Anthony Odunukwe V. The Administrator-general East Central State (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The proceedings from which this appeal arose were commenced on the 21st day of July, 1971 in the Abakaliki Division of the High Court of Justice of the East Central State but which has since 1976 become a Division of the High Court of Anambra State. The particulars of claim as endorsed on the writ of summons by which the proceedings were commenced read:

“1. The plaintiff is the Administrator-General East Central State and administers the estate of Mba Ndukwe deceased by virtue of letters of administration granted to him on the 21st day of January, 1964.

2. The deceased, Mba Ndukwe died possessed of the premises No. 22B, Gunning Road, Abakaliki in Abakaliki Division and this premises forms part of the estate of the deceased the plaintiff is administering.
3. The plaintiff is entitled to the possession of No. 22B, Gunning Road, Abakaliki in Abakaliki Division hereinafter referred to as the premises.
4. After the death of the said Mba Ndukwe deceased the defendant wrongfully took and still keeps possession of the said premises.”

On the order of the High Court, pleadings were filed and duly delivered and the plaintiff/respondent in his Statement of Claim added a third claim for an order of injunction.

In pursuance of the facts pleaded, the plaintiff’s claims as set out in his Statement of Claim were for:

“(1) Possession of No. 22B, Gunning Road, Abakaliki;

(2) Mesne profits from the 1st day of April, 1970 until delivery of possession;

(3) An injunction restraining the defendant, his family/agents/tenants from further entry into the said property.”

The issues joined in the pleadings were tried and at the conclusion of the hearing of evidence and address, the learned trial Judge, Araka, J., granted the claim for possession and injunction but dismissed the claim for mesne profits, in a considered judgment, the concluding portion of which reads:

“The defendant has refused to countenance the letter sent to him by the resident (Exhibit C) to surrender the premises to him pursuant to Section 61 of the Administrator-General Law. He had earlier refused to pay over to Mr. Ekpunobi (6th witness for the plaintiff) the agent appointed by the Administrator-General the rents he had been collecting from the said property. The plaintiff is therefore entitled to an order of possession and injunction against the defendant.

As to the claim for mesne profits, it is strange that there was not a scintilla of evidence on which the court could make an order in favour of the plaintiff….I have no alternative, therefore, than to non-suit the plaintiff on the claim for mesne profits.

It is therefore adjudged that the plaintiff do recover against the defendant possession of the premises mentioned in the particulars of claim that is to say, the property situate at No. 22B, Gunning Road, Abakaliki.”

And it is further ordered that the defendant do give plaintiff possession of the said property on the 5th day of July, 1972.

There will be an order of injunction restraining the defendant, his family agents/tenants from further entry into the said property.” (Underlining ours)