HON. CHRISTIAN O. AGA & ORS. v. JEREMY C. ONAH & ORS (2012)

HON. CHRISTIAN O. AGA & ORS. v. JEREMY C. ONAH & ORS

(2012)LCN/5367(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of May, 2012

CA/E/432/2007

RATIO

COURT: ATTITUDE OF THE COURT TOWARDS ENGAGING IN THE ACT OF SELF HELP

Now it is a basis principle of the Rule of Law that however clear, well founded or justifiable a party may consider his legal right to be. It will be unconscionable and absurd for him to take the law into his hands by engaging in the act of self help where the other party disputes that right or is otherwise contesting it. He is to all intents and purposes expected to assert his right in such situations by following due process in the court of law which is the agency constitutionally endowed with the power and authority to determine the civil rights and obligations of the citizenry. It will therefore be nothing less than an act of subversion against the proper administration of justice for either party to a suit before a court to either directly or indirectly usurp that function. See MILITARY GOVERNOR OF LAGOS STATE VS OJUKWU Supra and VASWANI TRADING COY. VS SAVALAKH (1972) 7 NSCC 692. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JURISDICTION: CONCEPT OF DISCIPLINARY JURISDICTION

The concept of disciplinary jurisdiction is well analyzed in OKOYA VS SANTILI (1991) 7 NWLR (PT 206) 752 at 766 where the Court of Appeal per NIKI TOBI JCA (as he then was) stated that:-

“The law is trite that a court of law in the exercise of its judicial powers under section 6 (6) (a) of the 1999 constitution can make use of its inherent powers as provided specifically in section 6 6(a) thereof in the process of the invocation of its traditional disciplinary jurisdiction against a recalcitrant litigant, who is in contempt. And the courts are prepared to invoke the jurisdiction in appropriate cases. See generally GOVERNOR OF LAGOS STATE VS OJUKWU (1986) NWLR (PT 18) 621; EZEKIEL HART VS EZEKIEL HART (1990) 1 NWLR (PT 126) 276; CANDIDO JOHNSON VS EDIGIN (1990) 1 NWLR (PT 129) 659; DANIEL VS FERGUSON (1891) 2 Ch.D. 27; VAN JOEL VS HORNSEQ (1895) 2 Ch.D.774.

The jurisdiction inhers in the court as adjudicator qua judex. The power is designed for the maintenance of the dignity and integrity of the court. Unless the court exercises its disciplinary jurisdiction on appropriate circumstances, it will lose its dignity and integrity in the judicial process. The institution of the courts, which the law has placed in an exalted and sacred position surrounded by all aura of legalism and sanctity, will be reduced to a toothless dog which can bark but cannot bite.”

Furthermore, their lordships went on to admonish on the exercise of the power of disciplinary jurisdiction as follows:-

“It is a jurisdiction which must be exercised with utmost care and caution because of its penal nature. A court of law should exercise the jurisdiction as a last resort and only where a clear and unequivocal disobeying conduct is identified. And the clear and unequivocal disobeying conduct must be directly traced and identified to the respondent, as the party in default.

That is not the only requirement. A disobeying conduct, which ripens to a contempt of the court can only arise when a party with knowledge of an existing court order, acts contrary to it. In other words, before the court can invoke disciplinary jurisdiction, there must be clear and sufficient evidence that the respondent had knowledge of the order of the court, and took a contrary action with a view to overreaching the applicant and disparaging the dignity of the court”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUDGMENT: WHETHER A COURT CAN UPTURN ITS RULING

JUDGMENT: PRESUMPTION THAT A JUDGMENT OR RULING IS CORRECT

In the Nigerian Judicial System, it is an established principle that there is a presumption that the judgment or ruling of a court is correct until it is disproved by a higher court and the burden of showing the contrary is always on the aggrieved party and where there is no appeal against such judgment or ruling the presumption of correctness cannot be rebutted. It remains subsistings. See EJOWHOMU VS EDOK-ETER MANDILAS LTD (1985) 5 NWLR (PT.39) 1, and FOLORUNSO VS. ADEYEMI (1073) 1 NWLR 128. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: EFFECT OF A COURT PROCESS NOT MOVED IN COURT

A court process which is not moved in court by a party who initiated it is as good as not filed. See OFORKIRE VS MADUIKE (2003) 5 NWLR (PT 812) 166; HOPE DEMOCRATIC PARTY VS INEC & ORS (2009) 8 NWLR (PT 1143) 297 and FEDERAL COLLEGE OF EDUCATION OKENE VS OGBONNA & ORS (2006) 7 NWLR (PT 979) 282. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES:

A.J. ABDUL-KADIR Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. HON. CHRISTIAN O. AGA
2. SAMPSON N. NNAJI
3. SIMPLE OFOEGBO
4. RICHARD ENE
5. JOSEPH UKWU
(For themselves and on behalf of the people of Umunensi Umunnajingene kindred of Amechi Awkunanaw)
(PARTIES SEEKING TO BE JOINED/APPLICANTS/RESPONDENTS)

AND

MESSRS U. MADUKA ENTERPRISES (NIG) LTD – (PLAINTIFF/RESPONDENT/APPLICANT) – Appellant(s)

AND

1. JEREMY C. ONAH
2. OKO ORURUO
3. NDUBUISI NSUDE
4. DENNIS ORJI
5. FRIDAY EZEOHA
6. OKEY OGBODO
(For themselves and on behalf of the people of Umuaniabor Family Amechi Awkunanaw)
(DEFENDANTS/RESPONDENTS/RESPONDENTS/RESPONDENTS) – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): Three motions on notice are up for consideration before this Court. The first motion on notice filed by the party seeking to be joined was dated 5/9/2008 and filed on 26/11/2008. The 2nd motion on notice also emanating from the parties seeking to be joined/appellants is dated and filed on 1/2/2010. The 3rd motion filed by the 1st Respondents is dated 17/6/2009 and filed on 18/6/2009. There are also two notices of preliminary objection filed by the 1st Respondent. The 1st notice of preliminary objection dated 20/1/2009 and filed on 22/1/2009 challenges the competence of the motion filed on 26/11/2008 while the 2nd one dated 15/2/2010 and filed on 17/2/2010 seeks the striking out of the motion filed on 1/2/2010 also for being incompetent or premature.

A brief history of the happenings that led to these series of applications was that the 1st set of Respondents (as plaintiff) instituted an action in the High Court of Enugu State against the 2nd set of Respondents (as defendants for themselves and on behalf of the people of Umuaniabor family, Amechi Awkunanaw). Wherein they claimed as per paragraph 24 of the statement of claim filed on 29/10/2009 as follows:-

(a) Injunction restraining the defendants by themselves their agents, privies, attorneys, assigns or howsoever constituted from further trespass on the land in dispute as verged Red in the attached plan filed along with this statement of claim.

(b) N24,363,864.25K being special damages for:-

(i) return of deposit paid on 30/5/1979, and
(ii) damage and destruction to property in and around 17/12/2002.

(c) N126,000,000.00 being general damages for unquantifiable losses for defendants’ continued prevention of development on the land and diminution of the value thereof as a result of its actions likely to scare of potential tenants and other investor there from.

Subsequently the parties seeking to be joined filed a motion on notice in the trial Court praying for the following:-

“an order joining the applicants as the 7th, 8th, 9th, 10th and 11th defendants respectively in this suit for themselves and on behalf of the UMUNENSI UMUNNAJIGENE of Amechi Awkunanaw.”

The said motion is dated 6/4/2005 and filed on 14/4/2005. The 1st set of Respondent, then as plaintiff opposed the application and in a considered ruling delivered by the trial Chief Judge of Enugu State on the 1/12/2006 the application for joinder was refused and dismissed. Not contented with the said ruling, the parties seeking to be joined filed a notice of appeal dated and filed on 13/12/2006. Briefs were subsequently filed and exchanged by the parties and at the hearing of the appeal on 25/6/2008, this court ruled inter alia that the application for joinder having been refused by the trial court the parties seeking to be joined remained non parties to the suit unless they make a further application to this court. The ‘appellants’ brief of argument was then struck out.

Apparently in deference to the said ruling of this court, the parties seeking to be joined filed the said application dated 5/9/2008 and filed on 26/11/2008. This was followed by the other motions and notices of preliminary objection earlier referred to and this include the 1st Respondent’s NOTICE OF MOTION ON DISCIPLINARY JURISDICTION” dated 17/6/2009 and filed on 22/6/2009.
On the 29/9/2010 when the motions came up for hearing this court noted the contentious nature of the applications by the parties bearing in mind series of affidavit, counter affidavit and further affidavits. It then ordered parties to file written addresses. This has been duly complied with and the parties duly adopted their written addresses at the sitting of this court on 22/2/2012.
On that premise, I will now deal with the applications one by one. In this regard, it will be appropriate to first deal with the 1st set of Respondent’s motion on notice for disciplinary jurisdiction dated 17/6/2009 and filed on 22/6/2009. This is premised on the fact that it seeks to put on hold the hearing of the motion for joinder filed by the parties seeking to be joined. The said 1st Respondent’s notice of motion prayed this Court as follows:-

1. An order directing the parties seeking to be joined Applicants/Respondents to restore or pay for the restoration of the three houses of the plaintiff/Respondent/Applicant company, which during the pendency of their substantive re-application proceedings herein, the said parties seeking to be joined/applicants/respondents (by themselves and through agents) demolished on the land that is the subject matter of litigation;

2. An order of interlocutory injunction restraining the said parties seeking to be joined Applicants/Respondents and the defendants/Respondents/Respondents (as well as agents and/or privies of each or both of them) from again entering on the said land and/or damaging or destroying the remaining six houses of the plaintiff/Respondent/Applicant on the said land pending the determination of these re-application proceedings and the Suit on which they are founded;

3. An order staying the proceedings on any of the applications by the parties seeking to be joined/Applicants/Respondents relating to this dispute pending their restoration, or payment for the restoration of the aforesaid three houses to at least their position and value as at, Saturday, 28/3/2009 before they and their agents demolished them.

The motion is supported by a 39 paragraph affidavit with ten documents referred to as Exhibits DISCIP 1 to DISCP 10). It was sworn to by Igwe Udemgaba Maduka.

The parties seeking to be joined in opposing the said motion filed 24 paragraph counter-affidavit sworn to by Christian Aga, one of the parties seeking to be joined. Attached to the said counter affidavit are four documents tagged Exhibits ZZN to ZZQ. He also relied on the 47 paragraph affidavit of Chief Sampson Nnaji dated 26/11/08 in support of their re-application for joinder dated 5/9/2008 together with the accompanying exhibits (AA to ZZH), and also a 15 paragraph further affidavit of the same Chief Sampson N. Nnaji dated 17/6/2009 as well as Exhibits ZZJ to ZZM attached therewith.

The 1st set of Respondent/applicant reacted by filing a further affidavit of 5 paragraphs on 3/2/2010 to which is attached Exhibit DISCIP II. There is also a 2nd further affidavit of 5 paragraphs sworn to by the same Igwe Udemgaba Maduka and filed on28/5/2010.

In reaction to the said 2nd further affidavit, the parties seeking to be joined filed two further counter affidavits. The first contains 6 paragraphs and was dated and filed on 18/6/2010. It was sworn to be Christian Aga and the 2nd one also dated and filed the same 18/6/2010 contain s 7 paragraphs and was sworn to by Jeremy C. Onah one of the 2nd set of Respondents.
Arguing in support of the said motion on notice Chief A.J. Offiah SAN of Senior Counsel for the 1st set of Respondent/applicant in her written address raised one issue for determination. To wit:-

“Whether the court in the circumstances should direct the parties to be joined/appellants to restore the Respondent thereby purging themselves of their contemptuous act before seeking the indulgence of this court in other proceedings.”

It was then submitted that on the authorities of Judicial decisions and the law, this court can invoke it’s disciplinary powers and compel the appellants to purge themselves of their contempt by restoring the Respondents in litigation to status quo before approaching the temple of justice for any indulgence. The case of APOSTOLIC CHURCH VS OLOWOLENI (1990) 10 SCNJ 69 was referred to in support of the contention that whenever the occasion demands, courts in Nigeria invoked their disciplinary jurisdiction to call unruly parties to order until issues before it are conclusively decided.
Learned Senior counsel further submitted that applying the principles therein to this case, the act of the appellants who are seeking to be joined as parties in the suit in the court below in demolishing three buildings on the land in dispute is a total disrespect for the court. The case of MILITARY GOVERNOR OF LAGOS STATE & 2 ORS VS CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT 18) 621 was cited, wherein the court held inter alia, that once the court is seized of the matter, no party has the right to take the matter into its own hands —- for the executive to resort to self help during the pendency of the suit would amount to executive lawlessness.

In his own written address, G.C. Oputah of counsel for the appellants/Respondents raised three issues arising from the 1st Respondent’s motion for determination as follows:-

1. Whether title to AGBIRIGBA LAND is the subject matter of the appellants’ appeal before this Honourable court as to attract disciplinary action.

2. Whether the High court Judgment (Exhibit KK before the court) is valid and subsisting; and

3. Whether in the present circumstance the 1st Respondent’s prayers can avail it.

On issue 1 learned counsel referred to the case of MILITARY GOVERNOR OF LAGOS STATE cited (supra) by the 1st Respondent and argued that it is distinguishable from the instant appeal in the sense that while in Ojukwu’s case, the appellants forcibly ejected the Respondent from 29 Queens Drive Ikoyi (subject matter of the suit) while proceedings were still before the court. In this case title to the Agbirigba Land is not the subject matter before this court because the said land have been conclusively adjudicated upon by the supreme court but what is before this court is an appeal against the ruling of the High court Enugu state refusing the application for joinder by the parties seeking to be joined.
He equally distinguished the case of REGISTERED TRUSTEES, APOSTOLIC CHURCH VS OLOWOLENI cited by the 1st Respondent because in that case the appellants raised a fence round the subject matter of the suit during the pendency of a suit on the said land which differs from the instant appeal were execution was levied on a land which is not the subject matter before this court and as such it cannot extend it’s jurisdiction to what happened there.

