CHIEF STEPHEN NWANKWO OKONKWO v. DR PATRICK I. OKOLO (2016)

CHIEF STEPHEN NWANKWO OKONKWO v. DR PATRICK I. OKOLO

(2016)LCN/8176(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of February, 2016

CA/E/36/2009

RATIO

APPEAL: GROUND OF APPEAL; THE IMPLICATION OF THE FAILURE OF THE APPELLANT TO APPEAL AGAINST A SPECIFIC HOLDING

There is no ground of this appeal challenging this specific holding. By not appealing against it, the appellants have admitted it as correct and binding upon them. See Amale v. Sokoto Local Government & Ors (2012) LPELR-7842 (SC), Okotie-Eboh v. Manager (2004) 11-12 SC 174 and Adejobi & Anor v. State (2011) LPER – 97 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.

WRIT OF POSSESSION; THE ESSENCE OF A WRIT OF POSSESSION

A writ of possession is meant to recover possession from any occupant of the Judgment land. So if the appellants are not on the land as they claim, then they should not worry about the writ of possession, because it can only operate against the occupants of such land. per. EMMANUEL AKOMAYE AGIM, J.C.A.

COURT: COURT RULES; THE PROVISION OF THE COURT RULE TO MAKE ORDER THE BINDS THE ESTATE OF A DECEASED PERSON THAT HAS NO LEGAL REPRESENTATIVES

Order 13 Rule 15 (1) of the Anambra State High Court Rules 2006 enables the trial Court to make such an order. It provides that:- “If in any proceedings it appears to a Judge that any deceased person who was interested in the proceedings has no legal personal representatives, the Judge may proceed in the absence of any person representing the estate of the deceased person or may appoint some person to represent his estate for the purpose of proceeding on such notice to such persons (if any) as the Judge shall deem fit, either specifically or generally by public advertisement, and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceedings.” per. EMMANUEL AKOMAYE AGIM, J.C.A.

PRACTICE AND PROCEDURE: COUNTER AFFIDAVIT; WHEN A PARTY DOES NOT NEED TO FILE A COUNTER AFFIDAVIT TO AN AFFIDAVIT

It is trite law that a party need not file a counter affidavit to an affidavit, if he intends to address only on points of law or if there are facts in the other parts of the records of the Court that contradict the deposition in the affidavit or if the deposition of facts in the affidavit are obviously self defeating and not credible. per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

CHIEF STEPHEN NWANKWO OKONKWO
(Deceased substituted by)
(i) Stephen Okonkwo
(ii) Patrick Okonkwo Appellant(s)

AND

DR. PATRICK I. OKOLO
(Deceased substituted by J.H.C. Okolo S.A.N. for and on behalf of P.H. Okolo family) Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 16-4-1980, the High Court of Anambra State at Onitsha per Awogu J. (as he then was) in Suit No. 0/45/76 entered judgment in favour of the plaintiff against the defendants therein granting the following reliefs-
1. “A declaration of title to that piece and parcel of land known as and forming part of Okpoko lands, situate and lying on the left hand side at about mile 3 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in Plan No. SE/AN.1A/76 filed by the plaintiff in this suit and therein verged PINK.
2. N1,000 (one thousand naira) damages for trespass on the said land.
3. Injunction restraining the defendant, his servants and/or agents or anyone of them interfering with the plaintiff’s ownership and possession of the said land.”

The appeal against this judgment to this Court in Appeal No. FCA/E/175/80 was dismissed and the said judgment of the High Court affirmed on 23-1-1980. A further appeal to the Supreme Court in Appeal No. SC/147/1986 was equally dismissed on 20-5-1988.

?The plaintiff in the

High court Suit was Dr. Patrick I. Okolo (for and on behalf of P.H. Okolo family). The defendants in that Suit were Chief Stephen Nwankwo Okonkwo and Francis Ifeanyi Menkiti. The appeal to this Court and further appeal to the Supreme Court were by Chief Stephen Nwankwo Okonkwo and Francis Ifeanyi Menkiti as appellants. Dr. Patrick I. Okolo was respondent in the appeal and further appeal.

