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Critical Analysis: Proceedings in Lieu of Demurrer, The Position of The Law and The Rules of Court Juxtaposed

Mr Obama has sued the Federal Inland Revenue Service (FIRS) at the Lagos State High Court, as a result of the restriction placed on his accounts with all the Banks. The Federal Inland Revenue Service (FIRS), rather than file a defence to the suit, has decided to file a Notice of Preliminary Objection challenging the competence of the Lagos State High Court to entertain the suit because by virtue of the provisions of Section 251 of the Constitution, only the Federal High Court is clothed with the jurisdiction to entertain any question bothering on Federal Taxation of Persons & Companies. The act of filing a Preliminary Objection with or without a defence can be referred to as ‘Demurrer’.


This is a method of fighting an opponent’s pleading without actually filing a defence. Demurrer contends that even if the allegations in the Pleadings were true, it does not disclose a cause of action for the other party to defend. The opposing party must await the Court’s decision to determine whether it can proceed to file a defence to the Plaintiff’s Claim.

The Defendant’s application for dismissal is on the assumption that the facts alleged in the Claimant may be true, but it will not warrant any response from him/her. The Applicant is not under the Law, required to contest directly or indirectly, the truth or otherwise of the facts pleaded in the Plaintiff’s claim. Demurrer is invoked when the Applicant is relying on Jurisdictional points of law such as Locus Standi, Limitation of Action, Lack of Cause of Action, etc.


Order 16 of the Federal High Court (Civil Procedure) Rules 2009 provides thus:

1. No Demurrer shall be allowed.

2. (1) A party shall be entitled to raise by his pleading any point of law and any point so raised shall be disposed of by the Judge who tries the cause at or after trial.

(2) A point of Law so raised may, by consent of the parties, or by order of a Court or a Judge in chambers on the application of either party, 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 in chambers the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, a ground of defence, set off, counter-claim, or reply therein, the Court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just.

4. The Court or a Judge in Chambers may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.


Order 22 of the High Court of Lagos State (Civil Procedure) Rules 2012 provides thus:

1. No Demurrer shall be allowed.

2. (1) Any party may by his pleadings raise any point of law and the Judge may dispose of the point so raised before or at the trial.

(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.

(3) This provision shall be without prejudice to the Arbitration Act or any other Law under which a Defendant must apply for a stay of proceedings before filing a Statement of Defence or other Statement of Case on the merits.


The Rules of Courts have often provided that Demurrer is not allowed as Parties are expected to file their pleadings before the raising points of law that may fully or partially dispense with the suit.

Issues of Locus Standi can be raised after the Plaintiff has duly filed his pleadings, by motion or in the statement of defence. See the case of Ebongo v. Uwemedems (1995) 8 NWLR (Pt. 411) Page 22. Also, Estoppel per Rem Judicata is a rule of evidence which can be specifically pleaded and proved as a defence to a suit and cannot be invoked by a preliminary objection. See the case of Oshodi v. Eyifunmi (2000) 12 NWLR (Pt.684) page 326


The Courts recognise two (2) Exceptions in Demurrer:

Firstly, where the Point of Law raised is one challenging substantive jurisdiction of the trial court and the same should be by motion. The Rule is that issue of Jurisdiction of a court to entertain a suit is the lifeline of all trials and it can be raised at any stage of the proceeding even on appeal. See the case of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) Page 675

Secondly, a party seeking to dismiss a suit on the grounds that it discloses no cause of action is allowed to file a motion to canvass the point before filing a defence. [NDIC v. CBN (2002) 7 NWLR) (Pt. 776) page 272]

Also, in the case of Ajayi v. Adebiyi & Ors (2012) LPELR-781 SC the apex court held 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 the issue of jurisdiction can be raised at any time.”


Inasmuch as the Courts in their respective Rules of Court have abolished Proceedings in Lieu of Demurrer, the Courts have recognised exceptions to Demurrer and the Applicant is not expected to file a defence before raising issues of Jurisdiction as they are not regarded as Demurrer. The Apex Court has further cautioned against following the Rules of court sheepishly at all times as the interest of justice is paramount. See the case of Shell Petroleum Development & 5 Ors v. Nwanka (2001) 10 NWLR (Pt. 720) Page 64


Proceedings: A particular action/cause or manner of action

In lieu: In Place/Instead

Demurrer is an Anglo-French Word derived from an old French word “demorer” which means to wait or stay. In plain English, it means a person who demurs or an objector. Black’s Law Dictionary, 7th Edition defined Demurrer to mean; “A Pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant to frame an answer.

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