CASE SUMMARY OF:
Okoroafor Mbadinuju & Ors. v. Chukwunyere Ezuka & Ors.(1994) - SC
by NSA PaulPipAr
The appeal was allowed. There were proper parties before the Trial Court.
AREA OF LAW
- Administrative Law
- Struck out.
- Court in personam.
- Hearing date.
- Mention date.
1. Okoroafor Mbadinuju
2. Ohabueze Chukwudolue
3. Ezeiheaku Ukatu
4. Eugene Obimma (For themselves and on behalf of Umuohachom Family of Umuezeawala)
1. CHUKWUNYERE EZUKA
2. MBATUGOSI OKWEROGU
3. SOLOMON ASIKA
4. VENATIUS UDORA
5. MADUKA OBI
6. NNABUENYIOHAEGO (For themselves and on behalf of Umuatuokwu Umuonuzo Families of Umudioha)
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Chief U.N. Udechukwu.
* FOR THE RESPONDENT
- Chief A.O. Mogboh, S.A.N.
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FACT (as relating to the issues)
1. Whether the Court of Appeal was right when it held that the proceedings of the 21st of February, 1978 and thereafter were a nullity by reason of the suit having been struck out on the 13th of February, 1978.
2. Whether the Court of Appeal was right when it held that the defendant were not proper parties to the suit and that the plaintiffs’ claim ought to have been struck out on that ground.
RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. In my respectful view, the trial court had no jurisdiction to hear the two motions before it on 13/2/78 and to strike them out before each was served. In the case of the main suit, it could not have been listed for 13/2/78 for hearing since pleadings have not been filed. At best, it could only have been for mention. Even then, there is nothing to indicate that the parties were aware that the case was to come up that day.
ii. With respect to the learned Justices of Appeal, the issue is not whether the trial Judge could strike out a case for non-appearance of parties but whether he could do so without first ensuring (1) that the parties had notice of hearing for the particular day and (2) that the case was not on the cause list for the day for mention.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. From the original pleadings of the plaintiff's and Ewuru, title to the land in dispute was clearly in issue. In the light of the above averments and deposition, will it be correct to say that the action instituted against Ewuru died with him, as held by the court below. With profound respect to the learned Justices of the court below, I think they are wrong.
ii. It is, in my respectful view, erroneous to say that the plaintiffs’ action against Ewuru was one strictly personal to the latter, involving as it were, title in the land in dispute which plaintiffs claimed as belonging to their families and Ewuru retorted that it belonged to his family.
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It has been held by this court that it is wrong for a Judge to treat a date fixed for mention of a case as one for hearing; any judgment entered contrary to this amounts to a nullity. - Ogundare, JSC. Mbadinuju v. Chukwunyere (1994)
An action where title to land is in issue is one of the causes of action which survive the death of either of the parties. The legal maxim has no application in this case. It is an act of deceit for the respondent to approbate and reprobate. Having voluntarily sought to be substituted for the deceased sole defendant, contested the action and failed, they cannot be heard to say that the proper parties were not before the court. They are bound by the decision and are estopped from denying the effect of the judgment. - Ogwuegbu, JSC. Mbadinuju v. Chukwunyere (1994)
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