On 20/5/96, when the respondent was about to open his case for hearing, the appellant through his counsel, raised a preliminary objection to the reply to the statement through his counsel, raised a preliminary objection to the reply to the statement of defence contending that it was not filed as required by order 25 rule 3(4) of the Imo State High Court (Civil Procedure) Rules 1998 which provides as follows: -

The lower court asked the appellant’s counsel the date of service of the statement of defence on the plaintiff to enable the court compute the thirty days period but could not remember and maintained that it was served on the plaintiff "definitely in 1993 or, at worst 1994". Counsel then urged the lower court to presume from the number of appearances in court that the reply was filed out of time.

Learned counsel for the respondent maintained that the reply to the statement of defence was filed within time and urged the court to presume that the statement of defence was served on the plaintiff when it was filed in 1993 and in the alternative, he prayed for extension of time within which to file the reply files and to deem same as properly filed and served.

The respondent's counsel like the appellant's counsel could not tell the court when the statement of defence was served either on him or on his client to enable the court to compute the thirty days. The Court on its own searched through the case file for the affidavit of service but none was found. The court then decided as follows: -

"The case will be adjourned to enable Mr. Anyanwu find out from the Registry the date of service on him or his client of the defendant's statement of defence."

On 23/7/96 being the next date of adjournment, Anyanwu Esq., informed the lower court that he had searched in the Registry but could not find the affidavit of service as directed by court and applies to withdraw the said reply. Counsel to the respondent objected to the lower court taking any further proceedings in relation thereto on the ground that there is an appeal pending on the matter and the court adjourned the matter sine die..