By Gbolahan Badru
INTRODUCTION
One of the most contested procedural questions in Nigerian civil litigation concerns the relationship between preliminary objections and pleadings, particularly the effect of raising an objection without first filing a statement of defence. The problem lies at the crossroads of two powerful doctrines of Nigerian civil procedure: the rule that facts not controverted are deemed admitted and the principle that jurisdiction can be challenged at any time, in any manner. The judicial challenge, therefore, is how to balance the need for orderly pleadings with the overarching imperative of jurisdictional competence.
Over the years, the courts have developed seemingly divergent lines of authority. On one side lies the view that a defendant who raises a preliminary objection without filing a defence is deemed to have accepted the truth of the plaintiff’s factual averments. This position features prominently in Citec International Estates Ltd v. Francis (2021) and Omnia (Nig.) Ltd v. Dyktrade Ltd (2007). On the other side is the dominant and constitutionally entrenched principle that jurisdiction can be challenged irrespective of pleadings, as affirmed in CBN v. Interstella Communications Ltd (2018), Akponye v. Ihuoma (2013), Faladu v. Kwoi (2003), NEIM Ltd v. Omotusi (2016), and most recently Emmanuel v. Aliyu (2024).
A careful doctrinal synthesis reveals a more nuanced legal position rather than some extreme views suggest. The contemporary approach is functionalist: where a preliminary objection raises pure questions of jurisdiction that do not require factual investigation, a defence is unnecessary; where the objection depends on disputed facts, the defendant must file a defence, failing which the facts are deemed admitted.
This article presents a sustained, scholarly examination of the doctrinal evolution, statutory framework, and jurisprudential implications of this issue. It analyses the key authorities, articulates the present law, and situates it within the broader theory of procedural justice and adjudicatory competence. In doing so, it contributes to the ongoing academic and judicial discourse on the role of pleadings in our justice system.
CONCEPTUAL FOUNDATIONS
Pleadings are foundational to adversarial litigation in Nigeria. They are formal written statements wherein parties define the issues for adjudication. Pleadings are averred facts in numbered paragraphs which parties rely on to present their case so that the adverse party is not taken by surprise. It is trite tha the facts in pleadings must be concise and unambiguous. See- Salami v. Oke (1987) 4 NWLR(Pt. 63) 1; Sodipo v. Lemminkainen OY (No.1) (1985)2 NWLR (Pt. 8) 547.
A preliminary objection challenges the competence of an action or any aspect of the proceedings. It is “preliminary” because it seeks to arrest the matter before hearing on the merits. According to the court in C.B.N. v. Auto Import Export (2013) 1 NWLR (Pt. 1337) 80; it washeld that a preliminary objection connotes an objection which if upheld by the court, would render further proceedings in the case or appeal rather unnecessary or even impossible. Thus, where a preliminary objection raised by a party challenging the jurisdiction of a court, or the competence of a party or suit, is upheld by the court, the entire suit or appeal as the case may be is liable to be struck out, in limine. A preliminary objection may be raised: by a motion on notice, orally (in limited circumstances), or even suo motu by the court, provided parties are heard. See– C.B.N. v. Okonkwo (2013) 6 NWLR (Pt. 1350) 367
The Abolition of Demurrer and Its Implications: Order 16 of the Federal High Court (Civil Procedure) Rules 2009 (with parallel provisions in most state rules) abolishes demurrer. Historically, demurrer allowed a defendant to challenge the legal sufficiency of a plaintiff’s pleadings without filing a defence. Its abolition was intended to encourage full factual disclosure rather than technical sparring. The current rule replaces demurrer with preliminary objections but requires that questions of law be raised after pleadings, except where the objection relates to jurisdiction simpliciter.
Locus Standi determines whether a plaintiff is entitled to bring an action. It is a question of law and is therefore jurisdictional. Because it touches the very existence of a cause of action, it can be raised anytime either before, during, or even after filing a defence. Courts have treated it as a pure jurisdictional point. See- Eleso v. Govt. of Ogun State (1990) 2 NWLR (Pt. 133) 420
THE GENERAL RULE: FAILURE TO FILE A DEFENCE AMOUNTS TO ADMISSION OF FACTS
The orthodox rule in our civil litigation parlance is that facts not denied are deemed admitted. This rule is codified in Section 124(1) of the Evidence Act and various procedural rules. It is also deeply entrenched in common law practice. See also- C.B.N. v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294, Yahaya v. State (2024) 4 NWLR (Pt. 1929) 497
The Decision in Citec International Estates
In Citec International Estates Ltd v. Francis (2021) 5 NWLR (Pt. 1768) 148, the Supreme Court held:
“Where a defendant files a preliminary objection without filing a statement of defence, he is taken, for the purpose of the objection, to have admitted the averments in the plaintiff’s statement of claim.”
The rationale is straightforward: the court, in determining the objection, is confined to the plaintiff’s pleadings. If the defendant has no counter-pleading, the factual landscape remains wholly unchallenged.
