Ule Idoko V. Hyacinth Ollo Ogbeikwu (2002)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

This appeal is against the decision of the High Court of Benue State, holden at Otukpo, given by the Honourable Justice J. T. Tur on the 11th day of May, 1995, pursuant to an application by the respondent herein for an order striking out the counter-claim in suit No. OHC/55/93.

The appellant herein was the counter-claimant/respondent at the High Court while the respondent herein was the defendant/applicant.

The facts of this case as presented before the lower court are that the appellant who was the defendant had been appointed as the ‘Ukpoju’ (market master) of Eke Market more than 30 years prior to the filing of the suit.

In October, 1992, opponents of the appellant purportedly removed the appellant as ‘the Ukpoju’ of Eke Market.

Several attempts were made to amicably resolve the matter but the same yielded no fruitful results, despite the intervention of traditional rulers and officials of the Okpokwu Local Government which had taken over the market prior to the alleged removal of the appellant.

In January, 1993, the Okpokwu Local Government in the

MISSING PAGES

“1. Whether or not the counter-claim filed by the appellant was maintainable and was not frivolous when it was dismissed.

2. Whether or not the trial court was right in entertaining and granting the respondent’s application.
3. Whether or not the doctrine of lis pendens applies to the appointment of the respondent conveyed by the Okpokwu Local Government letter dated 19th of July, 1997.
4. Whether or not under the 1988 High Court (Civil Procedure) Rules of Benue State, the trial court was right to have dismissed the appellant’s counter-claim.”

Issues formulated by the parties appear the same except for the wordings. I shall adopt the appellant’s issues in treating the appeal.

In issue No. 1 learned counsel for the appellant argued that the provision relied upon by the learned trial Judge i.e. Order 74 rule 4 of the Benue State High Court (Civil Procedure) Rules, Edict No. 28 of 1988 was non existent. Learned counsel cited Order 24 rule 4 of the Edict No. 28 of 1988 as more appropriate though applied to some limited circumstances. He submitted further that the counterclaim before the lower court was not frivolous, vexatious and an abuse of process as the appellant’s appointment was subsisting as at the time it was filed.

Learned counsel for the respondent submitted on behalf of the respondent that by the time letter No. OKP/LGA/546/77 of 13/1/93, was written there was nothing to ‘confirm’ because the elders of Eke Community had withdrawn the appointment of the appellant more than three months before the letter was issued. That the admissions in paragraph 3 of the appellant’s statement of defence and paragraph 3 of the statement of counter-claim coupled with the effect of the Okpokwu Local Government letters Ref. No. OKP/LGA/GEN/546 dated 19th July, 1994 addressed to the Eke Community Elders, headed ‘Confirmation of Appointment of ‘Ukpoju’ Market Overseer and OKP/LGA/GEN/541/Vol.l dated 13th September, 1994 headed “Re-Confirmation of Appointment of Eke Market Master, Hyacinth Olio Ogbeikwu, addressed to the respondent, indicated that the appropriate authority had terminated the appointment of the appellant and confirmed the appointment of the respondent. Further, the counter-claim was no longer maintainable when it was dismissed by the lower court under Order 24 rule 4 of the Benue State High Court Civil Procedure Rules Edict, 1988. Authorities cited by the appellant’s counsel were not exhaustive of the situations in which a suit may be frivolous and an abuse of process of the court.

It is quite clear from the record of this appeal that the appellant as defendant, while responding to the statement of claim embedded a counter-claim in his statement of defence. In the counter-claim,

the appellant prayed for the following reliefs: