Mr. Oblechor Lifu Agu & Ors. V. Hon. Joseph Idu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

Hon. Joseph Idu was the plaintiff before the High Court of Justice of Cross River State holden at Ogoja Judicial Division. The Defendants were (1) Mr. Oblechor Lifu Agu (2) Mr. Eje Lifu (3) Mr. Sunday Ogbeche. They were sued “As for themselves and on behalf of Lifu Agu family of Olachon Okpama, Yala Local Government Area” on 17th November, 2005. The subject-matter in dispute is described at paragraph 3 of the statement of claim filed on 17th November, 2005 thus:

“(3). The plaintiff is the owner of the building plot with a twin three bedrooms bungalow thereon lying and situate at Ochochi – Okpoma, more particularly situate opposite General Hospital Okpoma and situate by Okpoma/Okuku High way, Okpoma, Yala Local Government Area, Cross River State.”

In paragraph 3 of the Joint statement of defence filed on 2nd February, 2006 the defendants pleaded thus:

“3. The defendants denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 (all subparagraphs of the statement of claim and will at the trial of this action put the plaintiff to the strict test proof of the averments contained. And instead states as follows…”

The defendants counter-claimed the subject matter in dispute. This prompted the plaintiff to file a Reply and Defence to the Counter-claim on 11th September, 2007. The plaintiff testified as PW1 and called PW2-PW4. The defendants gave evidence as DW1-DW4. Learned Counsel submitted written addresses. The learned trial Judge considered the evidence and addresses. On the 9th day of November, 2009 the learned trial Judge entered judgment in favour of the plaintiff and made the following orders:

“I order as follows:

(1) I declare the plaintiff the owner of the property in dispute.

(2) I declare that the unlawful interference in whatever way by the defendants, their agents, privies, workers and assigns with the plaintiff’s property amounts to trespass.

(3) An order of perpetual injunction hereby issues under my seal and hand restraining the Defendants and whosoever or whatever from entering and or interfering with the plaintiff’s enjoyment of the said property.

(4) Counter claim dismissed.

This is my judgment.”

The Notice of Appeal with four grounds was filed on 24th March, 2010. Appellant’s Brief of Argument was filed on 31st August, 2010. The Respondent brought an application on 3rd April, 2012 praying for extension of time to file brief out of time and to raise a preliminary objection to the hearing of the appeal. The application was granted. The brief was deemed properly filed on 25th April, 2012. The appellant filed a Reply Brief to the preliminary objection on 14tn May, 2012. When the appeal came up for hearing on 3rd December, 2012 learned Counsel adopted their respective briefs of argument.

Learned Counsel to the Respondent argued the preliminary objection couched as follows: