Misconceptions Of The Rules On Filing Of Memorandum Of Appearance-A Cloudy Scene In Nigerian Courts

By S.O. GIWA ESQ.

When a defendant is served with a Claimant’s Originating process with its accompaniments, filing in the registry of the court the original and copies of a duly completed and signed process christened ‘MEMORANDUM OF APPEARANCE’ be it conditional or mere appearance within seven (7) days from the day of the receipt of the said Originating Process with its accompaniments is a common practice and procedure attributable to the provision of a rule under High Court (Civil Procedure) Rules.

It is also ubiquitous practice of filing an application for an order extending time within which the said Memorandum of Appearance could be filed out of time -the said seven (7) days- which many legal practitioners believe to be the prescribed period for filing of the said Memorandum of Appearance. What then is a Memorandum of Appearance?

A Memorandum of Appearance is a document used in civil litigation cases by a person being sued as defendant to give notice to the court, and the person who brings legal action to sue the person sued of his (defendant) intention to contest the Claimant’s claim(s) in respect of subject matter[1].

Flowing from the above definition, it is crystal clear that a Memorandum of Appearance is not only a document being filed by a person sued but also a document that gives the court and the Claimant the defendant’s intention to contest the Claimant’s Claim(s).

The main purpose of this piece is not what the said Memorandum of Appearance is meant to achieve but making it known the position of the Rules of Court vis-à-vis the period of seven (7) days within which many legal practitioners file the said Memorandum of Appearance in the registry of the court.

It is against this background that this piece is written with a view to uncovering the masquerade for many to know the authenticity or otherwise of such aged long practice hinged on a belief of same being the provision of the Rules of Courts in Nigeria.

It is not in doubt that the Country, Nigeria, has thirty-six States and each State of the Federation has its own State High Court with Rules of Court which provide rules of procedure that contains minute details of the various steps which a litigant should take in the process of getting the court to hear and determine his case. The question that worms itself into the writer’s heart and which call for writing this piece with a view to finding rational answer to the said question goes thus: Is there a provision in the High Court (Civil Procedure) Rules of all the State High Courts in Nigeria be it mandatory or directory which prescribes seven (7) days as period for filing the said Memorandum of Appearance in Nigerian Courts?

An x-ray of the High Court (Civil Procedure) Rules in force in the South-West States of the Federation including Kwara State High Court (Civil Procedure) Rules 2005, a State in the North-Central of the Country, Nigeria, with a view to finding out the provision of the High Court (Civil Procedure) Rules in force in the South-West States of the Federation including Kwara State High Court (Civil Procedure) Rules 2005, a State in the North-Central of the Country, Nigeria, which provide for seven (7) days as period for filing of a Memorandum of Appearance which many legal practitioners including some judges held belief of reveals the provisions under the heading ‘Appearance’ in the aforementioned Rules in focus.

It is to be noted that the provisions under the heading ‘Appearance’ in the High Court (Civil Procedure) Rules in force in the South-West States of the Federation including Kwara State High Court (Civil Procedure) Rules 2005, a State in the North-Central of the Country, Nigeria, are the same in wordings and the provisions under the aforesaid heading as relates to the mode of entry of appearance via a process christened ‘Memorandum of Appearance’ hereunder reproduced for discussion in this piece.

‘A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copy of a duly completed appearance and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require.’[2]  

In Federal Capital Territory, Abuja, the provision on mode of entry appearance reads:

‘A defendant shall within a time limited in the writ or other originating process enter an appearance in the manner prescribed.’[3]    

‘A defendant shall enter an appearance by delivering to a Registrar a memorandum of appearance in Form 11, or where leave was obtained before appearance, a notice in Form 12, respectively, as in the Appendix.’[4]

It is deducible from the above provision of Order and rule 1 from the High Court (Civil Procedure) Rules in force in the South-West States of the Federation including Kwara State High Court (Civil Procedure) Rules 2005, a State in the North-Central of the Country, Nigeria, and Federal Capital Territory, Abuja that the period within which a defendant is to file in the registry the original and copy of a duly completed and signed Memorandum of Appearance in those States in focus is the period prescribed in an originating process and same is to be as in Form 11 with modifications or variations as circumstances may require.

Combing those High Court (Civil Procedure) Rules in the aforementioned States of the Federation including Federal Capital Territory, Abuja with a view to finding out if there is any provision in those Rules stating the period to be stated in the originating process within which a defendant is to cause an appearance for him/her in the suit which reference is made to in the provision of the Order hereinabove reproduced in the preceding paragraph reveals that there is no single provision in any of the aforesaid High Court (Civil Procedure) Rules stating any period to be stated in the originating process, writ of summons in particular, which the provision reproduced above alludes to and to which the period or time to be stated in a memorandum of appearance is limited. One then continues wondering the source of the period of seven (7) days which many legal practitioners including judges believe to be the filing period of a memorandum of appearance in Nigerian Courts.

Searching for the source of the period of seven (7) days which many legal practitioners including judges believe to be the filing period of a memorandum of appearance in Nigerian Courts calls for having recourse to the provisions in the High Court (Civil Procedure) Rules in the States of the Federation including Federal Capital Territory, Abuja in focus in this piece and the outcome of the said search with beaming torchlight reveals the provisions on form and commencement of civil action in those aforesaid High Court (Civil Procedure) Rules particularly the provision on the form alluded to in the provision reproduced above in the preceding paragraph on the filing of memorandum of appearance which shall only reproduce for discussion in this piece. The provision reads:

‘Except in cases in which any different forms are provided in these Rules[5], the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.’[6]

In Federal Capital Territory, Abuja, the provision on forms of writ reads:

 ‘A writ shall conform with Forms 1, 2, 3 or 4, as in the Appendix in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.’[7]   

Flowing from the provisions herein above reproduced is deducible fact that a form is provided as an appendix of High Court (Civil Procedure) Rules in force in the States of the Federation including Federal Capital Territory, Abuja and on the Form 1 provided, different periods within which an appearance to be entered for a defendant are stated. On the Form 1 provided for in High Court (Civil Procedure) Rules in

• Ondo State at page 220, is seven days
• Ekiti State at page 149   is seven days
• Ogun State at page 150 is seven days
• Oyo State at page 148  is thirty  days
• Lagos State at page 223 is forty-two days
• Osun State  at page 237 is forty-two days
• Kwara State at page 202 thirty days
• Federal Capital Territory, Abuja at page 172 is eight days.

A careful study of the aforesaid forms reveals that the words ‘…an appearance to be entered’ is part of the contents of the Form 1 provided to be used in commencing civil action and the word ‘appearance’ is defined at page113 of the Black’s Dictionary ninth edition as:

‘A coming into court as a party or interested person, or as a lawyer on behalf of a party or interested person; esp., a defendant’s act of taking part in a lawsuit, whether by formally participating in it or by an answer…’ The underline is the writer’s for emphasis.

It is the writer’s stand that flowing from the above quoted definition of the word ‘appearance’, it is deducible that the word ‘appearance’ in a writ of summons is not filing of a memorandum of appearance but filing pleading to answer the allegations levied against the defendant and the period within which the defendant is to file his pleading need to conform with the period provided for doing so in the High Court (Civil Procedure) Rules in force in the States of the Federation including Federal Capital Territory.

It is the writer’s stand that beside the fact that the Form contains the prepositional phrase ‘with such modifications or variations as circumstances may require’ which depicts that the form must not be adopted hook line and sinker, the aforesaid ‘Form’ also contains the words ‘take notice that in default of your so doing the claimant may proceed therein, and judgment may be given in your absence’.

Without conceding that the seven days which many lawyers hold on belief to as the period for filing memorandum of appearance in an action exist, it is pertinently important to pose a question thus: ‘Would the court have proceeded to give judgment in default of filing a memorandum of appearance within that seven days or set down the suit for hearing after the expiration of that seven days? The answer is negative

It is the writer’s stand that the words ‘you do cause appearance to be entered for you’ in the said Form 1 evinced that the period is not for filing a memorandum of appearance and same should not be construed as such.

