Nicholas Duru & Ors v. Mr. Anayo Ewuru & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, JCA (Delivering the leading judgment)

On the 20th December, 2017, the 1st and 2nd respondents as plaintiffs instituted suit No. HOU/98/2017 Mr. Anayo Ewuru & Anor. v. Chief Daniel Mmerem & Ors at the High Court of Imo State, Oru Judicial Division, sitting at Mgbidi (hereinafter referred to as the lower court) claiming a declaration of title to a parcel of land known as and called Ala Nwauburu, situate at Umudurualim Umuezukure Awo Omamma.

The 3rd-6th respondents herein were the 1st, 2nd, 5th and 6th defendants while the appellants herein were the 3rd and 4th defendants at the lower court.

In addition to their statement of defence, the appellants filed a notice of preliminary objection on 8/6/2022 challenging the jurisdiction of the court to hear and determine the suit of the 1st and 2nd respondents on the grounds that the suit is statute-barred by virtue of section 3 of Imo State limitation law 1994 and also constitutes an abuse of court process and is caught up by the doctrine of res judicata in that its subject matter and parties are the same with suit No. CC/OW/14/2011 which was adjudicated upon by the Customary Court Omuma and judgment entered in favour of the appellants herein.

They also contended that a portion out of the land in dispute Ala Nwaedo had been litigated upon in suit No: HOG/30/85 and appeal No: CA/PH/23/94 wherein the claims of the 1st and 2nd respondents (then plaintiffs) were dismissed.

In his ruling delivered on 16/2/2023, striking out the preliminary objection, the learned trial Judge, Hon. Justice Mike Onyekachi held that the preliminary objection was premature and that as there were conflicts and contradictions on the identity of the subject-matter, the issue of res judicata could not be effectively determined at that stage without oral evidence.

Disgruntled by the said ruling, the appellants filed a notice of appeal on 22nd February 2023 challenging the decision on four (4) grounds.

The appellants brief of argument filed on 12/05/23 was settled by the learned Chika H. Azuine, Esq. wherein three (3) issues were distilled for the determination of this appeal, namely:

i) Whether the trial court had the jurisdiction to entertain this matter being a subject-matter adjudicated upon at Customary Court in suit No. CC/OM/14/2011, High Court in suit No. HOG/30/85 and appeal in appeal No. CA/PH/23/94 over the same parties and their predecessors in title. Grounds 1, 2 & 3.

ii) Whether the 1st and 2nd respondents (plaintiffs) claims against the appellants at the lower court is statute barred and an abuse of court process. Ground 1.

iii) Whether the trial court was wrong in importing an issue which was never canvassed by the parties and pronounced on them. Ground 4.

The 1st and 2nd respondents brief of argument filed on 23/08/2023, was settled by the learned N. O. Chukwuezi, Esq. who in addition to adopting the appellants 3 issues for determination, added a 4th issue formulated from their preliminary objection to wit:-

Whether this honourable court has the jurisdiction to entertain this appeal (preliminary objection).

The brief of the 3rd – 6th respondents settled by the learned Ikedi Agunkwu, Esq., and filed on 06/07/2023, identified two (2) issues for the determination of this appeal, viz;