James Chibueze Unoka & Ors. V. Mrs. Victoria Kanwulia Ofili Agili & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

By a writ of summons issued on the 11th day of September, 2002, from the High court of Justice, Delta State, in the Asaba Judicial Division, the Plaintiffs/Respondents in this appeal claimed from the three Defendants as follows:-

“(a) A DECLARATION THAT THE Plaintiffs are entitled to the grant of a Statutory Right of Occupancy in respect of the piece or parcel of land measuring 100 feet by 100 feet situate and lying at No. 19 Sir Opia Street off the Asaba/Onitsha expressway almost opposite NEPA SUB Station along expressway near Okwe junction, Asaba within the Jurisdiction of this Honourable Court which piece or parcel of land shall be clearly delineated in a survey plan to be filed with the statement of claim.

(b) N500,000.00 (Five Hundred Thousand Naira) being General damages against the Defendants/Respondents for act of trespass committed on the said piece or parcel of land.

(c) An order of perpetual injunction restraining the Defendants, their servants, privies and/or agents from further entering upon any part of the said piece or parcel of land.”

Pleadings were ordered, filed and exchanged by the parties. The Plaintiffs/Respondents (hereinafter to be referred to as the 1st set of Respondents) based their claim to the land in dispute on a devise made to them in the Will of their father, one Chief Thompson Darius Rapu. The 1st set of Respondents are suing through one Ogbueshi H. I. Rapu to which they gave a power of Attorney to represent them in court.

The Applicants/Respondents (hereinafter to be referred to as the 2nd set of Respondents) who are the Executor and Executrix of the Estate of Chief T.D Rapu by a motion on notice dated 16th January, 2003, sought an order of the lower court to be joined in the suit as the 2nd and 3rd Plaintiffs.

The motion prays for the following orders.

“1. An order the joinder of Dr. Anthony Rapu and Mrs. Bridget Itsuelu both of No.6 Rapu Lane, Cable Point, Asaba who are the Executor and Executrix respectively of the will of Chief Thompson Darius Rapu, as the 3rd and 4th Plaintiffs in this suit.

2. An order upon the said joinder of parties to amend the statement of claim to reflect the said joinder and other necessary amendments shown underlined in the proposed amended statement of claim attached to the affidavit in support of this motion as Exhibit “A”.

3. An order to deem the proposed amended Statement of claim attached to the affidavit in support as Exhibit “A1″ as the Joint Amended Statement of Claim of the Plaintiffs as duly filed served necessary fees having been paid”.

The 1st Defendant/Appellant (hereinafter to be simply referred to as the Appellant) filed a counter affidavit to the application for joinder dated 3rd March, 2003.

When the application came up for hearing, counsel for the Appellant raised the issue that the suit is incompetent and urged the court to reject the application for joinder and to strike out the suit. The learned trial Judge in a considered ruling delivered on the 10th May, 2004 overruled the objection taken by the Appellant’s counsel and held that the suit is competent and also granted the application for joinder.

Being dissatisfied with the said Ruling the Appellant now appealed to this Honourable court vide a Notice and Grounds of Appeal dated 17th day of May, 2004 upon four (4) Grounds of Appeal. The Grounds of Appeal are hereby reproduced.