When Filing Of A Memorandum Of Appearance Is Unnecessary

By S.O. Giwa Esq

It is no gainsaying that many legal practitioners are of a
strong view that the first procedural step to take by a defendant
who wishes to contest the Claimant’s claim in a civil matter or
action is the filing of a process christened MEMORANDUM OF
APPEARANCE—be it conditional or unconditional as a means of
entering appearance for a defendant in a suit.

The stance of many legal practitioners knows no bound with a
strong belief that the first thing to do by a defendant in all
civil actions instituted in a High Court of a State is the strict
compliance with the provision of the High Court (Civil Procedure)
Rules.

It is a provision in High Court (Civil Procedure) Rules in force
and applicable in States of the Federation including Federal High
Court that ‘a defendant served with an originating process
shall, within the period prescribed in the process for appearance,
file in the registry the original and copies of a duly completed
and signed memorandum of appearance as in
Form 11 with such modifications or variations as circumstances may
require.

With the above-quoted provision making it a mandatory step to
take by a defendant served with an originating process to file in
the registry a MEMORANDUM OF APPEARANCE, many legal practitioners
particularly new wigs hold a view that the first procedural
activity to do by a defendant served with an originating process
(any court process by which a suit is initiated) in every action is
filing a memorandum of appearance and it behooves the defendant to
first file his/her a duly completed and signed memorandum of
appearance in all actions upon being in receipt of a copy of an
originating process.

This view manifests in the ubiquitous practice of many legal
practitioners filing preliminary objection to challenge the
competence of any other step taking by any defendant who does not
first file his/her memorandum of appearance on ground of
non-compliance with the mandatory provision of the High Court
(Civil Procedure) Rules of the State where the action is instituted
citing plethora of authorities on non-compliance with the Rules of
Court and jurisdiction.

The practice of first filing a memorandum of appearance for a
defendant has become a convention and norms to the extent that some
legal practitioners care not to find out if the action is regulated
by other Rules and which a defendant is bound to follow in
defending the action and as a result some legal practitioners get
themselves exposed to legal ridicule in court for their beliefs
that first procedural step to take by a defendant in every action
is filing of a memorandum of appearance in court and that every
action initiated in a State High Court and Federal High Court is
subjected to the provisions of the Rules of the Court in force. How
correct is this belief and stance?

It is against this background that this piece is written with a
view to broadening the horizon of legal practitioners who are
willing to add to their repertoire particularly new wigs and to
dislodge the cankerworm in their sentiment that it is not in all
actions that the first procedural step to take by a defendant is
filing of a memorandum of appearance in court and that every action
initiated in a State High Court and Federal High Court is not
subjected to the provisions of the Rules of the Court in force
where the action has its own rules regulating its procedure.

One tempts to join the queue of some legal practitioners to
submit that flowing from the above-quoted provision of the High
Court (Civil Procedure) Rules in the preceding paragraph that in
every action instituted in High Court of a State, it behooves a
defendant to first file a Memorandum of Appearance as first call of
his/her procedural activity in every action but a close study of
action for enforcement of fundamental rights provided for under
Fundamental Rights (Enforcement Procedure) Rules 2009 evinced the
provision of Order II rule 2 which fortifies the writer’s stance
that every action is regulated by its rules to the exclusion of any
provision in the Rules of the Court where the action is instituted.
The provision of Order II rule 2 provides thus:

‘An application for the enforcement of the
Fundamental Right may be made by any originating process accepted
by the Court which shall, subject to these
Rules, lie without leave to Court.’  The
underline is the writer’s for emphasis.

Besides the action for enforcement of fundamental rights
provided for under Fundamental Rights (Enforcement Procedure) Rules
2009 wherein filing of a memorandum of appearance as the first
procedural step to take by a defendant is unnecessary are other
actions like winding up of companies regulated by Companies Winding
Up Rules & Act 2004 and Matrimonial Causes regulated by Matrimonial
Causes Rules. Just to mention but a few.

It is worth noting that an action for enforcement of Fundamental
Right is not only exclusively regulated by the Fundamental Rights
(Enforcement Procedure) Rules 2009 but also filing of a memorandum
of appearance is not known as the first procedural activity of a
defendant in defending the said action.

