proper particularity. The legal relation in which parties stand to one
another should generally be stated. 16

All material facts

20. It is essential that a pleading, if it is not to be embarrassing, should state those facts which will put
those against whom it is directed on their guard, and tell them what is the case which they will have
to meet (Per cotton Philips v Philips (1878) 4 Q.B.D 127, p. 139.) “Material means necessary for the
purpose of formulating a complete cause of action; and if any one material statement is omitted, the
statement of claim is bad. Each party must plead all the material facts on which he means to rely at
the trial; otherwise he is not entitled to give any evidence of them at the trial . No averment must be
omitted which is essential to success. Those facts must be alleged which must, not may, amount to
a cause of action. (West Rand Co. v Rex (1905) 2 K.B 399. Where the evidence at trial establishes
that facts different from those pleaded e.g by the plaintiff as constituting negligence, which are not
just a variation, modification or development of what has been alleged but which constitute a
radical departure from the case as pleaded, the action will be dismissed. Moreover, if the plaintiff
succeeds on findings of fact not pleaded by him, the judgment will not be allowed to stand.

15
Order 18/7/9 of the RSC
16
Order 18/7/10 of the RSC

6
 Similarly, a defendant may be prevented from relying at trial on a ground of defence not pleaded by
him (Davie v New Merton Board Mills Ltd (1956) 1 All E.R 379). 17

Facts which are not yet material

21. A pleader should never allege any fact which is not material at the present stage of the action even
though he may reasonably suppose that it may become material hereafter, for instance, the plaintiff
need not aver that a condition precedent has been performed; it is for the defendant to assert that it
has not. The facts relating to an acknowledgment sufficient to take the case out of the limitation Act
may and should ordinarily be pleaded in the statement of claim (Busch v Stevens (1962) 1 All E.R
412). So too, it is quite unnecessary for the defendant to defend himself against charges which are
not yet made or to plead to causes of action which do not appear in the statement of claim Rassam
v Budge (1893) 1 Q.B.571). Neither party need, in any pleading, allege any matter of fact as to
which the burden of proof lies on the other side. 18

Documents and Conversations

22. The general rule is that only the gist is to be pleaded, however if the precise words of a document
or conversation are themselves material, they must be set out in full in the pleading . In an action for
libel, the precise words of the offending document are always material. In some cases, the precise
words of a clause in a will or other document may be material. (Darbishire v Leigh (1896) 1 Q.B 558
at 559). If a document is referred to in a pleading but neither its effect stated nor its precise words
set out, it cannot be read without consent on a summons or motion for judgment or on a motion to
strike out a statement of claim as not disclosing any reasonable cause of action (Williamson v L &
N.W Ry (1879) 12 Ch.D 787 and Smith v Buchan (1888) 36 W.R 631). 19

23. In the case of Mazoka and others v Mwanawasa and others (2005) Z.R 135 the Supreme court
stated that the function of pleadings is to give fair notice of the case which has to be met and to
define the issues on which the court will have to adjudicate in order to determine the matters in
dispute between the parties. The court further held that once the pleadings have been closed, the
parties are bound by their pleadings and the court has to take them as such.

17
Order 18/7/11 of the RSC
18
Order 18/7/17 of the RSC
19
Order 18/7/18 of the RSC

7
24. In Lyons Brooke Bond (Z) Limited v Zambia Tanzania Road Services Limited (1977) Z.R 317 the
Supreme Court further held that the function of pleadings is to assist the court by defining the
bounds of the action, which cannot be extended without leave of the court and consequential
amendment of the pleadings.

25. However in the case of In the case of Chilanga Cement Plc v F.G Ali Transport Limited and
Others (2008) Z.R 168, the Supreme Court held that where a defence not pleaded is let in by the
evidence and not objected to by the other side, the court is not precluded from considering it.

