THE EFFECT OF THE ABOLITION OF DEMURRER PROCEEDINGS IN NIGERIAN COURTS CLARIFYING THE MISAPPLICATION The operation of demurrer 1 proceedings, before it was abolished in England was the necessity to allow a party to raise an objection on a point, so as to avoid unnecessary prolongation of litigation in court which always led to unnecessary cost of litigation. Thus, where a Defendant conceived a point which could put an end to the case of his adversary, he was at liberty to raise that point in limine, calling on the court to dismiss the action without the need to file a defence. This old English Common Law procedure found its way into the Nigerian Civil Procedure rules. The subsequent abolition of this procedure created a controversy amongst litigators as to whether or not there was need for a Defendant to file a Statement of Defence if it intended to object to a Claimant s suit. This paper states the tested position of the law, its application and limits. Essentially, the issue in controversy is whether or not, by the implication of Order 22 Rule 1 & 2 2, a Defendant in an action commenced by Writ of Summons can raise a preliminary objection on point of law without filing a Statement of Defence in response to a Claimant s Statement of Claim. For purpose of clarity, demurrer is a procedure under the English Common Law which is in essence a plea by a Defendant that assuming and even conceding the facts alleged by the Claimant are true, they are insufficient for a Claimant to sustain his claim for relief and for the Defendant to file a defence thereto hence, the claim should be dismissed. This old English Common Law was domesticated into our Civil Procedure Rules 3. However it was abolished under the Civil Procedure Rules of some states in 1988 and the abolition has since remained extant. Hence, Order 22 Rule 1 & 2 4 provides as follows: 1 Demurrer originated from the Latin word demorari or the French word demorrer meaning to wait or stay. It imports that the party demurring waits or stays his proceedings in the action until the judgment of the court is given whether he is bound to answer to so insufficient a pleading. Each party may demur to what he deems an insufficient pleading of the other. The demurrer was general when it was to a matter of substance and general when it was to a matter of form, and must specifically point out the defect. EDWIN E. BRYANT, The Law of Pleading Under the Codes of Civil Procedure 15 (2d ed, 1899). 2 High Court of Lagos State (Civil Procedure) Rules 2012. 3 See Order 27 Rule 1 3 Federal High Court (Civil Procedure) Rules 1976, CAP 134 LFN 1990. 4 Supra note 2
No demurrer shall be allowed. Any party may by his pleading raise any point of law and the judge may dispose of the point so raised before or at the trial. If in the opinion of the judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the judge may make such decision as may be just. The abolition of the demurrer proceedings under the new rules created a controversy as some Claimant argued that a Defendant who seeks to file a preliminary objection on point of law can only do so in his pleadings and as such, he must file a statement of Defence in response. This construction has been tested by the fire of judicial interpretation in a plethora of cases even up to the apex court. The courts have held that this is a misconstruction. In other words, if the point of law is one which touches the jurisdiction of the court, the general rule relating to abolition of demurrer will be inapplicable; as such a Defendant may raise a preliminary objection on point of law before pleadings are exchanged. This was the position of the law in the case of AJAYI V. ADEBIYI 5 the apex court held thus: Where a defendant conceives that he has a good legal or equitable defence to an action, he is entitled as a matter of preliminary objection to the action, to raise such defence. Where a preliminary objection is that an action does not lie, it postulates that the action is incompetent and the court therefore lacks the requisite jurisdiction. Where an action can be decided on preliminary objection, it is manifestly absurd to suggest that the court should take evidence. In the instant case, the whole basis of the appellants preliminary point of law was to show the trial court that the action going by the writ and statement of Claim, the respondent had no locus standi to institute the action. The trial court therefore misconceived the principle of law in issue when it dismissed the appellants preliminary objection and ordered him to put up his defence. [Emphasis mine] The same principle of law was applied in the case of S.C.S. Co V. COUNCIL, O.A.U. and ILE-IFE 6 where the court stated thus; But the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable a plaintiff to seek hearing in court over his grievance and get it resolved as he is able to show that 5 [2012] 11 N.W.L.R. (PT. 1310) PG. 137 ESPECIALLY AT 173 PARAS. E-H. 6 [2011] 15 N.W.L.R. (PT. 1269) PG. 193 ESPECIALLY AT 208.
