Action

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(103) DEFENCE OF ACTION.

Abolition of demurer.

(1) “The submission of learned counsel for the appellant that the issue of demurer has been

abrogated is well and legally founded. Objections to any irregularity in a suit can be submitted and

taken together with pleadings.” – Per Omoleye, J.C.A., in Akindele v. Abiodun Suit No.

CA/A/33/M/04; (2009) 11 N.W.L.R. (Pt. 1152) 356 at 390.

(2) “The appellant did not ignore the defect perceived by him, rather he took steps to object to and

challenge the irregularity to have the suit set aside.” – Per Omoleye, J.C.A., in Akindele v. Abiodun

Suit No. CA/A/33/M/04; (2009) 11 N.W.L.R. (Pt. 1152) 356 at 391.

Attributes of demurrer application.

“The attributes of a demurrer application are as follow- (1) Application by way of demurrer must

be made before issues are joined in the suit, after filing the statement of claim and before filing the

statement of defence. (2) The defendant shall based his application for a dismissal of the suit on

the assumption that all the facts as alleged by the plaintiff in his statement of claim are true,

admitted and established. (3) The applicant is not under the law to contest whether directly or

indirectly, the truth or otherwise of such facts pleaded in the statement, neither is he to tender

evidence. (4) It is invoked where the applicant is merely relying on a crucial point of law like locus

standi, limitation of action, lack of cause of action etc. in that only the statement of claim will be

looked at to decide whether or not the demurrer succeeds. Numerous decisions of Court were

decided based on the foregoing factors like: Brawal Shipping (Nig.) Limited v. F.I. Onwadike Co.

Limited (2000) F.W.L.R. (Pt. 23) pg.1254 (2000) 6 S.C. (Pt. 11) pg. 133, (2000) 11 N.W.L.R. (Pt.

678) 387 Williams v. Williams (1995) 2 N.W.L.R. (Pt. 375) pg. 1 at pg. 17Fadare v. Attorney-

General of Oyo State (1982) 4 S.C. 1 Mofas Shipping Line (Nig.) Limited v. N.M.A. (2000)

F.W.L.R. (Pt. 23) pg. 1153 C.A., (2000) 9 N.W.L.R. (Pt. 672) 391Global Transporte Oceanico

S.A. v. Free Enterprises Nig. Limited (2001) F.W.L.R. (Pt. 40) pg. 1706, (2001) 5 N.W.L.R. (Pt.

706) 426 Ege Shipping & Trading Industry Inco v. Tigris International Corporation (1999) 14

N.W.L.R. (Pt. 637) pg. 70.” – Per Adekeye, J.S.C., in J.F.S. Inv. Ltd. v. Brawal Line Ltd. Suit No.

S.C. 116/2002; (2010) 18 N.W.L.R. (Pt. 1225) 495 at 523-524.

Can an exemption clause provide absolute defence to an action?

“An exemption clause in a contract may not avail a party who has been guilty of a fundamental

breach of the contract. See Chitty on Contract 23rd Edition para. 732 page 329.” – PerTabai,

J.S.C., in Eagle Super Pack (Nig.) Ltd. v. A.C.B. Plc. Suit No. S.C. 86/1998; (2006) 19 N.W.L.R.

(Pt. 1013) 20 at 59.

Can bonafide belief in truth of words published be a defence of defamation action?

“Thus, even a bona fide belief that the words are true, it will afford no defence in the absence of

privilege, though, such belief may be urged in mitigation of damages. A statement, ex facie

innocent, may be defamatory by reason of extraneous facts, even though such facts are unknown

to the person making or publishing the statement. SeeCassidy v. Daily Mirror Newspaper(1929)

2 K.B. 331 considered in the case of Hughv.London Express Newspaper Ltd.(1940) 2 K.B.

507. This is why, where a publication is imprecise,the editor, cannot complain if he is

reasonablyunderstood as having said something that he did not mean. See Kuyev. Nigerian

National Press Ltd. & anor.(1963) Lagos High Court Report p. 58.” – PerOgbuagu, J.S.C., in

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Newbreed Org. Ltd. v. ErhomoseleSuit No. S.C.212/2001; (2006) 5 N.W.L.R. (Pt. 974) 499 at

543-544.

Defences open to a defendant in a claim for repayment of loan under the undefended list

procedure.

“This Court has narrowed and pinned the defences open to a debtor or borrower of money when

he is sued for the repayment. Per Dahiru Musdapher, J.S.C., in Okoli v. Morecab Finance (Nig)

Ltd.(2007) L.P.E.L.R. – 2463 (S.C.) (P. 22, Paras. D – F), on the Defences open to a defendant in

a claim for repayment of loan under the undefended list procedure; held: “In an action placed in

the undefended list where the plaintiff claims repayment of loan, the only defences open to the

defendant are only two. (1) That the defendant had refunded the entire loan by the production of

receipts, bank tellers or any other document showing that the debt was totally repaid or (2) That

he never borrowed the money in the first place, he never applied for the loan or debt, he never

obtained any money and that any purported application of the loan or receipt for the loan issued

by him is a forgery.” – Per Aji, J.S.C., in Interchemicals Ltd & Anor. v. Intercontinental Bank Plc.

Suit No. S.C. 121/2012; (2024) L.P.E.L.R. – 61789 at 7 – 8.

Defences open to a defendant in an action for repayment of loan.

“Thus, the Courts have held that where a plaintiff claims repayment of loan, the defence open to

the defendant are only two (i) that the defendant had refunded the entire loan by the production of

receipts bank tellers or any document showing that the debtwas totally repaid, or (ii) that he never

borrowed the money in the first place, he never applied for the loan or loans, he never obtained

any money and that any purported application was a forgery- Okoli v. Morecab Finance (Nig) Ltd.

