Mrs. Chinyere Asika & Anor. V. Mr. Henry N. Onyedike (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

This appeal is against the judgment of the High Court of Justice, Onitsha Judicial Division, Anambra State delivered by Hon. Justice D.O.C. Amaechina on the 19th December 2006 in Suit No. O/274/2006 – (Henry Onyedike Vs Chinyere Asika & Anor) wherein the plaintiff’s claim was granted as follows:-

1. A Declaration that the plaintiff is the person entitled to the Statutory Right of Occupancy over Plot ‘C’ V.I.P. Rest-House Layout, Onitsha being the bonafide and Rightful holder and lessee of the said piece or parcel of land known as Plot ‘C’ V.I.P. REST-HOUSE LAYOUT, ONITSHA (Commonly known as and located at Niger Drive, G.R.A., Onitsha) with a Building Lease from the Anambra State Government dated 6th February, 1978 and Registered as No. 4 at page 4 in Volume 1016 of the Lands Registry in the office at Awka.
2. An order commanding or directing the defendants to vacate the said plaintiff s land known as Plot ‘C’ V.I.P. Rest-House Layout, G.R.A., Onitsha forthwith.
3. Perpetual Injunction restraining the defendants by themselves, their agents, servants or privies from further trespass into the said Plot “C’ V.I.P. REST-House Layout, Onitsha.
4. The defendants shall pay costs to the plaintiff assessed and fixed at N20,000, (Twenty Thousand Naira).

The Respondent in this appeal had as plaintiff commenced Suit No. O/27412005 (HENRY N. ONYEDIKE VS MRS CHINYERE ASIKA & ANOR) at the Onitsha Division of the High Court of Justice, Anambra State on the 18th day of June 2005 wherein he sought the following reliefs:

(a) A Declaration that the plaintiff is the person entitled to the Statutory Right of Occupancy being the Bonafide and rightful holder and lessee of the piece and parcel of land known as Plot ‘C’ V.I.P. Layout, Onitsha (commonly known as and located at Niger Drive, G.R.A., Onitsha) with a building lease from the Anambra State Government Registered as No. 4 at page 4 in Volume 1016 of the Lands Registry in the office at Awka.

(b) An Order of the Honourable court commanding the defendant to vacate and remove their said wall/fence from the said plot ‘C’ V.I.P. REST-House Layout, Onitsha forthwith.

(c) N5000,000 damages for trespass.

(d) Perpetual injunction restraining the defendants, their agents servants or privies from further trespass into the said Plot ‘C’ V.I.P. Rest-House Layout, Onitsha”.

Pleadings were subsequently filed and exchanged and with the leave of court, the parties also amended their pleadings. Hearing in the Suit formally commenced on the 16-2-2006 during which the parties testified and also called witnesses in proof of their cases.

A summary of the plaintiff s (now Respondent) case is that he was the allotee of the parcel of land known as PLOT ‘C’ V.I.P. Rest-House Layout, Onitsha, with a Building lease from the Anambra State Government Registered as N0. 4, at page 4 in Volume 1016 of the Land Registry in the office at Enugu now Awka. The said allocation was published in the Anambra State official gazette N0. 23 of 4th August 1977. The Plot ‘C’ was part of Plot ‘R’ which allocation was revoked by the Anambra State Government Vide Edict N0. 5 of 1976 and was subsequently divided into Plots, A, B, C, and ‘D’. Plots A, B, and C were in 1977 allocated to Right Reverend Jonathan Onyemelukwe; Reverend Herbert Oboli and the Respondent respectively while Plot ‘D’ which had an existing building on it was left for Chief Ukpabi Asika the original occupier of Plot ‘R’. The Respondent started the erection of a building on his own Plot ‘C’ and was at the foundation stage when Chief Ukpabi Asika trespassed into the land and commenced erection of a wall fence encompassing both Plot ‘”C” and Plot “D”. All protestations and pleas to Chief Ukpabi Asika and/the 1st defendant to remove the fence did not receive any positive response and after recovering from a protracted illness, he instituted the action.

At the conclusion of hearing, the High Court, of Anambra State, Onitsha Division. Hereafter referred to as the (lower court) gave judgment in favour of the Respondent. The defendants (now the Appellants) being aggrieved by the decision against them filed a Notice of Appeal on 20-12-2006. The said Notice has Six grounds of appeal which shorn of their particulars reads as follows:-

GROUND I- ERROR IN LAW

The learned trial judge surprisingly erred in law and occasioned miscarriage of justice when he did not dismiss or strike out the Suit on the ground that the Respondent’s claim were statute Barred.

GROUND II – ERROR IN LAW

The learned trial Judge surprisingly erred in law and occasioned a gross miscarriage of justice when he failed to hold that the Respondent’s case was caught by the mandatory provisions of Decree N0. 13 of 1984 being an action challenging an act which was done or purported to be done pursuant to Decree N0. 24 of 1993.