Chief Ozo Nwankwo Alor & Anor V. Christopher Ngene & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division in which it dismissed the appeal of the appellant and held that the decision of the trial court was interlocutory. The only issue to be, determined by this court in this appeal is whether the decision of the trial court was final or interlocutory.

The appellants who were the plaintiffs in the action, filed 2 separate actions in Awka High Court of Anambra State in suit Nos. AA/36/87 and AA/65/88, against the defendants/respondents. In AA/36/87. filed on 6-4-87 there were 7 defendants and in AA/65/88 filed on 3-5-88. were 9 defendants. The 1st seven defendants in AA/ 65/88 were exactly the same persons as those in AA/36/87. And the claim against the defendants in both suits was exactly the same to wit:-

(1) Declaration that the plaintiffs in possession are entitled to customary right of occupancy in respect of “Ofia Owele” land;

(2) Injunction to restrain the defendants from further trespassing on the said land;

(3) N100.00 (One hundred naira) damages for trespass.

After service of the second writ of summons on the defendants/ respondents, their counsel filed a motion on notice praying the court for –

“(i) An order striking out this suit on the ground that it is abuse of judicial process and caught by the doctrine of lis alibi pendes.

OR IN THE ALTERNATIVE

(ii) An order staying further proceedings in the above suit pending the determination of suit No. AA/36/87. Chief Alo Ozo Nwadogbe & Ors. v. Nathaniel Chinze & Ors. between the same parties and on the same subject matter” .

The motion was first heard by Hon. Justice Uyanna but he retired before completing the hearing. It was then taken over by Nzeako, J., who also could not finish it before her appointment to the Court of Appeal. The application was then taken over for hearing by Earnest-Egbuna, J. He heard the submissions of learned counsel for the defendants/respondents on 6/5/97 and adjourned to 20/5/97 for the appellants’ counsel reply. He failed to turn up and the application was further adjourned to 1/7/97. He still did not turn up in court for the reply. On that day, the learned trial Judge ruled

thus:-

“On 6/5/97, 20/5/97 and again today, the plaintiffs’ counsel has written to be excused. It is noteworthy that the plaintiffs’ counsel has neither filed a counter affidavit to challenge the averments nor sent another counsel to give his reply to the application. I cannot but assume that the plaintiff and his counsel are no longer desirous of going on with this suit and the application therein. The court will therefore strike out the entire suit with N1.500.00 costs against the plaintiff in favour or the defendant.”

The entire suit of the appellants was therefore struck out and they appealed to the Court of Appeal. The Court of Appeal dismissed their appeal which was held to be incompetent.