CORAM

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I. L. KUTIGI JUSTICE, SUPREME COURT

U. A. KALGO JUSTICE, SUPREME COURT

D. MUSDAPHER JUSTICE, SUPREME COURT

M. MOHAMMED JUSTICE, SUPREME COURT

W. S. N.ONNOGHEN JUSTICE SUPREME COURT

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PARTIES

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MISS IFEYINWA OGOEJEOFO

APPELLANTS 

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DANIEL CHIEJINA OGOEJEOFO

RESPONDENTS 

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AREA(S) OF LAW

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PRELIMINARY OBJECTION

 

 

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SUMMARY OF FACTS

By a suit at the High Court, the members of the larger Ogoejeofo family sought for an order of court for a declaration that the four sub-families of the late Enyi Ugwuagbalu Eweta Ogoejeofo, the original holder of the property in dispute, were entitled to participate in his inheritance together with the parties in this appeal and their sisters who claimed exclusive right to the property left behind by their father. This case did not proceed to trial because the parties, made up of 9 plaintiffs members of the 4 sub-families seeking to participate in the sharing of the property and 4 defendants who are members of the family of the parties in this appeal, decided to settle out of court. The appellant who apparently did not agree with the settlement between the parties was absent in court when the consent judgment was delivered, applied to that court to set aside the judgment. The learned trial judge on being satisfied that the appellant was not in fact aware of the alleged settlement promptly set aside the consent judgment thereby allowing the parties to proceed with the hearing of the case on pleadings. However, while suit was pending at the High Court, the respondent/plaintiff filed another suit in the same High Court against his own sister, one of the 4 defendants in the pending suit. The appellant by motion sought for an order to Strike out the suit for being incompetent. This preliminary objection was heard, overruled and was dismissed. Aggrieved by this decision of the trial court, the appellant appealed to the Court of Appeal which in a unanimous decision dismissed the appeal. Still not satisfied, the appellant then appealed to the Supreme Court.

 

 

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HELD

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The appeal was dismissed.

 

 

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ISSUES

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Whether the learned justices of the Court of Appeal were right in holding that the unchallenged affidavit evidence of the appellant in support of her preliminary objection, did not make out a case of abuse of the process of court against the respondent.

 

 

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RATIONES DECIDENDI

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EVIDENCE CONTAINED IN THE UNCHALLENGED AFFIDAVIT

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“The unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the appellant as the applicant. In other words the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the applicant.” Per MAHMUD MOHAMMED, JSC

 

 

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CASES CITED

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None.

 

 

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STATUTES REFERRED TO

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