AKINYEDE v. AKINYEDE

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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that it was satisfied that the Respondent had proved that he was in occupation or possession of the land and on that ground should be joined, learned Appellants Counsel submitted that the finding is erroneous and cannot find support in the printed Record. Though it is conceded that an application for joinder of party to a proceeding is at the discretion of the Court. However, it is settled that, such discretion must be exercised judicially and judiciously. OFOMATA V. ONWUZULUGBO (2002) 8 NWLR (PT. 769) PG 298 @ 315. Exercising discretion, judicially and judiciously means that, the Court must act on well appraised facts and material and on a sound, well settled principle of law. SHELL PET. DEV. CO. V. LAWSON JACK (1998) 4 NWLR (PT. 545) 249 @ 278. Though this Court will rarely interfere with exercise of discretion by a lower Court, it will however interfere and set aside a discretion that was not exercised judiciously B.A.T. (INVEST) LTD. V. A-G LAGOS STATE (2014) 16 NWLR (PT 1433) PG 260 @ 297-298.
He contended that in the instant appeal, the lower Court’s discretion exercised by ordering the joinder of the respondent as a defendant to the originating Summons was based on misapprehension of the law. A review of Order 53 Rule 5 of High Court of Ekiti State Civil Procedure Rules 2011 under which the Respondent applied to the joined in the originating Summons for possession reveals that, an applicant to be joined must satisfy the Court that he is in actual occupation or possession of the land to be possessed. The side note to the Rule also conclusively suggests that the provision relates strictly to persons in actual occupation.
He stated that the learned trial Court in holding that, the respondent was in occupation, relied on deposition in paragraph 10 of the further affidavit (page 63 of the Record) which merely deposed to the fact the the Respondent had Cocoa and Kolanuts farms and other products on the land in question. This he submitted is not a challenge or direct controvert to the fact of not being in physical or actual occupation or possession. Having a right to possess, possessory right is not the same in law and in fact as being in physical or actual occupation or possession. A challenge or controverting a deposition or a fact must be positive, express and specific in relation to the fact being controverted or challenged OSENI V. DAWODU (1994) 4 NWLR (PT. 338) 390 @ 410.
The law he maintained had laid down a clear line between possessory right and actual or Physical possession. Thus it is usually the case that the man who owns premises might not be in actual possession of the premises. And a man who has Cocoa, Kolanuts farms and other products on a land might not be in actual possession or occupation. See ADELAKUN V. ISEOGBEKUN (2003) 7 NWLR (PT. 819) PG 295 @ 311.
In this instant case learned counsel submitted that there is nothing on record to establish or support the findings of the lower Court that the Respondent was in fact and in law in physical occupation or possession of the land in dispute to having him within the contemplation of person in occupation of the land as contemplated by Order 53 Rule 5 of the lower Court rules of Court relied on.
Assuming without conceding that having cocoa and Kolanuts farms and other products on the land in question controverts another direct and positive deposition that the Respondent is not and has never been in occupation of the land the lower Court would still have fallen in error by resolving what would have at least amounted to oath against oath or conflict in two affidavit without subjecting the conflict to cross examination by calling for oral evidence to resolve the conflict GBILEVE VS. ADDINGI (2014) 16 NWLR (PT. 1433) PG 394 @ 417.

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Learned Counsel submitted that joining a person not originally named a defendant, but in occupation for him to be heard on the originating summons as contemplated by Order 53 Rule 5 of the rules of Court under which the Respondent as Applicant came and which the lower Court relied on cannot be stretched to include hearing such person afresh on all issues that had been raised and pronounced upon by, in the instant case three Courts, including this Court.
The four grounds upon which the Respondent as applicant wanted to be joined and heard have been reviewed at page 114 of the record. He submitted that granting the Respondent application to be joined as a defendant and heard afresh on the grounds canvassed above, is tantamount to review of all the issues in respect of which all the parties in the main suit leading to the making of the Appellant originating summons for possession had joined issues and which the Courts, including this Court had pronounced. A careful consideration of the grounds of the Respondents application, particularly in the light of the three judgments in question exhibited on record, will show that, the Respondent was not a person fit to be joined and heard on issues already heard and decided.
