Patrick Goddy Ekwuno & Ors. V. Bosah Ekwuno (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the decision of D. O. C. Amaechina J. of the Anambra State High court, Onitsha Judicial Division, sitting at Onitsha delivered on Tuesday 19th February, 2008.

The Plaintiffs in their Amended Statement of Claim dated and filed on 20th April 2006 claimed the following reliefs thus;

“47. WHEREFOR the plaintiff claim against the Defendant as follows:-

(a) A declaration that the part/portion of the landed property shown verged Red and the building shown verged yellow within the said Red verge in the plaintiff’ survey Plan No. EZ/ANLD22/200 which land is situate at No.1 Umuikem Road, Onitsha within jurisdiction, is the Iba compound and Iba house respectively of the late Akunne Ekwuno.’

(b) A declaration that the succession thereto and therefore it occupation to wit, the said Iba under the native law and custom of Onitsha resides in or is vested only in the plaintiff who are potential heads of the family of the late Akunne Ekwuno as against the Defendant whose father predeceased the late Akunne Ekwuno.

(c) N5000.00 (five thousand naira) being general damages for trespass over the said Iba compound and Iba house.’

(d) Order of perpetual injunction restraining the Defendant whether by himself or his agents/privies howsoever named/described from continuing to occupy the said Iba house or building or the compound or in any manner or way interfering with the plaintiffs’ rights over the disputed property.”

The defendant filed his Statement of defence before the Plaintiffs’ Amended statement of claim was filed.

The Amended Statement of defence was filed nearly 3 years before the Amended Statement of Claim was filed.

The Defendant joined issues with the Plaintiffs in the said Amended Statement of defence dated 16/10/2003 but filed 4/11/2003

Both parties on 21/11/07 adopted and relied on their written addresses.

The lower court in a considered judgment dismissed the Plaintiffs’ case. The Plaintiffs dissatisfied with the said judgment appealed to this court vide their notice of Appeal containing seven grounds.

The Plaintiffs now Appellants before this court formulated three issues from the seven grounds of appeal and they are as follows:-