Mr. Paul Wison & Ors. V. Chief Okechukwu Okeke (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the Federal High Court holden at Umuahia presided over by H. T. Honourable Justice H.T. Soba.

The Respondent as Plaintiff at the trial Court had filed an action against the Defendants now Appellants claiming inter alia “that the purported suspension of the Plaintiff as a Director of the 5th Defendant is malicious, oppressive, unlawful, illegal and untra vires the powers of the 1st Defendant” . The Plaintiff in addition to his Writ of Summons and Statement of Claim also filed a Motion on Notice for an interlocutory Injunction.

The Appellants upon service of the said Court Process filed a Counter-affidavit and a Further Counter-affidavit in opposition to the Respondent’s Motion on Notice for Injunction.

The Appellants also filed a Motion on Notice to strike out the Suit as being an abuse of Court Process and a Notice of preliminary Objection.

The trial Court in a well considered ruling found no merit in the preliminary objection and rightly refused same.

Dissatisfied with the said ruling of the court filed an appeal raising two grounds of appeal.

The appeal was heard on the 27/4/10. Counsel to the Appellants Mr. C. N. Nebo informed the Court that the Appellants brief of argument is dated and filed on 3/4/07. Learned counsel adopted the brief and urge the court to allow the appeal.

Counsel to the Respondent Mr. O. Onuigbo informed the Court that the Respondent brief of argument is dated 16/4/07 and filed on 17/4/07. Counsel adopted the brief and urge the Court to dismiss the appeal.

From the two grounds of appeal learned counsel for the Appellants formulated two issues for determination, the Issues are stated thus:-

1. was Suit No. FHC/UM/CS/66/2006 wrongly instituted by a writ of summons instead of by a petition. If it was wrongly commenced should it proceed to trial or would it be struck out condition precedent for commencement of the suit not having been duly complied with.

2. Must a preliminary objection on the competence of the suit improperly commenced and challenge of the Jurisdiction of the Court to hear and determine the suit be raised by way of a notice of preliminary objection and the suit struck out if found incompetent and that the Court has no Jurisdiction.

The Respondent on his part submitted the following Issues for determination.

1. Whether assuming their was non-compliance on the part of the Respondent in instituting his action by writ of summons, was such non-compliance fatal to the Respondent’s case.