Also that Order 53 Rule 5 of the lower Court rule contemplates a person who was not a party or defendant to the original suit. Thus where a person who was a party to the suit, particularly a defendant at the trial and who had been heard in the main suit, applies to be joined as party/defendant again, he will not be qualified to be joined on the ground that he was a party/Defendant who had been heard originally. In this context, a party, defendant would include all privies and agents or anybody claiming through any of the original Defendant. In the instant case, it is not in dispute that the Respondents predecessor in title and biological father, the late Chief Asamo, employed, Umoru, the lone original defendant as caretaker for the whole family farmland in dispute.
It is learned Counsels Submission that removing, substituting a party be heard afresh particularly on the grounds the Respondent is seeking to be joined and heard would amount to tinkering with the judgment of the two lower Courts and the lower Court was therefore wrong to have tinkered with the suit before it by striking out the name of the original defendant and substituting same with the Respondent after the case had been heard to finality. C.C.B.(NIG) LTD. VS. ONWUCHEKA (2000) 3 NWLR (PT. 647) 65 75.
Besides, Samuel Umoru whom judgment was entered against up till Court of Appeal did not further appeal to the Supreme Court before he died. Umoru prosecuted the case up till Court of Appeal in his personal capacity and his interest cannot be revived by his Cronies including the applicant who apparently was displeased with the Customary Court.
Therefore, the original defendant having not sued in a representative capacity cannot be substituted at this stage since the action cannot survive him. By Order 13 Rule 15(2) of the Rules of this Court, a person can only be substituted in a pending action if the Court action, survived him AKUNMOJU VS. MOSADOLORUN (1991) 9 NWLR (PT. 214) PG. 235. In the instant case, apart from the fact that the original defendant sued in a personal capacity and therefore, cannot be substituted upon his demise as the cause of action does not survive him, this Court had further extinguished whatever claim or cause of action he may have perceived to have over the subject matter of this litigation when the Court ordered him to vacate the land in dispute. What further right is anybody claiming through him coming to claim? In OJO VS. OGUNTUASE (1994) 6 NWLR (PT. 352) PG. 628 @ 633 it was held that a personal right dies with the person.
Finally, he urged the Court to allow the appeal and strike out the name of the Respondent from the

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originating summons.
On his own part, the Respondent agreed with and adopted the Appellants sole issue for determination thus
Whether the lower Court in the circumstances of this case was right in joining the Respondent as a party to the originating summons leading to this appeal.
Learned Respondent Counsel stated that the originating summons was issued and purportedly served on a dead person. The Appellant he contended knew that Samuel Umoru who appeared on the originating summons as a defendant had died long ago prior to the delivery of the judgment of the Court of Appeal in 2006. He therefore submitted that a dead person cannot be sued in proceedings/appeal. See Re-Otuedon (1995) 4 NWLR Pt. 392 655. Learned counsel then urged the Court to hold that the originating Summons is not properly initiated with regard to the parties therein.
Even the depositions in the affidavits of the parties, especially the two affidavits in support of the respondent application for joinder, it was clear that the appellant sought possession is a joint family land belonging to the Fasuru family of both appellant and respondent. By the said depositions, there is no doubt that no cordial relationship or love exists between the appellant and respondent. The various Courts cases are attestation to the dispute in the family. See Exhibits EAA2, EAA3 and EAA4 attached to the further affidavit of the respondents on pages 66-101 of the record.
On the issue of the joinder of the respondent to the originating summons by the lower Court which is the focus of the present appeal, learned counsel submitted that the finding of the lower Court on the issue of joinder of the respondent was well grounded upon a sound and well settled principle of law. It is trite that the essence of joinder is to enable the Court hear all interested parties to a matter in order to prevent multiplicity of actions. Submitted that the rules as to joinder of parties were not intended to add a defendant who had no interest in the action but that all persons who may be entitled to or who claim some share or interest in the subject matter of the suit or who may be likely to be affected by the result, the Court can join either suo motu or no application by either party. (under-line for emphasis). See the case of Kwara State Civil Service Commission & 2 Ors v. Joshua Dada Abiodun & 11 Ors, (2009) ALL FWLR (Pt. 493) 1355, C-D. In the case of Ibegwura Ordu Azubuike V Peoples Democratic Party & Ors, LPELR (2014) SC 476/2012.
