Daughters Of Divine Love Congregation & Ors V. Ekene Ugwu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling)

This is an Application by way of Motion on Notice brought pursuant to Order 7 Rules 1, 2 and 10 of the Court of Appeal Rules, 2011, Section 243 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and under the inherent jurisdiction of this Honourable Court, wherein the Applicants seek 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 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 April, 2008 by His Lordship Hon. Justice R. N. Onuorah of the Enugu State High Court, sitting at Enugu.

“(c). Extending time within which the Applicant 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 of April, 2008.”

The Application is predicated on eleven Grounds as stated in the unnumbered Pages/body of the motion Paper. In support of the Application is a thirty-nine paragraph Affidavit deposed to by the 3rd Applicant on Record (Reverend Sister Alphonsus) on behalf the other Applicants and annexed to the Affidavit in Support of the Motion are twelve Documentary Exhibits marked ‘A, A1 and A2, B, C, D, E, F and F1; G, H, J and K respectively. For the avoidance of doubt, EXHIBIT ‘A’ is a Deed of Assignment entered into jointly by Elder NGWU NGWU IKPA and 5 others for themselves and as representing the Community of Nkwubor Nike, IGWE TITUS OKOLO and 3 Others for themselves and on behalf of the family of Umuezeoha-Nwikpa in Amorji Nike on the one hand and DAUGHTERS OF DIVINE LOVE CONGREGATION (the 1st Applicant herein) on the other in respect of a piece or parcel of land situate at Oguji/Iyaka land, Amorji/Nkwubor Nike all in Enugu East Local Government Area, Enugu State of Nigeria.

EXHIBIT A1 is an IRREVOCABLE POWER OF ATTORNEY jointly executed by the said Elder NGWU NGWU IKPA and 5 Others, IGWE TITUS OKOLO and 3 Others and donated in favour of the DAUGHTERS OF DIVINE LOVE CONGREGATION/1ST APPLICANT.

EXHIBIT A2 is the Survey Plan in respect of the land the subject of the Deed of Assignment and Power of Attorney.

EXHIBIT B is the Charge Sheet in charge No.169C/2005 between the Commissioner of Police Vs. Ikechukwu Ugwu and 2 Ors. now pending in the Magistrate’s Court Enugu East Magisterial District, Holden at Nkwo Nike, upon the complaint of the Applicants herein that the three accused persons, conspired amongst themselves and others at large to unlawfully damage a four room house due completion and malicious damage of a GP tank; property valued N650,000.00 and N25,000.00 respectively belonging to the 1st Applicant.

EXHIBIT C, on the other hand, is the Statement of Claim in Suit Number E/680/2005 of which the Applicants/Persons Interested in the case seeking to appeal were sued by Ekene Ugwu and his late brothers.

EXHIBIT D is the Amended Statement of Defence and Counter Claim of the 1st – 3rd Defendants/Counter Claimants (now the Applicants in this Application) in Suit No.E/680/2005 wherein Louis Ugwu & 2 Ors for themselves and on behalf of the Nkwubor Nike Community sued the present Applicant, Elder Nwangwu Ikpa and 6 Ors. and Igwe Titus Okoro & 4 Ors. as representatives of Nkwubor Nike and Umuezeoha Nwikpa Family of Amorji Nike Communities as the 1st, 2nd and 3rd Sets of Defendants.

EXHIBIT E is another Statement of Claim in Suit No.E/663/2004 in which Louis Ugwu and 2 Ors. for themselves and on behalf of Nkwobor Nike Community sued Felix Ugwu and 9 Ors. is respect of the land the subject of the dispute and the Deed/Exhibit A.

EXHIBIT F is the Record of proceedings of the above suit wherein default judgment of Hon. Justice R. N. Onuorah in Suit No.E/663/2004 Louis Ugwu & 2 Ors. Vs. Felix Ugwu & 9 Ors. was entered and which is the subject of this Application; while EXHIBIT F1 is the Enrolled Order of the Learned trial Judge in respect of the Judgment sought to be appealed against.

EXHIBIT G on its part is the Record of Proceedings in respect of Suit No.E/680/2005 of 29th day of July, 2008 before His Lordship Hon. Justice L. O. Okereke while EXHIBIT H is the proposed Notice and Grounds of Appeal in Suit No. E/663/2004 which is the subject of this Application.