Lawrence Chukwuma O. Williams V. Gregory Mokwe & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

By a writ of summons issued out on the 22/12/75 in the High Court of the then East Central State of Nigeria at Onitsha, the appellant as plaintiff claimed against the defendants as per amended statement of claim, the following reliefs:

“(a) A declaration that the defendant is not entitled to build on No. 8 Old Market Road,Onitsha, which forms part of the estate of late E. Egerton Williams, the plaintiff’s father. Plaintiff, as against the defendant is entitled to the possession of the property known as No. 8 Old Market Road, Onitsha, as one of the beneficiaries/successors in title to his father E. Egerton Williams.

(b) An injunction to restrain the defendant, his servants and/or agents from entering into No.8 Old Market Road and /or in any way interfering with the plaintiff’s right to the said property.

(c) General damages in the sum of N50,000.00(Fifty thousand Naira) only”.

It is at this stage pertinent to observe that the original plaintiff in this case Dr. S. S. Olukotun-Williams died on 11th May, 1987 and was by order of the trial court, substituted by the appellant. Also the original defendant, Mr. George C. Mokwe, died on 18/4/88 and was by order of the trial court also substituted by one person named E. Mokwe.

Parties filed their pleadings in the trial court, and before the commencement of trial, they made frantic efforts to settle the dispute between them out of court but this did not materialise. The trial therefore commenced on 27/1/93 and concluded with the appellant’s address on 13/7/94. The suit was undefended by E. Mokwe. On the 28/7/94, the learned trial Judge, (Nwazota, J, as he then was) delivered a considered judgment in favour of the appellant and granted him all the reliefs claimed in his writ of summons.

It is important to state here that the respondent was not a party to this case from its inception to the judgement at the trial. It is clear from the record of proceedings in this matter that by a motion on notice filed in the trial court on 8/7/94, the respondent prayed the trial court to be joined as a co-defendant to the suit. This was after witnesses were heard and the case was closed for address by the appellant. It is however not clear from the record of proceedings what happened to the motion for joinder after it was filed. It was not shown whether it was moved or drawn to the attention of the trial court but it was filed 2 days from the day judgment was given. The motion was however not entertained by the trial court but the appeal against the alleged refusal to hear it was abandoned and struck out by the Court of Appeal. Be that as it may, it is abundantly clear that up to the time of the delivery of the judgment by the trial court on the 28/7/94, only Gregory Mokwe, was the defendant in the case; G.C. Mokwe & Sons Ltd., the present respondent was not a party to the case. However the respondent as a party interested filed its notice of appeal against the judgment on 28/7/94 and then applied on the 24th of June, 1995 to the Court of Appeal under S.222(a) of the 1979 Constitution of Nigeria which is applicable to this case, for an order for leave to appeal against the said judgment as a person interested. That application was granted as prayed on the 5th of February, 1996 more than 6 months after filing the notice of appeal.

The appeal was then heard by the Court of Appeal, Enugu Division; it was allowed and the decision of the trial court was set aside and a retrial was ordered. The notice of appeal filed on 14/7/94 by the party interested/respondent was struck out.

The appellant was dissatisfied with this decision and appealed to this court. The respondent/party interested(hereinafter referred to simply as respondent)also cross-appealed against the decision striking out its appeal filed on 14/7/94, but this was later withdrawn and struck out on the 24/10/2001.

Written briefs were filed in court and exchanged between the parties as required by the rules of court. The appellant formulated 3 issues for the determination of this court which read:

(i) Was the Court of Appeal right to say that it is too late to raise the issue of competence of an appeal even in a brief of argument and with the consent of the appellant’s counsel

(ii) As at the date the notice and grounds of appeal was entered, was the Court of Appeal right to hold that there was an appellant

(iii) Was the Court of Appeal right to hold that the trial court was obliged to hear an application for joinder not brought to its notice either by counsel for the applicant or the clerk of court”