Elder Ogbonnaya Onwuchekwa & Anor V. Chief Peter Chukwu Onwuegbu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Abia State sitting at Igbere delivered by Hon. Justice S.F. Analaba on the 30th day of May 2006.

The Appellants as claimants instituted an action against the Respondents at the Abia State High Court holden at Igbere over the piece or parcel of land known as and called “ASUKWU” lying and situate at Amakalu, Alayi in Bende Local Government Area of Abia State. The said Appellants suing in a representative capacity claimed declaratory and injunctive reliefs and also claimed damages for trespass.

The defendants/Respondents in their statement at para. 8 averred that the land in dispute is made up of two parts: “IYIOBA” and “OKPUKPUENYI.” They further stated that the said land in dispute was the subject of a suit decided by the Alayi District Court in Civil case No. 149/53 in favour of the defendants. That the said judgment was affirmed by Bende Country Court on the 4th day of July 1961 and ultimately affirmed by the High Court, Umuahia in Suit No. HU/27/65.

The Plaintiffs/Appellants relied on a survey Plan No. ASA/ABDO5/2000 to delineate the area of the land, its boundaries and other features on the land. The Defendants/Respondents also filed their statement of defence as seen at pages 39 – 41 of the record where they claimed in para. 3 that the land in dispute consists of two farmlands called “IYIOBA” and “OKPUKPUENYI”, property of the descendants of Elugwu Amankalu Alayi. That the purported Asukwu land is completely different from the land in dispute exhibited in Survey Plan No. TOP/AB-01/3/2/D.

The Defendant/Respondents also maintained that the ownership of the land in dispute Iyioba and Okpukpuenyi was settled in January, 1954 by the judgment of the Alayi District court in civil case No. 149/53, and upheld by subsequent courts.

The Defendant/Respondent also contended that the suit was caught by the doctrine of RES JUDICATA being incompetent, manifestly defective and improperly constituted and ought to be dismissed. See para. 14 of their statement of Defence at pg. 41 of the Record of Appeal and the application filed on the 15th day of April, 2002.

On the 28th day of May 2002, the plaintiff/Appellants filed a counter affidavit opposing the application. See paras. 54 – 57 of the records. However, on the 20th day of June 2005, the learned trial judge ordered both learned counsel to file written addresses to support their positions in respect of the application. Respondent’s counsel filed his address on the 14th day of July 2005 while the Appellants counsel filed his on the 26th day of July 2005. See pages. 60 – 69 of the record.

On the 10th day of October 2005, the learned trial Judge gave his considered ruling on the application and set down the matter for hearing on the points of law raised by the Defendant/Respondent in para. 14 of their statement of Defence.

On the 16th day of February, 2006 the Defendant/Respondents then filed a motion on notice asking the High Court to dismiss the suit, same having been caught by the doctrine of RES JUDICATA. On the 17th day of February 2006 the Plaintiff/Appellant filed a Counter-Affidavit opposing the application at pages 247 – 248 of the record.

On the 21st of February 2006, both learned counsel were ordered to file written addresses in respect of the application and the Respondent’s counsel filed his address on the 7th day of March 2006 while counsel for the appellant filed his address on the 20th day of March 2006.

Consequently on the 30th day of March 2006, the learned trial Judge delivered, his ruling dismissing the suit in favour of the respondents, hence this appeal.

Learned counsel for the Appellants filed his brief of argument on the 25th day of January 2012 while counsel for the Respondent filed his own brief of argument on the 29th day of August 2012. Both learned counsel formulated two similar issues for determination which I intend to couch as follows:

“1. Whether the documents exhibited to the motion on notice filed on behalf of the Respondents sufficed to determine the issue of estoppel per rem judication without parole evidence.