After the death of Dr. Patrick I. Okolo and Chief Stephen Nwankwo Okonkwo, J.H.C. Okolo, SAN applied by a motion ex parte filed on 9-2-2007 in MSC Suit No. O/18m/2007 in the High Court of Anambra State for:-
i) An Order that he substitutes his deceased elder brother, DR. PATRICK I. OKOLO as plaintiff/judgment creditor in the judgments in the High Court, Court of Appeal and Supreme Court:
ii) An Order substituting in the stead of the named 1st Defendant/judgment Debtor CHIEF STEPHEN NWANKWO OKONKWO (now deceased) with
(i) STEPHEN O. OKONKWO (Jnr). and
(ii) PATRICK I. OKONKWO (for and on behalf of the Estate of Late CHIEF STEPHEN NWANKWO OKONKWO)
iii) Leave to apply for Extension of Time within which to issue out a Writ of Possession in

enforcement of the judgment of the Supreme Court of Nigeria in this suit delivered on 25th May 1988.
iv) An order for leave pursuant, to Order 13 Rule 30(1) and 31 and Order 53 Rule 7 High Court of Anambra State (Civil Procedure) Rules 2006, to issue out a writ of possession against the said personal representative and successors-in-title to Chief Stephen Nwankwo, now deceased, who along with Francis Ifeanyi Menkiti are the judgment debtors therein in the Supreme Court of Nigeria Judgment of 25th May, 1988 in appeal No. SC/147/86 in respect of the parcel of land known as and forming part of Okpoko lands, situate and lying on the left-hand side of about Mile 3 on the Onitsha-Owerri Express road, as is more particularly delineated in Plan No. SE/AN 1A/76.
(v) Extension of time within which the said Applicant may file and serve the Writ of Possession to be issue, thereto on the said representatives/successors-in-title to the Chief Stephen Nwankwo and Francis Ifeanyi Menkiti, the judgment debtors thereof.
?AND for any other order(s) as the Honourable Court may deem fit to make in the circumstances.”

The said High Court on 13-4-2007

granted all the above prayers, including an Order that the judgment creditor (respondent herein) file and serve the writ of possession within 60 days.

?On 13-11-2007, the respondent herein filed and caused the issuance of an originating summons for possession (Form 38) against the appellants herein. It is supported by an affidavit of 18 paragraphs. In response to this affidavit and in opposition to the summons, the appellants herein, on 14-12-2007, filed a counter affidavit of 41 paragraphs. The respondent herein on 28-1-2008 filed a further affidavit in reply to the said counter affidavit.

On 7-12-2007, the appellants herein filed a notice of preliminary objection to the competence of the Suit, contending that the Court lacked the jurisdiction to entertain it. This notice was struck out on 10-12-2007.

The appellants herein, on 14-12-2007 filed a motion on notice applying for an order vacating and or setting aside the 30-4 -2007 ex parte order of the High Court substituting Stephen Okonkwo and Patrick Okonkwo for the late Stephen Nwankwo Okonkwo. The respondent herein did not file a counter-affidavit to the affidavit in support of the

said motion.

The originating summons and the motion on notice to set aside the Order of substitution of Stephen Nwankwo Okonkwo with Stephen Okonkwo and Patrick Okonkwo were heard and determined together by the trial High Court. Following the adoption of written addresses, the trial Court on 18-2-2009 rendered its judgment dismissed the application to set aside the Order of substitution and entered judgment for the respondent herein ordering that the respondent herein and on behalf of P. H. Okolo family do recover possession of the parcel of land known and forming part of Okpoko lands, situate and lying on the left hand side, about mile 3 on the Onitsha-Owerri Express Road, Onitsha, more particularly delineated in plan No. SE/AN. 1A/76. The defendants and other persons in occupation of the land without the license or consent of the plaintiff were ordered to give up possession of the said land on or before the 30th day of January, 2009.

Dissatisfied with this judgment, the defendants/judgment debtors (now appellants herein), on 22-18-2008 commenced this appeal No. CA/E/36/2009 by filing a notice of appeal containing five grounds of

appeal.