MATTERS WHICH MUST BE SPECIFICALLY PLEADED

26. (1) A party must in any pleading subsequent to a statement of claim, plead specifically any matter
for example, performance, release, the expiry of any relevant period of limitation, fraud or any fact
showing illegality-
(a) Which he alleges makes any claim or defence of the opposite party not maintainable; or
(b) Which if not specifically pleaded might take the opposite party by surprise; or
(c) Which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to paragraph (1) a defendant to an action for possession of land must 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.
(3) A claim for exemplary damages or for provisional damages must be specifically pleaded
together with the facts on which the party pleading relies. 20

27. The following explanatory notes further explain Order 18 rule 8 of the RSC in detail.

Confess and avoid

28. It often not enough for a party to deny an allegation in his opponent’s pleading, he must go further
and dispute its validity in law, or set up some affirmative case of his own in answer to it. It will not
serve his turn merely to traverse the allegation, he must confess and avoid it. Thus, if the Plaintiff
20
Order 18 rule 8 of the RSC

8
 sets up a contract which was in fact made, it will be idle for the defendant to merely traverse (i.e
deny) the making of the contract; he should confess (i.e admit) that he made the contract but avoid
the effect of that confession by pleading the Statute of Frauds or Limitation Act or setting up that
the contract has been duly performed or rescinded. 21

29. A defendant, however is not bound to admit an allegation which he thus seeks to avoi d, or which he
alleges to be bad in law. He may at the same time deny its truth, so long as he makes it quite clear
how much he is denying. He may indeed take all three courses at once, the same allegation may
be traversed in point of fact, and objected to as bad in law, and at the same time collateral matter
may be pleaded to destroy its effect. Any number of defences may now be pleaded together in the
same defence, although they are obviously inconsistent. A defendant may raise by his defence,
without leave, as many distinct and separate and therefore inconsistent defences as he might think
proper- subject only to this, that embarrassing defences may be struck out. 22

30. But all these various defences must be clearly and distinctly pleaded and the facts upon which
each is grounded should be stated separately. As a rule, each answer to the action should be
pleaded in separate paragraph. The defendant must make it quite clear what line of defence he is
adopting. Special defences of this kind must not be mixed up with traverses or insinuated into pleas
which deny the facts alleged by the Plaintiff. The office of a traverse is to contradict, not to excuse
or justify the act complained of; its object is to compel the Plaintiff to prove the truth of the allegation
traversed, not to dispute its sufficiency in point of law. All matter justifying or excusing the act
complained of must be pleaded specifically and separately. So must all matters which go to show
that the contract sued on is illegal or invalid, or which if not expressly stated, might take the
opposite party by surprise, or would raise issues of fact not arising out of the preceding pleading.
And no evidence of such matters can, as a rule, be given at the trial if they are not expressly
pleaded.23

31. Statute of frauds must be specifically pleaded, if the defendant desires to rely on it. Even where the
Plaintiff’s counsel has clearly had the statute of frauds in his mind and pleaded with a view to it,
alleging facts to take the case out of its operation as e.g part performance, still the defendant
cannot raise the point unless the statute has been pleaded. But where the statute is pleaded

21
Order 18/8/3 of the RSC
22
Ibid
23
ibid

9
 generally, the defendant cannot rely on it as a defence on the ground that the term of the
agreement was omitted from the memorandum, where this obligation is not raised by the defence. 24

32. From the foregoing it is clear that any pleading subsequent to a statement of claim must specifically
plead certain matters. These include (i) Performance (ii) release, (iii) the expiry of any relevant
period of limitation, (iv) fraud, (v) any fact showing illegality e.t.c

33. In the case of Clement Mweempe v The Attorney General and others (2012) Vol 2 Z.R 155 the
court stated at page 168 and 169 that:

There are some matters which the defendant must specifically plead in his defence if he intends to
rely thereon. Order 18 rule 8 (c) of the Rules of the Supreme Court of England provides that a party
must, in any pleading subsequent to a statement of claim, plead specifically any matter which
raises issues of fact not arising out of the proceeding pleading. This rule specifically enforces one
of the cardinal principles of the present system of pleading viz, that every defence must plead
specifically any matter which makes the claim not maintainable. A defendant may raise, by his
defence, as many distinct and separate and therefore, inconsistent defences as he may think
proper. But all these defences must be clearly and distinctly pleaded and the facts upon which one
is grounded should be stated separately ; no evidence of such matters can as a rule , be given at
the trial if not expressly pleaded, as observed in Davies v New Merton Board Mills Limited.

