UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The dispute between the parties to this appeal is in respect of a piece or parcel of land situate in Benin City. Arising from this contest, an action was instituted by the Appellant herein in Suit No. B/568/1998. The Respondent filed a counterclaim in the said action. However the Appellants claim was struck out for want of diligent prosecution and the Respondents counterclaim proceeded to hearing. Attempts by the Appellant to defend the counterclaim were unsuccessful. Fortuitously, the hearing of the said counterclaim had to commence de novo before another Judge and the Appellant was now granted extension of time to file a defence to the Counterclaim. For whatever reason, the Respondent thereafter withdrew the said counterclaim.
Meanwhile, the application of the Appellant to relist the main claim in Suit No. B/568/1998 was unsuccessful, consequent upon which the Appellant instituted a fresh action over the same dispute…