the court is empowered to entertain the subject- matter. It does not follow that he must plead first in order to raise the issue of jurisdiction. [Emphasis mine] Also, in the case of ROCKSHELL INTERNATIONAL LTD. V. BEST QUALITY SERVICE S LTD 7 The Supreme Court held thus: Demurrer proceedings have been abolished by the rules of court. However, where a defendant perceives a point of law, especially one that borders on jurisdiction, he is at liberty to raise it in limine urging the court to strike out or dismiss the action without filing a defence or calling evidence. [Emphasis mine] The above position of the law was clearly articulated in the Supreme Court case of NDIC V. C.B. N 8 wherein the court stated: There is a distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead, and it is upon that pleading that the defendant will contend that accepting all facts pleaded to be true; the plaintiff has no cause of action. The issue of jurisdiction is not a matter of demurrer proceedings. See also the case of L.L. S.P.J.A. LTD V. M/T TUMA 9 The above principle of law was further restated in the case OLUWANIYI V. ADWUMI 10 where the court stated thus; The issue of jurisdiction is not a matter for demurrer proceedings. Thus, an application of preliminary objection seeking an order to strike out the suit for being incompetent on grounds of lack of jurisdiction is not demurrer, and therefore can be filed and taken before the defendant files his statement of defence or without the defendant filing a defence at all. [Emphasis mine] See also the Supreme Court in the case of ONAFOWOKAN V. WEMA BANK PLC. 11 7 [2009] 12 N.W.L.R (PT. 1156) PG.640. ESPECIALLY AT 670 PARAS. C-D. 8 [2002] 7 N.W.L. R (PT. 766) PG. 272 ESPECIALLY AT 296-297, PARAS. F-A 9 [2011] 15 N.W.L. R ( PT. 1271) PG. 612 ESPECIALLY AT 627-628 PARAS. D-A. 10 [2008] 13 N.W.L.R ( PT.1104) PG. 387 ESPECIALLY AT 409 PARAS. F-H 11 [2011] 12 N.W.L. R (PT.1260) PG. 24 ESPECIALLY AT 41-42 PARAS. H-D.
Flowing from the above principle of law, it is clear that there is a clear cut distinction between demurrer and preliminary objection on point of law especially when it goes down to the issue of the jurisdiction of the court. Preliminary objections are raised for reasons some of which are as follows: i) Lack of jurisdiction on the part of the court generally to hear and determine the case. ii) That some condition precedents to the proper institution or commencement of the action were not fulfilled. See INC V. MOBIL OIL (NIG.) PLC. 12 iii) That the parties lack the capacity or locus standi to institute or defend the action. See ATAGUBA & Co. V. GURA (NIG.) LTD. 13 iv) That the suit is statute barred where the facts are clear from the writ or pleadings. See AJAYI V. ADEBIYI 14 v) That the defendant is immune from jurisdiction vi) That the suit is incompetent for lack of service of processes as prescribed by the requisite law. See OTOBAIMERE V. AKPOREHE 15 All the above mentioned issues on points of law if raised in any suit are reducible to lack of jurisdiction by any court to entertain such a suit and as such these issues can be raised without the defendant filing its defence. All that needs to be done is for a counsel to pigeon- hole or properly couch the said issues to reflect its jurisdictional nature and it would safely fall within the exception contemplated by the above cited authorities. The Defendant must make sure he relates the point of law raised to the incompetence of the jurisdiction of the court and argue same in its written address. Also, the general effect of Order 22 Rule 1 & 2 16 which states that points of law may be raised in pleadings only applies to suits commenced by originating processes which demand a response by way of pleadings. For instance, it cannot apply to cases where the action is commenced via Originating Summons because a counter affidavit which is the process, by which a Defendant replies to a Claimant s Originating Summons, is not pleadings. 12 ( 1999) 5 N.W.L.R [PT. 601] PG. 9 ESPECIALLY AT 20-21 13 (2005) 8 NWLR [PT. 927] PG. 429 (the court held that For an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be competent plaintiff and a competent defendant. ) 14 [2012] 11 NWLR (PT. 1310) PG 137. 15 (2004)14 NWLR [PT. 894] PG. 591 ESPECIALLY AT PG 610-611 (The court held that nonservice of the originating process on a defendant vitiated the jurisdiction of the court. 16 Supra note 2
The reason for the decisions in the above authorities is premised on the fact that the question of jurisdiction of a court can be raised at any stage of the proceedings. 17 Also, issues bordering on jurisdiction need not be pleaded as long as it is apparent on the face of the court process filed in court including the writ of summons. Moreover, this distinguished procedure helps to save judicial resources and the time of the court, as the court is able to quickly determine the issue and dispense same in short order. Flowing from the above, it can be safely concluded that a Defendant who has an objection on point of law can raise same by way of motion without filing a Statement of Defence in response to the Claimant s Statement of Claim. This manner of procedure will not offend the intendment of Order 22 Rule 1 & 2. 18 17 AJAYI V. MILITARY ADMINISTRATOR ONDO STATE [ 1997] 5 N.W.L.R (PT. 504) PG. 237 18 Supra note 2.