Akunne Eddy Ononye V. Miss Nneka Odita & Anor (2007)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.

This is an appeal by the Appellant as 1st Defendant in the lower court against the Ruling of CHINYELU EMEKA KALAJINE ANIGBOGU (J) sitting in an Anambra State High Court delivered on 1/12/2004. The 1st Defendant claimed against the plaintiff now the Respondent as follows:

“1. The Plaintiff/1st Respondent filed an action Suit No. 0/317/2004 against the 1st Defendant/Appellant, against one Nnanyelugo Ononye (for himself and on behalf of Mgbelekeke family) and against others who are the 3rd, 4th and 5th Defendants.

2. The 1st Respondent as plaintiff claimed inter alia. “An order of Court compelling the 1st and 2nd Defendants to pay to the plaintiff the sum of N14,950,000.00(Fourteen Million, Nine Hundred and Fifty Thousand Naira only) being balance of the amount due to the plaintiff as one third of the sum of N45 million kola paid by “THE YOUNG SHALL GROW NIGERIA LIMITED”
3. The 1st Defendant/Appellant is a principal member of the Mgbelekeke land owning family but has never been a signatory to the family account and family documents.
4. The 1st Defendant/Appellant was sued in his personal capacity and the 2nd Defendant now 2nd Respondent was sued as Nnanyelugo John Ononye (For himself and on behalf of Mgbelekeke family) being in a representative capacity thereby representing himself, the appellant and other members of the said Mgbelekeke family.
5. By a motion the Appellant filed a motion praying the court for an order striking out the name of the 1st Defendant as a party in this suit having been improperly joined as a defendant in this suit her Mgbelekeke family having been sued through the 2nd Defendant in a representative capacity.”

Upon exchange of pleadings, the matter proceeded to full hearing. At the close of hearing the learned trial judge refused to strike out the name of the Appellant/1st Defendant as a party in his personal capacity though represented by the 2nd Defendant who was sued as representing Mgbelekeke family he hails from, reason being that the 1st Defendant/Appellant’s name was mentioned many times in the statement of claim.

Appellant being dissatisfied with the decision now appeals to this court filing Notice of Appeal containing 2 grounds. However the Appellant and the 2nd Respondent filed and exchanged their briefs of Argument. The 1st Respondent did not file any Brief. By order of court granted on 13/11/06, the appeal was slated for hearing without the 1st Respondent’s brief.

The Appellant in his brief formulated the following one issue for determination as follows:

“Should the Appellant’s name be struck out in suit No. 0/317/2004 because he is being represented by the 2nd Defendant in that suit who was sued as representing the Mgbelekeke family where he hails from or not.”

The 2nd Respondent has submitted one issue for determination as follows:

“Whether in the circumstances and facts of the subject matter in dispute in this case and the different capacities of the parties thereto, the suit could be effectively and effectually determined without the Appellant as a party being personally sued as a defendant.”

The issues for determination raised by the Appellant and 2nd Respondent are the same. I will adopt the issue in the Appellant’s brief of argument for the determination of this appeal.

The Appellant’s main contention is that the 1st Defendant/Respondent is not a proper party in Suit No. 0/317/2004 since he is a native of Onitsha from the Mgbelekeke land owning family and functions as a principal officer of the family in their land office situate at No 17 Mbanugo Street, Onitsha and the 2nd – Respondent is also from Mgbelekeke family and functions as head of the said family.

The Appellant contends that the Plaintiff/1st Respondent knows that both 2nd Respondent and Appellant are members of one and the same Mgbelekeke family. He submits that the 2nd Respondent was sued in a representative capacity.

To buttress the above the learned counsel to the Appellant quoted paragraph 8 of the plaintiffs statement of claim as follows:

“Payment has now been made to the Mgbelekeke family through the 1st and 2nd Defendant who refused and neglected to pay the Plaintiff one third of the amount as agreed by the parties.”