LEGAL PRINCIPLE: CIVIL PROCEDURE – Demurrer – Effect of Amendment on Demurrer Rights – Defendant May Demur to Amended Statement of Claim Within Time for Amending Defence
PRINCIPLE STATEMENT
Where the time limited for delivering an amended statement of defence in response to the amendments in the statement of claim had elapsed and no consequential amendment has been made to the statement of defence, issues are deemed joined and it would be too late to raise a demurrer. Where such time has not elapsed, it should be competent for the defendant to raise demurrer in the normal way based on the inadequacy of the amended Statement of claim.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC in Mobil Oil (Nigeria) Plc v. IAL 36 Inc. (2000) NLC-1061999(SC) at p. 6; Paras B–D.
"Where the time limited for delivering an amended statement of defence in response to the amendments in the statement of claim had elapsed and no consequential amendment has been made to the statement of defence, issues are deemed joined and it would be too late to raise a demurrer. Where such time has not elapsed, it should be competent for the defendant to raise demurrer in the normal way based on the inadequacy of the amended Statement of claim."
EXPLANATION / SCOPE
When a statement of claim is amended, the defendant may demur to the amended pleading only if the time for filing an amended defence has not elapsed. If that time has passed without filing an amended defence, issues are deemed joined, and demurrer is no longer available. The right to demur is revived by amendment but must be exercised within the responsive pleading period. This prevents defendants from using delay to bypass demurrer timing rules while preserving the right to challenge amended pleadings promptly.