MALLAM IBRAHIM DANSO vs KWABENA MENSAH DANSO & ANOR

In an article entitled "Fair Hearing in Judicial Adjudication in Nigeria," published in the UNIZIK Law Journal Vol. 14, 2018, the opening profound statement that aligns with my decision is vividly encapsulated by the following quotation: "The right to fair hearing has been said to be as old as mankind."

INTRODUCTION

This ruling is informed by the application by the defendants to dismiss the suit on the grounds that it discloses no reasonable cause of action, as per Order 11 Rule 18(1)(a) of the Civil Procedure Rules, 2004 (C.I. 47). After careful consideration of the pleadings, arguments presented, and relevant case law, I find that the application does not meet the requisite threshold for dismissal.

PRELIMINARY POINT OF LAW

Before delving into the substantive issues, I feel compelled to address a preliminary matter concerning the procedural propriety of the defendants' actions, which keeps recurring in many applications I have encountered while sitting as a Judge. The defendants filed a conditional appearance on the 29th of May 2025 and subsequently sought to move the instant motion under Order 11 Rule 18(1)(a). However, it is important to note that the wording of Order 9, which deals with applications to set aside writs or service thereof, does not align with the provisions of Order 11 Rule 18.

Order 9 Rule 7(1) provides that: “A defendant may file a conditional appearance.”¹

This provision enables a defendant to appear in court without admitting to the claims; the intention or purpose is to provide a mechanism for the defendant to contest the proceedings without waiving his or her right to challenge the writ itself. However, I must emphasise that this rule does not relate to the substantive issues before me concerning the dismissal of a claim. Furthermore , Order 9 Rule 8 provides:

“A defendant may apply to the Court for an order to— (a) set aside the writ or service of the writ;

(b) declare that the writ or notice of it has not been served on the defendant; or

(c) discharge any order that gives leave to serve the notice on the defendant outside the country.”²

The above provisions illustrate the procedural options available to a defendant to challenge the writ or service, but they do not in any way address the substantive claims presented in the plaintiff’s action. In contrast, Order 11 Rule 18(1)(a) provides:

***“The Court may at any stage of the proceedings order any pleading or anything in any pleading to