Dunu Merchants Limited V. Anthony Nnaji Obanye & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Anambra State High Court of Justice, holden at Onitsha, dated 12th May, 2008.

Anthony Nnaji Obanye (For himself and as representing members of the Mgbelekeke Family, Onitsha) had sued the appellant along with some other defendants, with respect to a land in dispute which is described as being part and parcel of the larger Ose Okwodu (or Otu Okwodu) land of the plaintiffs and situate at Onitsha.

The Claim against the appellant particularly is that the appellant as the 4th defendant acting with the 5th defendant on or about the 21st October, 1998; purporting to be acting under a management contract dated 4/12/97 between them and the 1st – 3rd defendants “broke and entered on the plaintiffs land now in dispute with the active assistance of armed policemen and drove away plaintiffs’ tenants and have since assumed possession by injecting thugs and tenants thereon and collecting rents and fees.” Hence, the reliefs claimed by the plaintiff/respondent against the defendants jointly and severally included

“(a) Special damages at the rate of N800,000.00 per month from the 21st day of October, 1998 till they vacate the land in dispute, being plaintiffs’ loss of earning as aforesaid.

(b) N10,000.00 (Ten Million Naira) general damages for trespass.

(c) An order of perpetual injunction restraining all the defendants by themselves, their servants, agents, privies jointly or severally or in any union from committing further acts of trespass on the land in dispute in this case or howsoever interfering with the plaintiffs’ use of or rights over the aforesaid land.”

The Claim was filed on 9th Dec., 1999. The 4th defendant (now appellant herein) in an amended statement of defence dated 1st February, 2007 but deemed filed on 1st November, 2007 by the court below, averred at paragraph 7 thereof, that her “contract dated 4-12-97 with members of obi Anazonwu’s family of Ogbeoze Village, Onitsha (her principal) as regards the management of the subject matter of this suit in their stead is no longer subsisting as same has been withdrawn/terminated on the 20th day of October, 2006.” So, at paragraph 11 of the aforesaid amended statement of defence, the appellant (4th defendant) averred, to wit:

“11. The 4th defendant shall at the trial challenge the jurisdiction of the Honourable Court to entertain this suit against her as the plaintiffs have no reasonable cause of action against her.”

In an application made pursuant to order 39 Rule 1 (1) & (2); order 15 Rule 18 (1) (a) of the Anambra State High Court (Civil Procedure Rules and also under the inherent jurisdiction of the Honourable Court, the 4th defendant (appellant herein) prayed for:

“(i) AN ORDER striking out the 4th defendant as a party to this suit.

(ii) AN ORDER striking out this suit in its entirety or alternatively an order dismissing same.

(iii) Upon the grant of prayers (I) and (II) an order setting down the counter claim in the 4th defendant’s statement of defence for hearing.

(iv) AND FOR SUCH FURTHER ORDER(S) as the Honourabte Court may deem fit to make in the circumstances of this suit.