Obianwuna Ogbuanyinya & Ors V. Obi Okudo & Ors. (1990)

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BELGORE, J.S.C. 

I dismissed this appeal on 30th April, 1990 and reserved the reasons for the judgment to today. I now give the reasons.

There was a suit dated 28th day of April, 1958 filed at Onitsha in the High Court of the former Eastern Region of Nigeria. It was given a writ of summons number 0/71/58. The action was in a representative capacity with both parties representing their respective communities of Ogidi and Egbunike.

The sum of 33,36d. was paid with the application for the writ of summons and a revenue collector’s receipt was issued to the plaintiff. On 6th October, 1958, Obianwuna Ogbuanyinya (deceased, who is on the papers before us the 1st appellant) appeared in obedience, no doubt, to a writ of summons served on him and asked for pleadings which were ordered.

On 8th February, 1965, on application by the plaintiffs, 2nd and 3rd plaintiffs were added to the suit. On 9th February, 1960, barely two years after the suit was filed, the 2nd, 3rd, 4th, 5th and 6th defendants were joined on the application of the defendants.

The ease was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka Agu, J. (as he then was) delivered judgment which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. The Supreme Court set aside the judgment and remitted it for trial de novo (see Ogbuanyinya & 5 Ors. v. Obi Okuda (1979) 69 S.C. 32).

When the matter came up at Onitsha for trial de novo, G.R.I. Egonu, S.A.N., for the defendants raised a preliminary objection as follows:

“TAKE NOTICE that the defendants intend, at the hearing of this action, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

That the above action is incompetent and it is not properly made before the court.

TAKE NOTICE that the grounds of the said objection are as follows:

(1) That the action was not initiated or constituted by due process of law.

(2) That no writ of summons signed by a Judge of the then High Court of Eastern Nigeria or any other valid writ of summons was issued to commence the above action or alternatively, there is no evidence of such a writ of summons.

(3) That the parties in the action were altered and there is no evidence of any order of the court authorising the alterations.

Dated this 27th day of January, 1981.”