Both side have filed exchanged and adopted the following briefs – appellants’ brief, respondent’s brief and the appellants’ reply brief.

The appellants’ brief raised the following issues for determination:
1. “Whether the identity of the land in the originating summons for possession and suit No. O/45/76 is the same as the land of the appellants.
2. Whether late chief Stephen Nwankwo Okonkwo sued in Suit No. 0/45/76 is the same person as late Chief Stephen Nwokoye Okonkwo or Chief S. N. Okonkwo, or S. N. Okonkwo Enterprises Ltd. who was never sued.
3. Whether the trial Judge was right to have imported the further affidavit in reply to the respondents/appellants counter affidavit of 14/12/07 as counter affidavit with respect to the Motion on Notice praying the Court for an order vacating or setting aside the order substituting the appellant in the stead of one late Chief Stephen Nwankwo Okonkwo filed by the appellants on 14/12/07.
4. Whether the Respondent complied with the mandatory provisions of Order 39 Rule 1(3) of the Anambra State High Court (Civil Procedure) Rules 2006.”

The respondent’s brief raised two

issues for determination as follows-
(i) “Whether the Appellants whose defence is a total denial of any interest whatsoever in the subject judgment property, can properly sustain this appeal”
(ii) Whether the order for immediate possession by the trial Court can be faulted in anyway?”

I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief.

Let me start with issue one. Learned Counsel for the appellants argued that the trial Court misdirected itself when it held that no issue as to the identity of the judgment land was raised by the appellant, that the appellants have maintained the position that their late father and S. N. Okonkwo Enterprises Ltd were not sued in respect of land at about mile 3 (the judgment land) that the appellants cannot be held liable to the judgment against late Chief Stephen Nwankwo Okonkwo in respect of the land at mile 3, that the building certificate of occupancy in the name of S. N. Okonkwo Enterprises Ltd and plan of Chief S. N. Okonkwo show that the land comprised therein is at mile four, that there is a difference between ‘about mile

3′ and mile four, that the respondent failed to explain how mile 3 became mile four, that the phrase mile four’ and the phrase ‘about mile 3’ casts doubt and uncertainty as to whether ‘about mile 3’ means mile 3, mile 3 or mile four and whether Chief S. N. Okonkwo is the owner of all the parcel of land covered in that area, that since plaintiff failed to identity the land in issue, his claim must be dismissed.

Learned SAN for the respondent argued that no issue pertaining to the identity of the judgment property was raised anywhere in the exchange of processes in the Suit or in this application, that the judgment property was clearly identified as delineated in the survey plan in the judgments of the High Court and the Supreme Court, that it is a gross misconception to raise issues of identity of the judgment property when the plan indentifying the same is not in doubt.

Let me now consider the merits of the above arguments. I do not agree with the argument of Learned Counsel for the appellants, that the appellants put the identity of the judgment land in issue.

?The consistent position of the

appellants in this post judgment proceedings is that their late father Chief Stephen Nwokoye Okonkwo had no interest in and never occupied the land at about mile 3 on the left hand side on the Onitsha-Owerri Express Road, Onitsha more particularly delineated in Survey Plan No. SE/AN. 1A/76 which was judicially declared to belong to the respondent by the High Court, which decision was affirmed and upheld by the Court of Appeal and Supreme Court, that they, Stephen Okonkwo and Patrick Okonkwo, children of late Chief Stephen Nwokoye Okonkwo are not occupying or dealing in the said judgment land. The appellants did not contend that they occupy and are dealing in contiguous and connecting land or that the land they occupy is not part of the judgment land. If they had so contended, than an issue as to the identity of the judgment land and the one they admittedly occupy would have arisen. They limited themselves to denying their occupation of and dealership in the judgment land. Their denial of occupation of the judgment land show that they were not in doubt about its identity.

?The respondent in his affidavits maintained that before and after the

judgment of the Supreme Court, the appellants have continued to occupy the judgment land, leasing portions of the land to other persons and are making moves to start selling portions of same to third parties.

