Ogundeji Abe V. Oba Samuel Taiwo Adeniyi & Ors (2006)

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ALFRED PEARSON EYEWUMI AWALA, J.C.A.

The appellant here is the surviving plaintiff in the suit filed by them at the lower court, the High Court of Justice, Osun State of Nigeria, sitting at the Ilesa Judicial Division before Sijuwade, J, and before whom a motion by way of preliminary objection dated 14/5/90 was filed by the defendants/respondents following the filing and exchange of pleadings.

The said motion is for an order dismissing the plaintiffs’ claims on the ground that the action is res judicata, vide the schedule set down below:-

SCHEDULE

(1) The plaintiffs are members of Ijimo Community, while the defendants are members of Erinmo Community,

(2) There had been previous litigations between the two communities in respect of the area now claimed by the plaintiffs as contained in paragraph 5 of the statement of claim.

(3) These previous litigations had been decided in favour of the 1st defendant the last of which was suit No. HIL/21/72 between Oba Job Oyeyemi representing Erinmo Community (plaintiff) and Loja of Ijimo, Chief Ogundele Abe, representing the Ijimo Community.

(4) The evidence required in this suit and the previous ones are the same.

(5) The attempt made by the defendants in HIL/21/72 to set aside the decision of the High Court was unsuccessful as the Court of Appeal which first decided in their favour in Appeal No.CAW/55/75 on 6/2/76 later on 24/3/76 set aside its own decision and ordered a rehearing of the appeal. The appeal was never reheard.

(6) Both the statement of claim and defence shall be relied upon by the applicants.

The motion is supported by a ten (10) paragraphed affidavit.

The respondents filed a counter-affidavit of twelve (12) paragraphs.

And in response the appellant filed a further affidavit dated 7/6/90.

Again, in further response the respondents filed a six paragraphed further counter-affidavit dated 26/6/90. On 9/3/92 the motion was heard. In his considered ruling dated 24/3/92 the learned trial Judge held as follows in part.