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(2018) LPELR-44656(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of May, 2018


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria


2. MR. EMMANUEL IHENAKWE - Appellant(s)


AMANNA A. ALOZIE - Respondent(s)

Other Citations

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This appeal borders on Civil Procedure.
The appeal is against the judgment delivered on 10/6/2013 by the High Court of Imo State. 

The claims of the Appellants against the Respondent were as follows: -

"1. A Declaration that the default Judgment delivered by the High Court of Imo State Holden at Iho in the Mbaitoli/Ikeduru Judicial Division presided over by His Lordship Hon. Justice G. C. Ihekire on the 8th day of July, 2004 in Suit No: HMI/11/2003 - Keside Alozie & Anor. V. Jowesco Nigeria Ltd & 2 Ors wherein it was declared inter alia that the Power of Attorney dated 31st December, 1996 and registered as No. 69 at Page 69 in Volume 778 in the lands Registry Owerri donate by late David Dike Alozie in favour of Jowesco Nig. Ltd in respect of the property known as and called "OGBO NWAEKPE OHUBA" situate at Kilometre 10 Owerri/Orlu Road Ubomiri Mbaitoli L.G.A., Imo State is null and void and of no effect whatsoever; is a nullity in that the Court lacks the, Jurisdiction to grant the reliefs sought, it was obtained by deceit and fraud and in breach of the 1st Claimant's constitutional right to fair hearing.  
2. An Order of Court setting aside as a nullity the above-stated default Judgment delivered in suit. No: HMI/11/2003 -Keside Alozie & Anor V. Jowesco Nigeria Ltd & 2 Ors; on the 8th day of July 2004 in favour of the Defendants in this suit on grounds of deceit, fraud, lack of fair hearing and Jurisdiction in the Court to grant the reliefs sought in that suit.
3. A Declaration that the 2nd Claimant (Mr. Emmanuel Ihenakwe) is entitled to the grant of a Customary Right of Occupancy to the piece or parcel of land known as and called "OGBO NWAEKPE OHUBA" with all the Developments therein contained and situate at Kilometer 10 Owerri/Orlu Road, Ubomiri, Mbaitoli L.G.A., Imo State, Nigeria.  
4. Perpetual Injunction restraining the Defendants howsoever by themselves, their servants, agents, workmen and or privies from further interference and or disturbance of the 2nd Claimant's possession or user of the land."

The Respondent on his part aside from controverting the case of the Appellants on the pleading, in his defence, equally filed a counter-claim against the Appellants.

The trial Court after a full-blown trial and evaluation of evidence, in its judgment dismissed the case of the Appellants as claimants before it and entered judgment in favour of the Respondent in respect of his counter-claim.
Being dissatisfied with the judgment of the trial Court, the Appellants initiated the instant appeal in the Court of Appeal.

The Court determined the appeal based on the  following issues for determination:
"1. Whether the learned trial Judge did not err in law when he held as follows:
"Exhibits 8 and 9 show that David Dike Alozie died on 25th day of May, 1994 and was buried on August 13, 1995. It is therefore impossible for the deceased to have donated Power of Attorney to Jowesco Nigeria Ltd on 31st December, 1996 more than 2 years after his death. I therefore say I do not have any difficulty in finding that the said Irrevocable Power of Attorney Exhibit 3 was made by some other person other than the deceased David Dike Alozie" (Ground 1).
2. Did the learned trial Judge correctly and properly evaluate all the material evidence led for the Appellants and the Respondent (Ground 2).
3. Was the trial Court right to hold that Exhibit 3 is a forged document (Ground 3).
4. Whether the Appellants are not competent to apply to set aside an earlier decision of the  trial Court which adversely affected their interests though they were not joined as parties to the suit leading up to the said earlier decision (Grounds 4 and 5). 
5. Was there evidence enabling the learned trial Judge to conclude that the Respondent is the true owner of the land (Grounds 6 and 9).
6. Did the trial Court exercise its discretion judiciously and judicially in awarding N1,000,000.00 as general damages for trespass to the Respondent (Ground 7)."

In the final analysis, the Court of Appeal held that the appeal succeeded. The proceedings and judgment delivered by the trial Court were set aside. An order striking out the Appellants' case for being incompetent was made in place of the orders of the trial Court dismissing the claims of the Appellants and granting the counter-claim of the Respondent.

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