Chief John Ehimigbai Omokhafe V. Chief John Ilavbaoje Iboyi Esekhomo (1993)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C.

This preliminary objection against the competence of this appeal was raised by the 5th Respondent on the 1st February, 1993 when the appeal came up for hearing. After hearing counsel for and against the preliminary objection, the same day, I summarily dismissed the preliminary objection and indicated that my reasons for so will be stated later. This I now proceed to do.

The appeal from the Court of Appeal is still pending in this court. The history of the case is relevant to the determination of this objection. But only so much as is necessary for this ruling will be stated. It is sufficient to say that the only surviving parties to this litigation are the 2nd plaintiff, who is now the Appellant, and the 5th Defendant, who is now the Respondent.

The ground on which the objection to the competence of this appeal rests is clearly formulated in applicant’s notice of preliminary objection which states as follows-

“that the present appeal is incompetent and/or that the present appellant cannot pursue this appeal in view of the decision in suit No.HCN/8/85; Chief John Igbeoi Ovie v. Chief Peter Higo Ajakaiye decided at the then Bendel State High Court Owan Judicial Division in 1986.”

Concisely stated, the preliminary objection is found on a plea of res judicata, that the issues in the appeal before us have been decided in the High Court between appellant and another party to who respondents are privies. This is clearly borne out by the only issue formulated for determination in the brief of the applicant.

The 5th defendant/applicant formulated the question thus;

“…….can the judgment in suit No.HNC/8/85 operate as res judicata against the plaintiffs in this case Or can the plaintiffs herein relitigate the issue of the order of rotation of the Ovie of Otuo and the validity or otherwise of the 1979 Otuo Registered Chieftaincy declaration regulating the selection of the Traditional Ruler of the Ovie of Otuo in view of the subsisting judgment in HCN/8/85.”

The 2nd plaintiff/respondent in his own brief of argument also formulated only one issue for determination in the following terms –

“Whether the respondent can at this stage now raise the issue of estoppel per rem judicatam, such issue not having been raised at the court of trial or in the court below and if it can now be raised, whether by the judgment of the High Court in Suit No. HCN/8/85, the appellant is barred from instituting this suit.”

It seems obvious from the facts before this court that there has been a series of litigation between the two families contesting the coveted title of Ovie of Otuo. At the time of this action which has come on appeal before us was decided in the High Court. Suit No. HCN/8/85 now being relied upon as res judicata had not been instituted.

A short account of the geneaology of the actions is as follows-

In 1981 Chief Peter Ajakaiye & Ors., in Suit No. HAU/4181 instituted an action against the Military Governor of Bendel State and some others. Chief John Igboei Ovie was not a party to the case. Akpovi, J. gave judgment for the plaintiffs on October 7, 1985. Soon after, Chief John Igboei Ovie, who was not a party to the action, sought and was granted leave to appeal against the judgment of Akpovi, J. as a person interested. He did not proceed with the appeal. Rather he instituted another action in Suit No. HCN/8/85 against Chief Peter Ajakaiye before Akenzua, J. Chief Peter Higo Ajakaiye pleaded estoppel per rem Judicata relying on the judgment of Akpovi, J. in HAU/4/81. Akenzua, J. gave judgment in favour of Chief John Igboei Ovie. Chief John Igboei Ovie, as I have already stated gave notice of appeal against the judgment of Akpovi J in HAU/4/81.

The notice of appeal filed by Chief John Igboei Ovie who was granted leave to appeal as a person interested was dismissed by the Court of Appeal for want of prosecution. The appeal was continued by the 4th and 5th defendants. The Court of Appeal allowed the appeal against the judgment of Akpovi, J, and set it aside. Chief Peter Higo Ajakaiye & Ors., in whose favour Akpovi, J. gave judgment, appealed to this court. 5th Respondent in whose favour the Court of Appeal gave judgment is now relying on the judgment of Akenzua, J. in Suit No. HCN/8/85 instituted by Chief John Igboei Ovie against Peter Higo Ajakaiye as res judicata against the appeal before us.