Mrs. Paulina Asika & Ors V. Charles Chukwuma Atuanya (2013)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division, hereinafter called the Court below, delivered on the 24th day of January, 2008 on the judgment of the High Court of Onitsha, hereinafter referred to as the trial Court, earlier given on the 15th December, 2005.

The appellants herein who had commenced an action as plaintiffs by a writ of summons sometime in May, 2003 subsequently followed it up with a statement of claim filed on 6th February, 2004. They had claimed against the defendant, hereinafter referred to as respondent in paragraph 27 as follows:

(a) A declaration that under the Will of Michael Amanchukwu Atuanya (deceased) the plaintiffs inclusive of the Estate of Late Michael Nwabufo Atuanya (represented by his Executors, Victor Olisa Oranye and Nnabuenyi Edmund I. B. Asika) and Fidelis Atuanya (represented by the defendant) are the beneficiaries in equal shares of the property No.25 New American Road, Onitsha.

(b) An order directing the partitioning of No.25 New American Road, Onitsha into six nearly equal parts, as shown in Survey Plan No.PA/AN/D002/2004 attached to this statement of claim as portions “A”, “B”, “C”, “D”, E”, and “F” respectively, and for the beneficiaries aforesaid to make their choices in the following manner:

(i) The 1st Plaintiff

(ii) The 2nd plaintiff

(iii) The 3rd Plaintiff

(iv) The 4th plaintiff

(v) Estate of Late Michael Nwabufo Atuanya (represented by his Executors, Victor Olisa Oranya and Nnabuenyi Edmund I. B. Asika)

(vi) The defendant (representing the estate of Late Fidelis Atuanya)

(c) An order compelling the beneficiaries aforementioned to make their choices as to which portions they want as per prayer (b) above.

(d) An order directing that a document indicating the various choices as per prayers (b) and (c) and signed by the parties, be filed in court and that it should form a part of the judgment in this suit.

(e) Perpetual injunction restraining the plaintiffs, the defendant and the Estate of Late Michael Nwabufo Atuanya, their agents, privies, assigns and workmen or anyone whomsoever acting on their behalf from in any way or manner whatsoever trespassing into, or attempting to trespass into each other’s respective choices as indicated in the document filed as Per Prayer “d”.