V.e. Ejiogu & Ors V. Edwin Ejiogu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A.(Delivering the Leading Judgment)

The appellants are defendants in Suit No.HOW/864/2008. In paragraph 10 of the Statement of Claim, the plaintiff had claimed of the defendants as follows:-

a. A declaration that the plaintiff is the person entitled to the property known as No.49 Njemanze Street and situate at No.49 Njemanze Street in Owerri Municipal L.G.A. Imo State.

b. An order of Court directing the defendants to render a full account of all rents collected by the Defendants in respect of the property known as and called No.49 Njemanze Street and situate at No.49 Njemanze Street Owerri from the 3rd day of March, 2006 till judgment is delivered.

c. An order of Court directing the defendants to pay to the plaintiff the sum of N1,480,000.00 (One Million, Four Hundred and Eighty Thousand Naira) being rent collected by the defendant from the plaintiffs? tenants at 49 Njemanze Street and an individual rent of 576,000.00 from January 2009 till judgment delivered.

d. An injunction perpetually restraining the Defendants by themselves, their servants and agents from interfering with the plaintiffs’ enjoyment of

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his right on the property at No.49 Njemanze.

Pleadings were filed and exchanged on 2-3-12 the Defendants now Appellants filed a motion seeking to amend their statement of defence. The application was granted by the trial Court on 26th March, 2012 and the Court gave the appellants 7 days to file the amended Statement of Defence. On 3rd April 2012 the defendants purported to file an amended statement of defence. They proceeded on 17th April 2012 to file a motion challenging the competence of the entire suit. The trial judge in a considered ruling on 4-3-13 struck out this motion for being incompetent, the appellants not having filed their amended statement of defence.

Not satisfied with this ruling, the appellants have filed this appeal. It is very unfortunate that the trial judge could not locate in her case file the amended statement of defence upon which the appellants founded their application. It may be said that the trial judge is right to have concluded that there was no amended statement of defence filed within 7 days as ordered by the Court. The amended statement of defence was filed on the 8th day of the order to file the amended statement of

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defence with 7 days. The late filing however is saved by Order 24 Rule 4 of the Imo State High Court (Civil Procedure Rule 2008) which provided as follows:-
?4. If a party who has obtained a order to amend does not amend accordingly within the time limited for that purpose by the order or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay an additional fee as the High Court Rules Committee may fix in a schedule of fees payable in Court for each days of default.”

It is clear therefore that there was in fact a competent statement of defence before the trial Court. As the motion was not determined on its merit, the said motion is hereby returned to the trial Court for hearing and determination on the merit.

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Other Citation: (2016)LCN/9315(CA)