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 agent from further entering or doing anything on the said land. Pleadings were ordered and exchanged. Paragraph 40 of the defendant’s statement of defense averred as follow: -
“40. The defendants will contend at the hearing that: -
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1
The plaintiffs being privies of the plaintiffs in the said Customary Court case No. T. 144/71 and magistrate Court case No. MB/32A/72 and Federal Court of Appeal case No. FCA/B/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.
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The plaintiff having giving evidence for the plaintiffs in Suit No. T.144/71 and the plaintiffs in that case having been restrained from interfering 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 (sic) trespass. The
On the 12th October 1979, counsel for the defendants brought a motion to argue the preliminary points of law raised in paragraph 39, 40 and 41 of the statement of defense. Schedule A to the affidavit in support of this motion stated the preliminary points of law sought to be argued as follows: -
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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 averment in paragragh 40 of the statement Paragraph of defense. 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 for defendants/applicants to set down for argument the point of law raised in paragraph 39, 40 and 41 of the statement of defense. 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 point 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 applicants’ application for leave to appeal against the ruling.
Defendants/applicants then on the 23rd September 1980 sought and obtained leave of the Federal (now) Court of Appeal to appeal against the ruling. The notice of appeal contained only three grounds of appeal. The first ground was that the learned Judge erred in law when he failed to pronounce on the issue of res judicata, which was canvassed before him. This appeal was mentioned on the 17th January 1983 and the interlocutory appeal was set down for hearing on the 18th April 1983. The Appeal was duly argued on 18th April 1983. On the 20th July 1983, the Court of Appeal delivered its judgment and allowed the appeal and quashed the ruling appealed against. The case was remitted to the court of trial “for the judge to make a decision”.
It is from this judgment that plaintiff has appealed to this Court
