A Gambian proverb says if a donkey kicks you and you kick back, then you are both donkeys. It would have been more better, easier and timesaving if you aim at it carefully and take it down once and for all, such is the case at the early stage of an action, a Defendant may decide to “join issues” by responding to the Plaintiff’s statement of Claim or invoke fully the powers of a well prepared preliminary objection. Morality will attempt to discuss the legal issues involved therein, in light of the abolition of Demurrer proceedings by various Court rules.
In Celestine Anthony Onokomma v. Union Bank of Nigeria PLC (2017) LPELR-42748(CA) the Court of Appeal defined Demurrer proceedings thus: “Demurrer proceedings is simply an application by a defendant that even if all the averments in the statement of claim are true and admitted, the action cannot be sustained due to a particular rule or point of law. The word ‘demurrer’ came from the latin word ‘demorari’ which simply means to ‘wait’ or ‘stay’. The defendant simply raises his point of law and waits for the decision on that point. He does not file a statement of defence but goes on to demur by only making an application to dismiss or strike out the suit…… This procedure has become archaic and has been abolished by the Courts……”
The provisions of Order 23 of the Kaduna State High Court Civil procedure rules 2007, Order 22 of the Anambra State High Court (Civil Procedure) Rules 2006, Order 24 of Kano State Civil Procedure Rules, Order 26 of the High Court of Kwara State Civil Procedure Rules 2005, and Order 22 of the Lagos State High Court Civil Procedure rules 2012 all provides for the abolition of Demurrer proceedings and the need to raise any points of law via the pleadings, to be known as “Proceedings in lieu of Demurrer.”
Simply put, the point is that a defendant who intends to raise a point of law after he is been blessed with the plaintiff’s statement of claim, may raise same via his statement of defence, and that the old practice of demurrer as explained above in Celestine Anthony Onokomma v. Union Bank of Nigeria PLC (Supra) has been abolished. Howbeit, where the points of law to be raised bothers on issue of Jurisdiction and Competence of the Court, the Defendant can raise same even before filling his statement of defence.
Pats Acholonu JCA (as he then was) captured it apt in The Shell Petroleum Development & 5 Ors vs. E.N.Nwawka and 1 Or, (2001) 10 NWLR (pt. 720) 64 @ 79 81 when he said “it is not in all cases that the Court should ignore the provisions of Order 24 Rule 2. It may do so where the only issue to argue is that of lack of jurisdiction. It seems to me that where the defendant conceives that there is no cause of action and that the pleading should be struck out, then he ought to file a statement of defense and thereafter raise the preliminary point which can be taken. I believe that where the issue of jurisdiction simpliciter is raised, it can be taken first whether or not a defense pleading has been filed. Where the issues are so mixed up that it will need a proper investigation going by the facts and the law averred, then the Court may decide in the interest of justice to have the pleading of the defense before causing the legal issues to be first argued and disposed of.”
The above position was reechoed by the Supreme Court in the case of Dr. Tosin Ajayi V. Prince (Mrs.) Olajumoke Adebiyi & Ors (2012) LPELR-7811(SC) Per ADEKEYE, J.S.C (P 49, Paras E-G) when he stated thus; “It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime.”
The problem usually faced by the Courts is with regards to the determination of instances that truly affects the jurisdiction of the Court, on the authority of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341 it is established that proper parties, subject matter, composition of the Court as to members and qualifications and that the suit commenced by due process of law are the basic components that satisfies the question of the jurisdiction of the Court. However there are various pronouncements of the Courts that appear to include therein the dual and much hackneyed issues of Limitation Act and Locus standi.
The Supreme Court in Dr. Tosin Ajayi V. Prince (Mrs.) Olajumoke Adebiyi & Ors (Supra) held thus; “Limitation Law and Locus Standi are both threshold issues which can be raised anytime or for the first in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Law. It transcends any high court Rules. It can be raised by preliminary objection at any stage of the proceedings before any court by any of the parties or even suo motu by the court.”
The apex Court appeared to have departed from its former position on a party relying on a statute of limitation without pleading same, in the more recent case of Kolade vs. Ogundokun (2017) All FWLR 1557 @ 1571, when it held per Onnoghen JSC: “while it is settled law that a party intending to rely on a statute of limitation or the Administration of Estates Law must plead same: it is also settled law that generally, facts are what are required to be pleaded and that it is sufficient. In an action under the Administration of Estates Law, to plead the relevant facts and indicates the intention of the party to rely on its provisions- see Monier Construction Co Ltd vs. Azubuike (1990) 3 NWLR (pt. 136) 74; Oyebamiji vs. Lawanson (supra); Oguigo vs. COP (1991) 3 NWLR (pt. 177) 46 and Famuyiwa vs. Folawiyo (1972) 1 ALL NLR (pt. 2) 11. This position was adopted by the Court of Appeal in the recent case of Architect Funsho Abolurin v. Governor of Kwara State & Ors (2018) LPELR-43976(CA)
Conclusively, it is important to note that there are provisions of the various Court rules that provides for matters that must be specifically pleaded, as provided under Order 27 Rule 4(1) (2) of the Kwara State High Court (Civil procedure) Rules 2005, and its equivalent in the other various Court rules, and on the authority of Asika vs. Atuanya All FWLR (pt. 710) 1251-1266 per Muntaka Coomasie JSC, rules of courts are meant to be obeyed. Clearly, this can be said to be the position of the law with respect to Demurrer proceedings, save on issues of Jurisdiction as it reflects in the above cited cases.
Munir Ishaq Morality is a 400 level law Student of Bayero University Kano. He can be reached via +2348147841027.