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  • 2002-11-25
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Atuegbu v. Akwa South L.G.

JOSEPH ATUEGBU

THOMAS NGENE

TOBIAS NWOSU

PETER ANISI

ELIZABETH EZULIKE

[ For themselves and as Attorney of Samuel C. Uzoka ]

V

AKWA SOUTH LOCAL GOVERNMENT

MR. J. E. NWANKWO

[ Alias Ayenga Superintendent, Eke-Akwa Market ]

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN T. AKPABIO, JCA ( Presided and Read the Lead Judgement )

EUGENE CHUKWUEMEKA UBAEZONU, JCA

SULE AREMU OLAGUNJU, JCA

CA/E/136/2000

WEDNESDAY, 28TH NOVEMBER, 2001

ACTION - Abatement of - Whether all action will abate with death of deceased owner

ACTION - Competence - Incompetent or Improperly constituted action How treated

COURT - Lack of competence of court or lack of jurisdiction - Where result from plaintiff’s failure to join necessary party - Whether nullifies the proceedings

JURISDICTION - Lack of competence of court or lack of jurisdiction Where result from plaintiff’s failure to join necessary party - Whether nullifies the proceedings

LAND LAW - Trespass and nuisance - Actions therein - Whether amount to personal actions as to abate on the death of the deceased plaintiff


POWER OF ATTORNEY - Whether loses potency at the death of donor as to render action commenced by donee incompetent

TORT - Trespass and nuisance - Actions therein - Whether amount to personal actions as to abate on the death of the deceased plaintiff

Issue:

Whether the suit of the appellants at the trial court was rightly struck out by the learned trial Judge as incompetent or not.

Facts:

The plaintiffs/appellants as attorneys of late Samuel C. Uzoka filed a civil action against the defendants/respondents at the Anambra State High Court seeking among other reliefs N2.5 million damages; return of the property of 1st - 4th plaintiffs seized and detained by the defendants and injunction.

Soon after the filing of their statement of claim, the plaintiffs filed an application for interlocutory injunction restraining the defendants and or their agents from further interfering with the plaintiffs’ enjoyment of their properties pending final determination of the main suit. Attached with the affidavit in support is a copy of the irrevocable power of attorney granted them by late Samuel C. Uzoka on the 9th day of May, 1998 over the landed property in dispute. In response to the plaintiffs’ application, the defendants filed a preliminary objection seeking for an order striking out the suit on the ground that it was not properly constituted.

After the conclusion of the counsel’s argument on the objection, the learned trial Chief Judge struck out the plaintiffs’ action for being incompetent in view of the fact that the power of attorney granted by late Samuel Uzoka lost its potency at his death. The plaintiffs being dissatisfied brought this appeal.