Jude Ogbonna V. Aghaegbunam Ezewuzie (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the decision of the Delta State High Court of Justice, holden at Owa-Oyibu, which was delivered on 29th July, 2011.

The respondent had on 5th February, 2011 taken out a writ of summons against the appellant and claimed, to wit:

“a. A declaration that the claimant is a principal member of late Chief R.N.T Ezewuzie’s family.

b. A declaration that the landed property situate at 226 old Lagos/Asaba Road, Agbor is the family property of the male children of Late Chief R.N.T. Ezewuzie.

c. A declaration that the purported sale of the said property to the defendant without the consent of the claimant is illegal, null and void.

d. An order setting aside the purported sale of the property to the defendant.

e. an order of perpetual injunction restraining the defendant, agents, servants, privies from entering or interfering with the said property.”

The respondent filed his statement of claim contemporaneously with his written Deposition/Statement on oath that is frontloading of evidence. The appellant on receipt of the aforementioned processes did not file a statement of defence. Nevertheless, he filed a Notice of Preliminary objection, pursuant to the Inherent Jurisdiction of the court and section 6(6) (a) of the 1999 constitution; praying “for an Order to dismiss or strike out the application as presently constituted as same is incompetent”.

The grounds upon which the objection was hinged were, inter alia:

“(1) That the suit is incompetent and the court has no jurisdiction to entertain the matter and/or grant the reliefs sought as the core Defendant, to wit: proper parties are not before the court,

(2) That the claimant did not comply with the Civil Procedure Rules (sic) Delta State 2009 in that there was no Written Statement on oath of the claimant.

(3) That the Writ of Summons is incompetent to wit: there is no cause of action (b) effluxion of time.”

There was no affidavit filed in support of the Preliminary objection. However, there is a written address filed in support thereof.