It is noteworthy that the appellants did not in any way assert or even suggest that they have any right or interest in any land close to the judgment land. They did not rely on the Building certificate of occupancy to show their right or interest in any nearby land different from the judgment land. It is the respondent who produced the said certificate along with his further affidavit in support of the originating summons to prove the averment in paragraph 5 of the further affidavit that the appellants have obtained such certificate over the judgment land and with it are attempting to sell off the land. The said paragraph 5 of the further affidavit reads thusly- “That a copy of the Building Certificate of Occupancy obtained by them over the same property, with which they are attempting to sell off the property is enclosed herein as an exhibit.”

?The appellants did not file any further counter affidavit to deny the deposition of fact in

paragraph 5 of the respondent’s further affidavit. There is nothing in any other affidavit in the entire post judgment proceeding stating that the late father of the appellant or S. N. Okonkwo Enterprises Ltd has a Building Certificate of occupancy over land different from the judgment land.

?Learned Counsel for the appellant is now relying on the fact only that the Building Certificate of Occupancy states that the land is at mile four along Onitsha-Owerri Road, Onitsha to argue that the land comprised in the Certificate is different from the judgment land said to be at ‘about mile 3’ on the same road. It is noteworthy that the appellants have not stated that the said land comprised in the certificate is not on the left hand side corner of the said road. Learned counsel has dwelt on only the fact that the land is at mile four while the judgment land is at mile 3. Without denying paragraph 5 of the respondent’s further affidavit that the certificate covers the same judgment land, the argument of Learned counsel for the appellant that the mile four land is different from land at “about mile 3” cannot be valid. Learned Counsel in

his argument admitted that the phrase “about mile 3 “could mean mile 3, mile 3 and mile four. I understand the phrase to mean the land around mile 3, which includes land before and after mile 3. Survey Plan No. SE/AN. 1A/76 clearly described and delineated the land at “about mile 3 (the judgment land). It delineated the extent of the land at ‘about mile 3.’ The appellants did not assert in any of their affidavits in this post judgment proceeding that the land about mile 3 clearly described and delineated in Survey Plan No SE/AN. 1A/76 does not extend to mile four.

The failure of the appellants to positively, directly and proactively assert that they occupy land near or next to the judgment land, and that the land they occupy is different from the judgment land and their failure to produce the said certificate and plan and exhibit them along with their counter affidavit in opposition to the originating summons or the affidavit in support of the motion on notice to set aside or vacate the ex parte order of substitution which smacks of misprision of relevant evidence gives credence to the case of the

respondent that the appellants unlawful occupy and are dealing in the judgment land and that the Building Certificate of occupancy in the name of S. N. Okonkwo Enterprises Ltd and the Survey Plan attached to it but in the name of S. N. Okonkwo were obtained to enable them start selling the said judgment land.

Instead of directly and positively making a case that they occupy the nearby land and that the land is different from the judgment land, they prefer to rely on the reference to land at mite four in the building certificate of occupancy to create an impression that the judgment land is imprecise, uncertain and not identifiable. Even in so arguing, they did not make bold in any of their affidavit to asseft ownership of the land comprised in the said Certificate of occupancy and failed to deny that the land therein is the judgment land. In any case they have not denied obtaining the certificate of occupancy and therefore cannot deny providing the information that is contained in it and the survey plan.

?The response of the appellants to the case of the respondent during the post judgment proceedings and their reliance on the words mile four’

in the certificate and plan to now contend that the judgment land is uncertain and inexact in extent and identity, smacks of a scheme to avoid the realization of the judgment of the Supreme Court over the judgment land and reopen new battle fronts over the judgment land under the guise of litigating over a land different from the Judgment land.

For the above reasons I up hold the decision of the trial Court that no issue was raised by the appellants as to the identity of the judgment land.

In the light of the foregoing, issue one is resolved in favor of the respondent.

