Linus Nwajagu & Ors V. Francis Okoli & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

By a writ of summons dated 12-10- 10 and filed same day, the respondents herein, as plaintiffs commenced suit No. AG/89/2000 in the High Court of Anambra State at Aguata against the appellants herein as defendants jointly and severally for:

a. A declaration of court that the plaintiffs are the owners of all the piece or parcel of land known as and called Okpulo Ndikpa situate at Ndikpa village Umunze.

b. An order of court setting aside and nullifying any purported sale (s) of the plaintiffs land to the 4th and 5th defendants by the 1st, 2nd and 3rd defendants as same was void ab initio.

c. N100,000.00 (One Hundred Million Naira) being special and general damages for trespass, the special damages having been pleaded in paragraph 23 of the statement of claim.

d. An order of perpetual injunction restraining the defendants, their agents, privies, heirs, successors and workmen from further trespass into the plaintiffs’ land without the consent and authority of the plaintiffs first had and obtained.

The respondents filed alongside the writ of summons a statement of claim of 28 paragraphs, list of witnesses, written statement on oath of 30 paragraphs of Clement Okoli and a 13 paragraph statement on oath of Richard Eke. The appellants were duly served with the processes. Appellants did not file their defence but on 11/10/2011 filed Terms of Settlement. The respondents on 28-10-2011 filed a motion for summary judgment under order 11 Rule 1 of Anambra State High Court Rules.

On 14-11-2011 when the trial court sat for the first time since the institution of the suit, the respondents’ counsel informed the court that the respondents had two motions. Counsel withdrew his motion for interlocutory injunction and went ahead to move the motion for summary judgment and the court adjourned for ruling to 6/12/2011. The appellants then filed a motion for extension of time to file their statement of defence, frontloaded all their processes and sought for an order to deem all as properly filed and served the appropriate fees having been paid.

The respondents filed a counter-affidavit of 7 paragraphs in opposition to the appellants motion for extension of time. The trial court however did not hear the appellants motion but heard only the motion for judgment and entered judgment in favour of the respondents on 6-12-2011 in the following terms:

(1) The Plaintiffs are the owners of all the piece or parcel of land known as and called “Okpulo Ndikpa” situate at Ndikpa village Umunze.

(2) Any purported sales of the said land to the 4th and 5th defendants by the 1st, 2nd and 3rd defendants is hereby declared null and void and set aside accordingly.

(3) General damages of N10 million naira is awarded to the plaintiff for the trespass by the Defendants.

(4) The Defendants are hereby restrained, either by themselves, their agents, privies, heirs, successors and workmen from further trespass into the said land without the consent and authority of the plaintiff first had and obtained.

See pages 284 – 285 of the record.