POINTS OF LAW MAY BE PLEADED

34. If a party intends to raise a point of law on the facts as pleaded, it is a convenient course to do so in
the pleading. But nevertheless he may, at the trial, raise a point of law open to him even though not
pleaded (Independent Automatic Sales Ltd v. Knowles & Foster [1962] 3 All E.R. 27). In a proper
case, the Court will allow a party to amend his pleading so as to raise a point of law for argument
before the trial or allow a preliminary point of law to be argued under O.33, r.3, without any
pleadings. 25

24
Order 18/8/40 of the RSC
25
Order 18/11/1 of the RSC

10
35. Where all the allegations in the statement of claim are admitted, but an objection in point of law is
raised in the defence, no evidence will be admitted at the trial, since there is no issue of fact on the
pleadings (Pioneer Plastic Containers Ltd v. Commissioner of Customs & Excise [1967] Ch. 597). 26

36. The Court is not justified, under this rule, even with the consent of the parties, in deciding abstract
questions of law raised by the pleadings. Its function is "to decide questions of law when arising
between the parties as the result of a certain state of facts.” 27

37. The Court in the case of Damalas Mwansa v Ndola Lime Company Limited (2012) Vol. 3 Z.R 268
held that if a party intends to raise a point of law on the facts as pleaded, it is a convenient course
to do so in the pleadings. This course of action is desirable as it would ensure that issues in dispute
are defined at the earliest opportunity and might even have the effect of avoiding a trial.
Notwithstanding, a party may at trial raise a point of law open to him, even though it was not
pleaded in his defence.

PARTICULARS OF PLEADING

38. Every pleading must contain the necessary particulars of any claim, defence or other matter
pleaded including, without prejudice to the generality of the foregoing,

(a) Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence
on which the party pleading relies;

(b) Where a party pleading alleges any condition of the mind of any person, whether any
disorder or disability of mind or any malice, fraudulent intention or other condition of mind
except knowledge, particulars of the facts on which the party relies; and

(c) Where a claim for damages is made against a party pleading, particulars of any facts on
which the party relies in mitigation of, or otherwise in relation to, the amount of damages.

(2)Where it is necessary to give particulars of debt, expenses or damages and those

11
 (3)The Court may order a party to serve on any other party particulars of any claim, defence or
other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a
statement of the nature of the case on which he relies, and the order may be made on such
terms as the Court thinks just.

(4)Where a party alleges as a fact that a person had knowledge or notice of some fact, matter
or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such
terms as it thinks just, order that party to serve on any other party -

(a) where he alleges knowledge, particulars of the facts on which he relies, and

(b) where he alleges notice, particulars of the notice.

(5)An order under this rule shall not be made before service of the defence unless, in the
opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for
some other special reason.

(6) Where the applicant for an order under this rule did not apply by letter for the particulars he
requires, the Court may refuse to make the order unless of opinion that there were sufficient
reasons for an application by letter not having been made.

(7) Where particulars are given pursuant to a request or order of the Court, the request or order
shall be incorporated with the particulars, each item of the particulars following immediately
after the corresponding item of the request or order. 28

39. The requirement to give particulars reflects the overriding principle that the litigation between the
parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as
possible, so as to minimise costs. The function of particulars is accordingly:

(1) to inform the other side of the nature of the case that they have to meet as distinguished from
the mode in which that case is to be proved (per Lindley L.J. in Duke v. Wisden (1897) 77 L.T.
67 at 68, Aga Khan v. Times Publishing Co. [1924] 1 K.B. 675 at 679);
(2) to prevent the other side from being taken by surprise at the trial (per Cotton L.J., in Spedding
v. Fitzpatrick (1888) 38 Ch.D. 410 at 413; Thomson v. Birkley (1882) 31 W.R. 230);

28
Order 18 rule 12 of the RSC

12
 (3) to enable the other side to know with what evidence they ought to be prepared and to prepare
for trial (per Cotton L.J. ibid.; per Jessel M.R. in Thorp v. Holdsworth (1876) 3 Ch.D. 637 at
639; Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329 at 330);

(4) to limit the generality of the pleadings (per Thesiger L.J. Saunders v. Jones (1877) 7 Ch.D.
435) or of the claim or the evidence (Milbank v. Milbank [1900] 1 Ch. 376 at p.385);

(5) to limit and define the issues to be tried, and as to which discovery is required (Yorkshire
Provident Life Assurance Co. v. Gilbert [1895] 2 Q.B. 148, per Vaughan Williams L.J. in
Milbank v. Milbank [1900] 1 Ch. 376 at 385);

(6) to tie the hands of the party so that he cannot without leave go into any matters not included
(per Brett L.J. in Philipps v. Philipps (1878) 4 Q.B.D. 127 and Woolley v. Broad [1892] 2 Q.B.
317). But if the opponent omits to ask for particulars, evidence may be given which supports
any material allegation in the pleadings. 29