On issue No. 2, learned counsel submitted that the title of the 1st set of Respondents to the Agbirigba land is already settled in the judgment of the Enugu High court in Suit No. FC/170/76 dated 25/6/1985 which was upheld at both the Court of Appeal and the Supreme Court as shown in Exhibits KK, LL, BB, CC, DD, and YY. He added that the judgment is still subsisting having not been set aside, neither is there any order of stay of execution on it, hence the right of the appellants/Respondents to levy execution on it.

On issue No. 3, learned counsel referred to paragraph 17 of the affidavit dated 4/4/2008 deposed to by Igwe Udemgaba Maduka, the alter ego of the 1st Respondent/applicant to contend that by the depositions, the 1st Respondent/applicant cannot reasonably complain about the removal of structures because the appellants/respondents have not gone beyond the boundaries of their Agbirigba land. He concluded, that having levied execution and taken possession of the land, the appellants/respondents have exclusive possession and can legally do what they like within the limits of the land.

For the 2nd set of Respondents, their written address was of a general nature, without regard to the fact that there are three motions and two notices of preliminary objection that ought to be separately dealt with. Rather four issues were considered relevant and distilled as follows:-

1. What remedy is open to an applicant for joinder whose application is refused by the High court.

2. Whether there is an appeal pending in the supreme court in respect of this matter.

3. What remedy is open to the Applicants in respect of their application.

4. Whether the motion on disciplinary jurisdiction should avail the 1st Respondent.

There issue No. 4 is the one relevant to this motion under consideration and I will take it accordingly. It was submitted on their behalf by Chief O. Ugolo SAN of counsel that the application for Disciplinary Jurisdiction is devoid of merit.
He argued that in the proceedings in the High Court the parties in Suit No. E/64/2003 agreed that the land in dispute was the same piece of land for which the appellants/Respondents obtained judgment up to the Supreme Court but in paragraph 17 of the 1st Respondent/applicant’s affidavit sworn to on 4/4/2008, Igwe U.E. Maduka the alter ego of the 1st Respondent/applicant swore that the land in dispute was not the same piece of land over which the appellants/Respondents obtained judgment.
Therefore, he says, it is incredible that the 1st Respondent/applicant which said that the land on which the appellants/Respondents obtained judgment is different from the land in dispute in E/64/2003 now wants this court to punish them for levying execution on the piece of land which does not belong to the 1st Respondent/applicant. He argued further that the appellants/Respondents cannot be punished for the execution carried out the officials of the High Court, Enugu pursuant to the enrolled order of the Chief Judge of the state because the law is that a party cannot be punished for an official action and cited OGBUNNYINYA VS OKUDO (No 2) (1990) 4 NWLR (PT 146) 551.

Now it is a basis principle of the Rule of Law that however clear, well founded or justifiable a party may consider his legal right to be. It will be unconscionable and absurd for him to take the law into his hands by engaging in the act of self help where the other party disputes that right or is otherwise contesting it. He is to all intents and purposes expected to assert his right in such situations by following due process in the court of law which is the agency constitutionally endowed with the power and authority to determine the civil rights and obligations of the citizenry. It will therefore be nothing less than an act of subversion against the proper administration of justice for either party to a suit before a court to either directly or indirectly usurp that function. See MILITARY GOVERNOR OF LAGOS STATE VS OJUKWU Supra and VASWANI TRADING COY. VS SAVALAKH (1972) 7 NSCC 692.

Hence the inherent powers of the courts in exercising disciplinary jurisdiction over an intransigent or restless party is one way of upholding the Rule of law, the absence of which no doubt will be total anarchy.
The concept of disciplinary jurisdiction is well analyzed in OKOYA VS SANTILI (1991) 7 NWLR (PT 206) 752 at 766 where the Court of Appeal per NIKI TOBI JCA (as he then was) stated that:-
“The law is trite that a court of law in the exercise of its judicial powers under section 6 (6) (a) of the 1999 constitution can make use of its inherent powers as provided specifically in section 6 6(a) thereof in the process of the invocation of its traditional disciplinary jurisdiction against a recalcitrant litigant, who is in contempt. And the courts are prepared to invoke the jurisdiction in appropriate cases. See generally GOVERNOR OF LAGOS STATE VS OJUKWU (1986) NWLR (PT 18) 621; EZEKIEL HART VS EZEKIEL HART (1990) 1 NWLR (PT 126) 276; CANDIDO JOHNSON VS EDIGIN (1990) 1 NWLR (PT 129) 659; DANIEL VS FERGUSON (1891) 2 Ch.D. 27; VAN JOEL VS HORNSEQ (1895) 2 Ch.D.774.
The jurisdiction inhers in the court as adjudicator qua judex. The power is designed for the maintenance of the dignity and integrity of the court. Unless the court exercises its disciplinary jurisdiction on appropriate circumstances, it will lose its dignity and integrity in the judicial process. The institution of the courts, which the law has placed in an exalted and sacred position surrounded by all aura of legalism and sanctity, will be reduced to a toothless dog which can bark but cannot bite.”

Furthermore, their lordships went on to admonish on the exercise of the power of disciplinary jurisdiction as follows:-
“It is a jurisdiction which must be exercised with utmost care and caution because of its penal nature. A court of law should exercise the jurisdiction as a last resort and only where a clear and unequivocal disobeying conduct is identified. And the clear and unequivocal disobeying conduct must be directly traced and identified to the respondent, as the party in default.
That is not the only requirement. A disobeying conduct, which ripens to a contempt of the court can only arise when a party with knowledge of an existing court order, acts contrary to it. In other words, before the court can invoke disciplinary jurisdiction, there must be clear and sufficient evidence that the respondent had knowledge of the order of the court, and took a contrary action with a view to overreaching the applicant and disparaging the dignity of the court”.

It is also the law that the burden of proof of a disobeying or contemptuous conduct on the part of a respondent is on the applicant and where this burden is not discharged the court will not exercise its disciplinary jurisdiction. See OKOYA VS SANTILI SUPRA at page 766.

In the light of the above, the question arises, whether there is a clear and unequivocal disobeying conduct identifiable against the appellants/Respondents as the party in default that will warrant this court to invoke its disciplinary jurisdiction.
From the processes before this court including the affidavit in support and counter affidavit to this motion. It is not in doubt that the appellants/respondents are not yet parties to Suit No. E/64/2003 pending in the High Court of Enugu State which Res is the Onuogba land. The applicant in paragraph 2 and 3 of the affidavit in support of this motion deposed as follows:-

“2. During the pendency of our said suit in Enugu State High Court, the above named parties seeking to be joined applied in 2005 to be joined as representatives of the Umunensi people as parties to that suit. They said the land we claimed that the said defendants entered and damaged nine of our buildings having earlier in 1979 taken from us a deposit for use of the said land, was theirs.

3. Our claim in E/64/2003 were specifically framed to take account of our specific complaints against the aforesaid Umuaniabor defendants and we opposed the motion principally on the ground that we had not at any time any complaints against the Umunensi people, whom the said parties seeking to be joined had sought to represent as the land owners.”

