Akukalia Alfred Amachukwu Aghadiuno & Ors. V. Ekegbo Onubogu (Nwakwo)

LawGlobal-Hub Lead Judgment Report

OGWUEGWU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division which allowed the appeal of the plaintiff in that court.

The plaintiff instituted an action in the High Court of the former Anambra State, Onitsha Judicial Division claiming the following reliefs:-

1. Declaration that the Plaintiff is entitled to the customary rights of occupancy of the piece and parcel of land known as and called Ozalla Land situate in Obosi in Idemili Local Government Area of Anambra State within the jurisdiction of this Honourable Court with the annual value of N20.00 (Twenty Naira).
2. N10,000.00 (Ten thousand naira) being damages for trespass to the said piece and parcel of land called “Ozalla” Land.
3. Perpetual injunction restraining the Defendant, his servants, agents and/or workmen from further trespass and from further interfering with the possessory rights of the Plaintiff over the said piece and parcel of land known as and called “Ozalla” Land”

In the statement of defence filed on 8-12-86, the defendant averred as follows in paragraphs 7, 8, 9 and 10:-

“7. The defendant’s family have from as far back as 1917 been prosecuting and defending series of actions against the Obosi people over the whole of Isiafor land and of portions thereof. In Suit No.8 of 1932 Chief J.N. Kodilinye for and on behalf of the people of Obosi sued Mhanefo Odu for and on behalf of the Odimegwugbuagu family of Onitsha in respect of Isiafor land and lost. Chief J.N. Kodilinye’s appeal to the West African Court of Appeal against the judgment in Suit No.8 of 1932 was dismissed. In 1949, the defendant’s family instituted Suit No. 0/34/1949 against the people of Obosi for damages for trespass and injunction over Isiafor land and got judgment.

8. In 1977 some sections of Obosi people, in the effort to over-reach and undermine the judgments in Suits No.8 of 1932 and No. 0/34/1949 and the appeal against the judgment in Suit No.8 of 1932, brought four Suits Nos. 0/157/77, 0/158/77, 0/159/77 and 0/160/77 over portions of the Isiafor land but the four suits were dismissed on a plea of estoppel per rem judicata. The appeal to the Court of Appeal No.FCA/E/91/81 against the judgment in the said suits Nos.0/157/77, 0/158/77, 0/159/77 and 0/160/77 was dismissed.
9. The plaintiff is estopped per rem judicata from maintaining or prosecuting the present suit by virtue of the judgment in the various suits and appeal set out in paragraphs 7 and 8 hereinabove. At the hearing of this suit, the defendant will pray the court to dismiss (sic) action in limine on the ground of estoppel per rem judicata.
10. The defendant will at the hearing of this suit found and rely on the Records of the proceedings and the Plans of the suits and appeals mentioned in paragraphs 7 and 8 of this statement of defence.”

At the close of pleadings, the case was fixed for hearing on 6-3-87. When the case came before Aneke, J. on that day, the record of appeal shows:-

“Case called. Parties present. Defendant absent. Obi Okpudo (sic) for the plaintiff, G.R.I. Egonu (SAN) with E.C Ayalogu for the defendant, Mr. Akpudo asks for time to file motion of discontinuance in this matter. Mr. Egonu has no objection but thinks plaintiff could withdraw orally.

Akpudo insists on date. Case adjourned to 24th March, 1987 for a notice of discontinuance to be filed.” (Italics is for emphasis).

The Notice was filed on 17-3-87 and it reads:

“To The Registrar,

High Court,

Onitsha.

Re: SUIT NO: 0/389/85

MR. EKEGRO ONUROGU V. CHIEF ISAAC MBANEFO