M.A. Adeoti V. Oseni Akanni (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of the Oyo State High Court presided over by T. O. Adeniran, J sitting at Ibadan delivered on the 26th day of July, 1999.

In the trial court the Plaintiffs for themselves and on behalf of Oladipupo family commenced an action against the then sole Defendant now Appellant in which the following reliefs were sought:

“(1) Recovery of that large piece or parcel of land lying, situate and being at Oladipupo village, Odo Osun near Christ High School, Oleyo via Odo Ona Elewe in Oluyole Local Government Area of Ibadan. Survey Site Plan to be attached to Statement of Claim.

(2) Declaration that the Plaintiffs are entitled to Statutory Right of Occupancy over the said piece or parcel of land in I above.

(3) Damages of N5,000.00 (Five thousand Naira) for trespass between 1984 to date and which trespass still continues.

(4) Damages of N3,000.00 (Three Thousand Naira) for destroying 3,600 fully grown cassava plants.

(5) An order of perpetual injunction restraining the Defendant, his agents, servants, privies, workers or anybody claiming from or under him from any further act of trespass on the said land.”

In course of hearing at the trial court the Respondent herein applied to be joined as a Co-Defendant in defence of the action, the Appellant as 1st Defendant did not oppose the application for joinder of the 2nd defendant/Respondent as co-Defendant.

The plaintiffs opposed the joinder of the 2nd Defendant, all the same the court joined him as 2nd Defendant against he Plaintiffs’ wish. The Ruling is at pages 156-157 of the records. Thereafter, he filed a Statement of Defence and Counter-Claim.

The plaintiffs were dissatisfied with the joinder of the 2nd Defendant/Respondent against whom they had no claim and who had no interest to defend jointly with the 1st Defendant/Appellant filed a Notice of Appeal against the order joining the 2nd Defendant. The plaintiffs subsequently brought an application for stay of proceeding pending the determination of the appeal against the joinder of the 2nd Defendant with the 1st Defendant as co-Defendant to the action. The application was struck out on application for the absence of the Applicant and his counsel.

At the close of the substantive matter on 10th May, 1999 the trial court dismissed the case of the Plaintiff and granted the counter-claim of the 2nd Defendant against the 1st Defendant. Dissatisfied with the judgment of the lower court granting the counter-claim of the 2nd Defendant, the 1st Defendant filed an initial Notice of Appeal containing seven (7) Grounds of Appeal which was subsequently amended to include two additional grounds. From the nine (9) grounds of appeal the Appellant identified nine (9) issues as arising for the determination of this appeal. They are as follows:

“(1) Whether under the rules of court and the law, it was competent for the 2nd Defendant to set up a counter-claim against the 2nd Defendant, a Co-Defendant when he did not counter-claim against the Plaintiff’ (Ground 1).

(2) Whether it was proper for the court to join the 2nd Defendant in the action, when there was no allegation in the pleading of the existing parties against him to make him a proper Defendant to the action. (Ground 3).