In fact the pending appeal before this court is against the refusal of the trial High Court, Enugu State to join the appellants/Respondents as defendants in Suit No. E/64/2003. Therefore, to all intents and purposes they are not yet parties in the said suit and thus cannot be bound by any order of court emanating therefrom relating to the Res.
The complaint of the applicants is that while the appellants/Respondents had an application seeking to be joined as parties in Suit No. E/64/2003 pending in this court, they proceeded to destroy three buildings belonging to the applicant or the Respondents. To my mind, where a person or group of persons are not parties to a suit it will be out of place for a court to invoke it’s disciplinary jurisdiction against such person or group of persons. In other words, it will amount to overstretching the inherent powers of the court beyond bounds and the dignity of the court which is sought to be jealously guarded may be come smeared with arbitrariness. The courts power of disciplinary jurisdiction seems to me exercisable over the parties properly before it over a subject matter in dispute or against whom the specific order of the court is directed.
In the instant case, the appellants/Respondents are still seeking to be joined as parties in Suit No. E/64/2003 and until their application is granted, they remain total strangers to the said suit as far as the Res is concerned and that being so, the applicant have other options under the laws of this country to seek redress against any unlawful encroachment or interference with its property. In the circumstance, I find it impossible to grant the applicants prayers in the motion on notice filed on 22/6/2009. The said motion is found to be unmeritorious and it hereby dismissed.

MOTION ON NOTICE DATED 5-9-2008 AND FILED ON 26-1-2008
The parties seeking to be joined (hereinafter referred to as the applicants) filed a motion on notice dated 5/9/2008 and filed on26/11/2008 where they prayed as follows:

(a) An order extending time within which the Applicants can bring this application.

b) An order joining the applicants as the 7th, 8th, 9th, 10th and 11th Defendants respectively (for themselves and on behalf of UMUNENSI UMUNNAJINGENE KINDRED of Amechi Awkunanaw) in Suit No. E/64/2003 pending before the Enugu State Chief Judge’s Court, a similar application having been dismissed by the said High Court.

The motion is supported by a 47 paragraph affidavit deposed to by Sampson Nnaji, one of the applicants in the motion. Also attached to the affidavit in support are documents tagged Exhibits ‘AA’ to ZZ and ZZa to ZZH.

The 1st set of Respondent in opposition to the application filed a 28 paragraph counter affidavit sworn to by Igwe Udemgaba Maduka, Chairman of the Board of Directors and Chief Executive of the 1st set of Respondent company. Attached to it are documents referred to as Exhibits R1 to R13 respectively. There is also a further affidavit of 8 paragraphs dated 17/6/2009 and also a second further affidavit of 15 paragraphs dated and filed on 17/6/09 by the parties seeking to be joined (applicants). Attached to it are four documents tagged Exhibits ZZJ to ZZm. Written addresses were subsequently filed by the parties for and against the motion for joinder.

However, the 1st set of Respondent filed a notice of preliminary objection to the said motion for joinder. It is dated 20-1-2009 and filed on 22-1-2009. It is premised on the fact that the application is incompetent and the ground of the said objection are:-

(1) The application is an abuse of process

(2) The application is incompetent by reason of the same being an abuse of process

(3) The Honourable court lacks jurisdiction to hear the said application which is an abuse of court process.

A 10 paragraph affidavit of facts was sworn to in support of this grounds of objection. Paragraphs 3 to 6 are relevant and they read this:-

1. That from the Plaintiff/Respondents’ instructions and from the documents he submitted to our office for the purposes of this case which I have had the opportunity of perusing, I am aware of the following facts viz:

(a) That the Parties Seeking To be joined/Applicants herein had by a motion dated 6/4/05 made an exactly similar application to the High Court Enugu in suit No. E/64/2003 requesting to be joined as 7th, 8th, 9th, 10th, and 11th Defendants in the suit for themselves and on behalf of the UMUNENSI UMUNNAJINGENE KINDRED of Amechi Awkunanaw.
(b) That after considering the said application, the High Court finding no merit therein dismissed the application in its ruling dated 1/12/06. See Exhibit ZZC attached to the application herein.
(c) That the Parties Seeking To be Joined/Applicants (hereinafter referred to as “Applicants” simpliciter) not being satisfied with the decision of the High Court, appealed against the same to this Court by a Notice of Appeal dated 13/12/06 and filed on the same 13/12/06 which is attached hereto as Exhibit No/1.
(d) That pursuant to their said appeal, the Applicants filed an Appellants Brief of Argument in this Court.
(e) That on 25th June, 2008, this Court struck out the Applicants’ Appellants’ Brief. Vide Applicants’ Exhibit ZZH.
(f) That the Applicant not being satisfied with the said ruling of this Court, filed a further appeal against the same to the Supreme Court and also filed a motion before this Court for Stay of Proceedings of the substantive suit in the High Court pending the determination of their appeal to the Supreme Court. A copy of the said application with annexures thereto which includes their Notice of Appeal to the supreme Court is hereto attached and marked Exhibit No/2.
(g)That the processes in paragraph 3f above as well as other processes relating to the Applicants’ appeal to the Supreme Court were all pending, when they filed the present application on 26th November, 2008 against exactly the same Respondents.

2. That the reliefs sought by the Applicants in this motion are exactly the same reliefs which they are pursuing against the Respondents in the previous process which are pending by way of their appeal to the Supreme Court.

3. That I know as a fact that this application in these circumstances amount to an abuse of the processes of Court and the same are not made in good faith.

4. That the Plaintiff/Respondent/Objector is greatly vexed and harassed by this unwholesome proliferation of proceedings in different Courts by the Applicants against it in respect of the same subject matter.

The exhibits tagged Exhibits No. 1 and Exhibit No. 2 are attached to the affidavit in support. Exhibit No. 1 is a photocopy of the Notice of Appeal filed by the applicant. Exhibit No. 2 is a photocopy of a motion on notice for stay of proceedings also filed by the applicants.

In her written address in support of the Notice of preliminary objection Chief A.J. Offiah SAN of counsel for the 1st set of Respondent submitted inter alia that it is settled law that the right of appeal is created by statute or the constitution and no court has jurisdiction to hear any appeal unless it is derived from a statutory provision. The following cases were cited in support: UGWU VS A-G OF EAST CENTRAL STATE & ORS (1975) 6 SC. 13; ADIGUN & ORS VS A-G OYO STATE & ORS (1987) 2 NWLR (PT 56) 197 and ODOFIN VS AGU & ORS (1992) 3 NWLR (PT 229) 350.
Section 243 of the 1999 constitution was also referred to in contending that the appellant not having complied with the condition precedent for initiating a valid appeal, this court lacks the jurisdiction to entertain same as the appeal is incompetent. Also cited in support is the case Of OTU VS ACB INTERNATIONAL VS RUFAI (INTERVENING PARTY) (2008) 33 NSCQ 12 (PT 1) 143 at 189.
Learned Senior counsel further submitted that the appellants herein were not parties in Suit No. E/64/2003 in the lower court, because having filed an application for joinder which was refused, they remain non parties to the Suit. Therefore the notice of appeal and the application to be joined as parties filed without leave of court is a nullity. It was also contended that the case of NWOSU VS OFFOR (1997) 2 NWLR (PT 487) 274 cited by the appellants has no footing in the circumstance as Section 241(1) of the constitution applies where a party appeals as of right.

