Traverse
A traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the Plaintiff, the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. [1]
โ Whether a general traverse is sufficient as traverse where material and essential allegations are raised
A general denial by the defence of material facts pleaded in a Statement of Claim is not tenable in law.[2] A traverse must be made either by a denial or non-admission either expressly or by necessary implication. If a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically.[3] Some unacceptable traverses are:
- That defendant is not in a position to admit or deny (the particular allegation in the Statement of Claim) and will at the trial put the plaintiff to proof.[4]
- A plea that โdefendant puts plaintiff to proofโ
- A plea that the โdefendant does not admit correctnessโ (of a particular allegation in the Statement of Claim) is also an insufficient denial.[5]
โ Admission
Generally, parties may admit or not admit facts. Where any fact is admitted, the court may, on application at any stage of the proceedings where admissions of facts have been made enter judgment based on such admissions without waiting for the determination of any other question between the parties.
โ Whether admission/admitted facts need further proof
Admitted facts needs no further proof.[6]
[1]Okoromaka v Odiri (1995) 7 NWLR Pt 408 at 411, UBN PLC v SCPOK (Nig.) Ltd. (1998) 12 NWLR Pt 578 at 439; Audu v Guta (2004) 4 NWLR Pt 864 at 463, Afao v Alao (1986) 12, SC 193, Ayansina v Co-operative Bank Ltd (1994) 5 NWLR Pt 374 at 742.
[2]Messrs Lewis Peat (N.R.I.) Ltd. v A.E. Akhimien (1976) 1 FNLR 50.
[3]Ajani v Okusaga (1976) 1 FNLR 188 at page 193; Benson v Otubor (1975) 1 All NLR (Pt 1) 43 and Atolagbe v Shorun (1985) 4 SC 250 at 253.
[4]Harris v Gamble (1878) 7 Ch.D. 877.
[5]Rutter v Tregent (1879) 12 Ch.D. 758.
[6] Section 75 of the Evidence Act, 1990; Andony v Ayiย II (2004) ALL FWLR (Pt 227) 444 AT 482; Elendu v Ekweoba (1995) 3 NWLR (Pt 386) 704 AT 747; Wuyah v Jamaโa LG. Kafanchan (2011) LPELR-9078(CA) 30 paras A-B.