40. It is not the function of particulars to take the place of necessary averments in the pleading, nor "to
state the material facts omitted...by filling the gaps or to make good an inherently bad pleading"
(per Scott L.J. in Pinson v. Lloyds, etc., Bank [1941] 2 K.B. 72 at 75).The purpose of pleadings is
not to play a game at the expense of the litigants but to enable the opposing party to know the case
against him. 30

41. Whenever either party is imputing fraud, negligence, or misconduct to his opponent, the facts must
be stated with special particularity and care. Thus, in an action of wrongful dismissal, a plea
justifying the dismissal on the ground that the servant was incompetent or dishonest must state the
charge specifically and in detail; so must a plea justifying the publication of defamatory words on
the ground that they are true; so must all charges of bad workmanship, want of skill, negligence,
and contributory negligence. The Court will require of him who makes a charge that he shall state
that charge with as much definiteness and particularity as may be done, both as regards time and
place. 31

29
Order 18 /12/2 of the RSC
30
Ibid
31
Ibid

13
42. In the case of Kariba North Bank Company Limited v Zambia State Insurance Corporation
Limited(1980) Z.R 94, the Court gave the following exposition as regards particulars:

“The most vital functions of particulars are (1) to inform the other side of the case they
have to meet; (2) to prevent the other side being taken by surprise; (3) to enable the
other side to know what evidence they ought to be prepared with and to prepare trial;
(4) to limit the generality of the pleading or of the claim or the evidence; (5) to limit and
define the issues to be tried and as to which discovery is required and (6) to tie the
hands of the party so that he cannot without leave go into any matter not fairly included
therein.”32

ADMISSIONS AND DENIALS

43. (1) Any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite
party unless it is traversed by that party in his pleading or a joinder of issue operates as a denial of
it.

(2) A traverse may be made either by a denial or by a statement of non-admission and either
expressly or by necessary implication.

(3) Every allegation of fact made in a statement of claim or counterclaim which the party on whom it
is served does not intend to admit must be specifically traversed by him in his defence or defence
to counterclaim, as the case may be; and a general denial of such allegations, or a general
statement of non-admission of them, is not a sufficient traverse of them. 33

44. This is intended to bring the parties by their pleadings to an issue, and indeed to narrow them down
to definite issues, and so diminish expense and delay, especially as regards the amount of
testimony required on either side at the hearing (per Jessel M.R. in Thorp v. Holdsworth (1876) 3
Ch.D. 637). This object is secured by requiring that each party in turn should fully admit or clearly
deny every material allegation made against him. Thus, in an action for a debt or liquidated
demand in money, a mere denial of the debt is wholly inadmissible. 34

32
page 99
33
Order 18 rule 13 of the RSC
34
Order 18/13/3 of the RSC

14
Express Admissions

45. Parties ought properly to admit facts as to which there is really no controversy. A defendant ought
not to deny plain and acknowledged facts which it is neither to his interest nor in his power to
disprove. 35

46. If sufficient admissions be made by a defendant, the plaintiff may apply (but he is not bound to do
so) for judgment and notwithstanding that he has joined issue on the defence and set the action
down for trial (Rutter v. Tregent (1879) 12 Ch.D. 758; Brown v. Pearson (1882) 21 Ch.D. 716;
Smith v. Davies (1884) 28 Ch.D. 650; (1886) 31 Ch.D. 595); but in the latter case, the defendant
should be indemnified against any costs incurred by him owing to the plaintiff's delay. 36

47. The effect of the defendant admitting the facts pleaded in the statement of claim is that there is no
issue between the parties on that part of the case which is concerned with those matters of fact,
and, therefore, no evidence is admissible in reference to those facts (Pioneer Plastic Containers
Ltd v. Commissioner of Customs and Excise [1967] Ch. 597; [1967] 1 All E.R. 1053). 37

Traverse by denial or non admission

48. A traverse may be made either by a denial or non-admission, and either expressly or by necessary
implication. A refusal to admit must be stated as specifically as a denial. "Defendant puts plaintiff to
proof", has been held to be insufficient denial (Harris v. Gamble (1878) 7 Ch.D. 877). "Defendants
do not admit correctness", has been held to be an insufficient denial (Rutter v. Tregent (1879) 12
Ch.D. 758). It has been said that there is no difference in effect between denying and not admitting
an allegation.38