In his reply on behalf of the parties seeking to be joined G.C. Oputah of counsel, submitted that the ruling of the lower court dismissing the appellant’s application to be joined in Suit No. E/64/2003 is a final decision and not interlocutory in nature because the said ruling finally disposes of the right of the appellants in the application for joinder. This gives the appellants room to appeal as of right and does not require leave under Section 242 (1) or 243 (a) of the 1999 constitution.
The following cases were then cited in support: NWOSU VS OFFOR (1997) 2 NWLR (PT.487) 274; AJANI VS GIWA (1986) 3 NWLR (PT 32) 796 and AKINSANYA VS UBA LTD (1986) 4 NWLR (PT 35) 273.
Learned counsel further submitted that the appellants are not seeking to be joined in a pending appeal by any of the parties in Suit No. E/64/2003, as there is no such pending appeal. Rather, the appellants are appealing against the ruling of the High Court dismissing their own application, so they cannot be classified as persons interested or affected in the appeal. Learned counsel also referred to the authorities cited in support by the Respondent/applicants to submit that they are not applicable in this case because they were decided under circumstances different from the instant case.

Now Section 241 (1) (a) (b) of the 1999 constitution provides that:-
241 (1) “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at First instance;
(b) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings ………………………….
Section 243 (a) further provides that:-
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be:-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter —— ”
Thus, by a combination of Sections 241 (1) and 243 (a) of the 1999 constitution, an appeal lies from the decision of the Federal High Court or a State High Court to the Court of Appeal as of right in the following cases, (a) Final decision in any civil or criminal proceedings before the Federal High Court or a state High Court sitting at first instance; and (b) where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings.
Other appeals from a decision of the Federal High Court or a State High Court to the Court of Appeal shall be with leave of court. See MADUABUCHUKWU VS MADUABUCHUKWU (2006) 10 NWLR (PT 989) 475.

Where leave is required to appeal, it is a condition precedent to the exercise of the right to appeal. Thus failure to obtain leave where it is required will render any appeal filed incompetent as the appellate court in the circumstance is shorn of the jurisdiction to entertain it. See F.B.N. PLC VS BUKAR (1996) 1 NWLR (PT 483) 625; SHAKA VS SALISU (1996) 2 NWLR (PT 428) 22.
In the instant case, it is the contention of the learned senior counsel for 1st set of Respondent/objector that the parties sought to be joined, not being parties already, can only appeal against the ruling of the lower court as parties interested, with leave of the High court or this court. For the learned counsel for the appellant/Respondents, they are not seeking to be joined in a pending appeal filed by any of the parties in Suit No. E/64/2003 as there is no such pending appeal, but rather they appealed as of right against the ruling of the lower court which dismissed their application for joinder.
With all due respect, I am inclined to agree with the stance of the learned counsel for the Appellant/Applicants as that seems to be the correct position of the law. The appellant/applicants did not appeal against the judgment in Suit No. E/64/2003 (which incidentally is still pending at the lower court). Their appeal is against the ruling of the lower court dismissing their application to be joined as parties in Suit No. E/64/2003. This to my mind confers on them the right to appeal without leave because the said ruling determined their right as to whether or not they can be joined as defendants in Suit No. E/64/2003 and as such qualifies it as a final decision within the provisions of Section 241(1) of the 1999 constitution.

The test for the determination of the question whether a decision of a court is final or interlocutory is whether the decision finally disposes the right of the parties to the suit. It is final decision if it finally disposes the right of the parties. But if it does not dispose of the right of the parties then the ruling of the court remains an interlocutory decision.
See OGOJA LOCAL GOVERNMENT VS OFFOBOCHE (1996) 7 NWLR (PT 458) 48; NWABUEZE VS NWORA (2005) ALL FWLR (PT 272) 297; FALOLA VS UNION BANK PLC (2005) ALL FWLR (PT 257) 1435.
In UNION BANK PLC VS BONEY MARCUS IND. LTD. (2005) ALL FWLR (PT 278) 1037 the supreme court, per Katsina Alu JSC (as he then was) held that:-
“Unarguably, the question of what is an interlocutory or final decision before now had engaged the attention of the courts in this country. However, this court has in OMONUWA VS OSHODIN & ANOR (1985) 2 SC 1 given an authoritative decision on the matter. In that case this court held that:
“a decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties, (and not merely an issue), in the case”.
In AKINSANYA VS UNITED BANK FOR AFRICA LTD (1986) 7 SC (PT 1) 233, this court decided that:
” . . .. What renders an order of a court interlocutory or final with respect to a matter before it is it’s effect on the rights of the parties to the litigation. In all cases, the test and dominant consideration has been whether the rights of the parties have been finally determined or not”.
See also WESTERN STEEL WORKERS LTD VS IRON AND STEEL WORKERS UNUON (1986) 3 NWLR (PT 30) 617.

In the instant case, the Appellant/Respondents had at the lower court filed a motion on Notice on the 14-4-2005 wherein they prayed for an order joining them as the 7th, 8th, 9th, 10th and 11th defendants respectively for themselves and on behalf of the UMUNENSI UMUNNAJIGENE KINDRED of Amechi Awkunanaw. The lower court in a considered ruling delivered on 1-12-06 concluded as follows:-

“I do not therefore see any need in joining as party or parties, the person or persons against whom the plaintiff has no cause of action in law upon the facts. See Green Vs Green (2001) FWLR (PT 76) 795; Ige Vs Farinde supra.
For these reasons, I reject the contention of the applicants. I dismiss the application”.

From the above order, there is no doubt that the right of the appellants/Respondents as per being made parties in Suit No. E/64/2003 was determined by the said decision which as it relates to them constitutes a final order sealing their hope of being joined as defendants in the said suit. This to my mind entitles the appellants/Respondents to appeal as of right against the said ruling and do not require leave of court to so do.
In the circumstance I hold that this preliminary objection lacks merit and it is hereby dismissed.

I will now consider the submissions of counsel for the parties in the appellant’s substantive motion on notice for joinder.

In the address, G.C. Oputah of counsel for the applicants referred to the 1st Respondents claim in Suit No. E/64/2003 to say that it borders on trespass, injunction and damages for trespass. He submitted that in claims for trespass and injunction the issue of title arises as decided by the Supreme Court in NZEKWU VS NJEKWU (1989) 2 NWLR (PT 104) 373 AT 391.
Learned counsel further submitted that the applicants motive in applying to be joined in the Suit is to enable them defend their hard earned title to AGBIRIGBA band. He relied on CHINWEZE VS MASI (1989) 1 NWLR (PT. 97) 254 at 266 and GREEN VS GREEN (1987) NWLR (PT 61) 480 at 492.
As to the classification of a necessary party he referred to PEENOK INVESTMENTS LTD VS HOTEL PRESIDENTIAL LTD (1982) 12 S.C. 1 at 96 and GREEN VS GREEN supra.
Also relying on the case of MOBIL OIL NIG LTD VS NABSON LTD (1995) 7 NWLR (PT 407) 254.
Learned counsel submitted that the interest of justice demands that as far as possible, the issues between the parties should be determined once and for all in order to avoid multiplicity of actions.

In her reply on behalf of the 1st set of Respondent, learned senior counsel, relying on the facts deposed to in paragraphs 1 – 28 of their counter affidavit urged this court to dismiss the application for joinder and stay of proceedings. She added that it is a settled principle of law that an application for joinder can only be granted if the applicant satisfies the court:-

(a) That his presence is necessary for the effectual adjudication of the matter.
(b) That the plaintiff s claim against the existing defendants also affects him, or
(c) That his interest is the same or identical with that of the existing defendants.

Reliance was placed on OKAFOR VS NNAIFE (1973) 3 S.C. 60 and CARRENA & ANOR VS AROWOLO & 2 ORS (2008) 6 -7 S.C. 66 (PT 1).
Learned Senior counsel also referred to paragraphs 8, 9, 10, 13, 21 and 22 of their counter affidavit to contend that the presence of the appellants is not essential for the effective adjudication of the suit in the court below because the 5th respondent is not seeking for declaration of title. Also relying on paragraphs 4, 5, 6, 7, 10, 21, 22 and 25 of the said counter affidavit she stated that the plaintiffs/1st Respondent’s claim did not in any way affect the appellants/applicants whose interest is also not identical with that of the existing defendants in the lower court. Furthermore they did not trespass and will not be liable to pay damages and will not be affected by the judgment arising out of the Suit.
On the prayer for stay of proceedings as contained the appellant/applicants motion, learned senior counsel referred to AKILU VS FAWEHINMI (NO 2) (1989) 3 S.C. (PT 11) 1 to submit that in an application for stay of proceedings, the court must take into consideration the following principles:-

(1) Valid cause of action
(2) Pending appeal
(3) Competing rights of the parties.
(4) Preservation of the Res.

She then urged that the application be dismissed.

For the 2nd set of Respondent, it was the stance of Chief C. Ugolo of Senior counsel, that if this court agrees with its earlier decision given on 25/6/08 that the applicants should file a motion then the issue of technicalities should not apply and the Honourable court should consider the application dispassionately and given a decision based on justice of the case by joining the applicants, having been shown in the 1st Respondents motion for disciplinary jurisdiction that the land in dispute in Suit No. E/64/2003 is the same land which the applicants obtained judgment in suit No. E/170/76 up to the Supreme Court.
On the other hand, he says, if this court disagrees with the said decision of 25/5/2008 as shown in Exhibit ZZH, then this court should re-list the appellant/applicant’s brief of argument which was struck out on the said 25/6/08 and then hear the appeal on the merit.

It will be expedient at this stage to deal with the above issue as raised by learned senior counsel for the 2nd set of respondents before I proceed to address the appellants/applicant’s motion for joinder.
As earlier stated, the appellants/applicants had applied in the lower court to be joined as defendant in Suit No. E/64/2003. Their application was dismissed and they appealed to this court. Pleadings were duly filed and exchanged by the parties and at the hearing of the appeal on25-6-2008 this court per Omage, Alagoa and Ariwoola JJCA considered the competence of the said appeal and ruled as follows:-

“In this application the party seeking to be joined have filed an appeal in this suit not in the main Suit on which the court below has ruled, but on the application made in the court below to refusing to join the party. When the court below refused the application of the appellant to be joined, he is not a party unless the appellant seeking to be joined makes a further application to the court, he cannot file an appeal as such as he is not a party to the proceedings. The appeal of the party seeking to be joined has shown no interest in the main appeal as required under section 243 of the Court of Appeal Rules (sic) he cannot be regarded as a party.
The prayer made orally for time to further address the court and the issue is refused, the brief of the party seeking to be joined is struck out”.

The above ruling of this court still subsists until it is upturned on appeal or is set aside upon application by either of the parties pursuant to the applicable criteria. It is not for this court to suo motu embark on an unsolicited surgical expedition to overrule itself in the same proceedings. See LAWANI VS DAWODU (1972) 8 – 9 S.C. 83.

In the Nigerian Judicial System, it is an established principle that there is a presumption that the judgment or ruling of a court is correct until it is disproved by a higher court and the burden of showing the contrary is always on the aggrieved party and where there is no appeal against such judgment or ruling the presumption of correctness cannot be rebutted. It remains subsistings. See EJOWHOMU VS EDOK-ETER MANDILAS LTD (1985) 5 NWLR (PT.39) 1, and FOLORUNSO VS. ADEYEMI (1073) 1 NWLR 128.

In the instant case, this court having ruled that the party seeking to be joined ought to make a further application to this court for joinder, the said order remains subsisting until set aside on appeal. The appellants/applicants had appealed to the supreme court on the said ruling of this court but eventually withdrew the appeal vide a Notice of withdrawal dated 5/8/2008 and filed in the Supreme Court on 4/12/2008. See Exhibit ZZO attached to their counter affidavit filed on 13/11/2009. This court in the circumstance has no option than to abide by the said ruling, bearing in mind that what was struck out was the appellant’s brief of argument and not the main appeal.

Now on the motion for joinder, the appellant/applicants seeks an order of this court to be joined as the 7th, 8th, 9th, 10th and 11th defendants in Suit No. E/64/2003 pending before the High court of Enugu State because the Onuogba land which is the subject matter of litigation therein is part of the larger Agbirigba land belonging to them and for which they have obtained judgment in their favour up to the Supreme Court in Suit No. E/170/76. The 1st set of Respondent is opposed to the application for joinder because the claim in Suit No. E/64/2003 does not in anyway affect the appellants/applicants whose interest is not identical with the existing defendants in the aforementioned suit and as such will not be affected by the judgment arising therefrom.

Well established in our judicial system is the classification of parties to an action into three, namely: (a) Proper parties (b) desirable parties and (c) necessary parties.
Proper parties are those who, though not interested in the plaintiff’s claim are made parties, for some reasons, and desirable parties are those who have an interest or who may be affected by the result. See GREEN VS GREEN (1989) 3 NWLR (PT 61) 480 and DAPIALONG VS LALONG (2007) 5 NWLR (PT 1026) 199.
A necessary parry to a Suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. In such a situation it becomes almost impossible for the court to effectually and conclusively decide upon and settle all questions arising in the Suit in the absence of such a party. See BIYU VS IBRAHIM (2006) 8 NWLR (PT 981) 1, MOBIL OIL PLC VS D.E.N.R. LTD (2004) 1 NWLR (PT 853) 142, B.O.N. LTD VS SALEH (1999) 9 NWLR (PT 618) 331.
It follows therefore that a necessary party to an action is one whose presence is necessary for that effectual and conclusive adjudication of the questions involved in the cause or matter.
In the instant case, the appellants/applicants deposed in paragraphs, 3 to 12, 17 to 20, 25 to 30 and 41 to 43 of the supporting affidavit as follows:-

