Sunday Ofoma & Anor V. Anthony Ifeanyi Obinwe & Anor (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

The appellants were the 5th and 6th defendants at the High Court of Justice, Anambra State, holden at Onitsha, in the suit No.0/257/2007. In the said suit, the respondents had claimed the following reliefs:
(a) A declaration that the sale by the 1st, 2nd, 3rd and 4th Defendants of the land in dispute to the 5th Defendant without the knowledge and consent of the Plaintiffs is void.
(b) An order of this Honourable Court setting aside the sale of the land in dispute by the 1st, 2nd, 3rd and 4th Defendants to the 5th Defendant.
(c) A declaration that the 5th Defendant lacked the capacity to sell the land in dispute to the 6th Defendant.
(d) An order setting aside the purported sale of the land in dispute by the 5th defendant to the 6th defendant.
(e) A declaration that, the reversionary interest of the Obinwe family in the land in dispute is still subsisting and shall become vested in the said family upon the expiration of the last lease entered between Vincent Nwobu Obinwe (for Obinwe family) and the 5th defendant.
(f) N200,000,000.00 being general and punitive damages.

1

The appellants, had filed a motion on notice No. 0/868m/2012 at the Court below praying that the suit No. 0/251/2007 be struck out or dismissed.
?
The grounds for the application are that:
?(1) The Plaintiffs have no locus standi nor legal interest worthy of protection in the suit filed by the Plaintiffs.
(2) By a valid and subsisting judgment of the High Court of Anambra State in Suit No. 0/307/2005 BETWEEN PATRICK OBINWE vs. CHIEF AUGUSTINE OFOMA ANOR. Delivered on 30th day of October 2006, by Honourable Justice J. I. Nweze, it was held in respect of the land in dispute NO. 1 (now 3) Johnson Street Onitsha that
?It is clear the facts of this case that the Obinwe family can no longer claim an interest in the land in dispute?
(3) The Plaintiffs as members of Obinwe family of which late Vincent Nwobu Obinwe was a member cannot sue and claim any interest in respect of No. 1 (now 3) Johnson Street Onitsha.
(4) The Plaintiffs by the principles of issue estoppel and estoppel per rem judicatam, cannot re-litigate over the same land against the Defendants.
(5) The suit by the Plaintiffs is in the circumstances an

2

abuse of the process of the Court.
(6) The Court has no jurisdiction in the circumstances to entertain the above suit.?

There were affidavits, counter affidavits and further affidavits filed by the appellants and the respondents in respect of the appellants? motion on notice. So also, written address were filed and exchanged between the parties. However, during the pendency of the hearing and determination of the appellants? motion on notice aforementioned, the respondents vide a motion on notice filed on 24th May, 2013 with No. 0/795/2013 sought the leave of Court to amend the plaintiffs? statement of claim. There was an affidavit and a written address filed in support of the aforementioned motion on notice No. 0/795/2013. The same was moved and having not been opposed by the appellants, it was granted. Thereafter, the appellants? motion on notice No. 0/868m/2012 was argued and opposed by the respondents. The learned trial judge in his ruling, dismissed the appellants? motion on notice No. 0/868m/2012. This was on 4th June, 2013.
?
The appellants, not being satisfied with the decision against them, filed a

3

notice of appeal containing five grounds on 17th June, 2013.

?In order to prosecute the appeal, the appellants? brief of argument, settled by O. J. Nnadi, Esq., SAN, filed on 28th October, 2014 was deemed by this Court, as properly filed and served on 11th February, 2015. In it, he nominated four issues for the resolution of the appeal, inter alia:
(1) Whether the trial judge was right midway in the argument of the motion on notice challenging the suit filed by the Plaintiffs/Respondents for inter alia being incompetent and for lack of jurisdiction of the Court to entertain the motion for the amendment of the Statement of claim which amendment rather than cure the suit by the additional reliefs sought clearly showed that the Court had no jurisdiction to entertain the suit.
(2) Whether the Court was right in holding that the decision of Nweze J. In suit No. 0/307/2005 was not binding on the Court being a Court of coordinate jurisdiction when the suit was not cited as an authority to be followed by the trial Judge but relied upon for the plea of issue estoppel, abuse of process of Court, lack of locus standi to institute the suit, res

4

judicata, finding of fact and to show that the Respondents have no interest worthy of protection by the plaintiffs/Respondents and therefore have no locus standi to institute the suit. Ground 2 of the Notice of Appeal.
(3) Whether the trial Judge correctly interpreted and applied Order 22 Rules 1 and 2 of the High Court of Anambra State (Civil procedure) Rules 2006 which deals with demurrer, when the Court dismissed the Appellants? motion on notice in the ruling of the Court and at the same time held that suit No. 0/307/2005 does not create res judicata against the parties in suit No. 0/251/2007 (the subject of this appeal) (Grounds 3 and 4 of the Notice of Appeal).
(4) Whether the trial Judge was right on the face of the relief in the amended claim to order for pre-trial conference without allowing or giving the Appellants opportunity to amend their statement of Defence.

The respondents? brief of argument dated 19th March, 2015 and filed on 20th March, 2015 was deemed by this Court as having been properly filed and served on 23rd March, 2015. Three issues were nominated therein for the determination of the appeal, to wit:

5