F. Ejike Ume V. Grace Mgbachi & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the interlocutory Ruling of Amaizu J. sitting at the Onitsha Judicial Division of the High Court of Anambra State delivered on 16th day of February, 1996.

The Respondents as Plaintiffs in the court below commenced this action against the Defendant/Appellant by a writ of summons dated 1/12/91 and filed on 20/12/91.

By paragraph 24 of the Plaintiffs/Respondents statement of claim dated 26/4/95, the Respondents claimed against the Appellant as follows:

“(a) A declaration that the Plaintiffs are the persons entitled to occupy, hold and use the said land registered as No. 75 at page 75 in volume 196 as described herein and more clearly delineated pink in the Plaintiff’s survey Plan NO. CEG/AN/LSO1/95 as 22/3/95 filed with their statement of claim.

Or In The Alternative

A declaration that the Plaintiffs are entitled to be granted the statutory right of occupancy of the said land in dispute as described in this paragraph 13(a) above.

(b) Perpetual Injunction restraining the defendants, his servants and agents from claiming the said land as his or unlawfully entering and committing any acts of trespass therein.

From the limited facts that could be gathered from the record of appeal, it would appear that the Defendant/Appellant applied to the court on the 19th day of July, 1995, and the court granted the prayer by striking out the Plaintiffs/Respondents suit under the provision of Order 9 Rule 42(1) of the Anambra State High Court Rules 1988.

By a Motion on Notice dated 27/7/1995, the Plaintiffs/Respondents brought an application praying the court (i) setting aside the order/orders whereby:

(a) The motion dated 26/4/95 and filed on this suit on the 12/7/95 with the Honourable Court.

And

(b) The substantive Suit No. 0/491/91 were respectively “struck out” on the 19/7/95 by the Honourable Court”.

On 11/12/95, before the Plaintiffs/Respondents application of 27/7/95 was moved, the Defendant/Appellant raised a preliminary objection and argued that the court lacked the jurisdiction to entertain the Plaintiffs/Respondent application of 27/7/95, that the application is incompetent and has been brought outside the time limit within which the court has powers to vary or reverse its order under the provisions of Order 9 Rule 42(3) of the Anambra State (High Court Civil Procedure) Rules 1988.