Mrs. Rose Muofunanya V. Olisa Nwadiogbu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the leading Judgment)

This is an appeal against the interim judgment of the High Court of Anambra State holden at Onitsha delivered on the 7th day of November 2000 by late Honourable Justice Ernest Egbuna in Suit No. 0/37/98.

The plaintiff at the lower court, (now respondent in this appeal) by a writ of summons dated 2nd February, 1998 instituted the instant suit against the defendant (now appellant in this appeal). In his 13 paragraph Statement of Claim dated 14/6/99 and filed on 15/6/99, the plaintiff/respondent claimed against the defendant/appellant as follows:

“Perpetual Injunction restraining the defendant whether by himself or through his agents or privies or in any manner whatsoever from entering or remaining or trespassing on the land in dispute.

(ii) N2,000,000.00 (Two Million Naira) damages for trespass.

A Motion on Notice pursuant to Order 9 rule 42 (2) H.C.R. 1988 was brought under the inherent jurisdiction of the court by the plaintiff on 2/5/2000 praying the court for an order:-

“(a) entering judgment for the plaintiff in respect of his claim No. 13 (1) of the statement of claim on the face of that establishment of claim.

(b) setting the suit down for hearing on the plaintiff’s statement of claim to determine his entitlement to claim No. 13 (ii) of the statement of claim;

Following the default of the defendant in filing his statement of defence as ordered by the court and for such other order(s) as the court may deem fit to make in the circumstances. The motion is supported by 10 paragraph affidavit.

On 28/5/2000, the learned trial Judge in his judgment ordered that the defendant be restrained whether by himself or through his agents and privies or in any manner whatever from entering or trespassing on the land in dispute in this suit as set down on the plaintiff’s Plan No. AA/D22/99 dated 12/6/99 upon award of N400.00 in favour of the plaintiff. The learned trial Judge further adjourned the matter to 28/2/2001 for hearing of the plaintiff’s 2nd arm of the claim.

The defendant/appellant on 6/12/2000 filed 17 paragraph Statement of Defence and counter claim wherefore, he sought the following reliefs from the court:

“(i) A declaration that the defendant is the person legally entitled to a statutory right of occupancy in respect of the land delineated and verged Brown in Plan No. AC/LD/5/2000

(ii) PERPETUAL INJUNCTION restraining the plaintiff whether by himself or through his agents and or privies or in any manner whatsoever from entering or remaining or trespassing on the land in dispute.

(iii) N2,000,000.00 (Two Million Naira) damages for trespass.