The word “demurrer” came from the Latin word “dimorari” meaning to “wait” or “stay”. It is a known and well accepted common law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity of answering them or proceeding further with the cause. [1]
The current position of the law now is that a demurrer proceeding in its original form is no longer allowed. What is permitted is a modified form, referred to as “proceedings in lieu of demurrer”, which is to the effect that before a party can seek to terminate proceedings in circumstances that would constitute demurrer, such a party must file pleadings.[2]
The Apex Court in differentiating between a preliminary objection and demurrer proceedings, in the case of Ajayi v Adebiyi and others[3]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 that the issue of jurisdiction can be raised at any time. [4]
[1]Tijani Bambe and others v Alhaji A.Adeinola and others AMBE (1977) 1 SC 5 – 6; Mobil Oil Nig.Plc v IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G – H.
[2]Interdrill (Nig) ltd and another v UBA Plc (2017) LPELR-41907(SC); Onokoma v Union Bank (2017) LPELR-42748(CA); Akinyemi and another v Banjoko (2017) LPELR-42377(CA); JFS Investment Ltd.v Brawal Line Ltd. (2010) LPELR-1610(SC).
[3](2012) LPELR-7811 (SC) 49-50, paras E-G.
[4]Garba v Mohammed and others (2016) LPELR-40612(SC); and Lumenze v Govt of Ebonyi State (2018) LPELR-44618(CA); Ancomarine Services Co. Ltd. v the M/V. Sam Purpose (EX-TAPTI) and others (2018) LPELR-46763(CA) 19-27 paras E-B.