Joseph Owuama & Ors. V. Anthony Obasi & 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 judgment of the High Court of Imo State Mbaitoli/Ikeduru Judicial Division sitting at Ilo, Ikeduru, presided over by His Lordship, Hon. Justice Ngozi Opara J, delivered on 1/12/08. The Plaintiffs now Appellants’ suit was struck out for lack of jurisdiction. The facts that led to this appeal are as follows:

Appellants’ forebears filed suit No.HOW/148/71 against the forebears of the Respondents, who in turn counter claimed in suit No.HOW/91/73 at the High Court of Imo State presided over by His Lordship Hon. Justice E.O. Ogwuegbu J. (as he then was). Both suits were consolidated. The subject matter of both suits was a large area of land which the Appellants called Ala Okohia or Eluema land of Umuduru Umuomi while the Defendants now Respondents called it Okohia Umuonyiri or Uhu-Umuonyiri. Both parties filed their respective dispute survey plans of the land or area they claimed. The consolidated suits were heard together. The Appellants forebears’ suit No.HOW/148/71 was dismissed and judgment was given in 1979 to the Respondents’ forebears in HOW/91/73. All the declaratory and injunctive orders sought by the Respondents’ ancestors in HOW/91/73 were granted in the said consolidated judgment delivered in 1979. The Appellants who were Plaintiffs in the consolidated suits did not appeal against the 1979 judgment of the High Court of Imo State.

In 1990, a half brother of the 1st Plaintiff in the said consolidated suits, by name Nathaniel Opara (or in full Nathaniel Oparaonyeacho) of the Appellants village again went to the Customary Court, Ikeduru District of Imo State, and sued members of the Respondents’ community (Umuonyiri) in respect of a piece of land he called Eluama Land in suit No CC/EZ/IK/46/90. Before the said Customary Court, the Defendants in that suit maintained that this said Eluama land is part of the Okohia land the High Court awarded them in the said consolidated suits. And through their counsel raised a preliminary objection to that suit on grounds of res judicata After arguments, that court, the trial Customary Court visited the locus and inspected the land. At the end of the day, that court delivered a Ruling in which it dismissed the Preliminary Objection of the Defendants’ counsel holding thus in their own words:

“After considering the submissions of the Plaintiff and Defence counsel, and the locus report, this Honourable Court observes and rules as follows: the Okohia is a big forest stretching to Eke Uzoagba market quite separate from Eluama land claimed to be trespassed into by the Defendants. This court maintains that whoever deforested the Eluama farm area of the Plaintiff. Nathaniel Opara is a matter for evidence together with the acts of trespass charged by the said Plaintiff Nathaniel, the whole matter will therefore be looked into during the proceedings of the substantive suit.”

(See page 16 of the record). The Defendants in that said suit appealed to the Customary Court of Appeal, Owerri Imo State in Appeal No. CCA/OW/A/119/91. And that said Interlocutory Appeal was struck out on the grounds that the Grounds of Appeal were incompetent.

The substantive suit – CC/EZ/IK/4/90 continued at the trial customary court and on August 17th 2004 that court gave its final judgment and dismissed the said suit. In its own words in their judgment at page 46 of the records, the trial customary court found as follows:

“By the preponderance of evidence and the totality of facts adduced, the evidence of the Defendants is more consistent, coherent and convincing than the evidence of the Plaintiff. Besides the Plaintiffs were not able to satisfy this Hon. Court by the preponderance of evidence, that they are entitled to the Reliefs sought.”

The substantive suit CC/EZ/IK/46/90 continued at the Customary Court and on August 77, 2004, that court gave final judgment. The court held that the Eluama land in dispute before it, was the same as the Okohia land earlier adjudicated upon by the High Court, and went on to dismiss the suit of the (plaintiffs (pages 27-46 of the records). This decision was appealed against to the Customary Court of Appeal, Owerri, in Appeal No. CCA/OW/A/48/2004. The said court in its judgment delivered in 2005, agreed with the trial Customary Court that Eluama and Okohia lands were the same and that same was res judicata, having been adjudicated upon by the High Court. It accordingly dismissed the appeal (pages 47-56 of the records). This decision was not appealed against, but still the dispute continued.

The Appellants not satisfied, then filed the present suit No. HMI/102/2005 at the High Court by an originating summons for the purpose of determining the purview of the 1979 High Court decision. In other words seeking to know the limits of the Okohia land won by the Respondents in 1979.

The Respondents’ counsel raised a preliminary objection to this action on the ground that the trial court lacked the jurisdiction to entertain the suit in that it cannot sit on appeal over its own decision or that of a court of coordinate jurisdiction, and that the averments in the suit reveal facts that show that it is a hostile one that should not be begun by originating summons (pages 67-69 of the records). The learned trial judge declined jurisdiction to entertain the suit and struck it out on the grounds stated in the ruling. Hence this appeal.

According to the rules of this court the Appellants’ brief dated 27/8/09 was filed on 28/8/09. The Respondents’ brief was dated 24/9/09 filed on 28/9/09.

The Appellants identified three issues for determination which were adopted by the Respondents’ counsel. I will also adopt same in the determination of this appeal:

1. Whether the learned trial judge was right in holding that the suit is a hostile one requiring the calling of witnesses and so should not have been brought by originating summons. (Derived from Ground 1 of the Grounds of Appeal.
2. Whether the lower court was right in declining jurisdiction to pronounce upon the decisions of the Customary Court and Customary Court of Appeal which decisions were not on questions of customary law. (Derived from Grounds 3 of the Grounds of Appeal).
3. Whether the lower court was right to decline jurisdiction to interpret its previous decision for the purpose of enforcing or giving effect to same (Derived from Grounds 4 of the Grounds of Appeal.)

ISSUE ONE