Uwakwe Vs Odogwu (1989)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

The proceedings leading to this interlocutory appeal originated in the Onitsha Judicial Division of the High Court of Anambra State. In that court the appellants herein, as plaintiffs instituted an action in Suit No.0/110/80 against the first set of respondents only claiming as follows:-

“(1) Declaration that the plaintiffs are entitled to a statutory right of occupancy to all that land known and called Ani Nwaokwe.

(2) N40,000.00 general damages.

(3) Perpetual Injunction etc.”

Pleadings were ordered and exchanged. However, as can be gathered from the record of the trial court, on 30th July, ]984, the appellants filed an ex parte motion under Ord.54 1.2 High Court Rules before Justice F.O. Nwokedi (retired) praying the court:

“…..for an order granting (them) leave to seek and use police protection in pursuit of its rights of quiet possession over that piece or parcel of land known as and called” Ani Nwokwo” which is contained in the sketch plan showing the land of Inosi Onira family of Ogbeabu in case No. 168 of 1920 Agba Egwuatu v Gbasuzo Onowu and for such further order/and other orders…”

On the 10th day of January, 1985, their prayer was granted, and consequently the appellants, assisted by the police, moved into the land in dispute demolishing the structures thereon. Subsequently the second set of defendants who claimed to be the landlords and occupiers of the land in dispute applied to the court to discharge the ex parte order of 10th January, 1985 and allow them to be joined as co-defendants. Both prayers were granted.

Then on the 18th day of January, 1985 the appellants filed a motion in the High Court praying for:-

“(1) An order of injunction restraining the defendants/respondents, the co-defendants/respondents, their servants and agents from building or continuing to build on the land in dispute in the above case verged pink in the plan No. SE/AN9/81 or from alienating any portion of the said land pending the determination of the above suit.

(2) An order appointing a receiver to manage, control and collect rents from the buildings and structures which the defendants, the co-defendants and their servants and agents have erected or are erecting on the land in dispute verged pink in the Plan No. SE/AN9/81 and for such further order or orders as to this Honourable Court may seem just.”

The appellants’ motion was supported by an affidavit sworn to by John Uwakwe who was the first plaintiff. On behalf of the co-respondents, the 6th co-respondent – Francis Obiagwu filed a counter-affidavit. The application eventually came up for hearing before Aneke, J. on the 11th day of March, 1980 when all counsel representing the parties made their oral submissions. At the conclusion of the hearing, ruling was adjourned to 2nd May, 1986.On that day in his ruling, the learned trial Judge dismissed the first limb of the motion praying the court for an order of injunction but granted the prayer for appointment of a receiver stating as follows:-

“I now turn to the prayer for the appointment of a receiver Paragraph 11 of the applicant’s affidavit deposes

“11. That the rents the defendants/respondents and the co-defendants/respondents and their servants and agents are collecting from the building and structures on the land in dispute will be lost to me, the other plaintiffs/applicants and to the members of my family unless a Receiver is appointed to collect same”.