Kingson Hart V. Victoria H. Igbi (1998)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

This is an interlocutory appeal from the “decision” of the Port Harcourt High Court (Niki Tobi, J.) (as he then was) on the 15/6/90 in suit No. PHC/300/89. The appellant was the defendant in the suit wherein the claim was for:-

“1. A declaration that the plaintiff is entitled to a customary right of occupancy of a parcel of land used as cemetery at Iloma, for burial of the late founder and his direct descendants.

2. N10,000.00 (Ten thousand naira) being special and general damages for trespass committed on the plaintiff’s land at Iloma, situate at Bonny by the defendant on 13th day of August, 1989, when he the defendant wrongfully dug a grave for the burial of late Samuel Hart on the parcel of land strictly provided for Chief William Ignakorobofori (founder) and his direct descendants.
3. A perpetual injunction restraining the defendant, his agents/servants and or privies or otherwise to desist from committing further acts of trespass on the land,”

After an order for written pleadings was made but before ever any pleadings had been filed the plaintiff brought an application by way of motion on notice. The application was dated the 9th of April, 1990. By the application the applicant prayed the court for:-

“(a) An order or leave to amend the writ of summons (form 1) and the particulars of claim in the manner and to the extent stated in schedule 1 “Particulars of amendment”, and finally incorporated in schedule 2 Amended writ of summons and the same be deemed as having been duly filed and served on the defendant/respondent subject to payment of necessary fees.

(b) Any order or other order as the honourable court may deem fit to make in the circumstance.”

It was expressed on the “notice of motion” the “quo warranto” for the application. It is:-

“Under Order 5, rule 3, Order 3, rule 4(1) (2) and Order 26, rule 1 of the Rules of the High Court. 1987.”

The application was supported by or with an affidavit. It has a total often (10) paragraphs. The plaintiff/applicant swore the affidavit. There was not filed an affidavit in opposition, assume, “argument”?, there be any facts averred in the affidavit which the defendant/respondent intended to contradict or counter. I shall be referring to the affidavit later in the judgment.

The application came on for the hearing on the 104/4/90. It was heard. In a reserved and well considered ruling, the learned trial Judge allowed the motion. He granted the application accordingly. In reaching his conclusion, the learned trial Judge wrote at page 62 of the record inter alias:-

“I am also of the firm view that the amendments are really not material (in) the sense that they are designed to change the character of the suit.”

Continuing, the learned trial Judge expressed himself in page 63 lines 14 to 18 of the record:-

“It looks to me to be genuine desire and intention on the part of the late Chief William Igbinakorobofori family that Mr. Nathan Dagogo-Hart join Victoria Igbi in prosecuting the pending action. I therefore grant the application.”

The defendant/respondent was compensated in costs assessed and fixed at N100.00.