Traverse must be specific, not general

49. Every allegation of fact must be specifically denied or specifically not admitted. What is apparently
one allegation may in reality amount to two or more. Thus an allegation "that the defendant broke
into and entered the plaintiff's field" contains two allegations: (1) that the field is the plaintiff's and

35
Order 18/13/4 of the RSC
36
Ibid
37
Ibid
38
Order 18/13/5 of the RSC

15
 (2) that the defendant entered it. If the defendant desires to deny both allegations, he must do so
separately.39

50. The rule applies only to allegations of fact and matters of law should not be traversed. The
defendant should never traverse matters which the plaintiff might have, but has not, raised against
him (see Rassam v. Budge [1893] 1 Q.B. 571). Moreover, it is not part of his duty, when drafting his
defence, to anticipate what the plaintiff may hereafter allege in his reply. 40

51. A general denial or a general statement of non-admission, of allegations of facts is not a sufficient
traverse thereon. Nowadays, almost every pleading on behalf of a defendant ends with a general
traverse, e.g. "save as hereinbefore specifically admitted, the defendant denies each and every
allegation contained in the statement of claim as though the same were herein set out and
traversed seriatim" (see per Lord Denning in Warner v. Sampson [1959] 1 Q.B. 297 at 310-11). In
dealing with a long and complicated statement of claim or counterclaim, and especially with
allegations which are more or less immaterial, this practice is often convenient. It should not,
however, be adopted in dealing with the essential allegations. So far as concerns the allegations
which are the gist of the action the denial should be as precise as possible, e.g., "The defendant
never spoke or published the said words or any of them.” 41

DENIAL BY JOINDER OF ISSUE

52. (1) If there is no reply to a defence, there is an implied joinder of issue on that defence.

(2)Subject to paragraph (3) -

(a) there is at the close of pleadings an implied joinder of issue on the pleading last served, and

(b) a party may in his pleading expressly join issue on the next preceding pleading.

(3) There can be no joinder of issue, implied or express, on a statement of claim or counterclaim.

(4)A joinder of issue operates as a denial of every material allegation of fact made in the pleading
on which there is an implied or express joinder of issue unless, in the case of an express joinder of
issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case
the express joinder of issue operates as a denial of every other such allegation. 42
39
Order 18/13/6 of the RSC
40
Ibid
41
Ibid
42
Order 18 rule 14 of the RSC

16
53. Thus, if no defence is served in answer to the statement of claim or no defence to counterclaim is
served in answer to the counterclaim, there are no issues between the parties; the allegations of
fact made in the statement of claim or counterclaim are deemed to be admitted and the plaintiff or
defendant, as the case may be, may enter, or apply for, judgment in default of pleading. On the
other hand, if no reply is served in answer to a defence, the allegations of fact in the defence are
deemed to be denied.43

54. A joinder of issue operates as a series of denials of all the relevant facts alleged in the preceding
pleading, except in respect of any allegation which is expressly admitted. After a joinder of issue
takes effect, therefore, the pleadings will show which facts are admitted, expressly or impliedly, and
which are in issue between the parties.44

STATEMENT OF CLAIM

55. (1) A statement of claim must state specifically the relief or remedy which the plaintiff claims; but
costs need not be specifically claimed.

(2) A statement of claim shall not contain any allegation or claim in respect of a cause of action
unless that cause of action is mentioned in the writ or arises from facts which are the same as, or
include or form part of, facts giving rise to a cause of action so mentioned; but, subject to that, a
plaintiff may in his statement of claim alter, modify or extend any claim made by him in the
indorsement of the writ without amending the indorsement. 45

DEFENCE OF TENDER

56. Where in any action a defence of tender before action is pleaded, the defendant must pay into
Court 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. 46

43
Order 18 /14/1 of the RSC
44
Ibid
45
Order 18 rule 15 of the RSC
46
Order 18 rule 16 of the RSC

17
57. If the defendant desires to rely upon the defence of tender before action, he must (a) plead the fact
of tender before action, state the fact of payment in and the amount in the defence; (b) pay the
money into Court, with his defence; and (c) give notice to the plaintiff of the payment in. The
defence of tender is excepted from the rule that the payment into Court must not be pleaded or
disclosed to the trial Judge until all questions of liability and damages have been decided. 47

