Alhaji Alfa Adaji & Ors V. Alhaji Umaru Amodu & Ors (1992)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A. 

In the High Court of Justice. Ankpa, the appellants, as plaintiffs, commenced an action, by writ of summons dated 5th September, 1989, against the present respondents, as defendants, claiming the following reliefs:

“(1) A declaration that the plaintiffs are entitled to the Customary right of occupancy of the piece or parcel of land situate and extending from the Northern bank of the stream known and referred to as Aji Igbi on the South East of Okaba to the Otohu stream on the North West, and the economic trees thereon.

(2) A declaration that the people of Onupi who reside at and around Eti-Ede Okaba are customary tenants of Okaba-Community.

(3) A declaration that Aji-Ajigbi stream is the boundary between the lands of the Onupi Community who migrated from Ochecheke on the South East and the Okaba Community.

(4) A perpetual injunction restraining Onupi Community, their agents and or servants from denying the title of their landlord the Okaba Community.

(5) A perpetual injunction restraining Onupi Community, their agents and or servants from carrying on any further development on the land in issue without consent of Okaba Community first had and received.”

The parties filed and exchanged pleadings. But before the hearing of the substantive suit, the respondents, upon a preliminary objection by motion on notice, dated 20th day of February, 1990, filed in the court below, prayed for the following orders:

“(1) Striking out the suit No. AHC/12/89 for being statute barred.

(2) Dismissing the suit “as it is re-opening of a matter already decided by a court of competent jurisdiction.”

The application was supported by an affidavit together with a “photocopy” of the proceedings before the Atta Igala’s “B” Court in 1968 in Suit No. 1/68 between Alufa Adaji (m) of Okaba v. Umam Gogo Onupi (m) of Okaba, marked as Annexure “A” to the affidavit.

For their part, the plaintiffs/appellants filed a counter-affidavit, wherein Exhibits A to F were attached and marked accordingly.

The application marked as suit No.AHC/20M/90, was heard and determined on 22nd March, 1990. In his ruling, the learned trial Judge granted the first prayer and struck out Suit No.AHC/12/89 for being statute barred. The second relief, that is, to dismiss the suit on ground of Res Judicata was refused.

Being dissatisfied with the said decision, the plaintiffs/appellants have appealed to this Court upon four grounds of appeal.