Zimiro Emejuru & Anor V. Obediah Abraham & Ors (2007)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

The appellants as plaintiffs in the trial court filed a suit in which they claimed as follows, against the respondents as

defendants, jointly and severally:-

“1. A declaration that the land called and known as “UGBATE LAND” the subject matter of this suit, situate at Ubarama in the Ekpeye District of Ahoda Local Government Area of Rivers State is the bona fide property and owned by the plaintiffs without any encumbrances.

“2. A perpetual injunction restraining the 1st and 2nd set of defendants, their agents, servants and privies from alienating, further entering, allotting, partitioning or sharing for farming or any other purposes or putting into any groups or individual use the land called and known as UGBATE situate at Ubarama in the Ekpeye District of the Ahoda Local Government Area of Rivers State.

“3. The sum of N13, 380,000.00 as damages for trespass by their defendant.

The particulars of claim made out in the statement of claim has paragraph 39 as follows:-

“Not minding the pendency of this suit at the appeal courts, the 3rd defendant, that was joined in this suit by the order of this honourable Court on the 15th day of January, 2001 on the application of the plaintiffs in or about the year 1997 entered into the plaintiffs’ property or the land in dispute and commenced laying Gas Pipelines and that without the plaintiffs consent and authority caused massive destruction to their cash crops farmland, ancestral landmarks and building in the process.”

The 3rd respondent, against which this claim is specifically made, filed and argued a preliminary objection to the jurisdiction of the State High Court. The preliminary objection was rooted in the provisions of section 251 (1) (n) of the 1999 Constitution.

In a considered ruling pronounced on the 6th day of May 2002, the learned trial Judge, Hon. Justice Obie Daniel Kalio upheld the preliminary objection and struck out the suit of the appellants.

The appellants have come before this court upon one ground of appeal from which a sole issue was distilled for the determination of this court.

The relief sought of this court is an order setting aside the ruling of the High court and directing that the suit be heard on its merit.

The issue formulated by the appellants is as follows:

“Whether the Court below was right when it held that it