It is a clear provision of Order II rule 6 Fundamental Rights
(Enforcement Procedure) Rules 2009 that where the respondent
intends to oppose the application, he shall file his written
address within 5days of the service on him of such application and
may accompany it with a Counter-Affidavit.

It is to be borne in mind that where a respondent wishes to
challenge the Court’s jurisdiction to hear the application, he only
needs to file his/her respondent’s Notice of Preliminary Objection
along with the Counter-Affidavit to the main application and not
filing any form of memorandum of appearance to show his/her
intention to object or challenge the Applicant’s action and on the
date of hearing, the preliminary objection shall be heard along
with the substantive application. See Order VIII rules 1, 2 and 4
of the Fundamental Rights (Enforcement Procedure) Rules 2009.

It is also worth noting that filing of a motion on notice, an
originating application, is a known first procedural activity of
the applicant in the action for enforcement of fundamental right
and while a defendant though called respondent has the right to
file a counter-affidavit as his first procedural activity in the
action for enforcement of fundamental right.

It is important to point out that the motion on notice to be
filed by an applicant to commence the action is an originating
process though in legal parlance called originating
application.

In view of the preceding paragraphs on action for enforcement of
Fundamental Rights, it is the writer’s firm stand that filing of a
memorandum of appearance is unnecessary and the writer has no doubt
that knowing that filing of a memorandum of appearance is not
needed in an action for enforcement of fundamental rights would
save legal practitioners whose belief is hinged on the reason that
because the High Court (Civil Procedure) Rules make it mandatory
for a defendant to any action instituted in High Court must file a
memorandum of appearance in compliance with the Rules of the Court
from an embarrassment in court.

It is also worth noting that the matter/action is regulated by
its rules in force and only matters that are not regulated by
special rules for the matters and actions which their rules
expressly provided for resorting to the High Court (Civil
Procedure) Rules that full compliance with the High Court (Civil
Procedure) Rules is a must by the defendant vis-à-vis filing of a
memorandum of appearance.

Besides the action for enforcement of fundamental rights is a
matrimonial action regulated by Matrimonial Causes Rules & Act.
 It is also worth noting that not only is there no provision
in the Matrimonial Causes Rules & Act for filing of a Memorandum of
Appearance, but also the first procedural step of a respondent to
the petition, an originating process, is filing his/her answer.
Thus, the filing of a memorandum of appearance as the first
procedural activity of a defendant provided for in the above-quoted
provision of the High Court (Civil Procedure) Rules on the filing
of a memorandum of appearance by a defendant who receives an
originating process is unnecessary in a Matrimonial Causes
actions.

The justification that the High Court (Civil Procedure) Rules
make it a mandatory activity to do for a defendant served with an
originating process to file a process christened ‘Memorandum of
Appearance’ in court has no basis in a Matrimonial Causes
action.

Apart from the actions for enforcement of fundamental rights and
matrimonial causes where filing of a memorandum of appearance is
unnecessary and inapplicable is an action for winding up of
Companies regulated by Companies Winding Up Rules & Act 2004.

It is to be reminded that winding up of companies is an
exclusive power of the Federal High Court provided for under
section 251 (1)(e) of the Constitution of the Federal Republic of
Nigeria 1999 as amended 4^th alteration.

It is finally recommended that efforts should always be made to
ascertain whether an action instituted in the Court has special
Rules which regulate the action to be defended as Counsel for the
defendant and whether the Rules make provision for a process before
swinging into action to file same as doing so would save one as
counsel from any embarrassment in court and other legal
practitioner for the Claimant / Applicant

It is hereby advised that where an originating process served on
the defendant, a client to be defended in court, recourse must be
had to the Rules provided as the procedural rules for the said
action before taking any step for the defendant so as to avert
prompt striking out of one’s process and to save one as counsel
from any embarrassment from the court and other counsel to the
party to the suit.