1. The Applicants are seeking to defend for themselves and on behalf of the Umunensi Umunnajingene Kindred of Amechi Awkunanaw, Enugu.
2. In early 2005 our attention was drawn to the dispute over part of ONUOGBA Land, which case was pending before the Enugu State High Court presided over by the Honourable the Chief Judge in suit No. E/64/2003.
3. The 1st to the 6th Defendants in the said suit do not represent the Umunensi Umunnajingene Kindred.
4. The land known as and called AGBIRIGBA LAND (MARYLAND LAYOUT EXTENSION, ENUGU) situate at Amechi Awkunanaw is the exclusive property of Umunensi Umunnajingene as adjudicated by the Enugu High Court in Suit No. E/170/76 with Gabriel Nnaji, Agbo Nwene, Nwankwo-Agbo and Okonkwor Ogbu representing Umunensi Umunnajingene Kindred as plaintiffs and Egbo Nwugwu, Nsude Nwatu, Nnamani Uchime, Atu Nwanyia, Anthony Ogbodo, John Egbo and Okafor Ogbodo representing Umuewo Ukwu Umunnajingene “Awbias” of Amechi Awkunanaw as Defendants. Certified copy of the judgment is Exhibit KK hereof.
5. All the representatives of Umunensi Umunnajingene Kindred in the said suit E/170/76 are now deceased.
6. I was then the Secretary of the said Umunensi Umunnajingene Kindred (hereinafter simply referred to as the “Kindred”) with Emmanuel Okwo as the Chairman, and both of us signed the kindred’ s re solution empowering the plaintiffs afore-mentioned to prosecute on the kindred’s behalf the suit against Umuewo Ukwu Umunnajingene :Awbias” of Amechi Awkunanaw. A copy of the motion to sue in representative capacity supported by the said resolution is annexed hereto and marked Exhibit AA.
7. The said Defendants appealed against the High Court judgment to the Court of Appeal in suit No. CA/E/52/92 and their appeal was dismissed on merit. Certified copy of the dismissal order is annexed and marked Exhibit BB.
8. A further appeal to the Supreme Court, Lagos in Suit No. SC.252/1993 was dismissed for want of prosecution. Certified copies of the dismissal order and ruling by the Supreme Court, Lagos, are annexed and marked Exhibit CC.
9. An application by the Defendants to the Supreme Court Abuja to relist the suit was equally dismissed. Copies of the certified ruling are annexed and marked Exhibit DD.
10. The totality of ONUOGBA land, part of which is now in dispute, is an integral part of the land known as and called AGBIRIGBA LAND (MARYLAND LAYOUT EXTENSION ENUGU) which belongs to our kindred.
11. The Plaintiff’s action is an extension of its defiance of our repeated cries and warning against its acts of trespass, contained in the letters dated 19/7/85, 23/7/85 and 22/8/85 respectively annexed hereto as exhibits GG, HH, and JJ.
12. The land in issue in suit E/6/2003 is subsumed in the dispute plan in Suit E/17/170/76 leading to the judgment annexed hereto as Exhibit KK. The said dispute plan is Exhibit LL hereof.
13. Our protest against disturbances and trespasses did not end with Exhibit EE but extended to the plaintiff itself in Exhibit JJ hereof.
14. The alleged Rangers Layout Planning Scheme proposed by the plaintiff in 1977 and published in Anambra State Gazette No. 25 Vol. 2 of 15th September 1977 was never approved.
15. All the actions of the Plaintiff are in deliberate defiance of the High Court, the Court of Appeal and the Supreme Court judgments (Exhibits KK, BB, YY as well as CC and DD hereof).
16. Further interruptions from the plaintiff and others necessitated further complaints from the Applicants to the Town Planning Authority in letters dated 22/9/90 and 14/11/90 to which the Authority reacted in the letter dated 15/11/90, these letters are annexed hereto and marked Exhibits ZZ, ZZA and ZZB respectively.
17. Umunensi is part of Umunnajingene. AGBIRIGBA land belongs exclusively to Umunensi and not Umunnaiingene as a whole.
18. Exhibits AA to ZZB hereof were all before the trial Court when it ruled on 1/12/2006 dismissing the Applicants motion to be joined in Suit E/64/2003. The said Ruling is annexed hereto as Exhibit ZZC.
19. The Plaintiff/Respondent did not at any stage in the trial court deny that ONUOGBA land in dispute in suit E/64/2003 is an integral part of AGBIRIGBA land belonging to the Applicants. The dispute plans filed by the Plaintiff/Respondent and the Defendants/Respondents in suit E/64/2003 are respectively annexed hereto as Exhibit ZZD and ZZE.
20. A look at the said dispute plans clearly shows that the Plaintiff s so-called ONUOGBA land is part of AGBIRIGBA land. Onuogba is a stream entirely outside the area claimed by the Plaintiff/Respondent.
21. I am informed by C.O. Anah, S.A.N. of Counsel for the Applicants and I verily believe him as follows:

(a) that the Applicants have a major stake in the subject matter of suit E/64/2003 and will be immensely jeopardized if not joined as co-defendants to defend their land already adjudicated upon by the Supreme Court.
(b) That for a just, fair and conclusive adjudication of the dispute in suit E/64/2003 the Applicants are necessary parties; and
(c) That if the Applicants are not joined in the suit and the case proceeds in favour of any of the existing parties, the Applicants will be accused of standing by while the suit was going on, and the Applicants on that ground will be estopped from challenging the ultimate result.

22. In the meantime the Plaintiff/Respondent is going on in the High Court with the land case, the subject matter of this application.
23. If the case goes on as in paragraph 42 hereof, even if this application succeeds, the order of this Honourable Court will be rendered futile.

Exhibits AA to ZZO attached to the affidavit are equally of great importance to show the extent of the appellants/applicants interest and concern over the AGBIRIGBA LAND which to them covers the Onuogba land, now the subject of litigation in Suit No. E/64/2003.
The 1st set of Respondent had relied on paragraphs 8, 9, 10, 13, 21, 22 and 25 of her counter affidavit dated 30/3/2009 to contend that the presence of the appellants/applicants is not necessary for the effective adjudication of the Suit in the court below and the respondent is not seeking for declaration of title.
The aforemention paragraphs of the counter affidavit are hereinbelow reproduced.

l. That the Plaintiff/Respondent’s counsel, Chief (Mrs.) A.J. Offiah, SAN, informs me, and I verily believe her, that the Plaintiff’s suit in the High Court against the Defendants for trespass can be effectively, effectually and conclusively determined without the need of any intervention by the Applicants either as parties or even as witnesses.
2. That the issues raised by the Applicants in the affidavit in support of their application will only cause confusion in the trial of the case at the High Court, becloud the real controversy between the Plaintiff Company and the Defendants and cause avoidable complications in the trial of the case.
3. That the Applicants have not sued UMUANIKE family nor UMUANIABOR family … nor even the Plaintiff/Respondent for a declaration of title in protection of their alleged interest in the ONUOGBA land which they claim belongs to them.
4. That the Plaintiff/Respondent after acquiring the land in dispute in suit No. E/64/2003 in 1977 sponsored, pursued and secured the approval of a Private Layout Scheme of the land i.e. the Rangers Layout Planning Scheme which was subsequently modified. The various documents showing the Plaintiff/Respondents’ Indenture of Lease dated 30/8/77, Agricultural/Commercial Certificate of Occupancy dated 14/12/92, (the purpose clause of which was later modified). Correspondences, Public Notices, gazette publications and newspaper publications relating to the original and new Rangers Layout Schemes are attached hereto and marked Exhibit, R1, R3, R4, R5, R6, R7, R8, R9, R10 and R11.
5. That for the last almost half a century, during which the Plaintiff has held and utilized the land which it purchased from UMUANIKE family, it has never had any interruption from the Applicants or any persons claiming through or under them.
6. That Counsel informs me, and I verily believe her, that the Applicants have other remedies open to them in law for the pursuit of their alleged or perceived rights, other than being made parties to the present Plaintiffs suit against the Defendants for special damages for trespass committed by the said Defendants.
7. That stay of proceedings in the substantive suit in the High Court will unduly prejudice the Plaintiff/Respondent herein because, amongst other things.

