George T. Ugese & Ors V. Atsinafe Siki & Anor (2007)

LawGlobal-Hub Lead Judgment Report

NDUKWE-ANYANWU, J.C.A.

This is an appeal against the ruling of the High Court of Benue State sitting in Vandeikya. These are the facts of this case as proffered by the respondent and adopted by the appellants as well.

“(7a) That sometimes in 1989, the first respondent sued the father and husband of the first and third appellants respectively at the High Court of Benue State, holden at Katsina-Ala claiming Plot No. 2619 in suit number KHC/22/89, the same as in suit number VFC/5/98. The first respondent was non-suited in that case.

(b) That about 4 years later, in 1993, the first respondent again filed the same action before the same court in suit No. KHC/60/93 claiming the same reliefs. That suit was struck out after the first respondent absented himself from court on the 18/5/94.

(c) Three years later (1997) the first respondent again filed motion number KHC/106m/97 to relist suit number KHC/60/93 earlier struck out. That motion was remitted to the Chief Judge of Benue State who re-assigned it to the High Court of Benue State holden at Gboko which heard the motion and dismissed same.

(d) Without appealing the ruling of the High Court, holden at Gboko, dated 30/1/98 the first respondent shopped for another forum and filed suit number VHC/5/98 in February, 1998 before the Vandeikya High Court claiming the same reliefs contained in suit number KFC/60/93.

It was on these premises that the appellants sought to have the case struck out or dismissed for being abusive of the judicial process and being in violation of the due process of law.

After hearing arguments from both parties through their respective counsels, (except second respondent who was served but not represented) the learned trial Judge, J. T. Tur, dismissed the preliminary objection holding inter alia that the suit was proper before the Court. See pages 35 to 44 of the printed records.

Aggrieved by the said ruling, the appellants with leave of the Court of Appeal granted on the 18th day of November, 1998 vide motion Number CA/J/217m/98 filed 5 grounds of appeal challenging the interlocutory decision of the Court below.”

The appellants formulated 6 issues for determination, as follows

(1) Whether having failed to appeal against the ruling of the High Court of Benue State holden at Gboko barring him from having his case heard on the merit, the first respondent is entitled to file the same suit and have it heard by the same High Court of Benue State without regard to its earlier decision.

(2) Whether the High Court of Benue State was functus officio after dismissing motion number KHC/106m/97 to have again ruled that the first respondent was entitled to have his case heard on the merit.

(3) Whether the dismissal of the first respondent’s earlier application to relist suit number KHC/60/93 amounted to estoppel against him to canvass anything to the contrary and against the court thereby striping it of jurisdiction to entertain the suit.

(4) Whether the issue before the court below was one pertaining to the right of the first respondent to have his case heard on the merit as the court construed it OR the propriety of suit number YHC/5/98 vis-‘E0-vis the earlier decision of the same court in motion number KHC/106m/97.