By C.K. Anyanwu, Ll.M. P.N. Vitalis, Esq
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INTRODUCTION
It is important to underscore the fact that the issue that frequently arises in civil proceedings is whether a defendant who has not yet filed a Statement of Defence can properly challenge the jurisdiction of the Court. The question becomes more interesting where the objection is raised before pleadings are closed, as such an objection may, at first sight, appear similar to the old common law procedure known as demurrer.
Under the old procedure, a demurrer allowed a defendant to argue that, even if the facts pleaded by the claimant were admitted to be true, those facts were insufficient in law to sustain the action. However, the position has changed considerably under the various High Court Rules in Nigeria, most of which have abolished the procedure of demurrer.
The important question, therefore, is whether every objection raised before the filing of a Statement of Defence amounts to a demurrer. In particular, can a defendant challenge the jurisdiction of the Court without first filing a Statement of Defence?
The courts have, over time, drawn a clear distinction between a demurrer and an objection founded on jurisdiction. The authorities show that although demurrer has been abolished, an objection challenging the jurisdiction of the Court remains competent and may, in appropriate circumstances, be raised before the filing of a Statement of Defence.
MEANING OF DEMURRER
To understand what constitutes a demurrer, we must look at how Nigerian appellate courts have defined it.
In Ejigbo Local Government & Ors v. Adepegba & Ors (2019) LPELR-48060(CA), the Court defined a demurrer as:
“…a ‘demurrer contemplates where no pleadings are filed and an objection is raised on points of law for determination affecting the competence of a suit and the action without hearing or pleadings.'”
(Per Mohammed Ambi-Usi Danjuma, JCA)
The term originates from the Latin demorari or French demorrer, meaning “to wait” or “to stay.” As noted in Iwayemi & Anor v. Akinbo (2016) LPELR-40136(CA), citing Black’s Law Dictionary, 8th Edition, it connotes a pleading stating that even if the facts alleged in a complaint are true, they are legally insufficient to warrant a relief or require the defendant to frame an answer.
NATURE OF DEMURRER PROCEEDINGS
Elaborating further on the nature of demurrer proceedings, Mohammed Mustapha, JCA, in Iwuanyanwu v. Minister of Agric & Water Resources & Anor (2016) LPELR-40208(CA), explained:
“A demurrer is a known common law procedure which enabled a defendant who contends that even if the allegations of facts as stated in the pleadings to which objection is taken is true, yet their legal consequences are not such as to put the defendant to the necessity of answering them or proceeding further with the cause… but where the parties have joined issues, and pleadings exchanged there is no place for demurrer, this is so because by its nature, demurrer is only filed against statement of claim and admits no filing of statement of defense, otherwise the demurrer proceedings will be rendered meaningless.”
See: OKAFOR V. A.G. ANAMBRA STATE (2005) 14 NWLR Part 945 at 10.
Per MOHAMMED MUSTAPHA, JCA (Pp. 13–14, Paras. E–B).
THE ABOLITION OF DEMURRER PROCEEDINGS
Demurrer proceedings have largely been phased out by modern High Court Civil Procedure Rules across Nigeria.
Examining this shift in IWAYEMI & ANOR v. AKINBO (2016) LPELR-40136(CA), the Court held as follows:
“…The various High Court Rules in Nigeria today have abolished demurrer. A typical example of the legislative pattern that cuts across is the provision of Order 24 of the Ondo State High Court (Civil Procedure) Rules 1987. Rules 1–3 of the said Order 24 read thus: ‘1. No demurrer shall be allowed. 2. Any party shall be entitled to raise by his pleadings any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial. Provided that by consent of the parties or by Order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. 3. If, in the opinion of the Court or a Judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just. 4.——— 5.———-‘”
Per MOJEED ADEKUNLE OWOADE, JCA (Pp. 20–21, Paras. D–C).
JURISDICTION AS AN EXCEPTION
Despite the abolition of demurrer, a major legal misconception remains: equating any preliminary objection filed without a Statement of Defence to a demurrer.
In Oyedemi v. Falade (2021) LPELR-52892(CA), the Court of Appeal firmly addressed whether filing an objection challenging jurisdiction without a defence amounts to a demurrer. Folasade Ayodeji Ojo, JCA, clarified that an application to strike out a suit for lack of jurisdiction or abuse of court process is not a demurrer.
“The law is settled that the issue of jurisdiction is very fundamental as it goes to the root of a matter. A demurrer will not be allowed where a Court lacks jurisdiction. A Court must therefore endeavour to draw a distinction between an application by way of demurrer and jurisdiction where the need arises… An issue of jurisdiction can be raised at any stage of the proceedings. It is trite that the processes to be considered by the Court in determining whether it has jurisdiction or not are the writ of summons and the Statement of Claim. Recourse should not be made to the Statement of Defense.”
His Lordship further underscored the distinction by quoting Uwaifo, JSC, in Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) 272 C.A.:
“The tendency to equate demurrer with objection to jurisdiction could be misleading. 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 the facts pleaded to be true, the plaintiff has no cause of action… But as already shown, 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…”
Thus, because questions of jurisdiction, lack of a court’s competence, or abuse of process can be resolved purely on the writ of summons and supporting affidavits, they do not require a Statement of Defence to be filed first.
See also: Okonkwo v. Independent National Electoral Commission (2004) 1 NWLR (Pt. 854) 242; Akpan v. Uti (1996) 7 NWLR (Pt. 463) 634.
POSITION OF THE LAW
The position of the law on this issue has recently been reinforced at the apex court. In the landmark case of Sodeinde v. World Mission Agency Inc (2026) 4 NWLR (Pt. 2033) 1 S.C., the Supreme Court addressed whether a defendant can object to the jurisdiction of a court before filing pleadings.
The Supreme Court affirmed that an objection to the jurisdiction of the court can be raised at any time, even before the filing of pleadings, when the only processes of court in place are the writ of summons taken out by the plaintiff and the affidavits in support of the interlocutory application.
CONCLUSION
From the authorities considered above, it is clear that an objection challenging the jurisdiction of the Court should not automatically be treated as a demurrer merely because it is filed before a Statement of Defence.
A demurrer, as understood under the old common law procedure, was concerned with the legal sufficiency of the facts pleaded by the claimant. The procedure has, however, been abolished by the applicable High Court Rules. A defendant is therefore generally not entitled to file a demurrer as a separate procedure.
An objection to jurisdiction stands on a different footing. Jurisdiction goes to the competence of the Court to entertain a matter in the first place. For that reason, the law permits the issue to be raised at any stage of the proceedings, including before the filing of a Statement of Defence.
The Court may determine the issue from the relevant processes before it, particularly the Statement of Claim, depending on the nature of the objection. The Court expressly distinguished an objection to jurisdiction from a demurrer and held that an application challenging the competence of a suit on the ground of lack of jurisdiction can properly be brought before the filing of a Statement of Defence.
The Supreme Court further reinforces this position by confirming that an objection to jurisdiction may be raised even before pleadings are filed.
Therefore, the mere fact that a defendant challenges the jurisdiction of the Court without first filing a Statement of Defence does not, by itself, make the objection a demurrer. The proper question is the nature and basis of the objection.
Where the objection goes to the jurisdiction or competence of the Court, it may properly be raised without first filing a Statement of Defence, subject always to the applicable rules of the particular Court and the facts of the case.
The distinction is important because, while the procedure of demurrer has been abolished, the right to challenge the jurisdiction of a Court remains firmly recognised by Nigerian law.
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