Mr. Ogoegbunem Uwajeh & Ors V. Dr. M.K.C. Uwajeh (2007)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

This appeal is against the ruling of Narebo, J. of the Delta State High Court of Justice sitting at Issele-Uku in which he refused to sustain the preliminary objection raised by the 1st, 2nd and 4th plaintiffs filed on 27/3/2001 after the, Writ of Summons had been filed and two memorandums of appearance he have also been filed on the 8/3/2001 and 13/3/2001 by the 1st, 2nd and 4th defendants and 3rd defendant respectively.

It is pertinent to reproduce the notice of preliminary objection and the order sought as well as the particulars, which read:

“1. That the plaintiffs/respondents’ Writ of Summons dated 25th day of January 2001 and filed on 30/1/2001 be dismissed or set aside.

2. And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.

PARTICULARS

(a) The Writ of Summons is fundamentally defective.

(b) The Order and the Writ of Summons do not comply with the provisions of our Rules of Court.”

The notice of preliminary objection was supported by a four paragraph affidavit. The plaintiff did not file any Counter Affidavit.

At the hearing of the notice of the preliminary objection on 27/3/2001, Frank A. Chukuka Esq., the learned counsel for the 1st, 2nd and 4th defendants/applicants sought leave of the Court to withdraw an earlier preliminary objection filed on 8/3/2001. G.S. Pwul Esq., the learned counsel for the 3rd defendant/respondent and N.M. Nnamdi Esq., the learned counsel for the plaintiff/respondent, did not raise any objection and it was struck out.

The learned counsel for the 1st, 2nd and 4th defendants/applicants thereafter sought and got leave of the Court below to argue the preliminary objection filed on 27/3/2001. The learned counsel for the plaintiff/respondent spiritedly opposed the preliminary objection. The learned counsel for the 3rd defendant/respondent associated himself with the submissions of the learned counsel for the 1st, 2nd and 4th defendants/applicants and particularly submitted that the provisions of Section 97 of the Sheriff and Civil Process Act is mandatory in its application coupled with the fact that the formal thereat should be complied with. On 8/5/2001 the learned trial Judge delivered his considered ruling that the preliminary objection raised by the 1st, 2nd and 4th defendants/applicants was devoid of merit and dismissed it with costs of N500.00 in favour of the plaintiff/respondent. He made a consequential order that pleadings be filed and exchanged within 30 days.

The 1st, 2nd and 4th defendants/applicants (hereinafter referred to as the 1st, 2nd and 4th appellants) and the 3rd defendant/respondent (hereinafter referred to as the 3rd appellant) were utterly aggrieved by this ruling delivered in favour of the plaintiff/respondent (hereinafter referred to as the respondent) and filed two separate notices and grounds of appeal on 21/5/2001 and 22/5/2001 respectively.

Briefs of argument were filed and exchanged between the parties.

In the joint brief of argument of the 1st, 2nd and 4th appellants, three issues were adumbrated from the three grounds of appeal for the determination of this appeal. The issues are thus: