Peter Mutairu V. Madam Atoke (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A., (Delivering the Leading Judgment)

This is an appeal against the ruling of Delano C J, of the High Court of Justice Abeokuta Ogun State in Suit No. AB/147 98 – Peter Mutairu and anor vs. Akanbi Solomon and 2 ors delivered on the 18th of March, 1999. Briefly, the facts culminating in this appeal are as follows:-

The present Appellant in this appeal had claimed against the Respondents jointly and severally as follows:-

(1) “The sum of N10,000,000:00 (Ten Million Naira) being damages for the trespass committed by the Defendants, their agents, servants and privies when they unlawfully entered the plaintiffs land situate, lying and being at lbafo Village Ogun State and started clearing the land and destroying the crops thereon.

(2) Perpetual injunction restraining the Defendants, their agents, servants and privies from committing further acts of trespass on the said Land. ”

The Respondents as defendants replied the above claims of the Appellant by filing a Notice of preliminary objection dated and filed the 18th of August, 1998. The grounds for making the application are as follows:

(1) The issue raised in this action had been previously adjudicated upon between the parties by a court of competent jurisdiction in Suit No. 48/68/98 between Alhaji Modesola Taiwo & 2 ors (for themselves and on behalf of Mutairu Taiwo Family) versus Mr. Akanbi and 2 ors.

(2) Plaintiffs have appealed against the judgment in Suit No. AB/68/96 which appeals is still pending.

(3) This Suit is an abuse of court process.

The Learned trial judge at page 109 of the records the second (2nd) paragraph stated as follows:-

“Be that as it may, on the final analysis, since the respondents are caught in the web of the principle of res judicata, thus being estopped from bringing the action, the preliminary objection of counsel for the applicants succeeds as the court lacks jurisdiction “to entertain the suit for reason of res-judicata. The consequential effect of this is that the suits including the motions are liable to be dismissed, they are accordingly dismissed’91E2’9180’a6.”

The Appellants who were Respondents to the preliminary objection being dissatisfied with the ruling of the High Court, appealed to this court vide a Notice of Appeal dated the 22nd of March, 1999.

NOTICE OF APPEAL

TAKE NOTICE that the Appellants being dissatisfied with the Ruling of the High Court of justice, of Ogun State delivered on 18th March, 1999 doth hereby appeal to the: court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek relief set out in paragraph 4.