Chief Rufus Jaiyeoba & Anor V. Mrs. Oguntemoso Gbadebo & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling delivered on 30th October, 2013 in the High Court of Justice Ondo State sitting at Akure dismissing the action of the Appellants who were plaintiffs in the High Court for being an abuse of Court process.

The Respondents who were Defendants in the action instituted at the High Court had earlier filed an action in the Customary Court of Ondo State in the Ilara-Mokin Customary Court District sitting at Ilara-Mokin claiming for a declaration that they (respondents) are entitled to the Customary Right of Occupancy of the piece or parcel of land at Ojajere (Onikoro) farm Ilara-Mokin and N10,000 damages for trespass.

After service of the processes of the Customary Court on the Appellants particularly the claim against them, the Appellants appeared in that Court. At the next adjournment of the suit at the Customary Court, the Appellants wrote a letter to that Court. In the meantime, they instituted the action which the lower Court dismissed against the same parties that sued them in the Customary Court on the same subject-matter in the

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High Court. Expectedly the Respondents objected to the suit instituted in the High Court by the Appellants on the following grounds:

1. This suit is between the same parties and on the same subject matter with suit. No: ILR/CC/14/2012 which is still pending before Customary Court Ilara-Mokin.
2. The suit No AK/409/12 is an abuse of the process of this Court.”

The preliminary objection was supported by an affidavit to which was annexed, the claim of the Respondents at the Customary Court Ilara-Mokin, a letter from Appellants’ Counsel to the Customary Court Ilara-Mokin seeking for an adjournment of the case, the writ of summons and statement of claim in Suit No: AK/409/2012 filed by the Appellants at the High Court.

The Respondents also filed a written address on the preliminary objection.

The Appellants file a counter affidavit in opposition.

After considering the affidavit evidence and written addresses of learned counsel for both parties the lower Court upheld the preliminary objection of the Respondents and dismissed Suit No: AK/409/2012 filed by the Appellants at the High Court.

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This was what prompted the Appellants to

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approach this Court. On the 13th November 2013 they filed a notice of appeal dated the same day containing four grounds of appeal from which they formulated the following issues for determination: