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Okoi v. Ibiang

CHIEF WILSON UBANA OKOI

CHIEF IDANGA UBI

CHIEF EBRI LEKAM

CHIEF IKPI MBUI

UBANA UBANA UBI

ENO UBI ARIKPO

UBI OFEM UBI

V

CHIEF IBIANG UBI IBIANG

MR. NSIL OFEM

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA

OKWUCHUKWU OPENE, JCA

SIMEON OSUJI EKPE, JCA

CA/C/67/2000

WEDNESDAY, 21ST NOVEMBER, 2001

JURISDICTION - Jurisdiction of court to adjudicate - Determinants of

PRACTICE AND PROCEDURE - Notice of preliminary objection and pleadings compared - Whether affadavit in support necessary

PRACTICE AND PROCEDURE - Preliminary objection - On what predicated - Whether evidence required to establish objection or reply thereto

PRACTICE AND PROCEDURE - Preliminary objection - How brought Whether can be brought informally - When objection will not be taken preliminarily

PRACTICE AND PROCEDURE - Preliminary objection - Need for objection to state particulars of grounds of objection

PRACTICE AND PROCEDURE - Preliminary objection - When raised Whether all defects in an action can be raised preliminarily

WORDS AND PHRASES - ‘Preliminary objection’ - Definition and objective of

Issue:

Whether the trial court was right in striking out the defendants’/ applicants’ notice of preliminary objection

Facts:

This is an appeal against the decision of Edem J. of the Cross River State High Court in which he struck out a preliminary objection brought by the defendants against the committal proceedings instituted against the defendants by the plaintiffs.

In 1988 the plaintiffs obtained an interim injunction upon an ex parte order restraining the 1st defendant from parading or holding out himself as the Oboi Kekpatu or Ward Chief of Ijiman and from exercising the functions of the said office. The 2nd and 3rd defendants were equally restrained from installing the 1st defendant as the Oboi Kekpatu of Ijiman.

All the defendants were ordered to stop collecting market tolls or rates from Ijiman market and directed to render account of monies received and deposit all such monies with the registry of the High Court within 48 hours of their being served with the order.

The defendants/appellants remained in defiance of the order and this led the plaintiffs to initiate contempt proceedings against them. By a motion on notice dated 1/7/98, the plaintiffs prayed for the following orders:-

(1). An order committing the defendants including their agents and or servants namely, Ubana Ubana Ubi, Eno Ubi Arikpo and Ubi Ofem Ubi to terms of imprisonment as the court may deem fit and proper for contempt of court.

(2). Any further order(s) as the court may deem fit and proper to make in the circumstances of this case.

The plaintiffs predicated the proceedings on the refusal of the defendants to comply with the order of court.

In reacting to the motion the defendants filed in court on 6/5/99 a notice of preliminary objection on grounds that the form 49 and the affidavit were defective and that the court lacked jurisdiction. When the preliminary objection came up for hearing on 22/8/99, the plaintiffs’ counsel raised an objection to the hearing of the preliminary objection.

In his ruling the learned trial Judge, struck out the preliminary objection whereupon the defendants appealed to the Court of Appeal.