Akio Abey & Ors. V. Chief Alhaji Ibrahim Fubara Alex & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C

This appeal deals essentially with the effect of an out-of-court settlement of an action by the parties thereto. There is a peculiarity with such a settlement – even when not made an order of court. In a subsequent litigation between the same parties (or their privies) over the same subject-matter the focus should be on the settlement as a foundation of the cause of action. When this is appreciated, the court should examine the terms of settlement in relation to the suit to ascertain what should be the area of concern for its resolution.The appeal comes from a decision of the Court of Appeal, Port Harcourt Division, given on 15 November. 1989.

The plaintiffs commenced action on 6 October, 1973 in a representative capacity of Owuroboma Compound against the 1st defendant in his personal capacity in respect of a parcel of land, and claimed two reliefs, namely.

(1) N7,000.00 as special and general damages.

(2) perpetual injunction.

On the application of the 2nd set of defendants, leave was granted them on 17 February, 1975 to join as co-defendants in a representative capacity of Tombia Town. Their ground was that they allotted the land in dispute as part of their land to the 1st defendant. While the plaintiffs call their land Ahele of which they claim that the land in dispute forms part, the 2nd set of defendants call their land Tombia Piri or Kule Kiri. While the plaintiffs claim that the land is situate in Degema Division, the defendants say it is in Kalahari Division.

The trial court (per Wai-Ogosu Ag. C.J.) gave judgment for the plaintiffs on 23 April, 1982. He found that the defendants committed trespass and awarded damages of N3,000.00 against them. He also granted the injunction sought. This decision was affirmed by the Court of Appeal.

I shall identify what the plaintiffs asserted as entitling them to the reliefs they sought and make brief comments where necessary. From the statement of claim, it may be said that the plaintiffs averred the following broad facts: (a) that their ancestors owned the land called Ahele from time immemorial and that they inherited it from their said ancestors. This is contained in para. 3 in these words and no more –

“3. The plaintiffs are the owners in possession of the land, a portion whereof is the subject-matter of this action, having inherited same from their ancestors, the owners thereof from time immemorial.”

(b) That there were some court decisions in their favour against the defendants in respect of the land, viz: judgment in Kalabari Native Court suit No. 321/46 and suit No. 352/46 (consolidated) which on appeal to the Port Harcourt/Degema Magisterial District in case No. D/42A/46 and further to the Supreme Court (equivalent) of High Court) of Aba Judicial Division in case. No.A/18A/47, was upheld, see paras. 5 and 6 of the statement of claim (c) That in spite of those decisions, the defendants commenced another case in the said Supreme Court in suit No. A/4/48; but that Chief Jacob Tom Princewill Amachree VII of Kalabari intervened to have the matter settled out of court, to which both parties agreed “for the sake of peace and good neighbourliness” and this led to the fixing of a new boundary between the plaintiffs and the 2nd set of defendants with pillars. It is averred that “the said boundary overlooked an earlier boundary fixed by Chief Kieni Amachree VI (sic:V)of Kalabari and gave away more land of the said plaintiffs to the said defendants.” As regards this settlement, it is pleaded as part of paras. 8 and 9 that “A document evidencing the said settlement was duly executed by the said Chief J.T. Princewill Amachree VII and the other chiefs and persons who, together with him effected the settlement, as well as by the parties. The plaintiffs will rely on the said document. Since the aforesaid settlement the said defendants and their people respected the rights of the said plaintiffs and their people until about November, 1973, when it was noticed by the plaintiffs that some unknown person or persons had cleared the portion in dispute in this action and deposited sand, gravel and other materials thereon.”

If I may remark at this stage, there is no evidence as to how the ancestors of the plaintiffs became owners of the land from time immemorial, nor is there evidence of acts of immemorality that can be relied on except that in the judgment in the consolidated Native Court suit No. 321/46 and No.352/46, admitted as exhibit F, pages 309-310 thereof, the court made findings that King Amachree I located the Bukuma people on the land in dispute and King Amachree IV located the Tombia people where they now are. It got to a point the boundary between the two was no longer valid owing to encroachment thereof which led King Amachree V alias Kieni to establish another boundary between the two. The relevant portion of the said findings shall be reproduced later in this judgment.

The claim in No.321/46 read: “The plaintiffs claim a declaration that as members of the Owerebo’s family of Bukuma village they are entitled to a right of occupation, possession and use of the land or bush commonly known as Ahele situated within the Bukuma land or bush and that the defendants without the knowledge and permission or the plaintiffs allotted the said’ Ahele’ land or bush to the Christ Army and Delta Pastorate Missions for the purpose of erecting a Central School for Tombia.” Injunction was also sought. In a similar vein, the Tombia people in suit No.352/46 claimed for a “declaration of right and title of occupation, possession and use of the land/bush known and called as ‘Sabahoro-Daha’ alias ‘Tombia-Piri’ situated at and extended from Tombia, being properly originally occupied, possessed and used by the people of Tombia for about 62 years” as at that time in 1946. Injunction was also sought.

Although judgment was for the Bukuma people (i.e. the present respondents), a close study of the entire proceedings does not quite clearly reveal where physically the said new boundary drawn between the Bukuma people and the Tombia people (i.e. the present appellants) by Kieni Amachree was established, except what the Court said it found as the boundary lined with palm trees planted by Tombia people. It is therefore no wonder that another action in suit No.A/4/48 was instituted by Bukuma people against Tombia people at the Supreme Court, Aba Judicial Division claiming damages of ‘a33300 (three hundred pounds) for trespass and an injunction. It was following this development that a peaceful settlement was arrived at and recorded in a document and signed by all necessary parties as per exhibit B.

The appellants (as defendants) generally claimed in their statement of defence that they own the land in dispute. They admitted the previous judgments of the Kalabari Native Court but denied that the land in dispute now forms part of the land that was the subject-matter of those Native Court suits. They further admitted that Chief Princewill Amachree VII intervened and made a settlement for the parties but that the boundary between the parties was established with Odum-dum trees and not cement pillars. They also pleaded that the boundary established in the said agreement by Amachree VII added a distance of 1216 feet in favour of the appellants to the boundary earlier fixed by Kieni Amachree stretching from Tombia towards Bukuma.