Chief Gabriel Okwor & Ors V. Ekene Ugwu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 11th day of March, 2013 and filed on 21st March, 2013, the Applicants/Parties affected and having an interest in the case, sought for the following orders:

(a) Enlarging the time within which the applicants may apply for leave to appeal from the decision of the Enugu State High Court, sitting at Enugu in Suit No. E/663/2004 EKENE UGWU vs. FELIX UGWU & ORS. by his Lordship Hon. Justice R.N. Onuorah on the 29th day of April, 2008 as parties affected and having an interest in the case.

(b) Granting leave to the applicants to appeal to this Honourable court as parties affected and having an interest in the subject matter of Suit No. E/663/2004; EKENE UGWU VS. FELIX UGWU & ORS., in which judgment was delivered on 29th day of April, 2008 by his Lordship Hon. Justice R.N. Onuorah of Enugu High Court sitting at Enugu.

(c) Extending the time within which the Applicants may appeal (file Notice and Grounds of Appeal) as parties interested/affected by the decision of the Enugu State High Court, sitting at Enugu in Suit No. E/663/2004 – EKENE UGWU v. FELIX UGWU & ORS, delivered by his Lordship Hon. Justice R. N. Onuorah on the 29th day of April, 2008.

AND for such further and/or other order(s) as the Honourable Court may deem fit to make in the circumstances.

The grounds upon which the reliefs are anchored are stated on the face of the motion paper.

The applicants rely on 11 grounds as well as 10 Exhibits.

The grounds read thus:-

1. “Two Communities (the Applicants) i.e. Nkwubor Nike Community and Umuezeoha Nwikpa family of Amorji Nike Community jointly sold their (“jointly”) owned Communal land, in their representative capacity to the Daughters of Divine Love Congregation.
2. Three members (brothers) of a family in one of the Communities (Nkwubor Community) that sold to the Daughter of Divine Love Congregation were aggrieved by the sale of the land.
3. The three brothers purporting to be acting for and on behalf of the Nkwubor Nike Community sued some members of the Nkwubor Nike Community in their individual capacity at the Enugu State High Court, sitting at Enugu in Suit No.E/663/2004, claiming for:-

(a) A Declaration that Nkwubor Nike Community represented by the plaintiffs is entitled to customary/statutory right of occupancy in respect of a piece or parcel of land called “Isi Anwuri” land situate at Nkwubor in Ujodo Local Development Area of Enugu State of Nigeria.

(b) One Million Naira (N1,000,000.00) damages for trespass.

(c) Perpetual Injunction restraining the defendants, their agents, servants, assigns, privies and whoever acts for or on their behalf from selling, alienating, transferring, building, cultivating or doing anything on the land which may be detrimental to the right and interest of the plaintiffs.

4. The same three brothers also sued the Daughter of Divine Love Congregation in the same Enugu State High Court, sitting at Enugu in Suit No. E/680/2005 also claiming the same relief as in Suit No. E/663/04 against them.
5. The two suits were over the same subject matter i.e. the land sold by the Applicants i.e. the two Communities-Nkwubor Nike Community and Umuezeoha Nwikpa family of Amorji Nike Community and sold to Daughters of Divine Love Congregation and were at the same time pending before the same Enugu State High Court, sitting at Enugu, but were being presided over by two different Honourable Judges of the Enugu State High Court.
6. The Applicants/Parties affected and having interest in the Suit were not aware of Suit No. E/663/04 and were not joined in the Suit, even though the land, the subject matter was sold by them, as the original owners.
7. The Daughters of Divine Love Congregation who bought the land in dispute from the applicants were not also joined in the Suit i.e. Suit No. E/663/04.
8. In Suit No. E/680/2005 wherein the Daughters of Divine Love Congregation were sued, they applied to the Honourable Court and the representative of the Nkwubor Nike Community and Umuezeoha Nwikpa family of Amorji Nike Community, were joined.
9. The defendants in Suit No. E/663/04 who are members of the Nkwubor Nike Community but who were sued in their individual capacity abandoned the Suit and a judgment was entered.
10. The applicants became aware of the Suit and Judgment after time within which they are to appeal has elapsed.
11. The subject matter of the two suits is the same land sold by the Applicants to the Daughters of Divine Congregation as Iyaka/Oguji land.”

In support of the said motion is a 41 paragraph affidavit deposed to by the 3rd Applicant. Applicants also filed a 28 paragraph further affidavit on 15/04/2013. Another 15 paragraph further further affidavit was also filed on 12/05/2013.

The 1st set of respondents on their part filed a 28 paragraph counter-affidavit deposed to by the 1st set of respondents (Ekene Ugwu) on 12/04/13. There are five (5) exhibits attached to the counter-affidavit. Also a 36 paragraph further counter affidavit was duly filed on 26/04/13 along with 10 (ten) exhibits.