LEGAL PRINCIPLE: CIVIL PROCEDURE – Demurrer – Distinction from Application in Lieu of Demurrer – Different Procedures Applicable
PRINCIPLE STATEMENT
In the latter class of applications, the points of law desired to be raised by the defendant as a preliminary issue are required to be set out in the statement of defence before such application in lieu of demurrer is raised. See Onibudo v. Akibu (1982) 13 NSCC 199. This position is totally different from the procedure prescribed by Order 27 Rules 1-3 of the Federal High Court (Civil Procedure) Rules 1976.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC in Mobil Oil (Nigeria) Plc v. IAL 36 Inc. (2000) NLC-1061999(SC) at p. 20; Paras B–D.
"In the latter class of applications, the points of law desired to be raised by the defendant as a preliminary issue are required to be set out in the statement of defence before such application in lieu of demurrer is raised. See Onibudo v. Akibu (1982) 13 NSCC 199. This position is totally different from the procedure prescribed by Order 27 Rules 1-3 of the Federal High Court (Civil Procedure) Rules 1976."
EXPLANATION / SCOPE
“Application in lieu of demurrer” differs procedurally from demurrer under Order 27. In the former, points of law must be set out in the statement of defence before the application. Demurrer under Order 27 is raised before filing defence. The two procedures are not interchangeable; each has distinct timing and pleading requirements. Courts apply the correct procedure based on when the challenge is raised. Confusing the two can result in procedural irregularity. Proper classification ensures compliance with applicable rules.