Chief Dennis Afor Ogar & Ors V. Chief J. I. C. Igbe & Ors (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

On 28/8/06 the Plaintiffs now appellants took out a Writ of Summons at the High Court of Cross River State, Ogoja in Suit No.HJ/31/2006 seeking, various reliefs against the Defendants/respondents contained in paragraph 13 of the Statement of Claim as follows:

13. WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:

(i) A declaration that the so-called Clark’s report or arbitration award is non-existent, null and void and of no consequence whatsoever.

(ii) A declaration that the State Executive Council of the Government of Cross River State has no right or colour of right to reconfirm or affirm the decision or arbitration award of H. J. S. Clark of 1947 and that the purported reconfirmation of same is ultra vires, illegal and unconstitutional.

(iii) A declaration that the purported confirmation of the decision or arbitration award of H. J. S. Clark of 1947 without hearing from the parties offends the rules of natural justice and therefore unconstitutional illegal, null and void and of no consequence whatsoever.

(iv) A declaration that the State Executive Council of the Government of Cross River State has no right or colour of right to enforce the decision of H. J. S. Clark of 1947 by directing the 2nd defendant to undertake a survey of the disputed area and demarcate the boundary line.

(v) AN ORDER of injunction restraining the defendants, their agents, servants of privies from entering the land the subject of inquiry held by H. J. S. Clark for the purpose of undertaking the survey and demarcation of boundaries therein or interfering in any manner howsoever with the land in question.”

On being served with the Statement of Claim, the 1st and 2nd defendants filed their Statement of Defence on 4th October, 2006 and urged the court to dismiss the claims as frivolous, vexatious, unfounded and an abuse of court process and that the court lacked jurisdiction to entertain the claim as is presently constituted. A motion on notice was filed on 5th October, 2006 seeking an order dismissing the action on the grounds that – .

(a) The suit is an abuse of the court’s process.

(b) That the suit discloses no reasonable cause of action.

(c) That the mater has been decided by a competent Tribunal before now.

(d) AN Order directing the Cross River State Government to enforce the Clark’s decision.

The plaintiffs filed a 6 paragraph counter-affidavit in opposition to the motion. The matter was set down for hearing and after arguments had been taken, the learned trial Judge in a reserved judgment delivered on 15th January, 2007 dismissed the Plaintiffs’ action. The plaintiffs felt aggrieved and filed their Notice of Appeal on 26th January, 2007 containing 10 grounds of appeal. However, grounds 6, 7, 8 and 9 were deemed abandoned since no issues were distilled from them. The appellants formulated two issues from the remaining six grounds namely 1, 2, 3, 4, 5 and 10. The issues formulated which all the respondents adopted are:-

(1) Whether the learned trial judge was right in holding that the action did not disclose a reasonable cause of action.