MR. Joseph Chukwuemeka Mosindi & Ors V. MR Ifeanyi Achusi & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of Honourable Justice O. A. Otisi (now JCA) of the High Court of Justice Abia State delivered on 8th day of March, 2011 dismissing the Suit of the Appellants.

The Appellants had by their writ of summons issued out of the said Court on 24th day of October, 2008 claimed against the Defendants as follows:

CLAIM

The Plaintiffs Claim against the Defendant: –

“1. A DECLARATION that all that parcel of land/bungalow House therein situate at No. 40 St. Michael’s Road, Aba, Abia State, otherwise known as CHIBUZO CHAMBERS, is the bona-fide property of the Plaintiffs, bequeathed to them by their late father, PA ROBERT EMENEM MOSINDI of HOPE Rising Villa, Umuolo Street, Onicha-Ugbo, Aniocha North L.G.A. Delta State, who died Testate on 16/11/1964 at Ocha-Ugbo and who in his WILL of 1/11/1960 instructed inter alia, that the said free-hold house be sold and the proceeds accruing therefrom to be shared amongst the Plaintiffs (the surviving beneficiaries named therein in the WILL to the exclusion of late Mr. peter Mosindi and his heirs).

2. AN ORDER of perpetual injunction restraining the Defendant by himself, his agents, servants, workmen, privies or otherwise howsoever so described from unlawfully dealing with/defacing the bungalow house No. 40 St. Michaels Road, Aba, Abia State, and from further committing acts of trespass on the said land or dealing with the property in any manner inconsistent with the ownership rights of the Plaintiffs (the beneficiaries)
3. AND ANY OTHER ORDER or ORDERS that this Honourable Court may deem fit to make in the circumstances of this case.”

The writ was accompanied by statement of claim which was later amended. The Amended Statement of Claim was filed on 10th day of May, 2010 but dated the 6th day of May, 2010.

“The Appellants added two reliefs to their claim viz:

3. N50,000,000.00 (Fifty Million Naira) as general damages for wanton trespass on the land by the Defendants.
4. AN ORDER that the 3rd Defendant should give account to Claimants for all rents that he has collected and payment over any rents, found due on the taking of the said account”

Before then and precisely on 20th February 2009 the 1st Defendant filed his Statement of Defence wherein by paragraph 28 he pleaded as follows: –

28. “The Defendant shall at the hearing of this suit urge the Honourable Court to dismiss this suit as being frivolous and speculative and shall raise all legal and equitable defences in urging the court to dismiss the suit. The Defendant shall also contend as follows:

a. That proper parties are not before the Court.

b. The Plaintiff have no locus standi to maintain the action.

c. That the Suit is statute barred especially by virtue of the provisions of Section 17 of the Limitation Law of Abia State 1999.”

This was followed up by the Respondents in a motion on Notice dated 10th day of November, 2010 and filed on 26th day of November, 2010 praying for the following Order: –

“AN ORDER dismissing the above Suit as the Honourable Court lacks jurisdiction to entertain same and/or for being incompetent.”