It is the writer’s further stand that in the form 1 which many legal practitioners hold on belief to as if the form itself is a rule and there is no mention of memorandum of appearance in the said Form. How is it rational for one to conclude that the words ‘you do cause appearance to be entered for you’ in the said form 1 means filing of memorandum of appearance?

It is the writer’s stand that apart from the fact that if the draftsmen had wanted the word ‘appearance’ to mean ‘memorandum of appearance’, they would have unequivocally made the words ‘memorandum of appearance’ as the content of the Form, the draftsmen made it clear in the content of the Form 1 the prepositional phrase ‘with such modifications or variations as circumstances may require’ which depicts that the form must not be adopted hook line and sinker.

It is the writer’s stand that not only is there no provision for a period of seven days for filing a memorandum of appearance or entering appearance by a defendant in an action in the High Court (Civil Procedure) Rules in force in those States in focus, but also the mention of seven days in the provision of the High Court (Civil Procedure) Rules[8] which reads thus: ‘A defendant entering appearance shall within 7days serve a sealed copy of the memorandum of appearance on a claimant’s legal practitioner or on the claimant if he sues in person’; High Court (Civil Procedure) Rules[9] which reads: ‘A defendant entering appearance shall not later than seven (7) days thereafter serve a sealed copy of the Memorandum of Appearance on a Claimant’s Legal Practitioner or the Claimant if he sues in person’ and the provision of Order 8 rule 1(3) of the Ondo State High Court (Civil Procedure) Rules 2019 that ‘Subject to the provision of the Sheriffs and Civil Process Act, a defendant entering appearance shall within 7 days serve a sealed copy of the memorandum of appearance on a claimant’s legal practitioner or on the claimant if he sues in person’  is the period within which defendants are to serve a sealed copy of the memorandum of appearance on a Claimant’s legal practitioner or on the Claimant not the period for filing a memorandum of appearance.

It is worth saying that the period for service of memorandum of appearance in Osun State is within two days and it is provided for under Order 9 rule 1(3) of High Court of Osun State Amended (Civil Procedure) Rules 2008. The provision goes thus:

‘A defendant entering appearance shall not later than 2 days thereafter serve a sealed copy of the memorandum of appearance on a Plaintiff’s Legal Practitioner or on the Plaintiff if he sues in persons.’

It equally needs to be noted that there is no provision for a period of seven days for filing a memorandum of appearance nor a period for service of a memorandum of appearance in Oyo State, Kwara State and Federal Capital Territory, Abuja.

It is to be observed that the deducible fact in the provision of Order 8 rule 1(3) of Ondo State High Court (Civil Procedure) Rules 2019 subjecting service of a memorandum of appearance to the provisions of the Sheriffs and Civil Process Act is that entering of appearance is not filing of memorandum of appearance but answering the claims of the Claimant on the writ of summons which issuance and service is regulated by Sheriffs and Civil Process Act in Nigeria.

Fortifying the writer’s stand that the period to be stated on a writ of summons is the period within which the defendants are to answer to the writ of summons and not period for filing a memorandum of appearance is the holding of Nnamani J.S.C in the Sken Consult Nig. Ltd. V. Ukey (1981) 1 SC 6 which goes thus:

‘With respect to section 99, I do not think that section can be interpreted as referring to a Writ of Summons for service. All that it is concerned with, in my view is the period within which the Defendant is to answer to the writ of summons….The return date was less than the 30 days prescribed by section 99 and was clearly in breach of it. In my view the proceedings on 4^th of November, 1978 were premature and by virtue of the mandatory provisions of Section 99 of no effect. They must, therefore, be regarded as a nullity.’

It is hereby the writer’s firm stand that there is no provision for a period of seven days for filing a memorandum of appearance in the High Court (Civil Procedure) Rules in force in Oyo, Ogun, Ondo, Ekiti, Lagos, and Osun States including Kwara State and Federal Capital Territory, Abuja; the strict compliance with the provision of the Rules and not the form which is provided in the Rules as a guide is hereby recommended.

