Jude I. Nwagu V. Emeka Okolo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A, (Delivering the Leading Judgment)

This is an appeal against the Ruling of Enugu State High Court sitting at Enugu delivered by Ugwu (OFR) CJ on 10th day of November 2004.

The facts leading to this appeal are stated thus:-

By his statement of claim dated 16th May, 1993 the Respondent claim from the Appellant –

(a) N500,000.00 special and general damages for trespass and interference with the Plaintiff ‘s development of his said plot 67A.

(b) A perpetual Injunction restraining the defendant by himself or through his servants, agents and privies from further interference with the possession and use of the said plot 67A by the Plaintiff or by his mother who will execute the building works thereon.

The case of the Respondent/Plaintiff is that a mini commercial plot 67 A in the Trans-Ekulu Federal Housing Programme Phase I & II, 396.538 square metres in area was allegedly allocated to him. The Respondent/Plaintiff claimed that the Federal Ministry of Housing and Environment sold to the defendant the side of the duplex bungalow of three rooms on the adjacent plot 67 near the Respondent’s Plot 67A, The Respondent further claimed that when she moved to develop Plot 67A, she met stiff opposition from the Appellant who laid claim to the said Plot 67A as part of his compound.

Mrs P.N. Okolo mother of the Respondent stated that when she took labourers to Plot 67 A to clear the site, the Appellant and hired men drove them away while she called in the police.

The Appellant in his defence stated that he is the owner in possession enjoying peaceable occupation of the land which was allocated to him since 1983. The Appellant stated that all plots at Federal Housing Programme Phase I are contained in Blocks A -G and that there cannot be two plots called 67 and 67A in one block.

The Appellant further contends that the area allocated to him in the Plan No. CUO/EN D43/93 dated 6th September 1993 was by the Permanent Secretary Federal Ministry of Housing and Environment Ref Letter No. AC/14/36/OSAP/E3/N079 of 14th February 1983.

The Appellant in his defence stated that there is nobody by the name Emeka Okolo, that the name was a coinage just to disturb the Defendant/Appellant’s peaceable occupation of the land. That if the said Emeka Okolo exists he must be an infant at the time of taking out this Suit. Consequently that the Suit is incompetent and should be struck out.

Therefore, at the trial the Appellant brought a Motion on Notice dated 8th February 2003 and filed on 10th February 2003 wherefore he urged the court to make an order striking out the Suit as being incompetent before the court. The Respondent in opposing the Motion filed a counter affidavit of 15 paragraphs.

In his Ruling the learned trial Chief Judge held that though failure by the Plaintiff/Respondent to sue by his next friend (his mother) is a serious omission, that striking out the Suit will not in his thinking serve the justice of the case. He therefore discountenance the Defendant/Appellant’s Motion and made an order of amendment of the Suit by adding “suing by his next friend Mrs Pauline Nwando Okolo immediately after Emeka Okolo, the Plaintiff in the matter with a cost of N3,500.00.

Dissatisfied with the Ruling the Appellant appealed to this court against the said Ruling vide his Notice and grounds of Appeal dated 15th November 2004 containing four Grounds of appeal.