Dr Leonard Acholonu & Ors V. Kingsley Ohiri (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of Imo State High Court in Suit No. HOW/317/1996, delivered on 1/12/2011 by Hon. Justice N.B. Ukoha, wherein the trial Court dismissed the Application filed by Applicant to relist the Suit earlier struck out.

Appellants, as Claimants, had filed the Suit against the Defendant (now Respondent) on 5/10/96, seeking the following reliefs:

(1) Declaration that the Plaintiffs are entitled to statutory certificate of occupancy in respect of the piece and parcel of land and appurtenances, known as and called No. 36 Douglas Road, Owerri, in Owerri Local Government Area of Imo State of Nigeria, within jurisdiction.

(2) Perpetual injunction restraining the defendants, their agents, privies, workers and servants from entering, claiming ownership, making use of and collecting rents from the occupiers of the property. (page 2 of the Records of Appeal).

They filed statement of Claim on 4/11/99, wherein they repeated the above reliefs and added another for “An Order of Court that the purported sale of

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the said No. 36 Douglas Road, Owerri, by the 2nd and 3rd Defendants to the 1st Defendant, is null, void and of no effect.”

Pleadings were exchanged and hearing commenced before Justice Dureke (now retired). On 2/10/2009, the Suit was transferred to Hon. Justice N.B. Ukoha, to commence, de novo. With the introduction of the new High Court Civil Procedure Rules, parties filed their pre-trial forms and the matter was fixed for pre-trial on 4/10/10, 2/11/10 and later 17/11/10. But, according to Appellants, the Court did not sit on 2//11/10 and 17/11/10, and on the subsequent date – 15/12/10 – when the matter was adjourned. And on 12/1/2011, when the case was further adjourned for pre-trial the Suit was dismissed for non appearance of the Plaintiff or their Counsel.

On 12/4/11, Appellant’s Counsel, F.O. Emereuwaonu Esq, filed a motion seeking the following orders:

(i) Extension of time to set aside the Order dismissing Suit No. HOW/317/1996 (Dr. Leonared Archolonu & 2 Ors Vs B.S. Ohiri), for ten (10) working days;

(ii) Setting aside the Order dismissing Suit No. HOW/317/96. . .

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(iii) Order permitting the Plaintiffs/Applicants to re-tender documents tendered before the former Court