Filing of a copy of memorandum of appearance in the writer’s opinion and advice should be done along with the defendant’s defence within the period provided for under the Rules of Court for filing of Defendant’s defence.

Also, the practice of giving seven days on the writ of summons to enter appearance should be wary of and put a halt to and it should be borne in mind that the practice of giving seven days on a writ of summons to enter appearance is not a mandatory rule of law or indeed a rule of court. Fortifying the writer’s advice is the holding of Mukhtar J.S.C in Duke v. Akpabuyo (2005)19NWLR (Part 959)130@150-151 paras. G-E wherein His Lordship held thus on source of stipulation of eight days for entry of appearance:

‘It need be stressed, that the practice of giving eight (8) days to enter appearance, is not a mandatory rule of law or of any law or indeed, a rule of court.’

In the absence of any provision in the Rules of Court stating seven days as period for filing a memorandum of appearance, it is the writer’s advice that the belief that a memorandum of appearance must be filed within seven days of the receipt of the Claimant’s originating process should be dislodged and the practice of filing of a memorandum of appearance within seven days on the belief that seven days is the period prescribed by the Rules for its filing and filing application for extension of time when same was unable to be filed within seven days need to be put a halt to.

It is the writer’s specific recommendation to the chairmen and members of committees for the amendment of High Court (Civil Procedure) Rules particularly Ondo, Ekiti, and Ogun States that in their future amendments of their respective Rules of Court, consideration be given to changing the period of seven days stated in the Form 1 of their respective States to the required period stated in their respective High Court (Civil Procedure) Rules for filing of defence as done in the High Court (Civil Procedure) Rules in force in Oyo, Lagos, Osun and Kwara States as doing that would avert flooding the courts with preliminary objections on ground of stating seven days in the writ of summons which some legal practitioners believe to be in contravention of the provision of section 99 of the Sheriffs and Civil Process Act.

Finally, it is the writer’s advice to the draftsmen and committee for the amendment of High Court (Civil Procedure) Rules in all States of the Federation that a clear provision on required period for the filing of a memorandum of appearance be provided for as doing that would clear the air on the required period for filing of memorandum of appearance.

[1] S.O. GIWA’s definition

[2] Order 9 rule 1(1) of High Court of Ekiti State (Civil Procedure) Rules 2011; Order 9 rule 1(1) of High Court of Oyo State (Civil Procedure) Rules 2010; Order 9 rule 1(1) of Osun State High Court Amended (Civil Procedure) Rules 2008; High Court of Ogun State (Civil Procedure) Rules 2014, Order 8 rule 1(1) of Ondo State High Court (Civil Procedure) Rules 2019, Order 11 rule 1(1) of High Court of Lagos State (Civil Procedure) Rules 2019 and Order 16 rule 1(1) of Kwara State High Court (Civil Procedure) Rules 2005

[3] Order 12 rule 1 (1) of High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004

[4] Order 12 rule 1 (2) of High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004

[5] High Court (Civil Procedure) Rules in force in the States of the Federation including Federal Capital Territory, Abuja in force

[6] Order 5 rule 3 of Ondo State High Court (Civil Procedure) Rules 2019; Order 3 rule 3 of High Court of Oyo State (Civil Procedure) Rules 2010; Order 3 rule 3 of High Court of Ekiti State (Civil Procedure) Rules 2011; Order 5 rule 2 of High Court of Lagos State (Civil Procedure) Rules 2019; Order 2 rule 3 of Kwara State High Court (Civil Procedure) Rules 2005; Order 3 rule 3 of High Court of Ogun State (Civil Procedure) Rules 2014; and Order 3 rule 3 of Osun State High Court Amended (Civil Procedure) Rules 2008

[7] Order 4 rule 8(1) of High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004

[8] Order 9 rule 1(3) of High Court of Ekiti State (Civil Procedure) Rules 2011; and Order 9rule 1(3) of High Court of Ogun State (Civil Procedure) Rules 2014

[9] Order 11 rule 1(3) of High Court of Lagos State (Civil Procedure) Rules 2019;

Wyitten By S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner)  giwa_pentalk@yahoo.com 08091380668 or 08038693452