Sunday Idakwo & Anor V. Emmanuel Ilona (1998)

LawGlobal-Hub Lead Judgment Report

KALGO, J.C.A. 

This case has some chequered history which needs to be explained in order to appreciate how the present position is arrived at. On the 19th of September 1989, the 1st appellant alone, filed a writ of summons as plaintiff against the 2nd appellant (his brother) and the respondent as defendants in the Idah High Court of Benue State praying the Court to order:-

(a) the 1st defendant to handover to him all the properties, monies and documents connected with the estate of their late father Joseph Idakwo Ejiga as administrator or the estate:

(b) the respondent to vacate the plot of land and the Total Petrol Filling Station situate in Sabon Gari opposite St Boniface Primary School Idah forming part of the estate of his late father and that any evidence or ownership of the said land produced by the respondent be declared null and void.

On the 20th of November, 1989, with the leave of the trial court, one Ukwenya Ochijenu Uteno was joined as a 3rd defendant to the action. Also on the 30th of May, 1991, with the leave of the trial court the name of the 2nd appellant was struck out as 1st defendant and added as 2nd plaintiff. This means that by 30th May 1991, the parties to the action are as follows:-

1. Sunday Idakwo -1st plaintiff
2. John Idakwo – 2nd plaintiff

AND

1. