Jakive Ogbeni & Ors V. Kamaro Chachoro & Anor (2002)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an interlocutory appeal, against the ruling of the Delta State High Court, holden at Otu-Jeremi, in suit No. HCG/9/95, delivered on 20/11/97.

The respondents were the plaintiffs before the trial court where they instituted an action against the appellants who were the defendants, as per the endorsed writ of summons, claiming, jointly and severally as follows:-

“1. A declaration that the plaintiffs as owners in possession are the persons entitled to the statutory right of occupancy over all that piece or parcel of land called and referred to as Orieruorho farm land bounded by Udjugbo stream, Urhode stream and a confluence of both Udjugbo and Urhobo stream at the Orliuwhorun end of the land and on the fourth side by a fence and animal trap of one late Gege.

2. The sum of N10, 000,000.00 (Ten Million Naira) only being special and general damages suffered by the plaintiffs when sometime in 1993 the Defendants by themselves, their servants and/or agents broke and entered into the plaintiffs’ parcel of land felled timbers and carted the timbers away.
3. An Order of perpetual injunction restraining the Defendants by themselves, their servants and/or agents from further trespassing on the plaintiffs’ parcel of land or in any other way interfering with the plaintiff’s possession and ownership rights over the parcel of land aforesaid.”

Pleadings were ordered, filed and exchanged. The statement of claim was subsequently amended. By a motion on notice dated the 13th of December, 1995, filed the same day, brought pursuant to Order 24 Rules 2 and 3; Order 25 rule 20 of the High Court (Civil procedure) Rules 1988 and the inherent jurisdiction of the Honourable Court, the appellants as defendants prayed for the following orders:-

“Setting down for trial and determination the points of law raised in paragraphs 7, 8, 10, 12, 13 and 14 of the Defendants/Applicants’ Statement of Defence and thereafter dismissing, striking out the Plaintiffs/Respondents’ claim/action or suit on the following grounds:-

a. That the Plaintiffs/Respondents’ Claims/action/ suit is caught by the doctrine of Estoppel per rem judicatam.

b. That the claim/action/suit is a gross abuse of court process as the Plaintiffs/Respondents have failed to prosecute their Appeal in respect of the subject matter at the Central Urhobo Grade ‘B’ Customary Court of Appeal Ughelli or any Court at all since the 16th day of July, 1963.

c. That the Plaintiffs/Respondents’ claim/action or suit is incompetent.

d. That the Plaintiffs/Respondents have no locus standi to institute this action.

e. That the Plaintiffs/Respondents’ claim/action disclose no reasonable cause of action.

f. That this action as is presently -constituted is incompetent as Plaintiffs/Respondents did not seek and obtain the leave and/or approval of this Honourable Court and the authorization of the persons they purport to represent before instituting same.

AND for such further order or other orders as this Honourable court may deem fit to make in the circumstance.”

The motion was supported by a seventeen paragraphs affidavit deposed to by one Leader Eju, Legal Practitioner of No.6 Enerhen-Effurun, a counsel in the Law Firm of J.E. Shakarho & Company, Solicitors to the appellant/defendant.