William Madu Nwazota V. Benjamin Nwokeke (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 Abia State High Court presided over by His Lordship Hon. Justice Ijeoma Offonry delivered at Osisioma on 1st July, 2002.

The Plaintiff/Appellant on the 17th day of July 2000 filed a writ of summons and statement of claim against the defendant/Respondent claiming the reliefs set out on pages 16-27 of the record of appeal.

The reliefs are stated below:

“(a) a declaration that the piece or parcel of land known as and called ALA OKPULO AMACHI is situate at Umuaduru Ngwa Local Government Area of Abia State of Nigeria.

(b) A declaration that the Plaintiff is entitled to a Statutory Certificate of Occupancy of the aforesaid parcel of land.

(c) An injunction restraining the Defendant his servants, agents, or privies from interfering with the rights and possession of the Plaintiff over the said land.”

The Defendant/Respondent filed his statement of defence on the 14th day of July 2004 and at the same time filed a Motion on Notice pursuant to Order 24 rules 2 & 3 of the High Court Rules praying the court to dismiss the claim on the grounds of functus officio, lis pendens and res judicata. The learned trial judge after considering the written addresses of both counsel struck out the action. Dissatisfied with the Ruling, the Plaintiff/Appellant has filed this appeal. Let us look at the facts I was able to glean from the Respondent’s affidavit and the exhibits attached thereto at the lower court.

The Respondent (as Plaintiff) had sued one Oji Oba Kalu and 9 others (as Defendants) in suit No. CC/OS/36/94 before the Customary Court Awor for declaration of title to Customary right of Occupancy over “Ala Okpulor Amachi” land; declaration that the purported revocation of the irrevocable Power of Attorney granted by the Defendants to the Respondents over the said land is null and void, and an injunction restraining the defendants from further trespass into the land.

While suit No. CC/OS/36/94 was pending, one of the Defendants, Oji Oba Kalu purporting to have been empowered by the other 9 Defendants, donated a Power of Attorney over the “Ala Okpulor” land (hereinafter called “the land in dispute”) to the Appellant.

The Appellant applied by Motion to be joined as an interested party to the suit. He then moved the motion while the Respondent was replying to it, withdrew it and same was accordingly struck out. The Appellant then testified as a witness to the Defendant that the land in dispute belonged to the Defendants.

The Respondent won the case as the court nullified the Defendant’s revocation of the Respondent’s Power of Attorney and granted customary right of Occupancy of the land in dispute to the Respondent.

On the 3rd day of June 1999, the Defendants appealed against the judgment to the Customary Court of Appeal, Umuahia in suit No. CCA/UM/2000.

While the Defendants’ appeal was pending, the Appellant on his own part filed a Certiorari Application in suit No. HOS/40M/99 at the High Court Osisioma against of the judges of the Customary Court Awor and the Respondent, asking the High Court to quash the judgment of the Customary Court, Awor on the ground that by virtue of the Designation of Urban Areas Order No. 1998 of Abia State, the land in dispute is located in an urban area outside the jurisdiction of the Customary Court Awor. The High Court Osisioma on 10/4/2000 dismissed the Appellant’s application.