I will consider issues 2, 3 and 4 together. Learned counsel for the appellants argued that the 1st defendant in the suit at the High Court, the 1st appellant in the appeal in this Court and the further appeal in the Supreme Court was Chief Stephen Nwankwo Okonkwo and not Chief Stephen Nwokoye Okonkwo, that Chief Stephen Nwokoye Okonkwo was their father and he had had no right or interest in the Judgment land and did not occupy the land. He also submitted that there was nothing before the Court that suggest or show that the two names refer to the same person and that the

trial Court erred when it held that the two names refer to the same person and that the middle name of the 1st defendant was wrongly stated as Nwankwo instead of Nwokoye.

Another submission of learned counsel for the appellant is that the respondent having failed to file a counter affidavit to the affidavit in support of the appellants motion to set aside or vacate the ex-parte order of substitution, the facts in the said affidavit remain uncontroverted and admitted, that it was wrong for the trial court to hold that the facts in the respondent’s further affidavit in support of the originating summons provide sufficient answer to the appellant’s affidavit in support of the motion on notice to set aside or vacate the ex parte order of substitution.

Learned Counsel for the appellant also argued that the respondent did not respond to the motion on notice to set aside or vacate the ex parte order of substitution as mandatorily required by Order 39 Rule 1 (3) of the Anambra State High Court (Civil Procedure) Rules 2006, that the said provision requires that if the respondent intend to oppose the said motion, he should within 7 days of being served

with the motion, file his written address and counter-affidavit, that the respondent did not file the written address and the counter-affidavit and that this non compliance with the said provision is not technicality and the respondent is thereby deemed to have admitted the application. He relied on the Judicial authorities of Adewunmi & Anor v. A-G Ekiti State & Ors (2002) FWLR (Pt. 92) 1835 at 186 8 and Onochie & Ors v. Odogwu & Ors (2006) FWLR 317, 544 at 569-570.

Learned SAN for the respondent argued in reply that since the appellants deny having any right or interest in the Judgment land, then they should keep their peace and stay away from the land and avoid interfering with the rights of the judgment creditor therein, that the respondent has demonstrated by his affidavits in support of the originating summons that the appellants are the ones occupying the Judgment land, actively despoiling and leasing same and non of these facts was denied by the counter affidavit of the appellants, that the same appellants who deny any link with the Judgment land, are the same persons that presented themselves as the owners of the Judgment land

in a claim for compensation for the land from Anambra State Government and were paid therefore by the said Government the sum of sixty million naira as compensation, that the paradox of the situation is that the same appellants who have no interest in the Judgment land, in their brief of argument seek an order to set aside the Judgment of the High Court delivered on 15-12-2008, that such a contradiction puts the stamp of mere mischief and abuse of process on the appeal, that there is no rational basis for the appeal as the appellants want this court to set aside the order of possession made by the trial court when they deny having any interest or right in the judgment land and that the implication of this is that the Judgment of the Supreme Court cannot ever be enforced leaving the Judgment creditor’s rights fruitless.

Learned SAN also submitted in substance that the trial Court was correct to have relied on the depositions in the respondents further affidavit in response to the appellant’s counter affidavit to the summons as providing sufficient answers to the affidavit in support of the appellant’s motion to set aside or vacate the order of

substitution.

Let me now consider the merit of the above arguments of both sides.

Although the appellants in their counter-affidavit to the affidavit in support of the originating summons stated that their late father and themselves have no right or interest in the Judgment land and do not occupy it, they failed to deny the deposition of facts in paragraphs 5, 7 and 8 which state that:-
5. “That copy of the Building Certificate of Occupancy obtained by them over the same property, with which they are attempting to sell off the property is enclosed herein as an Exhibit.
7. That the 1st Respondents are the persons who have been letting out the property to various business interests, and collecting rents and other charges therefrom all through, since the death of Chief S. N. Okonkwo up till now.
8. That the 1st Respondents have as soon as this proceeding was commenced procured GSM Service providers to install 2 huge masts on the property, for which they must have received huge sums of money.”

?The building certificate of occupancy attached to the further affidavit bear the name S. N. Okonkwo Enterprises which the appellants

admits is their late father’s company. The survey plan accompanying the building certificate of occupancy bear the name S. N. Okonkwo, which name the appellants admit is their late father’s name. The appellants have not denied the deposition in paragraph 5 of the further affidavit that the said certificate and plan cover the same Judgment land. By not denying this deposition of facts, they are deemed by law to have admitted the specific facts narrated therein. See Badejo v. Federal Minister of Education & Ors (1996) LPELR-704 (SC) in which the Supreme Court held that: “where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or reply to counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed.”

