Michael A. Ndiwe Vs Anthony C. Okocha (1992)

LawGlobal-Hub Lead Judgment Report

O. OGWUEGBU, J.S.C. 

The plaintiffs brought an action against the defendant in the High Court of Justice. Onitsha (Suit No.0/122/78) claiming the following reliefs:

“(i) Declaration that the plaintiffs are entitled to the Customary Right of Occupancy of the piece of land situate at Ogbe Onira Quarters, Umudei Village. Onitsha more particularly delineated and verged pink in survey plan No.ECAS.137/78 attached to the statement of claim:

(ii) An Order of Perpetual Injunction restraining the defendant from interfering with the 2nd plaintiffs Customary Right of Occupancy and use and enjoyment of the said land as successor to the first plaintiff on record now deceased.”

After pleadings were filed and exchanged, the defendant applied to the trial court by way of motion for the question of res judicata to be tried as a preliminary issue. The application was granted and the issue was set down for hearing.

Both parties gave evidence. In his judgment, the learned trial Judge upheld the defendant’s plea of estoppel per rem judicatam and dismissed the plaintiffs claim. The plaintiffs who were dissatisfied with the judgment of the High Court, appealed to the Court of Appeal.

They filed seven original grounds of appeal on 23/11/81 and with the leave of the Court of Appeal filed eleven additional grounds of appeal on 17/10/84. The plaintiffs/appellants later filed an amended brief of argument in the Court of Appeal on 25/11/87.

At page 4 of their amended brief of argument, they stated:

“Grounds 7 and 16 of the grounds of appeal reproduced herein are the only grounds of appeal the appellants intend to argue in this appeal. The other grounds are hereby abandoned.”

Ground 7 is one of the original grounds of appeal while ground 16 is contained in the additional grounds of appeal. They read thus:

“7. The judgment is against the weight of evidence.

16. ERROR IN LAW: That the defendant is not entitled to rely on the records and proceedings in District Court Suit No.568/58,Onitsha High Court Suit No.0/39A/66 and the Supreme Court Suit

No.SC.329/1972 as a plea for Res Judicata.”

The learned Justices of the Court of Appeal allowed the appeal of the plaintiffs. The defendant/respondent who is dissatisfied with the said judgment appealed to this court and filed five grounds of appeal along with his notice of appeal on 13/5/88. The grounds of appeal are as follows:

“GROUND 1