Nze Edwin Abazie V.reginald Nwachukwu & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision/ruling of O. ZIK IKEOROHA. J. delivered on 24th day of October, 2007. The Respondent as plaintiff before the lower court issued a Writ of Summons dated 12/5/2005 and claimed against the Defendant/Appellant as follows:

“1. The sum of Ten Million Naira as General Damage for wrongful detention of land documents of members of the said union since 1997 despite repeated demands.

2. Order of the court compelling the Defendant to surrender the said documents to the plaintiffs as representatives of members of Umunumuo Amairi Progressive Union, Aba duly elected as Chairman and Secretary respectively of the said Union.
3. ………………….”

Pursuant to order of court on 15th day of June, 2006, the Respondent filed an Amended statement of claim dated 22/6/2006 in which the reliefs contained in the Writ of Summons were repeated in paragraph 14 of the said Amended Statement of Claim.

The Appellant entered appearance to the claim and from the record filed an Amended Statement of Defence on 13th July, 2006.

In paragraph 18 of the said Amended Statement of Defence, the Appellant averred that he shall contend at the hearing that:

(a) That the plaintiffs are not entitled to the relieves (sic) reliefs sought in this suit at all or any relief at all.

(b) That the suit of the plaintiffs is spurious and a calculated gold-digging expedition.

(c) Urge the court to dismiss the same with punitive cost for being incompetent, improperly constituted, statute barred and a gross abuse of process of this Honourable court.

Consequent upon and/or as a follow up to the above, the Appellant filed a Notice of Preliminary objection to the Respondent suit on the ground:

“(i) The purported Writ of Summons initiating Suit No. A/199/2005 is incompetent, improperly constituted and a gross abuse of the process of court.

(ii) The claims/reliefs as contained in the purported Writ of Summons as well as the Amended Statement of Claim in this Suit are statute barred and thereby robbing this Honourable Court of its jurisdiction to entertain the same.

FURTHER TAKE NOTICE that the Defendant/Applicant shall at the hearing of this objection rely on the purported Writ of Summons, the Amended Statement of Claim and Amended Statement of Defence in this Suit.”

Before the lower court, the parties filed written Addresses to this application and in a considered ruling delivered on 24th October, 2007 the learned trial judge overruled and dismissed the Appellant’s preliminary objection. Dissatisfied, the Appellant filed a Notice of Appeal containing three(3) Grounds of Appeal before this court on 6/11/2007.