?So the facts that they obtained the certificate and survey plan over the Judgment land, they have been letting out the land to other persons since the death of Chief S. N. Okonkwo and that they allowed GSM service providers to mount two huge masts on the judgment land are established. Having admitted that the name S. N. Okonkwo in the building certificate of

occupancy and survey plan is their late father’s name, their argument that they are not children of the Judgment debtor because his middle name as stated in the Judgment being enforced is Nwankwo and not Nwokoye cannot be sustained. It is the appellant’s that assert that Chief Stephen Nwankwo Okonkwo is a person different from their late father, Chief Stephen Nwokoye Okonkwo for the mere reason that their middle names are different. It is trite law that he who asserts must prove.

It is also trite law that a party who desires Judgment to be given in his favor on the basis of the existence of certain facts must prove that those facts exist. The appellants have not shown that a Chief Stephen Nwankwo Okonkwo exists different from a Chief Stephen Nwokoye Okonkwo especially against the background of the obvious facts that the initials S. N. Okonkwo apply to both names and the admitted fact that the S. N. Okonkwo who obtained the certificate and plan over the Judgment land is the late father of the appellants and the appellants have continued to let out the land and allow Communication Service Providers install two masts on the Judgment land. The trial High

Court had held that the lawyers of the appellants’ father fought the case up to the Supreme Court and lost. The holding reads thusly- “His lawyers fought the case up to the Supreme Court and lost. His sons cannot now wriggle out of the case by claiming that Stephen Nwankwo Okonkwo is not their father.” There is no ground of this appeal challenging this specific holding. By not appealing against it, the appellants have admitted it as correct and binding upon them. See Amale v. Sokoto Local Government & Ors (2012) LPELR-7842 (SC), Okotie-Eboh v. Manager (2004) 11-12 SC 174 and Adejobi & Anor v. State (2011) LPER – 97 (SC).

The appellants’ failure to appeal against this holding of the trial Court renders ground five of this appeal and issue 2 in the appellant’s brief unarguable. Having accepted as correct the holding that their father’s lawyers fought the case to the Supreme Court, then they cannot validly contend that the defendant Judgment debtor in the said case is not their father. So if Chief Stephen Nwankwo Okonkwo is not their father, why did their father engage lawyers to prosecute his defense and appeals. The contention of the appellants

that the defendant/Judgment debtor is not their father is a mere ploy to defeat the enforcement of the Supreme Court Judgment against the defendant/Judgment debtor and his estate and against any persons in the land.

In the light of the foregoing I agree with the decision of the trial Court thusly:- “The documents are Exhibit A- Particulars of Directors of Messrs S. N. Enterprises Ltd, Exhibit B Certificate of Incorporation showing the real name of the defendants/applicants’ father. The Exhibits are hardly readable. I can however see that the names on the document are Stephen Nwokoye Okonkwo. What this means is that the middle name of the defendants/applicants’ father was wrongly stated as Nwankwo instead of Nwokoye. This does not in any way detract from the fact that the trespassed on the plaintiff’s land and that he was the one against whom judgment was given in the High Court. His lawyers fought the case up to the Supreme Court and lost. His sons cannot now wriggle out of the case by claiming that Stephen Nwankwo Okonkwo is not their father. From the documents exhibited it is clear that Stephen Nwokoye Okonkwo, Stephen Nwankwo Okonkwo and Chief S. N.

Okonkwo are one and the same person. The building certificate of occupancy exhibited in the further affidavit of J.H.C. Okolo SAN has the name Messrs S. N. Okonkwo Enterprises Limited on it. It was obtained in 1983. The suit which went up to the Supreme Court was instituted in the High Court in 1976. It is noteworthy that the plan annexed to the building certificate of occupancy has the name Chief S. N. Okonkwo on it. It was made in 1975. Other documents annexed also bear the name Chief S. N. Okonkwo.”

