LEGAL PRINCIPLE: CIVIL PROCEDURE – Demurrer – Timing – Demurrer Must Be Raised Before Filing Statement of Defence
PRINCIPLE STATEMENT
Once a person has pleaded however, the time for demurrer is passed and he cannot then, in our view, under the rules of court seek to raise by way of preliminary objection what he should have done earlier under the rules of court by demurrer.
RATIO DECIDENDI (SOURCE)
Per Lewis, JSC (as adopted by Iguh, JSC) in Mobil Oil (Nigeria) Plc v. IAL 36 Inc. (2000) NLC-1061999(SC) at p. 20; Paras E–A.
"Once a person has pleaded however, the time for demurrer is passed and he cannot then, in our view, under the rules of court seek to raise by way of preliminary objection what he should have done earlier under the rules of court by demurrer."
EXPLANATION / SCOPE
A demurrer—challenging the legal sufficiency of a statement of claim—must be raised before filing a statement of defence. Once a defence is filed, the opportunity to demur is lost. The defendant cannot later raise by preliminary objection what should have been raised by demurrer at the proper time. This timing rule ensures orderly procedure and prevents defendants from delaying challenges to the pleadings. The filing of a defence signifies joinder of issues on the merits, waiving the right to demur to the statement of claim