According to learned Counsel, the respondent demonstrated by his affidavits that he is an interested party who will be affected by the outcome of the originating summons, it behoves on the lower Court to join him. He then urged the Court to hold that the joinder of the respondent by the lower Court was rightly made.
He then referred the Court to Order 53 Rule 5 of the High Court of Ekiti State (Civil Procedure) Rules 2011 under which the originating summons was brought. Also the footnote to form 39 contained in Rule 6(1) of Order 53 above stated which empower the Respondent to apply to be joined in the originating summons this fact is further buttressed by the deposition of the Respondent to his joint-ownership of the family property and the fact that he has Cocoa and Kolanut on the farm which do not form part of the resources the six-man committee are to manage.
Further facts also revealed that there is no love relationship existing in the family which has already been polarized or factionalized into two groups owing to the Chieftaincy dispute which appellant lost to the respondent. This fact is also further buttressed by the fact that the appellant

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had instituted several other cases against the respondent particularly on the land the subject matter of this originating summons in Suit No:HAD/121/2011 and Suit No:HAD/52/2012 which were all dismissed-Exhibits EAA2, EAA3 and EAA4.
The above area points to the fact that the respondents in respect of the family property cannot be taken care of by the appellant. So, it is false and misleading for the appellants counsel to submit that the interest of the respondent is already taken care. Since the appellant had in previous cases made the respondent either defendant or respondent, it will not be out of place if the respondent indicates his intention to be heard in the present originating summons. The only way the Rules allowed is for the respondent to come in as a defendant. It is his further submission that the interpretation and the meaning given to Order 53 Rule 5 of the High Court Rules by the appellants Counsel in paragraph 2.09 of his brief as regards the occupation and possession of the land is not only false and untrue but is misleading. The rule in question did not mention actual occupation but occupation strictly. The occupation in the sense could therefore not only be actual, it could be constructive, he then urged the Court to discountenance such misleading and erroneous submission. Throughout the whole counter-affidavit of the appellant on pages 55-57 of the record, there is no where the appellant deposed to the fact that he has anything on the land. Contrary to the submission in paragraph 2.10 of the appellants brief, the appellant by paragraph 11 of his said Counter-affidavit denied being in occupation of the land or unilaterally managing same when he was reacting to paragraph 11 of the respondents affidavit in support. The denial has however rendered useless and of no effect the submission in the said paragraph 2.10 that the appellant was at a time exclusive possession.
It is therefore learned counsel submission that it will be making a mockery of the Courts decisions or judgments if the same Court now grants possession to the appellant who is a factional leader to the dispute in the family all in the name of being a member of the six-man committee set up to manage the resources of the family oil plantation, when the same Court in its wisdom had earlier refused granting possession to an individual.
He submitted that the claim of possession in Order 53 Rule 1(2) of the High Court Rules can only be made on personal property not on family property and urged the Court to so hold.
The Appellants are still in breach of the Court Order and therefore cannot get the favour of the Court, as there is still partial obedience of the said Court order. The Appellant he contended has not come to equity with clean hands. See Chabasaya V. Anwasi (2010) 42 (Pt. 1) NSCQR 415 at 447, Ibrahim V Osunde (2009) 37 NSCQR 196.
The Appellant to wrongly interpret the judgments of the Courts as he is now doing in this appeal. His submissions in paragraphs 2.14, 2.15, 2.16, 2.17, 2.18, 2.19, 2.20, 2.21, 2.22, 2.23, and 2.24 of the appellants brief of argument are misleading, and urged the Court not to place reliance on those paragraphs. The appellant was not appointed as the head of the six-man committee. He was to represent the Elerebi who was then ill and there is presently a new Elerebi in a place. The respondent, by virtue of his office as Chief Asamo is a member of the six-man committee, more so, that Chief Olu Akinyede who was to represent the then Chief Asamo, is also late. Being a member of the six-man committee does not give the appellant license to be asking for possession of the family land. Joining the respondent in this fresh originating summons does not call for a review of any issue with respect to the previous judgment.

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Of serious concern also is the submission in paragraph 2.22 on page 11 of the appellants brief of argument where the counsel submitted that in line with the judgment, the committee resolved not to engage another stranger but one of the very active members of the six-man committee in person of the claimant. This is however contrary to the judgment which the appellant is not being an able person, the said committee resolution was not exhibited before the lower Court.
