Being dissatisfied with the said ruling, the appellant filed a notice of Appeal against same on the 23rd March, 2016.
FACTS OF THE APPEAL The Appellant instituted this suit by way of an originating summons for possession in suit No: HAD/18/2015 filed on the 17th August 2015 against one Samuel Umoru who died some times in year 2006. Consequent upon the death of the said Samuel Umoru, the Respondent as the family head brought an exparte application for joinder in the suit since defendant named in the suit is late and this is to the knowledge of the Appellant on record.
On the exparte application, the lower Court on his own wisdom, ordered that the other party be served with the exparte application to enable the Court hear from both parties.
On service of the exparte application, the Appellant filed a counter- affidavit opposing the application. The Respondent on receipt of the Appellants Counter-affidavit, filed a further affidavit in support of his application for joinder.
Counsel to both parties adopted their written addresses respectively. The lower Court then delivered its ruling in favour of the Respondents and hence this appeal.
It is worthy of note that the land, the subject of the originating summons is a family land belonging to the Fasuru family of both the Appellant and the Respondent. However, the said family has for sometime now been factionalized due to incessant Chieftaincy dispute amongst the Appellant and Respondent i.e Suits Nos HAD/121/2011 and HAHD/52/2012 according to Respondents Counsel.
ISSUES FOR DETERMINATION The Appellants lone issue is derived from two grounds of Appeal.
(1) Whether the lower trial Court, in the circumstance of this case was right in joining the Respondent as a party to originating summon leading to this appeal. In arguing the lone issue, the Appellant contended that the thrust of the Appellants complaint relates to the joining of the Respondent to the originating Summons for possession filed before the lower Court by the Appellant. The originating summons itself was a process through which the Appellant sought to on behalf of a six man committee constituted by the Court to enforce the judgment of a Customary Court ordering the original and the only defendant, who was sued in his personal capacity to vacate the farmland, the subject matter of the main suit and of this originating summons and yield the possession and management of the said farm to the Appellant within 21 days from the date of the judgment. The said judgment was affirmed by the High Court and this Court.
Learned Appellants counsel stated that by Order 53 Rule 2 & 7 of the High Court of Ekiti State Civil Procedure Rules 2011, an applicant who wishes to enforce an order for possession of such land must file originating summons. Upon becoming aware of the pendency of the Appellants Originating Summons for possession, the Respondent, who at the time was laying claim to being an Asamo of Odo-Ado (page 75 of the Record) brought an application ex parte to be joined as a defendant to the originating summons.
The lower Court in joining the Respondent as a defendant held
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