Chief John B. Utobivwi & Ors V. Ilayegue Omamo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

The two actions, albeit in a representative capacity, which culminated in this appeal were separately instituted by the appellants and the respondents as plaintiffs.

The first of the two actions which was instituted by the appellants on the 31st July, 1979 in Suit No. UHC/36/79 on behalf of the Arhavwarien community sought in their paragraph 15 of their Further Amendment Statement of Claim the following reliefs:

“(i) A declaration that the plaintiffs and the defendants have been from time immemorial joint users of all that piece or parcel of land lying and situate between Egbayan parcel of land and Arhavwarien creek/river within the jurisdiction of this Honourable Court, the extent and features of which are shown on the Plan No. TJ.BD.486 dated 12th December, 1979 filed with the Statement of Claim.

(ii) N4,000.00 (Four thousand Naira) being general damages for trespass in that the defendants have on several occasions disturbed and prevented the plaintiffs, from working on and/or making use of the said parcel of land.

(iii) Perpetual injunction restraining the defendants, their agents and/or servants from interfering with the plaintiffs whenever they are working on or putting the said parcel of land into lawful use.”

The second action which can be aptly described as a cross action, which was initiated by the respondents in a representative capacity in behalf of Okparabe clan of the Ivwreokpe village community in Suit No. UHC/42/49 on 14th October, 1997 sought the following reliefs shorn of particulars to relief (2) (below):

“(1) A declaration that under Ivwreokpe and the entire Okparabe clan native law and custom, the plaintiffs and all their people of Ivwreokpe (or Okpe village) are entitled to the exclusive use, possession and occupation of the land known as and called ENYUWEUWI lying and situate at Ivwreokpe side of Oturhie. Ivwreokpe or Okpe village is on and forms part of the said land in dispute and Arhavwarien town.

(2) N6,000.00 (Six thousand Naira) being special and general damages for trespass committed by the defendants and all the people of Arhavwarien who without the consent of the plaintiffs broke and entered part of the said land with force and arms and destroyed plaintiffs’ rubber trees, plantain and cocoyams and other property thereon sometimes in 1977.”

On the 15th May, 1981, the learned counsel for the plaintiffs in Suit No. UHC/36/79 sought the leave of court that this case which is between the same parties and in respect of the same land be consolidated with Suit No UHC/42/79. Since the learned counsel for the defendants did not raise any objection to consolidation as requested, the said two actions were consolidated for purposes of hearing and determination.

After pleadings had been duly filed and served, the plaintiffs in Suit No. UHC/36/79 became the plaintiffs in the consolidated suits, while the plaintiffs in Suit No. UHC/42/79 became the defendants. The consolidated suits were thereafter transferred from the Ughelli Judicial Division to the Otu-Jeremi Judicial Division of the Delta State High Court of Justice and were respectively re-numbered HCG/20/96 and HCG/30/96.

After a series of adjournments the consolidated suits were set down for hearing on 28/6/99. Both the appellants and their learned counsel were absent from court on that day. The learned counsel for the defendants/respondents who was in court made an oral application by urging the court to invoke Order 37 Rule 8 of the High Court (Civil Procedure) Rules 1988 of Bendel State of Nigeria as applicable in Delta State to dismiss Suit No. HCG/20/96 which was an integral part of the consolidated matters (supra). The trial court acceded to the defendants/respondents’ oral application and accordingly dismissed the said suit for want of interest by the plaintiffs and their learned counsel. The learned trial Judge in almost the same breath called upon the defendants to open their case in Suit No. HCG/30/39, which was the survivor of the hitherto consolidated suits, (supra). The 3rd plaintiff in Suit No. HCG/30/99 testified on the same date, 28/6/99, and continued on 8/7/99 and 28/7/99 when the. 2nd and 3rd witnesses also testified and the 4th plaintiff testified on 30/7/99. At the close of the defendants/respondents case on 30/7/99, their learned counsel addressed the court which adjourned judgment to 5/8/99. It is pertinent to point out that the plaintiffs/appellants and their learned counsel in the initial consolidated matters were not in court throughout the foregoing proceedings.

Before the judgment was, however, delivered on 6/8/99 and not 5/8/99, the learned counsel for the plaintiffs/appellants filed a motion dated 4/8/99 essentially seeking that the judgment about to be delivered be stayed and set aside all the proceedings conducted in the case in their absence. Ruling on the said motion and judgment in the substantive Suit No. HCG/30/99 Were both delivered on 6/8/99 in favour of the defendants/respondents against the appellants. In effect, the learned trial judge refused the application for stay of judgment, setting aside proceedings conducted in the absence of the appellants and permitting the appellants to cross examine all the respondents’ witnesses and call evidence in support of their pleadings.

The appellants were utterly aggrieved by the ruling delivered on 6/8/99 and filed only one ground of appeal.