It is a known fact that the issue that led to the setting up of the six man committee was the opposition of the appellant and his factional group to the management and control of the family farm resources in question by the then Chief Asamo alone, which is the same thing that the appellant is trying to do in this present originating summons. He wants to use the Court judgments as license to single-handedly take over the management and control of the family resources at the expense of the other faction.
Finally, learned Respondent Counsel submitted that the Appellant filed a reply brief dated 10th May 2017 and filed on the 11th May 2017. I have gone through the said Reply brief. In my candid Opinion, it is no more than a re-arguing of the brief already adopted. Every paragraph of it is merely a re-arguing and response to all the arguments and submissions contained in the Respondents brief of argument. There is no point of law deduceable from the Respondents brief that was arguable or indeed argued by the Appellant in the reply brief.
The said reply brief was a re-argument of the main brief of the appellant and it is hereby discountenanced I so hold.
Finally learned counsel submitted that the lower Court in this present application justly exercised its discretion to join the respondent to the originating summons as the justice of the matter demands having considered the materials placed before it as contained in the parties affidavits. We refer your Lordships to the case of Re: Magaji(1986) NWLR (Pt. 19) 759 Ratio 5a.
He then urged the Court not to disturb the exercise of discretion by the lower Court but to uphold and affirm the ruling of the lower Court and dismiss the appellants appeal accordingly.
RESOLUTION OF THE LONE ISSUE
Whether the lower trial Court in the Circumstance of this case was right in joining the Respondent as a party to the originating summons leading to this appeal.
First and foremost, it is significant to note that the power of joinder of parties is not at large. It must be exercised in accordance with the rules of Court. A Court of law can only grant an application for joinder of parties where the Rules of Court provide for its. See Iweka V AG Fed. (1996) 4 NWLR (Pt.442) 363 at 371.
The relevant rule of Court necessary for consideration in this appeal at hand is Order 53 Rule 5 of the High Court of Ekiti State (Civil Procedure) Rules 2011 under which the originating summons was brought. It states thus
Without prejudice to Rule 16 of Order 13, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made, may apply at any stage of the proceedings to be joined as a defendant.
Worthy of note as well is the footnote to form 39 contained in Rule 6(1) of Order 53 of the above rule of Court of the High Court of Ekiti State thus

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Any person occupying the premises who is not named as a defendant by this summons may apply to the Court personally or by legal practitioner to be joined as defendant. If a person occupying the premises does not attend personally or by legal practitioner at the time and place above mentioned, such Order will be made as the Court may think just and expedient.
The above rules empower the Respondent to apply to be joined as a party in the originating summons.
Now, the duty of the Court is to give effect to words used in a statute where they are plain and unambiguous. See Ogunmade V Fadayiro (1972) 8-9 SC 1 and N.U.R.M.Vs N.R.C. (1996) 6 NWLR (Pt. 473) 490 at 503. The principle of interpretation is that actual words used in a statute must be interpreted in literal, grammatical or ordinary meaning without any sentiment, decoration or quibble. A Court should not and must not read into any enactment words which are not to be found there. See Osho v. Philips (1972) 4 S.C 252,Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 at 577 where the Court held that:
It is a cardinal rule of construction of statutes that statutes should be construed according to the intention expressed in the statutes themselves.
From the plain and unambiguous words employed under Order 53 Rule 5 of the High Court of Ekiti State (Civil Procedure) Rules 2011 and the accompanying footnote to form 39 contained in Order 53 Rule 6(1) of the above High Court Rules of Ekiti State, the requirements for joining a party to a suit are
(a) Any person not named as a defendant but he is in occupation of the land.
(b) If such a person wishes or desires to be heard on whether an order for possession should be made
(c) Such a party may at any stage of the proceedings be joined as a defendant
The Respondent had in his further affidavit in support of motion for joinder at paragraph 10 deposed as follows:
That I know as a fact that I have my cocoa and Kolanut farms and other products on the land in question.
From the above deposition, the Respondent therefore falls into the category of
(a) Persons who may be entitled to or who claim some share or interest in the subject matter of the suit.
(b) Persons who may likely to be affected by the result of the suit.