S.O. Giwa Esq. a.k.a pentalk (Ibadan
based Legal Practitioner) giwa_pentalk@yahoo.com
08035224192

By S.O. Giwa Esq

It is no gainsaying that many legal practitioners are of a
strong view that the first procedural step to take by a defendant
who wishes to contest the Claimant’s claim in a civil matter or
action is the filing of a process christened MEMORANDUM OF
APPEARANCE—be it conditional or unconditional as a means of
entering appearance for a defendant in a suit.

The stance of many legal practitioners knows no bound with a
strong belief that the first thing to do by a defendant in all
civil actions instituted in a High Court of a State is the strict
compliance with the provision of the High Court (Civil Procedure)
Rules.

It is a provision in High Court (Civil Procedure) Rules in force
and applicable in States of the Federation including Federal High
Court that ‘a defendant served with an originating process
shall, within the period prescribed in the process for appearance,
file in the registry the original and copies of a duly completed
and signed memorandum of appearance as in
Form 11 with such modifications or variations as circumstances may
require.

With the above-quoted provision making it a mandatory step to
take by a defendant served with an originating process to file in
the registry a MEMORANDUM OF APPEARANCE, many legal practitioners
particularly new wigs hold a view that the first procedural
activity to do by a defendant served with an originating process
(any court process by which a suit is initiated) in every action is
filing a memorandum of appearance and it behooves the defendant to
first file his/her a duly completed and signed memorandum of
appearance in all actions upon being in receipt of a copy of an
originating process.

This view manifests in the ubiquitous practice of many legal
practitioners filing preliminary objection to challenge the
competence of any other step taking by any defendant who does not
first file his/her memorandum of appearance on ground of
non-compliance with the mandatory provision of the High Court
(Civil Procedure) Rules of the State where the action is instituted
citing plethora of authorities on non-compliance with the Rules of
Court and jurisdiction.

The practice of first filing a memorandum of appearance for a
defendant has become a convention and norms to the extent that some
legal practitioners care not to find out if the action is regulated
by other Rules and which a defendant is bound to follow in
defending the action and as a result some legal practitioners get
themselves exposed to legal ridicule in court for their beliefs
that first procedural step to take by a defendant in every action
is filing of a memorandum of appearance in court and that every
action initiated in a State High Court and Federal High Court is
subjected to the provisions of the Rules of the Court in force. How
correct is this belief and stance?

It is against this background that this piece is written with a
view to broadening the horizon of legal practitioners who are
willing to add to their repertoire particularly new wigs and to
dislodge the cankerworm in their sentiment that it is not in all
actions that the first procedural step to take by a defendant is
filing of a memorandum of appearance in court and that every action
initiated in a State High Court and Federal High Court is not
subjected to the provisions of the Rules of the Court in force
where the action has its own rules regulating its procedure.

One tempts to join the queue of some legal practitioners to
submit that flowing from the above-quoted provision of the High
Court (Civil Procedure) Rules in the preceding paragraph that in
every action instituted in High Court of a State, it behooves a
defendant to first file a Memorandum of Appearance as first call of
his/her procedural activity in every action but a close study of
action for enforcement of fundamental rights provided for under
Fundamental Rights (Enforcement Procedure) Rules 2009 evinced the
provision of Order II rule 2 which fortifies the writer’s stance
that every action is regulated by its rules to the exclusion of any
provision in the Rules of the Court where the action is instituted.
The provision of Order II rule 2 provides thus:

‘An application for the enforcement of the
Fundamental Right may be made by any originating process accepted
by the Court which shall, subject to these
Rules, lie without leave to Court.’  The
underline is the writer’s for emphasis.

Besides the action for enforcement of fundamental rights
provided for under Fundamental Rights (Enforcement Procedure) Rules
2009 wherein filing of a memorandum of appearance as the first
procedural step to take by a defendant is unnecessary are other
actions like winding up of companies regulated by Companies Winding
Up Rules & Act 2004 and Matrimonial Causes regulated by Matrimonial
Causes Rules. Just to mention but a few.

It is worth noting that an action for enforcement of Fundamental
Right is not only exclusively regulated by the Fundamental Rights
(Enforcement Procedure) Rules 2009 but also filing of a memorandum
of appearance is not known as the first procedural activity of a
defendant in defending the said action.