58. The defence of tender is a defence at common law and only applies to a liquidated claim. It is a
good defence to an action to recover a debt. It cannot be pleaded as a defence to a claim for
unliquidated damages, even though that claim should be quantified, but it is not invalidated
because the amount paid into Court under this rule exceeds the amount tendered, nor because the
amount tendered and subsequently paid into Court does not include interest, unless it be in respect
of a debt bearing contractual or statutory interest (John Laing Construction Ltd v. Dastur [1987] 1
W.L.R. 686, [1987] 3 All E.R. 247, CA, applied in Smith v. Springer [1987] 1 W.L.R. 1720, [1987] 3
All E.R. 252, CA).48

59. If made before the writ is issued, a tender is good although, before the tender, the creditor had
employed a solicitor to sue the debtor, and the solicitor had written a letter to the debtor demanding
payment.49

DEFENCE OR SET – OFF

60. 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 counterclaim. 50

Nature of set-off

61. A set-off is a monetary cross-claim which is also a defence to the claim made in the action. The
defendant has a right to plead a set-off (instead of maintaining a separate action). 51

47
Ibid
48
Ibid
49
Ibid
50
Order 18 rule 17of the RSC
51
Order 18/17/2 of the RSC

18
Same parties, in same right

62. Set-off was only available in respect of debts or liquidated demands due between the same parties
in the same right. So, against a claim by the plaintiff as executor or trustee, the defendant cannot
set-off a debt due to him from the plaintiff personally and, conversely, to a claim against the
defendant as executor, the latter cannot set-off a debt due to him personally nor to a claim against
an executor personally a debt due to him as executor. Nor, against a claim by the plaintiff, can a
debt due from his agent personally be set-off, unless the plaintiff authorised or allowed the agent to
contract as principal.52

Debt and damages

63. The equitable right of set-off applies in all Courts, and can be set up by way of defence instead of
merely grounding a claim for an injunction. So, for the purposes of set-off, debt and damages have
apparently been put on the same footing, provided that, in the case of damages, the latter arise out
of the same transaction as the cross-claim (Morgan & Sons v. S. Martin Johnson & Co. [1949] 1
K.B. 107, CA; Hanak v. Green [1958] 2 Q.B. 9; [1958] 2 All E.R. 141, CA; and see M'Creagh v.
Judd [1923] W.N. 174; Bankes v. Jarvis [1903] 1 K.B. 549, per Channel J.). The right to set off a
sum of money, whether the amount is ascertained or not, is now expressly recognised by this
rule.53

Accruals of set-off

64. The sum set-off must have accrued due at the commencement of the action (Richards v. James
(1848) 2 Ex. 471) and all proper defences may be set up in reply. A claim by way of a set-off or
counterclaim is to be deemed to be a separate action and to have been commenced on the same
date as the original action.54

65. In the Maheshkumar Somabhai Patel and another v Freeze – o – Matic Limited and another SCZ
Judgment No.3 of 2017, the Supreme Court held that a claim by way of set off or counterclaim is
deemed to be a separate action and to have been commenced on the same date as the original
action.

52
Order 18/17/3 of the RSC
53
Order 18/17/5 of the RSC
54
Order 18/17/7 of the RSC

19
COUNTERCLAIM AND DEFENCE TO COUNTERCLAIM

66. A counter-claim stands in the same place as a statement of claim, and the defence to counterclaim
with a defence. A counterclaim is therefore governed by the same rules of pleading as a statement
of claim, and the defence to counterclaim by the same rules as a defence. 55

67. All the facts relied on by way of counterclaim must be stated in numbered paragraphs under the
heading "Counterclaim", so as to distinguish them from the facts alleged by way of defence. If any
of the facts on which the counterclaim is founded have been already stated in the defence, they
need not be restated in the counterclaim, but may be incorporated by reference. A counterclaim
may comprise several distinct causes of action. But in that case the facts on which each cause of
action is founded must be stated, as far as may be, separately and distinctly and the relief or
remedy prayed stated specifically, either simply or in the alternative. And the several causes of
action must be such as could properly be joined in one independent action (Compton v. Preston
(1822) 21 Ch.D. 138). But to a claim for the recovery of land, the defendant may counterclaim for
relief against forfeiture and to a claim for damages for infringing a patent, the defendant may
counterclaim for the revocation of the plaintiff's patent (Patents Act 1977, s.72). 56

68. Similarly, with the defence to counterclaim, every ground of defence relied on must be specifically
pleaded and so must the defence of tender, or the defence of set-off and every allegation of fact in
the counterclaim which the plaintiff does not intend to admit must be specifically traversed by him in
his defence to counterclaim, otherwise he will be deemed to admit the same. For the purposes of
the Limitation Act, a counterclaim is a new claim and is deemed to be a separate action and to
have been commenced on the same date as the original action. 57