The appellants in the concluding part of their brief stated thusly “in conclusion we urge your Lordships to set aside the Judgment of the trial Court delivered on 15/12/08.” This prayer is inconsistent with their claim that their father was not the defendant in the suit. So if he was not the defendant, why urge that the Judgment in the suit be set aside. Such a prayer goes to confirm that their father was the defendant in that suit.

can only operate against the occupants of such land.

In the light of my earlier holding herein that the late father of the appellants was the defendant/judgment debtor in respect of the Judgment land, I hold that the application to set aside the ex parte order of substitution lacks merit.

?The ex-parte order of substitution

was made in accordance with this provision.

Let me now consider the issue of the failure of the respondent to file a counter-affidavit to the affidavit in support of the motion on notice to set aside or vacate the ex parte order of substitution.

It is glaring from the affidavit in support of the originating summons, the counter affidavit thereto and the further affidavit in response to the counter affidavit that both sides had joined issues on whether the appellants late father was the defendant/judgment debtor. This is one of the main issues in controversy in the substantive proceedings. The motion to set aside the order of substitution was based solely on this issue and the facts deposed to in support of the said motion are already contained in the counter affidavit to the originating summons. Those same facts had been denied by the respondent’s further affidavit in reply to the counter affidavit.

The trial Court was right to have determined the motion on notice to set aside the ex-parte order of substitution along with the originating summons to avoid pre-judging one of the main issues in the substantive case. In doing so, it rightly

considered the totality of the affidavit evidence of both sides. In the circumstances of this case, the respondent who had already joined issue with the appellants on the point did not need to file a counter-affidavit to the motion on notice. It is trite law that a party need not file a counter affidavit to an affidavit, if he intends to address only on points of law or if there are facts in the other parts of the records of the Court that contradict the deposition in the affidavit or if the deposition of facts in the affidavit are obviously self defeating and not credible.

Even the Order 39 Rule 1 (3) of the Anambra State High Court (Civil Procedure) Rules 2006 relied on by the appellants in arguing that it was mandatory that the respondent filed a counter-affidavit clearly states that he may do so. There is no doubt that where a respondent to an application intends to oppose same on the basis of facts and there are no facts in the other parts of the records of the court upon which it can rely to do so, then it is mandatory that he files a counter-affidavit or he would be deemed to have admitted the facts in the affidavit in support of the

application. That is not the situation in our present case, where facts abound in the affidavit in support of the originating summons and the further-affidavit disputing the facts in the appellants counter-affidavit. Since the Court considered all the matters together, it could not have ignored the other affidavits in the case and rely solely on the affidavit in support of the motion on notice to vacate the ex-parte order of substitution. It will not be in the interest of substantial Justice to ignore facts in other affidavits in the same proceedings that show that the application to set aside the ex-parte order of substitution was baseless.

In the light of the foregoing, I resolve issues 2, 3 and 4 in favor of the respondent.

On the whole this appeal fails as it lacks any scintilla of merit. It is accordingly dismissed. The judgment of Anambra State High Court in suit No. 0/18m/2007 delivered on 15-12-2008 per C. E. Iyizoba J is affirmed and upheld. The appellant shall pay costs of N100,000.00 to the respondent.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother EMMANUEL AKOMOYE

AGIM, JCA. My lord has made a thorough and erudite determination of the facts and law in dispute. I have nothing to add. I agree with my learned brother that the appeal is wholly lacking in merit and should be dismissed.

TOM SHAIBU YAKUBU, J.C.A.: The incisive reasons proffered and the ultimate conclusion reached by my learned brother EMMANUEL AKOMAYE AGIM, J.C.A., in the lead judgment, represent my considered opinion on this appeal which is bereft of merits. Hence, the same is also dismissed by me.

I, affirm the judgment of C. E. Iyijoba, J., delivered on 15th December, 2008. I abide by the award of costs of N100,000 only to the respondent, against the appellant.

Appearances

Afam Obi Esq.For Appellant

AND

J.H.C. Okolo, SAN with O. Q. NwagboFor Respondent