Kalu Nduka Agbai V. Ajandu Kalu Ukpabi & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against part of the judgment of A. O. Onovo, J. delivered at the Enugu Judicial Division of the High court of Enugu State delivered on 7th day of October, 2005.

The Respondents as Plaintiffs commenced this action at the High court of Enugu State by a writ of summons dated 18/9/1998.

On 18/11/98, the Respondents filed a joint statement of claim in which they sought in paragraph 10 thereof:

“(a) A declaration that the piece/parcel of land situate and lying at No. 16 Umunevo Street, Ogui New Layout, Enugu together with the buildings thereon was the bonafide property of the late Joseph Kalu Ukpabi until it was sold and conveyed to the 3rd Plaintiff by the 1st and 2nd Plaintiffs as personal representatives of their late father.

(b) A declaration that only the children of the late Joseph Kalu Ukpabi are the proper beneficiaries of his estate.

(c) A declaration that the defendant’s claim against the estate of the late Joseph Kalu Ukpabi is not only baseless and borne out of greed but also is insupportable (unsupportable) as being repugnant to natural justice, equity and good conscience.

(d) A declaration that the 1st and 2nd Plaintiff as children and personal representatives of the late Joseph Kalu Ukpabi have the legal right to sell and convey the said property to the 3rd Plaintiff in the course of their administration of their late father’s estate.

(e) A declaration that by the said sale and conveyance as aforesaid the 3rd Plaintiff has acquired proper title to the said property as its present owner.

(f) An order for the defendant to account to the Plaintiff for all rents and profits received by the defendant in respect of the said property.

(g) Possession of the said land and premises by the 3rd Plaintiff. (h) Perpetual injunction restraining the defendant whether by himself, his agents, servants, or privies or otherwise howsoever from remaining on or continuing in occupation of the said property or any Part thereon.

(i) Payment to the Plaintiffs as appropriate of the sums found due, upon the taking of the said account”.

Upon service on him of the statement of claim, the defendant/appellant on 16/12/98 filed his statement of defence in which he pleaded that the Plaintiff Respondents are not entitled to any of the reliefs claimed. The Plaintiffs Respondents filed a 19 Paragraph reply to the statement of defence on 4/2/99.

The above three documents, namely, the statement of claim, statement of defence and the reply constitute the pleadings of the parties.