The plaintiff or his solicitor files the writ in the Supreme Court Registry. The writ is issued after being signed and sealed by the Registrar. Once the writ is signed and sealed, the writ is deemed issued and the action commences.
The original writ is retained in the Electronic Filing System and a copy is returned electronically to the plaintiff's solicitors to serve on the defendant. If the plaintiff does not have a solicitor to represent him, the sealed writ may be collected from the LawNet Service Bureau.
A writ is valid for 6 months (except in Admiralty Proceedings, where the writ is valid for 12 months). However, where the writ is to be served out of jurisdiction, it is valid for 12 months. If the plaintiff does not serve the writ within this period he has to apply to the court to extend the validity of the writ for a further 6 months at a time.
If a defendant is served with the writ within the jurisdiction, he has 8 days after service of the writ to enter an appearance by filing a Memorandum of Appearance with the court. If the writ is served out of jurisdiction, the defendant has 21 days to enter an appearance.
If the defendant fails to enter an appearance within the time specified in the writ, the plaintiff may enter a judgment against him. This may be a final judgment or an interlocutory judgment, depending on the nature of the claim. The court, may, however, set aside or vary such a judgment as it thinks just.
A pleading is a party's written statement of the facts on which he relies for his claim or defence, as the case may be. This saves time and expense as the trial will not be unnecessarily lengthened by matters that are not in dispute. Pleadings also notify the litigants of the other party's arguments prior to the trial so that they may prepare their case for trial accordingly and would not be taken by surprise.
Pleadings come into existence only in actions begun by writ and not by any other mode. The term pleading does not include a petition or summons. An originating summons is therefore not a pleading, nor is the affidavit in support thereof.
When the defendant has entered an appearance and intends to defend an action, he is required to file his defence with the court and serve it on the plaintiff 14 days after the time limited for his appearance, or after service on him of the statement of claim, whichever is later.
If a defendant alleges that he has any claim or is entitled to any relief or remedy against the plaintiff, he may make a counterclaim in the same action brought by the plaintiff. In such a case, the pleading is known as the defence and counterclaim.
A plaintiff may serve on the defendant his reply and defence to a counterclaim, within 14 days after the defence (and counterclaim) has been served on him.
In the event that the defendant has been served the writ of summon and has entered an appearance but has no defence to the claim or any part of the claim, the plaintiff may apply to the court for judgment against the defendant. This may be a final judgment or an interlocutory judgment, depending on the nature of the claim. The court, may, however, set aside or vary such a judgment as it thinks just.
Pleadings are deemed closed 14 days after service of the reply or service of defence to the counterclaim. If neither a reply nor a defence to the counterclaim is served, pleadings are deemed to be closed at the end of 14 days after the defence is served.
Once the pleadings have been closed it does not necessarily follow that the action will be set down for hearing. A number of intermediate actions may take place, such as:
- The plaintiff may withdraw his action
- The defendant may withdraw his defence
- The defendant may apply to court to dismiss the action for want of prosecution
- The defendant may apply to strike out a plaintiff's claim
- The defendant may make payment into court
- The plaintiff may be required to give security for costs of the action
Under Order 18 Rule 19 of the Rules of Court, an application may be made to strike out any pleading if:
- It discloses no reasonable cause of action or defence;
- It is scandalous, frivolous or vexatious;
- It tends to prejudice, embarrass or delay the fair trial of the action;
- It is otherwise an abuse of the process of the court.
If the defendant is of the view that some other party should be made to indemnify him or contribute towards the plaintiff's claim, the defendant may apply to court to add that party as a 'third party'. This gives rise to third party proceedings.
The original defendant is viewed as the plaintiff in third party proceedings and the third party is viewed as the defendant. Strictly speaking, the original plaintiff has little or no interest in the third party proceedings. There are instances where fourth, fifth or sixth parties are added to an action.