Waldem Holdings Ltd. & Ors V. S. E. Akpainenem & Anor (2002)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A. 

This appeal is from the decision of Akpabio, J., refusing the defendants/appellants’ application for joinder, of one Nse Okon Akpan Essien, who in subsequent references, would be called ‘N. O. A. Essien’ whenever the con permits as a representative of the family of Okon Akpan Akpan Essien claimed to be the defendants/appellants’ landlord to defend the action for declaration of title to land, trespass to the land and injunction to restrain further trespass to the land instituted against the defendants/ appellants by the plaintiffs/respondents. The history of the application giving rise to this appeal is circuitous for an easy understanding, of which it is necessary to give a rundown of the background facts.

On 15/2/95, the two respondents as plaintiffs took out a writ of summons against the 3 appellants as defendants and in paragraph 26 of their statement of claim filed on 17/3/95, the plaintiffs sought the following reliefs, viz;

(1) declarations

(a) that they are entitled to statutory right of occupancy over the plot of land known as ‘No. 23, Sanni Ogun Road, Ikot Ekpene’; and

(b) that the lease of the land to the 1st defendant in 1976, by the plaintiffs had expired and, therefore, the 3 defendants who were occupying the land are trespassers.

(2) N500,000 general damages against the 3 defendants for trespass to the land; and

(3) An order of perpetual injunction, against the 3 defendants restraining them from ‘further entering, interfering or remaining on the property’.

Following the disqualification on 30/7/98 of counsel for the defendants, G. A. Umoh, Esq., from further appearing for them and the declaration of the statement of defence, which he filed on behalf of the defendants as null and void, the new counsel for the defendants, on 2/10/98, sought extension of time for the defendants to enter appearance to defend the action and to file their statement of defence; for leave to join one N. O. A. Essien as the 4th defendant, to defend the action as a representative of ‘Nto Akpan Essien family’ and for the 4th defendant to be allowed to file his statement of defence, plan and counter-claim out of time. Objection was raised to the joinder of the 4th defendant. In a considered ruling the learned trial Judge granted the application of the 1st – 3rd defendants to enter formal appearance and to file their statement of defence out of time. But he refused leave to join N. O. A. Essien as the 4th defendant on the grounds that (a) ‘there is no application for joinder made by Nse Okon Akpan Essien’; and (b) even if there is such an application, ‘the applicant(s) have failed to prove their interest in the subject matter of the substantive suit’ because ‘whatever joint proprietary interest the family of Nto Akpan Essien had with family of the respondents over the subject matter of this suit, had been completely extinguished or vacated in the wake of partitioning of the property to the respondents’ ‘family’ (vide page 261 of the record).

The challenge of the reasons for refusing the application for joinder is the focus of this appeal by the appellants, who filed an original omnibus ground of appeal and with the leave of this court filed 3 additional grounds of appeal. From the four grounds of appeal, the following three issues for determination were distilled and embodied in the appellants’ brief of argument:

“(1) whether there was an application for joinder before the trial court?

(2) whether the trial court considered the application of the appellants to join Nse Okon Akpan Essien, as defendant in the suit.

(3) whether the trial court was correct in making what is ex facie, a final declaration affecting the rights of the parties and non-parties in his ruling on an application for joinder of parties.”

The respondents adopted the issues formulated by the appellants the first and second of which would be taken together. Arguing the first issue, learned Counsel for the appellants reproduced the format of the appellants’ motion filed on 7/10/98, to which is subjoined the reliefs sought by the appellants and which distinctly listed them to include ‘an order granting leave to Nse Okon Akpan Essien to join as 4th defendant in this suit for himself and on behalf of Nto Akpan Essien (Family)’ and for leave to allow the said N.O.A. Essien to (a) defend the action in a representative capacity and (b) file his defence, plan and counter-claim. He highlighted the affidavits of both the 2nd defendant/appellant and N.O.A. Essien supporting the application for joinder. He conceded that there is a lapse in the description of N.O.A. Essien in the body of the motion, but contended that the misdescription is not fatal to the application as it is error of counsel, which he argued is open to this court to correct so as to do a substantial justice in the matter. He stressed that there is the need to join the family of Nto Akpan Essien, who N.O.A. Essien ,was appointed to represent at the trial, because the family are the appellants’ landlord.