Jacob Ugbu & Anor. V. Albert Ikerechi & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the ruling of the High court of Justice, Rivers State holding at Port Harcourt in its appellate jurisdiction, Coram A.W. Jumbo (J) delivered on the 21/02/2006 refusing to re-list a suit which was struck out for about two years before the application to re-list same was brought in the lower Court.

By a Notice of Preliminary Objection dated 10/09/2004, the Plaintiffs/Respondents/Applicants herein expressed their intention of raising objections to the re-listing of the struck out appeal and/or amendment of the same based on the grounds of jurisdiction and irregular procedure adopted thereby on the following grounds:

“(a) The Honourable Court lacks jurisdiction to entertain the said relistment/amendment application as the Appellants in this case lack the locus standi to prosecute the appeal in suit No. OHC/1A/2000.

(b) The said Appeal No. OHC/1A/2000 sought to be relisted is incompetent and ought to be dismissed.

(c) The application for relistment is embarrassing and caught by undue delay and so ought to be refused.

(d) The filing of the amended Notice of Appeal Exhibit F without leave and the striking out of the 3rd Appellant Clifford Ossai from the suit and deeming it as properly filed as done by the Appellants is prejudicial, overreaching with a suggestion of malafides to enable Appellants create a new suit out of OHC/1A/2000 and should be refused and the application dismissed.

(e) The filing of the application for relistment simultaneously with the amended Notice of Appeal on the same subject matter is an irregularity that amounts to an abuse of the process of Court.

(f) The refusal of the Appellants to serve the Respondents with the appeal until it was struck out in the year 2000 renders the appeal a nullity ousting the jurisdiction of the Honourable Court to re-list same.”

The facts of the case as can be gathered from the records of the lower Court are that: The Appellants were Defendants in a consolidated suit No. ACC/66/93 with the parties as on records. The claims of the Plaintiffs from the Defendants/Applicant were:

“(a) Joint declaration of title and ownership of farmlands mention in the suit.

(b) N5,000.00 being damages for trespass.

At the end of the trial, the Customary Court, Omoku, delivered judgment in favour of the Plaintiffs/Respondents with cost assessed at N1,020.00, customary tenancy and N3,520.00 as damages and inconveniences suffered by the Respondents. The judgment was delivered on 14th day of February, 1997.

On the 24th day of February, 1997, the Defendants/Appellants/Appellants filed a notice of appeal. On the 18th day of Decernber, 2000, the appeal was struck out for the absence of both parties in Court.