It is a clear provision of Order II rule 6 Fundamental Rights
(Enforcement Procedure) Rules 2009 that where the respondent
intends to oppose the application, he shall file his written
address within 5days of the service on him of such application and
may accompany it with a Counter-Affidavit.

It is to be borne in mind that where a respondent wishes to
challenge the Court’s jurisdiction to hear the application, he only
needs to file his/her respondent’s Notice of Preliminary Objection
along with the Counter-Affidavit to the main application and not
filing any form of memorandum of appearance to show his/her
intention to object or challenge the Applicant’s action and on the
date of hearing, the preliminary objection shall be heard along
with the substantive application. See Order VIII rules 1, 2 and 4
of the Fundamental Rights (Enforcement Procedure) Rules 2009.

It is also worth noting that filing of a motion on notice, an
originating application, is a known first procedural activity of
the applicant in the action for enforcement of fundamental right
and while a defendant though called respondent has the right to
file a counter-affidavit as his first procedural activity in the
action for enforcement of fundamental right.

It is important to point out that the motion on notice to be
filed by an applicant to commence the action is an originating
process though in legal parlance called originating
application.

In view of the preceding paragraphs on action for enforcement of
Fundamental Rights, it is the writer’s firm stand that filing of a
memorandum of appearance is unnecessary and the writer has no doubt
that knowing that filing of a memorandum of appearance is not
needed in an action for enforcement of fundamental rights would
save legal practitioners whose belief is hinged on the reason that
because the High Court (Civil Procedure) Rules make it mandatory
for a defendant to any action instituted in High Court must file a
memorandum of appearance in compliance with the Rules of the Court
from an embarrassment in court.

It is also worth noting that the matter/action is regulated by
its rules in force and only matters that are not regulated by
special rules for the matters and actions which their rules
expressly provided for resorting to the High Court (Civil
Procedure) Rules that full compliance with the High Court (Civil
Procedure) Rules is a must by the defendant vis-à-vis filing of a
memorandum of appearance.

Besides the action for enforcement of fundamental rights is a
matrimonial action regulated by Matrimonial Causes Rules & Act.
 It is also worth noting that not only is there no provision
in the Matrimonial Causes Rules & Act for filing of a Memorandum of
Appearance, but also the first procedural step of a respondent to
the petition, an originating process, is filing his/her answer.
Thus, the filing of a memorandum of appearance as the first
procedural activity of a defendant provided for in the above-quoted
provision of the High Court (Civil Procedure) Rules on the filing
of a memorandum of appearance by a defendant who receives an
originating process is unnecessary in a Matrimonial Causes
actions.

The justification that the High Court (Civil Procedure) Rules
make it a mandatory activity to do for a defendant served with an
originating process to file a process christened ‘Memorandum of
Appearance’ in court has no basis in a Matrimonial Causes
action.

Apart from the actions for enforcement of fundamental rights and
matrimonial causes where filing of a memorandum of appearance is
unnecessary and inapplicable is an action for winding up of
Companies regulated by Companies Winding Up Rules & Act 2004.

It is to be reminded that winding up of companies is an
exclusive power of the Federal High Court provided for under
section 251 (1)(e) of the Constitution of the Federal Republic of
Nigeria 1999 as amended 4^th alteration.

It is finally recommended that efforts should always be made to
ascertain whether an action instituted in the Court has special
Rules which regulate the action to be defended as Counsel for the
defendant and whether the Rules make provision for a process before
swinging into action to file same as doing so would save one as
counsel from any embarrassment in court and other legal
practitioner for the Claimant / Applicant

It is hereby advised that where an originating process served on
the defendant, a client to be defended in court, recourse must be
had to the Rules provided as the procedural rules for the said
action before taking any step for the defendant so as to avert
prompt striking out of one’s process and to save one as counsel
from any embarrassment from the court and other counsel to the
party to the suit.

S.O. Giwa Esq. a.k.a pentalk (Ibadan
based Legal Practitioner) giwa_pentalk@yahoo.com
08035224192