Alhaji Mohammed Abubakar V. Mrs. Elizabeth Moses Anobih & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the leading Judgment)

On the 3rd day of August, 1999, the Appellant as Plaintiff in the High Court of Adamawa State, Holden at Yola, in suit Number ADSY/40/99; took out a Writ of Summons initially against the 1st Respondent (then sole Defendant) and by the endorsement or “Memorandum to be subscribed to Writ” and Statement of Claim sought for two declaratory and injunctive Reliefs as contained in pages 2, 3, 4, and 7 of the Records.

In an Amended Writ of Summons dated the 12th day of May, 2000; Mr. Moses Anobih was joined as the 2nd Defendant and by the endorsement therein and the Amended Statement of Claim, sought for the following Reliefs against the Defendants jointly and severally as follows:-

“i. A declaration of title to the piece of land (together with all the development thereon) known as No.39, Mohammed Mustapha Way Jimeta-Yola covered by Yola Local Government customary Certificate of Occupancy YLG No.002127 consisting of structures contained in the Soles Agreement between Plaintiff and Mr. Moses Anobih dated 6th January, 1992.

“ii. A declaration that the Plaintiff is the rightful owner of the property known as No.39, Mohammed Mustapha Way Jimeta-Yola and is therefore entitled to a statutory right of occupancy and peaceful possession of the property to the exclusion of all others particularly the defendants and their privies.

“iii. A perpetual injunction restraining the Defendants, their agents, privies, relations and any other person claiming under them or for them from interfering with or, entering into, disturbing or using the property known as No.39, Mohammed Mustapha Way Jimeta-Yola or any port thereof in any manner whatsoever.

“iv. Any other Order the Court may deem fit to make in the circumstances.

“v. Cost of the action”.

It would also be recalled that in a motion dated 11th day of May, 2000, and filed on 15th May, 2000, the Plaintiff/Appellant was granted leave to serve the 2nd Defendant/Respondent with all the processes of Court by substituted means (advertising them in one of the National Newspapers circulating within the jurisdiction of the lower Court); and to deem such advertisement as proper service on the 2nd Defendant. On the 4th day of October, 2000, the 1st Defendant who had been served with both the Original Writ of Summons together with the Amended Statement of Claim filed her Statement of Defence and Counter-Claim dated 3rd October, 2000.

Thereafter, by a motion dated 14th day of September, 2004 and filed on the 21st day of September, 2004, the 1st Defendant also sought for amendment of paragraphs 1, 2, 4, 7, 8, 10, 12, 14, 15, 16, 17 and 20 of her Statement of Defence and Counter-Claim and to deem same as duly filed and served. In the Defendant’s Amended Statement of Defence and Counter-Claim she sought for the following Reliefs:

“a. An Order of the Honourable Court directing the Plaintiff to give an account of all rents received by him or his in respect of and concerning house No.39 Mohammed Mustapha Way, Jimeta-Yola from 1996 until possession is given back to the first Defendant

“b. A declaration that the counter claimant is the rightful owner of the entire house known and identifiable as house No.39 Mohammed Mustapha Way, Jimeta-Yola.

“c. A declaration that the counter claimant is entitled to received all rents accruable or received by the Plaintiff in respect of house No.39. Mohammed Mustapha Way, Jimeta-Yola from 1996 until possession is handed over back to her.

“d. An order directing the Plaintiff to pay over to the counter-claimant all rents received by him in respect of house No.39 Mohammed Mustapha Way, Jimeta-Yola