However, I have read through the 1st Respondent’s statement of claim in Suit No. E/64/2003 and I am minded to also reproduce paragraph 24 which contains the relief sought in the said Suit in the lower court. It reads:-

1. The plaintiff has suffered loss and damage and claims from and against the defendants individually and in a representative capacity both jointly and severally as follows:-

a) Injunction restraining the defendants, by themselves, their agents, privies, attorneys, assigns or howsoever constituted from further trespass on the said land in dispute as verged red in the attached plan filed along with this statement of claim.
b) N24,363,864.25k being Special Damages for:

I) return of deposit paid on 30/5/1979; and
II) damage and destruction to property in and around 17/12/2002.

c) N126,000,000.00K being general damages for unquantifiable losses for defendants’ continued prevention of development on the land and diminution of the value thereof as a result of its actions likely to scare of potential tenants and other investors therefrom.

From the above reliefs sought by the 1st Respondent there is no doubt that it relates to claim in trespass and injunction. It is settled law that once there is a claim for trespass and injunction title is put in issue and this makes it incumbent in the trial court to consider the issue of title to the land or exclusive possession to it. See ALAO VS ALABI (1997) 6 NWLR (PT 508) 351; OKORIE VS UDOM (1960) SCNLR 326; AMAKOR VS OBIEFUNA (1974) 3 S.C. 67 and NZEKWU VS NZEKWU (1989) 2 NWLR (PT 104) 373.

In the instant case, the appellant/applicants are eager to be joined as defendants in Suit No. E/64/2003 because the Onuogba land which is the subject matter of the Suit is seen to be part of Agbirigba land which is their rightful possession and they do not want to be accused of standing by while the case affecting the land is being pursued in court to their full knowledge.
What is more, the 2nd set of respondents also in their statement of defence as defendants in Suit No. E/64/2003 in paragraphs 23 to 29 and 47 therein made averments of facts which to all intents and purposes point to the fact that the appellants/applicant have an interest in the subject matter of litigation and this makes it necessary to join them as parties in the said suit.
After all, the whole essence of joinder of parties is to avoid multiplicity of actions and to save litigation time in the judicial process. It is also one way of trying to avoid abuse of court process. See OGOLO VS FUBARA (2003) 5 S.C. 141; 2003 11 NWLR (PT 831) 231, TANAREWA (NIG) LTD VS ARZAL (2005) 5 NWLR (PT 919) 28 and WAKAMA VS KALIO (1991) 8 NWLR (PT 207) 123.

In the final analysis, I find that from the affidavit evidence of the appellants/applicants, and the attached exhibits, the 1st Respondents counter affidavit, and their relief as claimed in the statement of claim as well as the averments in the 2nd set of Respondent’s statement of defence at pages 6 to 19 of the record of appeal, that it will not be out of place to join the appellants/applicants in suit No. E/64/2003.
The application for joinder therefore succeeds and is hereby granted. It is ordered as follows:-

(1) Time is hereby extended to today within which the applicants can bring this application.

(2) That the appellants/applicants be joined as the 7th, 8th, 9th, 10th and 11th defendants respectively (for themselves and on behalf of UMUNENSI UMUNNAJINGENE KINDRED of Amechi Awkunanaw) in Suit No. E/64/2003 pending before the High Court of Enugu, State.

(3) The prayer for stay of proceedings is refused having been over taken by the determination of this motion.

I make no order as to costs.

MOTION ON NOTICE DATED 28-1-2010 AND FILED ON 1-2-2010

This motion on notice was filed by the appellants/applicants wherein they prayed this court for the following orders:-

(a) an order setting aside the registration of the certificate of occupancy No. 002331 dated 27th May 2008 (Registered as No. 89 at page 89 in volume 1532 in the land Registry, Enugu) in favour of Messrs U. Maduka Enterprises Nigeria Limited, being a certificate deliberately procured and intended to overreach, circumvent, defeat and rubbish the judgments of the High Court, the Court of Appeal and the Supreme Court as well as the present Suit, over the applicants’ AGBIRIGBA land which the Respondents calls ONUOGBA land and which is the same land adjudicated upon by these courts and the subject matter of this suit; and for constituting an abuse of court process.
The said certificate of occupancy is Exhibit DISCP. 1 to the Affidavit of Igwe UdemgabaMaduka dated 22nd June 2009 in support of the motion on Disciplinary jurisdiction filed the same day; and

(b) any further order(s) the Honourable court may deem fit to make in the circumstance.

The motion is supported by u 16 paragraph affidavit to which is attached a photocopy of the certificate of occupancy and tagged EXHIBIT ZZR.

The 1st set of Respondent in response filed a notice of preliminary objection dated 15-2-2010 and filed on 17/2/2010. It prayed the court for the following orders:-

(1) An order striking out the application filed (by the party seeking to be joined) on the 1st February, 2010 for being incompetent and/or premature.
(2) For such further or other orders as this Honourable court may deem fit to make in the circumstances.

However, on the 22/2/2012 when all the motions came up for hearing and adoption of written addresses, the appellants/applicants (parties seeking to be joined) failed or neglected to move the said motion filed on 1/2/2010 for reasons best know to them. A thorough perusal of their composite written address filed on 30/3/201 1 and adopted on 22-2-2012 show that no reference, argument or submission was made with respect to the aforementioned motion to set aside Registration of Certificate of Occupancy. (EXHIBIT DISCIP 1).

Learned Senior counsel for the 1st set of Respondent had submitted that since the said motion on notice was not moved or any argument advanced in support, it should be taken as having been abandoned and accordingly struck out.

I entirely agree with the learned senior counsel that the right fate that will befall the said motion having not been moved either deliberately or inadvertently is to deem it as abandoned.
A court process which is not moved in court by a party who initiated it is as good as not filed. See OFORKIRE VS MADUIKE (2003) 5 NWLR (PT 812) 166; HOPE DEMOCRATIC PARTY VS INEC & ORS (2009) 8 NWLR (PT 1143) 297 and FEDERAL COLLEGE OF EDUCATION OKENE VS OGBONNA & ORS (2006) 7 NWLR (PT 979) 282.
Accordingly the motion on notice date d 28-1-2010 and filed on 1-2-2010 having not been moved by the applicant is deemed abandoned and it is hereby struck out.
I make no order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I had the opportunity of reading the draft of the lead Ruling of my learned brother Oseji, JCA just delivered.
I agree with the reasoning therein and the conclusion arrived thereat which I adopt as mine.
I abide by the consequential orders in the said Ruling including the order on costs.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother, Samuel Chukwudumebi Oseji, JCA.
I am in total agreement with the reasoning and conclusions therein and have nothing more to add.
I therefore adopt the Judgment as mine and abide by all the orders made therein.

Appearances

G.C. Oputa for the (Party seeking to be joined (applicants) For Appellant

AND

Chief Mrs. A.J. Offiah (SAN) for 1st set of Respondents (with Prof. R.A.C.E. Achara, Nnezi Offiah (Miss), V.C. Achara and Mark Onwuka Esq.)

Chief O. Ugolo (SAN) with I.I. Iloani for 2nd set of Respondents. For Respondent