MR. Boniface Chukwuneke & Ors V. Onyeka Gosife Akaraiwe & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an Appeal by the Appellants against the decision/Ruling of the High Court of Delta State (Akwukwu-Igbo Judicial Division) delivered on the 2nd day of November, 2012 Coram His Lordship, Honourable Justice H. O. Akpotohwo in Suit No. AKU/6/2007: Between Onyeka Gosife Akaraiwe & Anor Vs. Mr. Boniface Chukwuneke & 3 Ors.

The 1st’, 2nd Respondents had on the 8th day of May, 2007 commenced this action by Writ of Summons at the High Court of Delta State (Akwukwu-Igbo Judicial Division) under the old High Court Rules seeking for a declaration of title and an Order of injunction against the Appellants.

Thereon, the Appellants filed their joint Statement of Defence and Counter Claim on the 26th day of October, 2007. Consequently, on the 11th day of June, 2008, the 1st, 2nd Respondents filed a Reply to the Joint Statement of Defence of the Appellants and Defence to the said Counter Claim.

However, on the 12th day of April, 2011, the 1st, 2nd Respondents Claim was struck out for lack of diligent prosecution, and the trial Court called on the Appellants to prove their Counter Claim.

1

Thereon, the Appellants brought a Motion on Notice dated the 20th day of April, 2011 for leave to amend their Joint Statement of Defence and Counter Claim in line with the new High Court Rules. The Appellants Amended Joint Statement of Defence and Counter Claim dated the 20th day of April, 2011 and filed on the 29th day of April, 2011 was amended pursuant to Order of Court made on the 20th day of July, 2011. (Page 294 of the Record of Appeal).

In the said Amended Joint Statement of Defence and Counter Claim of the Appellants which appears at Pages 124 , 125 of the Record of Appeal, the Appellants claimed as follows:-

1. A declaration that the 1st Defendant is the one entitled to the statutory right of occupancy in respect of ALL THAT piece or parcel of land lying, being and situate at Anieluenonu Layout along old Asaba, Okpanam Road, Okpanam in Oshimili North Local Government Area of Delta State measuring 200ft x 200ft covered by certificate of occupancy No. DTSR 11957 registered as No. 45 page 45 in Volume CO.123 of the Lands Registry in the office at Asaba.

2

2. An Order setting aside the Deed of Conveyance purportedly executed between the Plaintiffs and the Obodogwugwu Community for being invalid, fraudulent and non-compliance with the requirement of a valid Deed of Conveyance.
3. An Order of perpetual injunction restraining the Plaintiffs, their agents, servants, privies or by whatsoever name called from encroaching or trespassing into the 1st Defendant’s land registered as No. 45 Page 45 in Volume CO.123 of the Lands Registry in the office at Asaba measuring 200ft x 200ft or 3700.701 Square Metres covered by Certificate of Occupancy No. DTSR 11957.
4. The sum of N2,000,000.00 (Two Million Naira) special and general damages for the trespass on the land of the 1st Defendant by the Plaintiffs and their agents.

On the 27th day of September, 2011, the Appellants in proof of their Counter Claim fielded Mr. James Ubabudike (2nd Appellant herein). The case was then adjourned to the 31st day of October, 2011 for cross examination by the 1st, 2nd Respondents. The trial Court also ordered that fresh hearing notice be issued and served on the 1st, 2nd Respondents Counsel, Bejamin Okoh, Esq.

3

Although hearing notice was served on the said 1st, 2nd Respondents Counsel, he did not show up in Court on the said 31st day of October, 2011. The 1st, 2nd Respondents were therefore foreclosed from cross examining the Appellants and their witnesses.

The 1st and 3rd Appellants (Mr. Boniface Chukwuneke and Mr. Ayana Ikezue) were also fielded by the Appellants in proof of their Counter Claim.

Subsequently, the 1st – 2nd Respondents whose Claim had initially been struck out by the trial Court on the 12th day of April, 2011 for lack of diligent prosecution brought a Motion dated the 22nd day of July, 2011 but filed on the 31st day of October, 2011 seeking an Order to relist their suit and to comply with the new High Court of Delta State (Civil Procedure) Rules, 2009. The said Motion was then fixed for hearing on the 5th day of December, 2011. However, on the said 5th day of December, 2011, Benjamin Okoh, Esq., Counsel for the 1st – 2nd Respondents, was not present in Court at the material time the case was called up to move same and the Motion was struck out by the trial Court. (Pages 283 – 284 of the Record of Appeal).