Okoroafor Mbadinuju & Ors. V. Chukwunyere Ezuka & Ors. (1994)

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OGUNDARE, J.S.C. 

By a writ of summons issued in June 1977, the plaintiffs claimed from one Udeoha Ewuru:

(a) A declaration that the plaintiffs are the customary owners of that portion of the said ALAOJI now in the possession of the defendant, the annual value of which is N10.00 (ten Naira).

(b) A declaration that by the custom of Ihiala people the defendant has forfeited his rights, use, enjoyment and or possession of the said portion of land to the plaintiffs.

(c) N100.00 general damages for trespass.

(d) Injunction perpetually restraining the defendant, his servants, agents and or workers from ever going into the said portion of land.”

Pleadings were ordered on 18/7/77 and the plaintiffs were given 120 days within which to file their Statement of Claim and plan. By motion dated 12th day of January, 1978 and filed that same day and fixed for hearing on 1st day of February, 1978 the plaintiffs prayed the court for extension of time within which to file their Statement of Claim and plan. The defendant, Ewuru, through his counsel, also by motion dated 14th day of January, 1978, prayed the court below for “an order giving judgment against the plaintiffs in default of filing their Statement of Claim in compliance with the order of court dated 18/7/77” and the motion was fixed for 1st February, 1978 for hearing. There is no indication in the record as to what happened on 1st February 1978. The record of appeal however, shows that on 13/2/78 the case was called. The following note appears on the record:

“Parties absent: Counsel absent. Mr. Eyisi now appears for defendant.

Court: Both motions are struck out: Consequently plaintiff’s case is also struck out. No order as to costs.”

On 21st February 1978, the record of appeal also shows, that the case came up before the court and the following note appears for that day:

“Parties present except defendant/respondent no proof of service. Mr. Onyekwelu for plaintiffs/applicants, Mr. Eyisi for defendant/respondent, says that they are not opposing motion for extension of time to file Statement of Claim and plan and also says that they are withdrawing motion for judgment in default. Asks for consolidated costs of N50.00 for both motions. Mr. Onyekwelu for plaintiff/applicant says that defendant filed their motion for judgment in default.

Court: Plaintiff/applicant is given extension 30 days from date to file his Statement of Claim and plan with costs of the application assessed and fixed at N10.00 to defendant/respondent. In respect of motion in default of judgment filed by the defendant, as there is no proof of service of motion by plaintiff for extension of time on defendants to file Statement of Claim and plan, defendants will also be entitled to costs of N10.50.”

Thereafter the plaintiffs filed their Statement of Claim and plan on 3/3/78. The defendant also filed his Statement of Defence on 6/7/78. Subsequent to the filing of pleadings, the defendant died. By a motion dated 8/6/81, Chukwunyere Ezuka, Mbatugosi Okwerogu, Solomon Asika, Venantious Udeora, Maduka Obi and Nnabenyi Ohaego prayed the court for an order to be substituted for Udeoha Ewuru the deceased defendant. The application was granted on 4/3/83, the plaintiffs not having opposed it. Series of interlocutory applications followed but the significant one is the application of the new defendants dated 28/6/83 praying for an order of court that the new six defendants be allowed to prosecute the case on behalf of their families, that is, Umuatuokwu and Umuonuzo families. The application was granted on 30/6/83. Subsequent to this the defendants with leave of court filed an amended Statement of Defence. The case finally proceeded to trial on the plaintiff’s amended Statement of Claim and the defendants’ further amended Statement of Defence.

At the trial evidence was led on both sides in support of their respective claims and the learned trial Judge after addresses by counsel, in a reserved judgment, found for the plaintiffs and entered judgment in their favour in the following terms: