Alhaji A.B. Abubakar V Alhaji Abubakar Daniya Waziri & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O.  ADEREMI, J.S.C.

This is an appeal against the judgment of the Court of Appeal (Abuja Judicial Division) delivered on the 16th day of September 2004, The said court (hereinafter referred to as the court below) heard the matter on appeal from the judgment of the High Court of Niger State sitting in Minna, Niger State which judgment itself was delivered on the 16th of October 2002.

The respondents herein as plaintiffs before the trial court had claimed from the appellant herein as the defendant before the High Court, the following reliefs: –

(1) An order on the defendant to give a satisfactory account of the assets of the late Alhaji A, B, Waziri who died on the 3rd of May 1995,

(2) An order that the defendant should disengage from the administration of the estate of the said deceased. and

(3) An order that the defendant should surrender all assets of the said deceased in his possession to the plaintiffs.

The plaintiffs filed their pleadings but the defendant who failed to file any pleading brought two applications before the trial commenced. The first which was to join a limited liability company by name AREWA CONSTRUCTION COMPANY LIMITED as 2nd defendant was dismissed by the trial court. The second application was by way of preliminary objection contending that the Power of Attorney was donated to the Board of Directors of Arewa Construction Company Limited and not to the defendant and consequently praying that the suit be struck out for what he termed as failure to sue a proper party was equally overruled. Thereafter, the plaintiffs as respondents here called a witness in the person of the 4th plaintiff/respondent. The appellant as defendant in that court did not file any defence also did not call any evidence. The trial judge, in a reserved judgment delivered on the 16th October 2002 dismissed the suit in toto, in so doing he held inter alia: –

”In the instant case apart from the averments of the plaintiffs I can find no evidence to support their’ claim that they donated the defendant with the power of Attorney to deal with the property of their father on their behalf. Throughout the pleadings the word “assets” is used – assets of late Alhaji A.B. Waziri. The evidence of PWI shows they are all landed property in respect of which there is no Power of Attorney vested in the defendant-.

Consequently, none of the reliefs can be granted against the defendant. In the final analysis, the suit, should be dismissed as a result the case is hereby dismissed’.”

Being dissatisfied with the judgment, the plaintiffs who are the present respondents, appealed to the court below. The court below after taking arguments of counsel, in a reserved judgment delivered on the 16th of July 2004, allowed the appeal and consequently granted all the reliefs sought by the plaintiffs/respondents against the defendant/appellant. In so finding, the court below after referring to the provisions of Order 27 Rule 8 (1) of the Niger State Civil Procedure Rules, reasoned inter alia: –

“In effect the above provision provides for a situation where a defendant who has been served with a writ of summons and a statement of claim fails to file a reply, that is, a statement of defence in answer to the claim labeled against him within the time stipulated by the court rules as in the instant case. in such a situation, the plaintiff is, on an application to the court, entitled to judgment as per the reliefs claimed. It is trite that where there is no defence to the plaintiffs claim, the plaintiff is entitled to judgment.

In the circumstances, this appeal succeeds and is hereby allowed. I set aside the decision of the trial court delivered on the 16/10/2002 and invoke our powers under Sec. 16 .of the Court of Appeal Act Cap LFN 1960 and substitute it with an Order entering judgment for the plaintiff in the following terms:-

(1) It is hereby ordered that the respondent/defendant gives a satisfactory account to the plaintiffs/appellants of the assets of Late Alhaji A.B. Waziri who died on the 3/5/95.

(2) It is hereby ordered that the defendant/respondent disengages from the aministration -of the estate of late Alhaji A.B. Waziri.