It may therefore be in view of the above state of affairs that the Court in Iweka v AG Federation (1996) 4 NWLR (Pt 442) 362 while interpreting the provisions of Order 3 Rule 10 of the High Court (Civil Procedure) Rules 1988 of Anambra State which is similar and some how identical stated clearly that by virtue of the aforesaid Rules, a judge can Order the joinder of a party. The Court at page 373 of the report said that
Under Order 3 Rule 10 of the High Court of Anambra State, an applicant need not wait until his interest in the subject matter of a suit is affected before applying to be joined. The said rule envisages an anticipatory conduct. The applicant is thus granted same clement of speculation
The ratio of the decision in the above case apply mutatis mutandi to the provisions of Order 13 Rule 16 of the High Court (Civil Procedure) Rule of Ekiti State 2011 which is applicable to the case now on appeal.
The grounds upon which the Respondent predicated his application for joinder are as follows:
”(i) Applicant is a principal member of Fasuru Family, Ado-Ekiti the owner of the land therein.
(ii) The interest of the applicant is involved in the case as he is also a beneficiary of the proceeds of the farm.
(iii) There are factions in the Fasuru Family.
(iv) Appointing the claimant as the sole Manager of the farm herein will jeopardize the interest of other members of the family

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The Respondent in his affidavit in support stated in paragraph 10 thereto of the further affidavit deposed that he has a cocoa and Kolanut farms and other products on the land in question. It therefore can not be seriously argued as contended by the Appellant in the instant case that Respondent is not in possession of the land in dispute.
In this connection, I think that the point must be made that it appears that there is always a tendency to confuse the term occupation with possession. Whereas the term occupation in relation to land as in this case entails mere physical control of the land in the time being, possession of land, although it may sometimes connotes occupation of such land, is not necessarily synonymous with occupation of such land. See Rapheal Udeze & Ors V Paul Chidebe & Ors (1990) 1 SCNJ104 at 120-121, (1990) 1 NWLR (Pt 125) 141 Per Nnaemeka Agu JSC
In ordinary parlance, one could say that a landlord who collects rents from his tenants in respect of his piece or parcel of land is clearly in de jure possession of such land even though he is not in physical occupation or defacto possession thereof.
In the case at hand, the Respondent by his affidavit for joinder deposed that he has his Cocoa and Kola nut farm and other products in the farm being part of the land in dispute. By so saying, he has satisfied the condition that he was in occupation and is enjoined by the above rule of Court to apply at any stage of the proceedings to be joined as a defendant. This is the stand the Respondent took in his application for joinder at the lower Court.
In addition to the Cocoa and Kolanut farm on the land in dispute, facts revealed from the affidavit evidence of both parties show that there is no love relationship existing in the family as it has been polarized and/or factionalized into two major groups owing to the unhealthy Chieftaincy tussle/dispute in which the Appellant lost all of them to the Respondent. As a result of this state of affairs and apparent loss of confidence, the Respondents interest in respect of the property cannot be taken care of by the appellant. It is as a result of that I do not believe or even agree with the Appellants submission to the contrary in the Appellants brief of argument. By deposing in his affidavit evidence that he has a Cocoa and Kolanut farm on the disputed land, the Respondent has sufficiently shown that he has an interest in the subject matter in the substantive suit. He has hereby show that he will be directly affected by the determination of the substantive suit.
In conclusion, it is my view that by the clear provisions of the Order 53 Rule 5 of the High Court of Ekiti State (Civil Procedure) Rules 2011 under which the originating summons was brought, the lower Court acted and took adequate consideration of the above rule which led him to a rightful exercise of its discretion both judicially and judiciously in making the order of joinder. It is settled law that a Court has a discretion to join a party to a suit either as a plaintiff or defendant whether on the application of the party or even suo moto by the trial Court. This power of the Court to make a person a party in a matter whether as plaintiff or defendant is discretionary and unless the discretion is premised on wrong principle, an appellate Court will be reluctant to interfere with the order. See Ige V Farinde (1994) 7 NWLR (Pt 354) 42 at 46. There is therefore no merit in this appeal and it does not deserve to succeed. I therefore resolve the lone issue for determination in favour of the Respondent.
Accordingly, I will dismiss this appeal and hereby uphold the ruling of the ruling of the Ekiti State High Court delivered by His Lordship Hon. Justice E.B. Omotoso on the 7th day of December 2015 joining the Respondent as a party to this suit.
Appeal dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.