LEGAL PRINCIPLE: CIVIL PROCEDURE – Demurrer – Mandatory Nature of Rules – ‘May’ in Order 27 Rule 1 Is Mandatory
PRINCIPLE STATEMENT
Again, the expression 'may' in Order XXVII r.1 is not directory but mandatory. The defendant can only raise the defence at the time prescribed in the rules and by motion.
RATIO DECIDENDI (SOURCE)
Per Karibi-Whyte, JSC in Mobil Oil (Nigeria) Plc v. IAL 36 Inc. (2000) NLC-1061999(SC) at p. 11; Paras D–E.
"Again, the expression 'may' in Order XXVII r.1 is not directory but mandatory. The defendant can only raise the defence at the time prescribed in the rules and by motion."
EXPLANATION / SCOPE
The word “may” in Order 27 Rule 1 is construed as mandatory, not discretionary. Demurrer must be raised at the prescribed time and by motion. It is not optional—the procedure must be followed strictly. This interpretation ensures procedural certainty and prevents defendants from raising demurrer at irregular times or in irregular forms. The mandatory nature preserves the orderly progression of litigation. Defendants cannot delay demurrer beyond the prescribed window; failure to comply forfeits the right to demur.