This appeal is against the decision of the Court of Appeal, Ibadan Division delivered on 18/04/2007. By a Writ of Summons and Statement of Claim filed on 17/1/97, in suit No. HOY/7/97, the Appellant, for and on behalf of the Ajayi family of Jagun Sodeke Compound of Ilora in Afijio Local Government of Oyo State sought declaratory and injunctive reliefs against the Respondents in respect of the family farmland at Igbo-Ede, Eku Ijemu Nos 1 and 2, Igbon Nos. 1 and 2 and Iloko, at five different locations in and around Ilora Town in Oyo State. The Respondents entered appearance and filed a motion to dismiss the suit on the ground that it disclosed no reasonable cause of action and that the Appellant had no locus standi to institute the action. It was argued by the Respondents, inter alia, that the Appellant had averred in his pleading that Pa Ajayi had allotted the land in dispute to his son, Akinsanya Akanji absolutely during his lifetime and that having divested himself of the land, it could no longer form part of Ajayi family land after his death. The Appellant had pleaded that Pa Akinsanya had equally allotted four other portions of land to his four other sons absolutely. The learned trial Judge, O.A. Boade, J. struck out the statement of claim on the ground that it disclosed no reasonable cause of action and proceeded to dismiss the suit and on the further ground that there were no material facts pleaded to support the claim. The Appellant was dissatisfied with the ruling and appealed against it. He later withdrew the appeal and filed a fresh suit - HOY/6/98, for himself and on behalf of the Akinsanya Akanji section of the Ajayi family, in respect of the parcel of land known as Igbo Ede, situate, lying and being at Ilora-ljaiye Road, Ilora in Afijio Local Government of Oyo State. By his fresh writ of summons, the Appellant claimed, among others, for a declaration that the Plaintiff's section of Ajayi Family of Jagun Sodeke Compound, Ilora, i.e., Akinsanya Akanji section, is entitled to a right of occupancy over all that land known as Igbo Ede lyin and being along Ilora-ljaye Road, Ilora in Afijo Local Government Area of Oyo State; an order setting aside the grant to the 1st Respondent by the 3rd Respondent through the 4th Respondent of the Certificate of Occupancy of the said land; the sum of N40,000.00 as damages for trespass committed by the 1st and 2nd Respondents. After filing the statement of claim, and service was effected on the Respondents, the Respondents entered appearance and subsequently filed an application seeking to strike out the suit on the ground that it constituted an abuse Court process. The grouse of the Respondent was that Suit No. HOY/7/97 which had been terminated was the same as the suit at the High Court and as such constituted an abuse of the process of Court. The learned trial judge in a ruling dismissed the application on the grounds that the previous Suit No. HOY/7/1997 which was dismissed in limine could not form the basis for res-judicata to prevent the filing of Suit HOY/6/1998. The High Court conceded that the parties, subject matter and reliefs in the two suits were similar, although the capacity in which the appellant sued was slightly different. That whereas he sued on behalf of the entire Ajayi family in suit No. HOY/7/97, in HOY/6/98, he sued on behalf of only a section of the Ajayi family. He held that since the previous suit was dismissed on the ground that the Appellant sued in a wrong capacity, in other words, on the basis of a procedural defect, there was no abuse of the Court's process, as the suit was not dismissed on the merit. Dissatisfied, the Respondents appealed to the Court of Appeal. The Respondents argued at the Court of Appeal that the learned trial Judge had no authority to interpret the order of dismissal in HOY/7/97, being an order of a Court of concurrent jurisdiction and furthermore, that the Appellant was wrong to re-litigate a matter that had already been heard and determined by a Court of competent jurisdiction. In considering the appeal, the learned justices of the Court of Appeal suo-motu raised the effects of Sections 287 and 270 of the 1999 Constitution, and decided on it without affording the parties an opportunity to address it on the point. The Court of Appeal held that according to the provisions of Sections 287 and 270 of the 1999 Constitution, the judgment of a Court of competent jurisdiction subsists until set aside. as such, the judgment of the High Court in Suit No. HOY/7/1997, not having been set aside on appeal, subsists and the Appellant could not institute Suit No. HOY/6/1998 because the High Court had dismissed and not struck out Suit No. HOY/7/1997. The justices did not consider the issue in the appeal which was the effect of a dismissal not on the merit. The argument before the Court of Appeal was that since No. HOY/7/1997 was dismissed on a preliminary point of law, such dismissal could not amount to a dismissal on the merit barring filing of a subsequent action i.e HOY/6/1998. The appellant felt that the Court of Appeal in this instance failed to follow the Supreme Court authorities of KOSSEN V SAVANNAH BANK (1995) 12 S.C.N.J 29 AT 40 and OBASI BROTHERS v MBA SECURITIES (2005) ALL FWLR PT. 261 AT 232 which were brought to their notice to the effect that a dismissal not on the merit has the effect of a mere striking out. The Court of Appeal after considering the appeal on the said suo motu issue, allowed the appeal and set aside the ruling of the High Court. Dissatisfied, the Appellant appealed to the Supreme Court.

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment)

In conclusion, the Supreme Court dismissed the appeal and upheld the decision of the Court of Appeal.

Oladipo Olasope (SAN) with him, Ebhodage Esq,. and Emmanuel Idahosa Esq. For Appellant(s) L.A. Folorunso Esq. For the 1st Respondent. 2nd and 3rd Respondents were served but unrepresented. For Respondent(s)

HERARING ON MERIT (ADEGBANKE v. OJELABI & ORS)

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HERARING ON MERIT (ADEGBANKE v. OJELABI & ORS)

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