AKINWUNMI & ORS V. OLUDIPE

• Pages: 234-237

234



NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

AKINWUNMI & ORS V. OLUDIPE

5

ADAMO AKINWUNMI & OTHERS



APPELLANTS

V

AYODEJI OLUDIPE



RESPONDENT



10

SUIT NO. SC 630/1966

SUPREME COURT OF NIGERIA

LEWIS,



J.S.C.

MADARIKAN,



J.S.C.

FATAI-WILLIAMS, J.S.C.



15

20tn June, 1969.

Civil Action - Practice and Procedure - Action for declaration of title after time

when existing court order, not appealed against, prohibited it - Should have

been struck out and not declared on merits.



20

ISSUE:

1. Whether a plaintiff who refused to comply with the terms of an order given by

the court is estopped from bringing an action merely because he did not appeal

against the said order.



25

FACTS:

The plaintiffs claimed absolute ownership of property in dispute and possess-

ion of said property. A court order had been given in a previous case between the

parties, to which the plaintiffs did not comply and which they did not appeal against.

The defendants maintained that the plaintiffs were estopped by virtue of the pre-



30

vious action from pursing their claim. The trial Judge heard the claim and dis-

missed it on its merits. The plaintiffs appealed against the dismissal to the Supreme

Court.

HELD:

1. As the previous order of the High Court on the 19th May, 1958 was not appealed



35

against the defendant was right in his pleading that the plaintiffs were estopped

from bringing the action as they did not comply with the terms of the order.

The trial Judge should have dealt with the matter on this basis only, instead of

going on to deal with the plaintiffs claim on its merits. If he had done so the

right order for him to have made would have been to strike out the plaintiff's



40

claims and not to dismiss them.

Molajo

for the Appellants.

Akinrele

for the Respondent.

45

LEWIS, J.S.C.

(Delivering the Judgment of the Court): In Suit IK/115/63 in the

Ikeja High Court the plaintiffs' writ filed on the 31st May, 1963, read-

"The plaintiffs' claim against the defendant

(i) A declaration that the Eyisha family are the absolute owners under native



50

law and custom of all that piece or parcel of land situate off the Lagos lko-

rodu Road within the jurisdiction of this Honourable Court. A plan of the said

land will be filed in suit.