CASE TITLE: ORHUE v. OSAGHAE (2025) LPELR-82606(CA)
JUDGMENT DATE: 3RD DECEMBER, 2025
PRACTICE AREA: PRACTICE AND PROCEDURE
LEAD JUDGMENT: LATEEF ADEBAYO GANIYU, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on the effect of an action commenced against a non-juristic person.
FACTS:
This appeal emanated from the ruling of Edo State High Court of Justice, sitting in Okada Judicial Division delivered on 12th Day of July, 2023 Coram: A.T. Momodu J.
The Respondent herein was the claimant before the trial Court and claims the following reliefs, among others:
a. A declaration that the Claimant is the proper person entitled to apply and be granted the appropriate right to occupancy in respect of that piece and parcel of land measuring 100 feet by 200 feet lying and situated at Ovbiogie Village Area. Benin-Lagos Expressway in the Ovia North East Local Government Area, Edo State, where the claimant’s late mother, the original allottee of the parcel of land, was buried in 1984.
b. A declaration that the defendant’s acts of encroaching on the said parcel of land by erecting a fence and an uncompleted building structure thereon are actionable trespass to the said land.
c. An order of mandatory injunction on the defendant to pull down the fence and building structure and evacuate the debris on the aforesaid parcel of land forthwith and hand over the parcel of land to the Claimant.
In reaction to the Respondent’s case in controversy, the Appellant filed a Notice of Preliminary Objection on 13/10/2021 wherein he sought a notice for the following prayers, namely:
1. AN ORDER of this Honourable Court striking out jurisdiction. this suit in limine for lack of jurisdiction.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this application. “
In reaction to the Appellant’s preliminary objection, the Respondent filed a counter affidavit of eight (8) paragraphs together with the written address of counsel.
The aforesaid notice of preliminary objection was heard by the trial Court on 24/5/2023 when learned counsel to both parties adopted their respective written addresses whilst the trial Court delivered its ruling wherein the notice of preliminary objection was dismissed. Hence, the present appeal.
ISSUES FOR DETERMINATION:
The Court determined the appeal on these issues:
“(1) Whether the Defendant as sued in this suit does not render the said Defendant incompetent, there being no proper party lacking legal personality and/or constituting misnomer occasioning reasonable doubt as to the identity of the person intending to sue or be sued?
(2) Whether the Court order of jurisdiction and cost made against a non-identifiable competent juristic person was not made without jurisdiction and therefore liable to be set aside?
DECISION/HELD:
In the final analysis, the appeal was allowed.
RATIOS:
- COURT- JURISDICTION: Effect where a court lacks jurisdiction over a matter
- JUDGMENT AND ORDER- ORDER OF COURT: Effect of an order of Court made without jurisdiction
- PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Whether a preliminary objection should be considered and determined first before dealing with the merits of an appeal
- PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Effect of failure of a respondent to argue a preliminary objection
- PRACTICE AND PROCEDURE- MISNOMER: Whether naming a non-juristic person as a party is a misnomer; whether amendment of same can be allowed
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