(2007) All F.W.L.R. (Pt. 369) 1164 at 1184, Azodo v. Kay-Kay Construction Ltd. (2014)

L.P.E.L.R. 24150 (CA), Greentek Limited v. Access Bank Plc(2015) L.P.E.L.R. 25999 (CA),

Gorkeens Limited v. Zenith Bank Plc(2017) L.P.E.L.R. 43170 (CA).” – Per Abiru, J.C.A., in

Ableem Petroleum Co. (Nig) Ltd. v. Amcon. Suit No. CA/A/302/2018; (2020) L.P.E.L.R. – 50334

at 50.

Effect of the absence of a valid notice of intention to defend an action and an affidavit

disclosing a defence on the merit.

“It is noteworthy that even after the Court below adjourned on 15.06.15 for ruling on 27.06.2016,

an interval of twelve (12) days, the appellant did not put in an application to regularise the notice

of intention to defend the action together with an affidavit disclosing a defence on the merit against

that action. The Court below was therefore left with an incompetent notice of intention to defend

the action and counter affidavit against the action which was in law no processes to act upon having

both been filed out of time without regularisation. In the absence of a valid notice of intention to

defend the action with an affidavit disclosing a defence on the merit at the time the case came up

on 27.06.16, the Court below had no choice in the matter but to proceed to judgment vide the

Supreme Court case of Ben Thomas Hotels Ltd. v. Sebi Furniture co. Ltd.(1989) 5 N.W.L.R. (pt.

123) 523 at 529 followed by the Supreme Court in the case of M.C. Investments Ltd. v. Core

Investments and Capital Markets Ltd.(supra).” – PerIkyegh, J.C.A., in Opi Intl Ltd. v. A. G. Butler

(Nig) Ltd. Suit No. CA/L/1180/2016; (2020) L.P.E.L.R. – 51672 at 23 – 24.

Factors Court considers where defence of privilege is raised.

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“I believe that where a Court is considering the defence of privilege whether qualified or not, there

are some empirical factors that should be taken into consideration and these include the interest of

any of the persons to whom the document was published, and the circumstances of the matter in

question. If the person against whom the publication is made is a public officer, consideration

should be given to the position he holds vis-à-visthe interest of the public or those to whom the

alleged and or offensive publication was made to. Equally too, the Court should consider the

motive for the publication to examine whether it is actuated by purely altruistic principles or

tendencies, or malicious and injurious motive. See James v. Baird(1916) S.C. 158 at 163.” – Per

Pats-Acholonu, J.S.C., in Iloabachie v. IloabachieSuit No. S.C. 137/2000; (2005) 13 N.W.L.R.

(Pt. 943) 695 at 713.

How to raise special defence.

“Special defences must be specifically pleaded. (2) Ibrahim Kano v. Gbadamosi Oyelakin (1993)

3 N.W.L.R. (Pt. 282) 399 at 404 paras. D-F which states as follows:- “A defence which is a special

defence and is available to the defendant at the time of the action must be pleaded specifically;

where it is not pleaded, it could not be raised even on appeal.” (3) Chief Niyi Akintola v. Balogun

(2002) 1 N.W.L.R. (Pt. 642) at page 532 particularly at page 551, paras. D-E which states thus-

“A special defence ought to be specifically pleaded.” – PerOnu, J.S.C., in U.B.A. Plc. v. BTL Ind.

Ltd. Suit No. S.C. 301/2003; (2006) 19 N.W.L.R. (Pt. 1013) 61 at 106.

Nature of demurrer procedure.

“Furthermore, the foregoing principle is equally encompassed in Order 27 of the Federal high

Court (Civil Procedure) Rules, 1976 on demurrer procedure and its provisions are reproduced as

follows: “(1) Where a defend ant conceives that he has a good legal or equitable defence to the suit,

so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would

not be entitled to any decree against the defendant he may raise this defence by motion that the

suit be dismissed without any answer upon the question of fact being required from him. (2) For

purposes of such an application, the defendant shall be taken as admitting the truth of the plaintiff’s

allegations, and no evidence respecting matters of fact, and no discussion of question shall be

allowed. (3) The Court on hearing the application shall either dismiss the suit or order the

defendant to answer the plaintiff’s allegation of facts and shall make such order as to costs as the

Court seems just.” The above provisions have been interpreted in a number of cases including

Mobil Oil (Nig.) Plc. v. IAL 36 Inc,(2000) 6 N.W.L.R. (Pt. 659) 146 per Karibi-Whyte, J.S.C.” –

Per Chukwumah-Eneh, J.C.A., in Umarco (Nig.) Plc. v. Jofabris & Assoc., Ltd. Suit No.

CA/L/240/2000; (2004) 6 N.W.L.R. (Pt. 870) 458 at 471.

Origin and nature of demurrer procedure.

“Demurrer procedure as embodied in section 27 of the Old Federal High Court Rules 1976 was a

device used in the Maritime Industry to enable a party to litigation to short-circuit an otherwise,

what would have been a lengthy trial, by raising an important defence which would have the effect

of disposing of the case. The practice grew whereby a defendant who is served with a write

immediately filed a demurrer application and the bill of lading is clipped onto the motion paper

without an affidavit exhibiting same, in order to draw attention to the contents of the bill of lading

in respect of the claim. The Court would automatically deliver its ruling thereafter. Vide Essays in

Nigerian Shipping Law. Vol. 2 in the Article entitled Demurrer Applications – The bane of

Admiralty proceedings pg. 205 by L.N. Mbanefo. This procedure has become archaic as it is now