STRIKING OUT PLEADINGS AND INDORSEMENTS

69. (1)The Court may at any stage of the proceedings order to be struck out or amended any pleading
or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on
the ground that -

(a) It discloses no reasonable cause of action or defence, as the case may be; or
55
Order 18/18/2 of the RSC
56
Ibid
57
Ibid

20
 (b) it is scandalous, frivolous or vexatious; or

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

(d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or
dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1) (a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the
summons or petition, as the case may be, were a pleading. 58

APPLICATION

70. Although the rule expressly states that the order may be made "at any stage of the proceedings",
still the application should always be made promptly, and as a rule before the close of pleadings.
Where the statement of claim is being attacked, the application may be made before the defence is
served; but where it is sought to stay or dismiss the action, the application should not be made
before the service of the statement of claim. Where the defence or other subsequent pleading is
being attacked, the application should be made as soon as practicable after the service of such
defence or pleading. The application may be made even after the pleadings are closed or the trial
set down. Though it should not be heard at the opening of the trial, save in exceptional
circumstances (Halliday v. Shoesmith [1993] 1 W.L.R. 1, CA). 59

71. Thus a pleading which (i) discloses no reasonable cause of action or defence, (ii) is scandalous,
frivolous or vexatious (iii) may prejudice, embarrass or delay the fair trial of the action or (iv) is an
abuse of the process of the Court ought to be struck out.

NO REASONABLE CAUSE OF ACTION OR DEFENCE

72. (1) Principles - A reasonable cause of action means a cause of action with some chance of
success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-
Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, CA). So long as
the statement of claim or the particulars (Davey v. Bentinck [1893] 1 Q.B. 185) disclose some

58
Order 18 rule 19 of the RSC
59
Order 18/19/3 of the RSC

21
 cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the
case is weak, and not likely to succeed, is no ground for striking it out (Moore v. Lawson (1915) 31
T.L.R. 418, CA; Wenlock v. Moloney [1965]1 W.L.R. 1238; [1965] 2 All E.R. 871, CA); nor is the
fact that the Statute of Frauds 1677 (which was merely a provision as to evidence) might be a bar
to the claim (Fraser v. Pape (1904) 91 L.T. 340, CA). In such a case application may be made for
the trial of a preliminary issue (see, e.g. Addis v. Crocker [1961] 1 Q.B. 11; [1960] 2 All E.R. 629,
CA affirming [1960] 1 Q.B. 87; [1959] 3 All E.R. 773). 60

73. A court can hear a striking out application which contained non compliance with the rules of
pleading and which was not based on the merits or on the facts of the case (Morris v. Mahfouz
(No. 3) (1994) The Times, May 5, Ch D. 61

74. Thus a statement of claim must disclose a reasonable cause of action and if it does not, the Court
will strike out the matter. In the case of Wise v E.F. Hervey (1985) Z.R 179 the Court held that:

A cause of action is disclosed only when a factual situation is alleged which contains acts upon
which a party can attach liability to the other or upon which he can establish a right or
entitlement to a judgment in his favour against the other.

75. Further, In Corburn v Colledge (1897) 1 Q.B. 702 Lord Esher M.R stated that:

If the Plaintiff alleges facts which if not traversed would prima facie entitle him to recover, then
he makes out a cause of action.

Want of particularity

76. Where a pleading is defective only in not containing particulars to which the other side is entitled,
application should be made for particulars and not for an order to strike out the pleading under this
rule. Even a serious want of particularity in a pleading may not justify striking-out if (1) the defect
can be remedied, and (2) the defect is not the result of a blatant disregard of court-orders (British
Airways Pension Trustees Ltd v. Sir Robert McAlpine 72 B.L.R. 26, CA) 62

60
Order 18/19/10 of the RSC
61
Ibid
62
Order 18/19/10 of the RSC

22
CLOSE OF PLEADINGS

77. (1)The pleadings in an action are 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
counterclaim, after service of the defence to counterclaim, or

(b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after
service of the defence.

(2)The pleadings in an action are deemed to be closed at the time provided by paragraph (1)
notwithstanding that any request or order for particulars has been made but has not been complied
with at that time.63

63
Order 18 rule 20 of the RSC

23