When Filing Of A Memorandum Of Appearance Is Unnecessary

By S.O. Giwa Esq

It is no gainsaying that many legal practitioners are of a strong view that the first procedural step to take by a defendant who wishes to contest the Claimant’s claim in a civil matter or action is the filing of a process christened MEMORANDUM OF APPEARANCE—be it conditional or unconditional as a means of entering appearance for a defendant in a suit.

The stance of many legal practitioners knows no bound with a strong belief that the first thing to do by a defendant in all civil actions instituted in a High Court of a State is the strict compliance with the provision of the High Court (Civil Procedure) Rules.

It is a provision in High Court (Civil Procedure) Rules in force and applicable in States of the Federation including Federal High Court that ‘a defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copies of a duly completed and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require.

With the above-quoted provision making it a mandatory step to take by a defendant served with an originating process to file in the registry a MEMORANDUM OF APPEARANCE, many legal practitioners particularly new wigs hold a view that the first procedural activity to do by a defendant served with an originating process (any court process by which a suit is initiated) in every action is filing a memorandum of appearance and it behooves the defendant to first file his/her a duly completed and signed memorandum of appearance in all actions upon being in receipt of a copy of an originating process.

This view manifests in the ubiquitous practice of many legal practitioners filing preliminary objection to challenge the competence of any other step taking by any defendant who does not first file his/her memorandum of appearance on ground of non-compliance with the mandatory provision of the High Court (Civil Procedure) Rules of the State where the action is instituted citing plethora of authorities on non-compliance with the Rules of Court and jurisdiction.

The practice of first filing a memorandum of appearance for a defendant has become a convention and norms to the extent that some legal practitioners care not to find out if the action is regulated by other Rules and which a defendant is bound to follow in defending the action and as a result some legal practitioners get themselves exposed to legal ridicule in court for their beliefs that first procedural step to take by a defendant in every action is filing of a memorandum of appearance in court and that every action initiated in a State High Court and Federal High Court is subjected to the provisions of the Rules of the Court in force. How correct is this belief and stance?

It is against this background that this piece is written with a view to broadening the horizon of legal practitioners who are willing to add to their repertoire particularly new wigs and to dislodge the cankerworm in their sentiment that it is not in all actions that the first procedural step to take by a defendant is filing of a memorandum of appearance in court and that every action initiated in a State High Court and Federal High Court is not subjected to the provisions of the Rules of the Court in force where the action has its own rules regulating its procedure.

One tempts to join the queue of some legal practitioners to submit that flowing from the above-quoted provision of the High Court (Civil Procedure) Rules in the preceding paragraph that in every action instituted in High Court of a State, it behooves a defendant to first file a Memorandum of Appearance as first call of his/her procedural activity in every action but a close study of action for enforcement of fundamental rights provided for under Fundamental Rights (Enforcement Procedure) Rules 2009 evinced the provision of Order II rule 2 which fortifies the writer’s stance that every action is regulated by its rules to the exclusion of any provision in the Rules of the Court where the action is instituted. The provision of Order II rule 2 provides thus:

‘An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to these Rules, lie without leave to Court.’  The underline is the writer’s for emphasis.

Besides the action for enforcement of fundamental rights provided for under Fundamental Rights (Enforcement Procedure) Rules 2009 wherein filing of a memorandum of appearance as the first procedural step to take by a defendant is unnecessary are other actions like winding up of companies regulated by Companies Winding Up Rules & Act 2004 and Matrimonial Causes regulated by Matrimonial Causes Rules. Just to mention but a few.

It is worth noting that an action for enforcement of Fundamental Right is not only exclusively regulated by the Fundamental Rights (Enforcement Procedure) Rules 2009 but also filing of a memorandum of appearance is not known as the first procedural activity of a defendant in defending the said action.

It is a clear provision of Order II rule 6 Fundamental Rights (Enforcement Procedure) Rules 2009 that where the respondent intends to oppose the application, he shall file his written address within 5days of the service on him of such application and may accompany it with a Counter-Affidavit.

It is to be borne in mind that where a respondent wishes to challenge the Court’s jurisdiction to hear the application, he only needs to file his/her respondent’s Notice of Preliminary Objection along with the Counter-Affidavit to the main application and not filing any form of memorandum of appearance to show his/her intention to object or challenge the Applicant’s action and on the date of hearing, the preliminary objection shall be heard along with the substantive application. See Order VIII rules 1, 2 and 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

It is also worth noting that filing of a motion on notice, an originating application, is a known first procedural activity of the applicant in the action for enforcement of fundamental right and while a defendant though called respondent has the right to file a counter-affidavit as his first procedural activity in the action for enforcement of fundamental right.

It is important to point out that the motion on notice to be filed by an applicant to commence the action is an originating process though in legal parlance called originating application.

In view of the preceding paragraphs on action for enforcement of Fundamental Rights, it is the writer’s firm stand that filing of a memorandum of appearance is unnecessary and the writer has no doubt that knowing that filing of a memorandum of appearance is not needed in an action for enforcement of fundamental rights would save legal practitioners whose belief is hinged on the reason that because the High Court (Civil Procedure) Rules make it mandatory for a defendant to any action instituted in High Court must file a memorandum of appearance in compliance with the Rules of the Court from an embarrassment in court.

It is also worth noting that the matter/action is regulated by its rules in force and only matters that are not regulated by special rules for the matters and actions which their rules expressly provided for resorting to the High Court (Civil Procedure) Rules that full compliance with the High Court (Civil Procedure) Rules is a must by the defendant vis-à-vis filing of a memorandum of appearance.

Besides the action for enforcement of fundamental rights is a matrimonial action regulated by Matrimonial Causes Rules & Act.  It is also worth noting that not only is there no provision in the Matrimonial Causes Rules & Act for filing of a Memorandum of Appearance, but also the first procedural step of a respondent to the petition, an originating process, is filing his/her answer. Thus, the filing of a memorandum of appearance as the first procedural activity of a defendant provided for in the above-quoted provision of the High Court (Civil Procedure) Rules on the filing of a memorandum of appearance by a defendant who receives an originating process is unnecessary in a Matrimonial Causes actions.

The justification that the High Court (Civil Procedure) Rules make it a mandatory activity to do for a defendant served with an originating process to file a process christened ‘Memorandum of Appearance’ in court has no basis in a Matrimonial Causes action.

Apart from the actions for enforcement of fundamental rights and matrimonial causes where filing of a memorandum of appearance is unnecessary and inapplicable is an action for winding up of Companies regulated by Companies Winding Up Rules & Act 2004.

It is to be reminded that winding up of companies is an exclusive power of the Federal High Court provided for under section 251 (1)(e) of the Constitution of the Federal Republic of Nigeria 1999 as amended 4^th alteration.

It is finally recommended that efforts should always be made to ascertain whether an action instituted in the Court has special Rules which regulate the action to be defended as Counsel for the defendant and whether the Rules make provision for a process before swinging into action to file same as doing so would save one as counsel from any embarrassment in court and other legal practitioner for the Claimant / Applicant

It is hereby advised that where an originating process served on the defendant, a client to be defended in court, recourse must be had to the Rules provided as the procedural rules for the said action before taking any step for the defendant so as to avert prompt striking out of one’s process and to save one as counsel from any embarrassment from the court and other counsel to the party to the suit.

S.O. Giwa Esq. a.k.a pentalk (Ibadan based Legal Practitioner) giwa_pentalk@yahoo.com 08035224192