Linus N. Nwaigwe & Ors V. Sidney Anyanwu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

Appellants filed this appeal against the judgment of Imo State High Court, in Suit No. HOW/201/98, delivered on 12/12/2008 by Hon. Justice C. I. Durueke, whereof the trial Court entered judgment for the Plaintiff (Respondent) and dismissed the Counter-claim of the Defendants (now Appellants). Appellants had obtained the order of this Court on 30/1/13 to appeal, by way of extension of time to do so.

The claims at the Lower Court, as per the writ of summons filed on 7/9/1998 and the Amended statement of claim of 14/2/2006, were for:

i) A declaration that the plaintiff is entitled to the statutory Right of occupancy over and in respect of the properties known as and called plots 255 and 256 Ikenegbu Layout Extension Owerri, Imo State.

ii) Perpetual injunction restraining the defendants jointly and severally from acts of trespass into the said plots or parcel of land.

“A brief facts of the case at the Lower Court shows that Appellants (as Defendants) were not keen at filing their defence. They filed memorandom of appearance on 20/1/04. In March 2004, they were

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granted 21 days extension of time to file their defence, which they failed to do see pages 69 and 73 of the Records. When the Plaintiff filed a motion for judgment, the Defendants (Appellants) then brought another application in 2005 to file their defence and a deeming order, which was granted and the defence deemed duly filed. See page 89 of the Records.

In the statement of defence, Appellants raised a counter claim, as follows:

Wherefore: The 3 defendants claim the sum, of N1,000,000.00 (One Million Naira) being special and General Damages for trespass.

Particulars:

(a) Cost of building the fence destroyed by the Plaintiff is N300,000.00

(b) General Damages is N700,000.00

(See page 87 of the Records of Appeal)