W. A. Omonuwa V. Napoleon Oshodin & Anor (1985)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

This is a ruling on the preliminary objection brought by the respondents/applicants. Appellants have appealed to this Court from the judgment of the Court of Appeal allowing the appeal of the respondents/applicants. Applicants are the defendants in the High Court, and the appellants in the Court below. The preliminary objection is that there is no appeal before this Court because

(i) The judgment of the Court below appealed against is interlocutory and that appellants require leave of this Court or the Court below to appeal outside the period prescribed by s.31(2)(a) of the Supreme Court Act 1960. Such leave having not been obtained there was no appeal before the Court.

(ii) That the grounds of appeal consist of mixed law and facts and that leave was required before filing them. Relying on S. 213(3) and (5) of the Constitution 1979 and S. 25(2) of the Court of Appeal Act 1976, Counsel asked that the appeal be struck out.

Only the first issue was seriously canvassed because if that succeeded the preliminary objection must be sustained.

I consider it of some assistance to state fairly fully the facts leading to the appeal which gave rise to the preliminary objection. This is because the only issue of law to be determined in this preliminary objection is whether the decision of the Court of Appeal appealed against is interlocutory or final.

On the 4th December, 1978, plaintiff filed a writ of summons against the defendants, claiming a declaration of title to a statutory right of occupancy to a developed piece of land situate at No. 36, Urubi Street, Benin City. He also asked for an injunction restraining the defendants and their servants or agents from further entering or doing anything on the said land. Pleadings were ordered and exchanged. Paragraph 40 of the defendant’s statement of defence averred as follows –

“40. The defendants will contend at the hearing that:-

(i) The plaintiffs being privies of the plaintiffs in the said Customary Court Case No.T.144/71 and Magistrate Court Case No. MB/32N72 and Federal Court of Appeal Case No.FCNB/2/77 with the same subject matter as the one in this suit are estopped from relitigating the issue of title to the said land which had been determined by the said Customary Court of competent jurisdiction whose decision or judgment was upheld on appeal by the Chief Magistrate Court, High Court in Suit No. B/74/75 and Federal Court of Appeal all the proceedings of which shall be relied upon at the hearing.

(ii) The plaintiff having given evidence for the plaintiffs in Suit No. T.144/71 and the plaintiffs in that case having been restrained from interferring with the management of the said house No. 36 Urubi Street, Benin City, the subject matter in this suit, by a court of competent jurisdiction is estopped from bringing any action for declaration, trespass and injunction for trespass. The matter is therefore res judicata.”

On the 12th October, 1979, counsel for the defendant brought a motion to argue the preliminary points of law raised in paragraphs 39, 40 and 41 of the statement of defence. Schedule A to the affidavit in support of this motion stated the preliminary points of law sought to be argued as follows-

(a) That this suit is not maintainable against the defendants/applicants in that the case is res judicata for the following reasons….”

The reasons given as (i) and (ii) correspond with the averment in paragraph 40 of the statement of defence. The third reason is that the action is an abuse of the process of law and also vexatious.

The motion was argued on the 2nd November, 1979, and leave was granted to defendants/applicants to set down for argument the points of law raised in paragraphs 39, 40 and 41 of the statement of defence. The motion was argued on the 21st January and 22nd April, 1980. Ruling was adjourned to 23rd day of May, 1980. The application was refused. The points of law relied upon were rejected and the motion was dismissed. Defendants/applicants appealed against the ruling to the Federal Court of Appeal (now the Court of Appeal). The learned trial judge refused applicant’s application for leave to appeal against the ruling.