Hon. Christian O. Aga & Ors. V. Jeremy C. Onah & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

Three motions on notice are up for consideration before this Court. The first motion on notice filed by the party seeking to be joined was dated 5/9/2008 and filed on 26/11/2008. The 2nd motion on notice also emanating from the parties seeking to be joined/appellants is dated and filed on 1/2/2010. The 3rd motion filed by the 1st Respondents is dated 17/6/2009 and filed on 18/6/2009.

There are also two notices of preliminary objection filed by the 1st Respondent. The 1st notice of preliminary objection dated 20/1/2009 and filed on 22/1/2009 challenges the competence of the motion filed on 26/11/2008 while the 2nd one dated 15/2/2010 and filed on 17/2/2010 seeks the striking out of the motion filed on 1/2/2010 also for being incompetent or premature.

A brief history of the happenings that led to these series of applications was that the 1st set of Respondents (as plaintiff) instituted an action in the High Court of Enugu State against the 2nd set of Respondents (as defendants for themselves and on behalf of the people of Umuaniabor family, Amechi Awkunanaw). Wherein they claimed as per paragraph 24 of the statement of claim filed on 29/10/2009 as follows:-

(a) Injunction restraining the defendants by themselves their agents, privies, attorneys, assigns or howsoever constituted from further trespass on the land in dispute as verged Red in the attached plan filed along with this statement of claim.

(b) N24,363,864.25K being special damages for:-

(i) return of deposit paid on 30/5/1979, and

(ii) damage and destruction to property in and around 17/12/2002.

(c) N126,000,000.00 being general damages for unquantifiable losses for defendants’ continued prevention of development on the land and diminution of the value thereof as a result of its actions likely to scare of potential tenants and other investor there from.

Subsequently the parties seeking to be joined filed a motion on notice in the trial Court praying for the following:-

“an order joining the applicants as the 7th, 8th, 9th, 10th and 11th defendants respectively in this suit for themselves and on behalf of the UMUNENSI UMUNNAJIGENE of Amechi Awkunanaw.”

The said motion is dated 6/4/2005 and filed on 14/4/2005. The 1st set of Respondent, then as plaintiff opposed the application and in a considered ruling delivered by the trial Chief Judge of Enugu State on the 1/12/2006 the application for joinder was refused and dismissed. Not contented with the said ruling, the parties seeking to be joined filed a notice of appeal dated and filed on 13/12/2006. Briefs were subsequently filed and exchanged by the parties and at the hearing of the appeal on 25/6/2008, this court ruled inter alia that the application for joinder having been refused by the trial court the parties seeking to be joined remained non parties to the suit unless they make a further application to this court. The ‘appellants’ brief of argument was then struck out.

Apparently in deference to the said ruling of this court, the parties seeking to be joined filed the said application dated 5/9/2008 and filed on 26/11/2008. This was followed by the other motions and notices of preliminary objection earlier referred to and this include the 1st Respondent’s NOTICE OF MOTION ON DISCIPLINARY JURISDICTION” dated 17/6/2009 and filed on 22/6/2009.

On the 29/9/2010 when the motions came up for hearing this court noted the contentious nature of the applications by the parties bearing in mind series of affidavit, counter affidavit and further affidavits. It then ordered parties to file written addresses. This has been duly complied with and the parties duly adopted their written addresses at the sitting of this court on 22/2/2012.