AINA V. TRUSTEES NIG. RAILWAY CORP. PENSIONS FUND

• Pages: 225-229

AINA V. TRUSTEES NIG. RAILWAY CORP. PENSIONS FUND

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5th accused: The appeal of the 5th accused on the 2nd count is hereby

allowed; the conviction and sentence in respect of that count are hereby

quashed; and, in their place, a verdict of acquittal and discharge is hereby en-

tered. His appeal on the 1st, 7th and 8th counts is however dismissed.

6th accused: The appeal of the 6th accused is hereby dismissed.

Appeal allowed in part.

AINA V. TRUSTEES NIG. RAILWAY CORP.

PENSIONS FUND

ISIAH OKUMADE AINA



APPELLANT

V.

THE TRUSTEES OF THE NIGERIA RAILWAY

CORPORATION PENSIONS FUN[)



RESPONDENT

SUIT NO.SC 105/1968

SUPREME COURT OF NIGERIA

COKER,



J.S.C.

LEWIS,



J.S.C.

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SOWEMIMO,



J.S.C.

1st

July, 1970

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Practice and Procedure - Pleadings

.

- Defendant after filing defence raising

preliminary objection why action should not be heard - Judge rejecting

preliminary objection and treating objection as demurrer - Whether proper -

High Court of Lagos (Civil Procedure) Rules Order 28 Rules 1, 2, 3.

ISSUES:

1.

What is the basis of a demurrer?

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2. Whether a defendant after filing a defence can raise a preliminary objection to

the hearing of the action

FACTS:

The plaintiff's action was for a declaration against the defendant. Pleadings

were filed and after filing the statement of defence, the defendant raised a prelimi-

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nary objection why the action snould not be heard. The trial Judge rejected the

preliminary objection on the ground that the points on which the preliminary ob-

jection is based are points of law which cannot be pleaded under our rules of court

or raised for the purpose of getting the action dismissed on grounds of law with-

out a proper application being made under order 28 of the High Court of Lagos

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(Civil Procedure) Rules .

On appeal to this court, it was:-

HELD:

1. The whole basis of a demurrer is in effect to short circuit the action and by a

preliminary point of law to show that the action founded on the writ and statement

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of claim cannot be maintained. Once a person has pleaded, however, the time

for demurrer is passed and he cannot then under the rules of court seek to raise

by way of preliminary objection what he should have done earlier under the

rules of court by demurrer.

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