This is also in line with the decision in Omnia (Nig.) Ltd v. Dyktrade Ltd (2007). In this case, the defendant failed to show cause within the required period and instead filed a preliminary objection. The Court of Appeal concluded thatby failing to join issues and instead filing an objection, the defendant conceded all facts in the application.Thus, once the objection failed, the court had little difficulty making the order nisi absolute.
Why This Rule Exists
Several reasons justify this general rule, some of which are that a party must confront allegations squarely, courts cannot proceed on unknown or contested facts without proper pleadings, a defendant should not circumvent factual confrontation through procedural devices, and that pleadings frame the issues, so where a party who refuses to plead, he cannot complain thereafter.
THE JURISDICTIONAL EXCEPTION: WHEN A DEFENDANT MAY CHALLENGE JURISDICTION WITHOUT A DEFENCE
Despite the strength of this doctrine, it cannot override fundamental concerns such as jurisdiction. Courts have consistently refused to allow procedural rules to supersede substantive justice. Our jurisprudence has developed a powerful and necessary exception. Here, a defendant may raise a preliminary objection without filing a defence where the objection concerns jurisdiction simpliciter.
In the landmark case of CBN v. Interstella Communications Ltd (2018), the Supreme Court held:
“Jurisdiction can be raised at any time, in any manner, even on appeal, and even without the filing of a defence.”
This principle recognizes jurisdiction as the foundation of adjudication.
Also, in Akponye v. Ihuoma (2013), the Court of Appeal emphasized:
“Order 16 abolishing demurrer does not prevent a jurisdictional challenge. Where jurisdiction is at stake, filing a defence serves no purpose. Locus standi, being jurisdictional, may even be raised after a defence.”
Also, recently, in Emmanuel v. Aliyu (2024), the Supreme Court decision fortifies the principle that:
“Procedural rules must not be used to stifle jurisdictional inquiries. A court without jurisdiction has no authority to insist on procedural compliance.”
Among the justifications for this exceptions are that jurisdiction is foundational, and qithout it, the entire proceeding is a nullity. In the same line, there is no point filing a defence where the court lacks jurisdiction. Also, jurisdiction implicates fair hearing and judicial power. That is to say courts cannot assume jurisdiction by default.
HoweHowevthis exception applies only where the jurisdictional issue is strictly legal, the objection can be determined purely from the plaintiff’s pleadings, and where no additional facts are needed beyond those placed before the court.
Where these elements are absent, the defendant must file a defence.
THE MIDDLE GROUND: WHERE OBJECTIONS REQUIRE FACTUAL INVESTIGATION, A DEFENCE IS MANDATORY
Where jurisdiction depends on facts, such as compliance with statutory conditions precedent, existence of a contract, or satisfaction of pre-action notice requirements, the defendant must file a defence.
In NEIM Ltd v. Omotusi (2016) the Court of Appeal held:
“Where an objection requires factual investigation, the court must order pleadings, and the defendant must file a defence.”
Thus, the defendant cannot hide behind a preliminary objection when disputed facts must be resolved.
The reason why facts really is that jurisdiction sometimes rests on facts. This is always so such as when it is to be determined whether the plaintiff fulfilled statutory conditions before initiating the suit, whether the cause of action arose within territorial limits, or whether the defendant is a necessary party.
Such disputes cannot be resolved without pleadings.
THE RIGHT OF A DEFENDANT TO BE HEARD WITHOUT A DEFENCE
Another relevant line of authority addresses whether a defendant who has filed no defence can nonetheless address the court. In Faladu v. Kwoi (2003), the Court of Appeal held:
“A defendant who failed to file pleadings is still entitled to be heard. He may rest his case on points of law inherent in the plaintiff’s case.”
This principle ensures that the failure to file a defence does not amount to forfeiture of the right to fair hearing. The defendant simply loses the benefit of denying or contradicting facts but retains the right to argue the law by relying on the points of law inherent in the case of the plaintiff.
Beyond doctrinal consistency, this framework serves deeper procedural and constitutional values by upholding substantive justice, preventing procedural gamesmanship, and balancing efficiency and fairness
CONCLUSION
The law relating to preliminary objections and pleadings in Nigeria has undergone significant doctrinal refinement. While earlier authorities seemed to insist on pleadings as a prerequisite to raising objections, the more reflective jurisprudence acknowledges an exception where jurisdiction simpliciter is at stake. This exception does not undermine the sanctity of pleadings but ensures that procedural rules are not used to validate proceedings conducted without jurisdiction.
The modern approach represents a carefully calibrated equilibrium in respecting pleadings by deeming facts admitted where a defence is not filed, respecting jurisdiction by allowing challenges at any time, respecting judicial economy by avoiding unnecessary defences where jurisdiction is dispositive, and respecting fairness by ensuring defendants are not silenced even if they do not file pleadings.
The jurisprudence from Citec, Omnia, Interstella, Akponye, Omotusi, Faladu, and Emmanuel demonstrates a movement away from rigid proceduralism to a more principled and justice-oriented theory of civil procedure. This approach ensures the supremacy of jurisdictional competence while preserving the structural integrity of pleadings, thereby creating a procedural framework that is both constitutionally sound and doctrinally consistent.
Gbolahan is a Law student at Usmanu Danfodiyo University, Sokoto
09167190725