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Petkev (Nig.) Ltd v. Ogbogu

PETKEV NIGERIA LIMITED

MR. PETER JAMES OBINWANNE

V

ELDER OBUMANYI OGBOGU

FEDERAL HOUSING AUTHORITY

COURT OF APPEAL

( LAGOS DIVISION )

C. EUGENIA IYIZOBA JCA ( Presided and Read the Lead Judgment )

YARGATA BYENCHIT NIMPAR JCA

ABIMBOLA O.  OBASEKI-ADEJUMO JCA

CA/L/242/2012

FRIDAY, 4 MARCH 2016

ESTOPPEL - Estoppel per rem judicata - Doctrine of - Basis of

JURISDICTION - What amounts to

STATUTE - Federal High Court (Civil Procedure) Rules, 2009, Orders 13 and 16 - Demurrer - Abolishment of - Need for compliance with

WORDS AND PHRASES - ‘Demurrer’ - ‘Jurisdiction’ - Distinction between

Issues:

  1. Whether in the circumstances of this case, the trial judge was right to hold that the 2nd and 3rd defendants’ notice of preliminary objection was a demurrer and refused to decide the issue of jurisdiction raised before the court.
  2. Whether under section 241 of the Constitution of the Federal Republic of Nigeria, 1999, a decision of the Honourable Justice Sharkarho of the Federal High Court in suit No. FHC/L/CS/218/2007 can be subjected to another Federal High Court for a review or for any declaration whatsoever.

Facts:

The 2nd respondent herein as plaintiff at the Federal High Court, Lagos (lower court), claimed against the appellants as the defendants, by filing the required processes before the court. The defendants entered a memorandum of appearance and then filed a preliminary objection, challenging the jurisdiction of the court to hear the case. The court struck out the objection, holding that what was raised is a demurrer which had been abolished, and that it should have been raised in the pleadings. Dissatisfied with the ruling, the appellants appealed to the Court of Appeal contending that the trial court erred to have held that the notice of preliminary objection was a demurrer and thereby dismissed the claim on jurisdiction raised before the court.