Jannasons Company Limited V. Paul N. Uzor & Ors (1991)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The main question for determination in this interlocutory appeal is whether the Court of Appeal was right in its decision, that the order made by Aneke, J. in suit No. 0/178/85 on 30th October, 1986, appointing a receiver was, in the circumstances of the case, erroneously made.

In the substantive suit, the appellant herein, as plaintiff, originally sued the 1st to 3rd respondents. The other defendants on record were later joined as parties by the court’s order made pursuant to an application brought on their behalf.

In the substantive suit, the appellant’s amended writ of summons reads as follows:AMENDED CLAIM

1. The plaintiff is, and was at all times material to this action, the owner in possession of the parcel of land situate at the Onitsha-Owerri Road, Onitsha, and verged pink in the Plan No. SE/AN 13/78.
2. On the 19th day of May, 1982, the 2nd and 3rd defendants in the company of others unknown to the plaintiff broke and entered the above-mentioned parcel of land and when Joseph Azubuko Nnadike, the Managing Director of the plaintiff company, challenged them they threatened to kill him and warned him to ensure that the plaintiff company quit from the said parcel of (land).
3. Despite series of attempts to get the 2nd and 3rd defendants and their collaborators to see reason and to leave the plaintiff’s land alone, the 2nd and 3rd defendants persisted in their threats to the Managing Director of the plaintiff company and maintained that they were going to sell off the plaintiff’s said parcel of land.
4. On the 23rd day of June, 1983, the defendants acting in concert, broke and entered the plaintiff’s said parcel of land and started to dig the foundation of a building on the said land.
5. The plaintiff reported the acts of trespass to the Nigeria Police and despite the fact that the Nigeria Police was investigating the plaintiff’s complaint, the defendants continued day and night to build on the said parcel of land.
6. The defendants intend, unless restrained by an Order of the Court, to continue with their acts of trespass on the plaintiff’s said parcel of land.
7. The plaintiff therefore claims against the defendants jointly and severally for trespass.

(a) N100,000.00 damages for trespass.

(b) An Order of injunction restraining the defendants, their servants and agents and any person claiming through them from entering or remaining on the plaintiff’s said parcel of land verged pink in the Plan No. SE/AN.13/78, or from doing anything thereon or from in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession of the said parcel of land.”

Pleadings were ordered, filed and exchanged. Subsequently the appellant brought a motion on notice “praying the Court for an Order of the Court appointing a Receiver to manage and control the building on the land in dispute and to collect all the rents and profits from the said premises pending the determination of the above case and for such further order or orders as to this Honourable Court may seem just.”

The facts in support of the application on which the order appointing a Receiver was based can be found in the affidavit sworn to by a Mr. Joseph Azubuko Nnadike who claimed to be Chairman and Managing Director of theappellant. The relevant paragraphs of the said affidavit are:-

“4. That the plaintiff-applicant is the owner in possession of the parcel of land which is the subject-matter of this suit.

5. That the plaintiff-applicant acquired the land in dispute in February, 1978, under Onitsha Native Law and Custom from John Chike Agusiobo, the head of John Tiger Oranefo Agusiobo’s family.
6. That the plaintiff-applicant immediately went into possession of the said land and jointly with me built concrete walls round its land as well as my own personal land and installed an iron gate at the entrance of the premises.
7. That on the 19th day of May, 1982, the 2nd and 3rd defendants-respondents and their hirelings broke and entered the land and destroyed the front wall and carried away the iron gate.
8. That on the 23rd day of June, 1983, the defendants-respondents again broke and entered the plaintiff-applicant’s land and started digging foundation of a building.
9. That despite my protests and the investigation by the Nigeria Police to whom I lodged complaints on the matter the defendants-respondents continued night and day to build on the plaintiff-applicant’s said land.
10. That even after the institution of the above suit the defendants-respondents persisted in the erection of the said building.
11. That the said building is now almost completed and the defendants-respondents are arranging to let it to tenants.
12. That the plaintiff-applicant had already filed its statement of claim and plans in the above case and the facts contained therein are true.
13. That at the hearing of this application the plaintiff-applicant will rely on its statement of claim and plans which are hereby specifically referred to as Exhibits.
14. That the rents the defendants-respondents will collect from the building on the plaintiff-applicant’s said land will be lost to the plaintiff-applicant unless a Receiver is appointed to collect same.
15. That any tenants put in the said building will be in danger of being compelled to pay over again any rents they might have paid to any person other than the plaintiff-applicant.
16. That the firm of Akporiaye, Ezukanma & Co. of 93, Upper New Market Road, Onitsha, are reputable estate Manager and are willing to serve as Receivers in respect of the said building.”

There was a counter affidavit sworn to by the 7th defendant/respondent-Chukwuebuka Efobi on behalf of the other defendants, and the counter affidavit reads as follows:-

“I CHUKWUEBUKA EFOBI, Male, Christian, Nigerian citizen, Businessman of Plot 44 Omagba Phase II Obosi doth make oath and says as follows:-

(1) That I am the 7th defendant/respondent in this application.

(2) That I make this affidavit with the knowledge, consent and authority of the other defendants/respondents.

(3) That paragraphs 4,5,6,7,8,9,10 of the affidavit of Jonnasons Company Limited in support of this application are false.