David Eze & Anor. V. Maduenyenwa Okweremuo & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J. C. A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Imo State Holden at Mgbidi, Oru Judicial Division and presided over by Hon. Justice F. I. Duruoha – Igwe dismissing the suit of the Appellants on the ground of estoppel per rem judicatam. Against the said ruling, the Appellants have filed this appeal by the notice and grounds of appeal dated 8th day of September, 2003.

The facts that led to this appeal are as follows:

The Appellants as plaintiffs filed suit No. HOU/45/2000 at the High court of Imo state, Holden at Mgbidi in the oru Judicial Division seeking the following reliefs:

(a) Declaration that the Umuorji kindred of Plaintiffs is the first kindred in Umuezike in order of seniority.

(b) Declaration that the Umuorji kindred of the Plaintiffs are the second kindred in Eziali Mgbidi in the order of seniority.

(c) Perpetual injunction restraining the Defendants by themselves, their agents, servants, and,/or privies or whosoever that is from Umuoma Eziali Mgbidi from laying claim of seniority over the plaintiffs Umuorji kindred, Eziali Mgbidi.

The Respondents filed their Statement of Defence to the Appellants’ Statement of Claim. And therein contended that the issue of Seniority between the two kindred of the parties had been decided in a subsisting judgment of the District Court Grade A of Western Oru in suit No. 84/59, and thereupon raised issue estoppel. The Respondents on the 15th day of October, 2001 filed preliminary objection to the hearing of the suit on the ground of estoppel per rem judicatam.

In proposing the motion for the dismissal of the suit on ground of estoppel the Respondents relied on the record of proceeding containing the judgment of the District Court Grade A Western Oru, in the suit No. 84/59 duly certified.

In opposing the motion the Appellants contended that the judgment of the District Court Grade A Westem Oru was set aside on appeal and relied on a judgment of the Orlu County Court which the learned trial judge refused to admit. The learned trial judge upheld the preliminary objection of the Respondents and dismissed the Appellants’ suit.

On appeal, the Appellants’ brief was dated, 6/5/04, filed on 6/5/04 and deemed filed on 8/12/04. The Appellants also filed a Reply brief dated 1/2/05 filled on 2/2/05. The Respondents’ brief was dated 20/1/05 and filed on 24/1/05.

The Appellants distilled a sole issue for determination, also adopted by the Respondents’ counsel, which I will also consider in the determination of this appeal. It is set out below:

“Whether the learned trial judge was not wrong when she held that estoppel per rem judicatam applied in the circumstances of this suit.”

The Respondents’ brief contained argument in respect of a notice of preliminary objection raised in the brief of argument on page 4, item 404. I will consider the grounds of preliminary objection first before tackling the substantive issue for determination in the appeal.