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FELIX EJIOGU v. CHRISTIAN AMAJIOYI NWAUZOAGBA & ORS

(2018) LPELR-44577(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of May, 2018

CA/PH/215/1999


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria


Between

FELIX EJIOGU - Appellant(s)

AND

1. CHRISTIAN AMAJIOYI NWAUZOAGBA
2. GABRIEL AMAJIOYI NWAUZOAGBA
3. JOHN AMAJIOYI NWAUZOAGBA -
4. SYLVESTER ONYEJEKWE NWAUZOAGBA
5. PAUL NWACHUKWU NWAUZOAGBA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the decision of Imo State High Court.
In Suit No. HME/37/83, between the appellant and respondents, the trial Judge, Hon. Justice I.C.K. Pats - Acholonu J. (as he then was and later JSC), had, following application of Appellant's Counsel, to withdraw the Suit, ordered the Suit dismissed (instead of striking it out), saying "the action is misconceived and there is no lis inter parties". Appellant filed another Suit HME/1/98 by originating summons, seeking answers to the following questions: 
"(a) Whether the Order of Hon. Justice I.C.K. Pats - Acholonu (as he then was) made on 22nd March, 1990 in Suit No. HME/37/83 between the parties in the following words "the case is hereby dismissed on the grounds that the action is misconceived and there is no lis inter parties" awarded any res to the Defendants or created any status between the two sides, and if so what the res or status was.
(b) If the answer to (a) above is in the negative, whether this honorable Court would not be right to restrain the Defendants jointly or severally, from in anyway behaving towards the Plaintiff or the whole world, as if the said order awarded any res or judgment in the said Suit to them."
The Respondents entered a conditional appearance and filed a preliminary objection, stating that the trial Court had no jurisdiction to entertain the Suit, as the action and/or claim, as constituted, was incompetent. Arguments were taken in respect of the preliminary objection, at the end of which the preliminary objection was upheld and the Appellant's suit was dismissed. Dissatisfied, appellant appealed to the Court of Appeal.

ISSUES:
The issues for determination in the appeal are:
"(1) Whether the High Court presided over by Hon. Justice Opara was right to hold that it had no jurisdiction to interpret the Order (Exhibit A) made by the same High Court, presided over by Hon. Justice L.C.K Pats - Acholonu J. (as he then was) in Suit No. HME/37/83, on the ground that the order concerned land in a rural area which was within the exclusive jurisdiction of the Customary Court as decided by the Supreme Court in Onyeniran Vs Egbetala (1997) 5 NWLR (Pt. 504) 112 at 124.
(2) Whether the Appellant's originating summons possessed any inherent jurisdictional incapacity that could prevent the High Court from interpreting the said Order (Exhibit A) and making in favour of the Appellant the order of injunction prayed for against the Respondents.
(3) Whether an order striking out the Appellant's originating summons was not the more appropriate order to have been made by the Court below rather than an order dismissing it, when it had held that it had no jurisdiction to entertain it."

DECISION/HELD:
In conclusion, the appeal was dismissed.


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