Alhaji Ishola Are Ogele V. Alhaji Aileru Dare Saliu & Ors. (2005)

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MUHAMMAD SUIFULLAHI MUNTAKA-COOMASSIE, J.C.A.

In the High Court of Justice the plaintiff, Alhaji Ishola Are Ogele, claims against the defendant, Alhaji Aileru Dare Saliu, as follows:

“1. Special damages of N190,000 (One hundred and ninety thousand naira) only for the wanton destruction committed by the defendant on the plaintiff’s family land, situate, lying and being at along Airport Road, Budo Nuhu Village Ilorin subject matter of this suit on or about 29th day of March, 2001.

PARTICULARS OF SPECIAL DAMAGES
5,000 heaps of yam destroyed by the defendant at N10.00 each  N50,000.00
5,000 stems of cassava destroyed by the defendant at N10.00 each N50,000.00
5,000 stems of maize destroyed by the defendant at N10.00 each N50,000.00
10 palm trees destroyed by the defendant at N2,000 each     N20,000.00
10 lucust beau trees at N2,000 each N20,000.00
N190,000.00

2. THE SUM OF N100,000.00 on the footing of aggravated and exemplary damages for the trespass committed and still being committed without let up by the defendant on the plaintiff’s family land situate, lying and being at along Airport Road, Budo Nuhu village Ilorin, Kwara State subject matter of this case.

3. A DECLARATION that the plaintiff for and on behalf of his Are Ogele family is the holder of a statutory right of occupancy on those pieces or parcels of land consisting of 6,732 square metres and 19.090 metres approximately and respectively at along Airport Road, Budo Nuhu Village Ilorin, Kwara State.

4. AN ORDER of perpetual injunction restraining the defendant through or by himself, servants, agents, privies any person or persons howsoever or whosoever from committing and/or continuing further acts of trespass or doing anything whatsoever on the plaintiff’s family land situate, lying and being at along Airport Road, Budo Nuhu village, Kwara State subject matter of this suit.

Dated this 4th day of April, 2003.

The Defendant denies the claim of the Plaintiff. He stated that the Budo Nuhu family represented by Alhaji Baani has been the customary owner of the land being claimed by the Plaintiff. The Defendant insisted that he purchased the piece of land in dispute from the accredited owner of the land, Alhaji Baani Gaa Budo Nuhu sometimes in 1995. He therefore prays that the High Court should dismiss the plaintiff’s case as being frivolous, vexatious and a gross abuse of the process of that court.

The Plaintiff at the High Court filed a reply to the Statement of defence. He joined issues with the Defendant on certain paragraphs – A1 and 2 and B2, 3, 4, 5, 6, 7, and 8 of the Statement of defence and the Defendant is put to the strictest proof thereof.
The Defendant also filed a preliminary objection and argued same. The said preliminary objection reads thus:-
“Take Notice that the defendant shall at the hearing of this case move the Court by way of preliminary objection for an Order:-

1. Dismissing the plaintiff’s case for lack of locus standi to institute same.
2. Dismissing the plaintiff’s case for gross abuse of court process”

Learned trial judge listened to both parties and held that the preliminary objection is misconceived and dismissed same. On page 31 of the Record learned judge held thus:-

“…In the final result the objection of the defendant, that the plaintiff lacked Locus Standi to institute this case and that it was an abuse of the process of court fails in its entirety. The objection is over ruled. It is hereby dismissed”.

The application for the order of the High Court to join the two applicants as defendants in the main suit was taken, and was vehemently contested. Many documents were tendered and admitted in evidence. The central issue then was whether this suit at hand will not be a duplication of the other suit now pending on appeal before the Supreme Court and whether a suit becomes an abuse of court’s process or otherwise by mere joinder of a party. Learned trial judge considered the arguments and submissions of counsel and held that the application for joinder is in order and granted same in those terms on p.49 of the Record:-
“In the final result the application to join the 1st and 2nd Applicants as defendants are to be joined as the 2nd and 3rd defendants respectively in the suit”.
It is against this decision the Plaintiff appealed to this court on four grounds. In accordance with the rules of this court parties filed their respective Briefs of arguments. The Appellant’s counsel on behalf of his client distilled the following three issues for the determination of the appeal:-