Chief John Anyimba V. Philiph Nwobodo Anyi Onovo (2008)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

In the High Court of Enugu State, holden at Agbani, the Respondent as Plaintiff took out a writ of summons dated 11th January 2005 and filed same day against the Appellant as Defendant claiming as follows –

(a) A declaration that by virtue of the judgment of Mburubu Native Court (which judgment was delivered on or about the 10th June 1940) the Plaintiff is entitled to the customary right of Occupancy over the large portion of land located and situate at Obinagu, Nara in Nkanu West Local Government (survey plan of which to be filed later).

(b) A declaration that by virtue of the said judgment, the defendant is estopped from laying claim to the land, and/or from trespassing and/or entering the land to farm, build, sale (sic) or cut down economic trees, an act which the defendant and his agents have persisted in committing.

(c) Perpetual injunction restraining the defendant, his agents, and privies from trespassing into the said land howsoever.

(d) N500,000.00 damages for the acts of trespass aforesaid.

The Defendant/Appellant filed a Notice of Preliminary objection on the 14th February 2005 with a nine paragraph supporting affidavit in which he raised the following objections –

1. Non fulfillment of the required condition precedent for commencing a representative action, leave of court to commence an action in a representative capacity.
2. The land, the subject matter of this suit is a property situate at a non-urban area and to which this Honourable (sic) lacks the original jurisdiction to entertain
3. The claim of the plaintiff is an abuse of court process since the judgment of Mburubu native court of 10th June 1940 upon which this action is based did not create any vested right in favour of the plaintiff and his family. It only created an expectation for the plaintiff’s father which turned out impossible.
4. The suit is incompetent; the plaintiff and his family are estopped from laying claim to the land in dispute since this action are between privies to the judgment which was concluded by court of competent jurisdiction between the same parties by Mburubu native court in 1940.

Arguments were heard on the objection on the 22nd March 2005 and 2nd June 2005 and the learned trial Judge Obieze J. on the 2nd June 2005 overruled the preliminary objection. It is against this ruling that the present Appeal is predicated.

Appellant’s Brief of Argument dated 4th May 2007 was adopted and relied upon by B.O. Alingele Esq., while Mrs S. Chibueze holding F. Chibueze’s brief adopted and relied on the Respondent’s Brief of Argument dated 2nd October 2007 and filed on the 4th October 2007. Mr. Alingele urged this court to allow the appeal just as Mrs Chibueze urged that the Ruling of the lower court be upheld and the appeal dismissed.

The Notice of Appeal as reproduced from pages 24 – 26 of the Record of Appeal is as follows –

NOTICE AND GROUNDS OF APPEAL TAKE NOTICE that the defendant/Appellant being dissatisfied with the decision of Honourable Justice F.O. Obieze of Agbani High Court of Justice Enugu State contained in the ruling dated 2nd June 2005 do hereby appeal to the Court of Appeal upon the ground set out in paragraph 3 and will at the trial seek the relief set out in paragraph 4.

2. PART OF THE DECISION COMPLAINED OF:

The whole decision

3. GROUNDS OF APPEAL

GROUND 1

The trial court erred in law by failure to dismiss or strike out the suit of the plaintiff/Respondent or abuse of court process.