The Mistaken Use Of Proceeding In Lieu Of Demurrer In Nigerian Courts

By S.O. Giwa Esq.

It is not gainsaid that the procedure of demurrer has long been abolished in several jurisdictions in this Country, Nigeria, by the applicable rules of court with a clear provision in the High Court (Civil Procedure) Rules applicable in all States of Federation of Nigeria including Federal High Court.

Ghost of the demurrer is often being confused with or mistaken for proceeding lieu of demurrer applicable presently in the Western States which allows the points of law to be raised by a party as a preliminary issue to be set out in the Pleadings.

Filing of an application to challenge the competence of a suit by a party before filing or without filing his or her pleading to some is still the abolished demurrer proceeding. To them, a defendant has no right to file an application to challenge the competence of a suit without first filing his/her defence. Their stand is that a defendant who wishes to challenge the competence of a suit must first file his/her defence and incorporate his/her point of law in his/her defence. How correct is this stand? And what then was the abolished demurrer?

WHAT THE ABOLISHED DEMURRER WAS IN NIGERIA

Justice Ayoola, J.S.C in Mobil Oil (Nig.) Plc Vs. IAL 36 Inc. (2000)6NWLR (Part 659)146@162 paragraphs A-D in determining whether a demurrer in terms of the provision of Order 27 (1), (2) and (3) of the Federal High Court (Civil Procedure) Rules 1976 brought the pleadings to an end defines the abolished demurrer thus:

‘Demurrer is a longstanding procedure known to the common law for determining suits on points of law. Plucknet explained in his Concise History of the Common Law (4^th edn) at Pp. 389-390 that:

        ‘‘The object of pleadings is to explore the law and the facts of a         case by means of the assertions and denials of the parties until         an issue has been reached. If it is an issue of fact, then the         parties will have ascertained a material fact which one asserts         and the other denies in terms so precise that a jury will have no         difficulty in hearing evidence on the matter and finding the         truth of it. If it is an issue of law, the parties will have admitted         the relevant facts, leaving it to the court to decide whether the         law applicable to them is as the plaintiff or as the defendant         maintained. This is called a ‘‘demurrer’’ because one of the         parties has pleaded that he is entitled to succeed on the facts         admitted by the other, and is willing to rest (demourer) at that         point. If his opponent does the same, then demurrer is joined, the pleadings are at the end, and the court hears the argument    on the point of law, and decides it’’

None will now suggest that a demurrer in terms of Order 27 rules (1)-(3) now brings the pleadings to an end’  

Justice Karibi-Whyte, JSC in the same case at page 167 paragraphs F-G explained a demurrer ‘as a known and well accepted common law procedure which enables a defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the defendant (the demurring party) to the necessity of answering them or proceeding further with the cause.’

Flowing from the above clear explanations of the Justices on what the demurrer was in Nigeria is the deductible fact that the abolished demurrer proceeding was a procedure known to the common law for determining suits on points of law only wherein the party would have to admit the relevant facts and leave those facts to the court to decide whether the law applicable to them is as the objector maintained.

In a demurrer proceeding, the rule enjoins a defendant to accept all the relevant averments of facts by a plaintiff for the purpose of the demurrer but gives him the right to contend that notwithstanding those facts, some legal or equitable issue or consequence denies the plaintiff a hearing or the reliefs he seeks although no evidence to back that contention is permissible. Thus, a defendant is neither permitted to file a statement of defence nor to rely on it, neither is he to tender evidence. A defendant is taken to have accepted all the facts pleaded by the plaintiff as established but rely on some points of law.

It is to be noted further that the basic essence in demurrer proceeding is that the party raising same contends that even if all the allegations in the statement of claim are true, it still does not, in law, disclose a cause of action for the party contending to answer.

In explaining what the demurrer proceeding was, the court in Bambe vs. Aderinola (1977)1SC 1@6 stated thus:

‘The party who demurred would not proceed with his pleading         but, having raised a point of law as to whether any case had         been made out in his opponent’s pleadings for him to answer,         awaited the decision on that point.’

It is crystal clear from the holding of the court that in a demurrer proceeding, the defendant is not required to file a statement of defence before raising the point(s) of law in contention. All he needs is the pleading of the plaintiff in respect of which the defendant is deemed to have admitted the facts stated therein for the purposes of the application only.

It is equally to be noted that the case under abolished demurrer procedure was that where pleadings have been filed and exchanged between the parties to the action, the case would proceed to trial and the legal point raised by the defendant would then be properly taken by the court after evidence.

By the extant rules of court in several jurisdictions in the country, there is no doubt whatsoever that proceedings by way of demurrer have been abolished and in its place rules are made with heading ‘proceedings in lieu of demurrer’ to be used by parties in raising any point of law in their pleadings for determination and disposal by court in the cause of the hearing of the matter or in the judgment at the end of the trial. What then are the provisions of the rules in place of demurrer in the rules of court?

Before quoting out the provisions of the rules of court put in place of demurrer which is the purpose of this piece for discussion; it is fundamentally important to say that recourse to the applicable rules of court in Western States of Nigeria evinced that the word ‘may’ is used in the procedural provision of the rule in place of demurrer under Order 22 rule 2(1) of Oyo State High Court (Civil Procedure) Rules 2010; under Order 22 rule 2(1) of Osun State Amended High Court (Civil Procedure) Rules 2008 and under Order 24 rule 2(1) of High Court of Lagos State (Civil Procedure) Rules 2019 while the word ‘shall’ is used in the procedural provision of the rule in place of the demurrer under Order 22 rule 2 of High Court of Ekiti State (Civil Procedure) Rules 2011; under Order 22 rule 2 of High Court of Ogun State (Civil Procedure) Rules 2014 and under Order 22 rule 2 of Ondo State High Court (Civil Procedure) Rules 2019

It is to be noted that the provisions of the rule for proceedings in lieu of demurrer with the use of the word ‘may’ in Oyo, Osun and Lagos States are in all fours the same and the provisions of the rule for proceedings in lieu of demurrer with the use of the word ‘shall’ in Ekiti, Ogun and Ondo States are also the same.

The provisions of the rule for proceedings in lieu of demurrer with the use of the word ‘may’ in Oyo, Osun and Lagos States go thus:

‘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.’

The provisions of the rule for proceedings in lieu of demurrer with the use of the word ‘shall’ in Ekiti, Ogun and Ondo States go thus:

‘Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Court who tries the cause at the trial:’

The above quoted rules plainly deal with the procedure to be followed by parties wishing to rely on points of law to raise issues for determination in the course of the trial of the action or after the trial in the final judgment of the court.

It is crystal clear from the unambiguous words of the provisions of the rule quoted above that the provisions are directive and not mandatory and it is the writer’s stand that the said provisions do not state that party must first raise point of law in the statement of defence before a motion by way of preliminary objection is brought for the determination of the said point of law nor does the provision proscribe or disallow filing of a motion by way of preliminary objection to challenge the competence of the suit on point of law

It is the writer’s further stand that a party is not under any obligation under procedure in lieu or place of or substitute for demurrer proceeding to first file his or her pleading and incorporated his point of law in it.

It would be absolutely a palpable misconception for anybody to interpret the words ‘shall be entitled to raise…’ to mean ‘must raise’ or words ‘may by his pleading raise…’ to mean ‘must by his pleading raise’ because in the writer’s view, the words ‘shall be entitled to raise by his pleading any point of law’ mean clearly and no more than that any point party, shall not be prevented in any way or manner whatsoever, from raising by his pleading, point of law, the words ‘shall be entitled to raise by his pleading any point of law’ do not state that the party so entitled, must raise the point in his/her or by pleading.

It is to be noted that the words ‘shall be entitled to raise by his pleading any point of law’ in the writer’s respectful view, that a party must first file a statement of defence before such party can raise his point of law to challenge the competence of the Claimant’s suit on ground of jurisdiction and a point of law can be raised on a preliminary objection, if the point of law, will be decisive of the whole litigation.

On a final note, it is conveniently important to conclude this piece by submitting that there is a clear difference between an objection to the jurisdiction of the court, which can be raised at any time, even when there are no pleadings filed, and a demurrer. The writer’s stand is fortified with the holding of the Supreme Court in A.G., Fed. Vs. A.G., Anambra State (2018)6 NWLR (Part 1615) 314@347 paragraphs B-C that raising the preliminary objection of the defendant at the preliminary stage without the defendant first filing its statement of defence is in order and proper and the court has no reason shying away from determining issue of jurisdiction raised which is a threshold point.

It is worthy of recommendation and advice at this stage that the ubiquitous practice of flooding our courts with counter-affidavits, which often anchored on the point that an applicant has not complied with the provision of the Rules of Court on proceeding in lieu of demurrer which provides that point of law may be raised by pleading, in opposition to the application challenging the jurisdiction of court on point of law be put a stop to.