Albert Ilona And George Ugboma V. Ojugbeli Dei & Mabeku Olise (1971)

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Parties

ALBERT ILONA
GEORGE UGBOMA
(For themselves and on behalf of Ugboma Obia Family of Abalagada Village in Aboh)  Appellant(s)

AND

OJUGBELI DEI & MABEKU OLISE (For themselves and on behalf of Olise Family and Odigili Village in Aboh)  Respondent(s)

UDO UDOMA, J.S.C. 

This appeal raises a short but important point of practice and procedure. The appeal is against the judgment of Rhodes-Vivour, J. as he then was, in suit No. S/1/66 in the High Court of the Mid-Western State, Sapele, in which the claim by the plaintiffs, now appellants, was dismissed with 84pounds costs in favour of the defendants, now respondents.

Albert Ilona and George Ugboma for themselves and as representing Ugboma Obia family of Abalagada village, Aboh Division, instituted proceedings against Ojugbeli Dei and Mgbeku Olise for themselves and on behalf of Olise family of Odigili village, Aboh Division. The claim was for a declaration of title to certain fishing ponds “together with the piece or parcel of land known as AGWITI” 20pounds damages for trespass and an injunction.

Pleadings were ordered and duly filed and delivered. On 1st December, 1966, the case came up for hearing. A preliminary objection that the action was not properly before the court because the plaintiffs had failed to comply with Order 2, rule 1 of the Western Nigeria High Court (Civil Procedure) Rules, in that the particulars of claim were not properly indorsed on the writ of summons was rejected in a reserved ruling dated 5th January, 1967 by the learned trial Judge.

On 9th May, 1967 an application by the defendants to file their own plan of the area in dispute was granted.

The plan was ordered to be filed within three days and a copy thereof to be served on the plaintiffs. On 25th May, 1967, the case came up again. The 1st plaintiff was present but the 2nd plaintiff and their counsel were absent. Another counsel appeared holding brief for counsel for the plaintiffs. The defendants and their counsel were present. The case was adjourned with 10 guineas costs to 26th May, 1967 on the application of the counsel for the plaintiffs.

On 26th May, 1967, the case duly came up for hearing. The notes made by the learned trial Judge, which appear in the record of proceedings, read as follows:-

1st plaintiff present; 2nd absent. Defendants present. Takpor holds Ogbobine’s brief for plaintiffs. Oji, Etuwewe with him for defendants. Takpor-Plaintiffs not prepared to go on; asked for adjournment. Ogbobine gone to the Supreme Court, Lagos. Surveyor not traced. Oji – prepared to go on now. Adjourned to 29/5/67 for judgment.

(Sgd.) R.W. RHODES-VIVOUR, JUDGE

26/5/67″