This is an appeal from the decision of the Court of Appeal (Ejiwummi, JCA (as he then was), Tobi and Adamu, JJ.C.A, dismissing the appeal of the appellants from a decision of the High Court of Anambra State whereby the appellants’ claim against the respondents for a declaration that they are “the rightful people” for the grant of customary right of occupancy to land coloured pink on a plan MEC/205/80 damages for trespass and injunction, was dismissed.

In the High Court the appellants relied on traditional evidence and acts of ownership for their claim. They averred that the land which was part of a larger piece of land belonging to the plaintiffs known as Mgbenu Awani Ire and more particularly delineated and coloured blue on the plaintiffs’ Plan No. MEC/205/80 attached to the Statement of Claim was founded by their ancestor, Ire, and that by succession it devolved on the community consisting of the 6 quarters representing his six children and thereby became communal property of the six quarters of Ire village. They averred, further, that the land known and called “Mgbenu Awani Ire Land” had been owned and cultivated by them from time immemorial and, that they performed other acts of ownership such as, burying their dead and building market stalls on it. They alleged that the respondents, sometime in April, 1980, destroyed a poultry building and corn crops on the land. They then instituted the action which spawned this appeal. In their statement of claim as finally amended, they averred that the respondents (as plaintiffs) sued them over the same land and lost. They gave notice that: “The Plaintiffs in the current case would plead the said suit, No.AA/23/71 and will rely on the said suit” and on a Plan No. MEC/98/72 used in that suit.

The original defendants who are 1st – 3rd respondents, and the joined defendants, who are the 4th to 6th respondents, in this appeal denied that the land in dispute, which is the area edged “pink” on a plan MEC/205/80 attached to the appellants’ statement of claim “is owned, or has ever been owned” by the plaintiff or that it was a part or a lager parcel of land belonging to the plaintiffs and called Mgbenu Awani Ire. They averred that the land fell within the land originally owned in common by the family of Umuriam Obunese which, following “successive sharing of progenitors land in accordance with custom now comprises lands allotted to descendants of Oguno and are specifically dwelling lands allotted to Lazarus Chinwuko, Edward Chinwuko and Ikechukwu Okeke Oguno”. These persons mentioned were the 4th to 6th defendants joined by order of the High Court. They averred occupation of contiguous lands and land within the area in dispute in paragraphs 8, 9, 6, 13 and acts of ownership in paragraph 16 and 17. The joint statement of the 14th – 6th respondents was on similar lines. The respondents averred that the area in dispute in suit No. AA/23/71 in which the original defendants herein were plaintiffs, was the area verged “green” on their plan MG/AN. 423/81 and on the 4th – 6th respondents’ plan No. MG/AN.423A/85. It was the respondents’ case that the area then in dispute is different from that in dispute in the present proceedings.

At the trial, the appellants relied on the decision in the previous suit (“the 1971 suit”) as constituting issue estoppel. In the 1971 suit they were the defendants and the respondents’ family were the plaintiffs. In the 1971 suit, the present respondents’ family claimed against the present appellants “declaration of title to land known as Owelle-Amadi and shown verged Pink in Plan No. OKE/D31/72, possession of the land and damages for trespass. They relied on traditional evidence and acts of ownership in support of their claim.

The trial judge found that the area litigated on, in the 1971 suit was different from the land in dispute in the present proceedings and that res judicata could not be relied on. He thus dismissed the suit. The appellants appealed from the decision of the High Court to the Court of Appeal.

The Court of Appeal dismissed the appeal.

Dissatisfied, appellants further appealed to the Supreme Court.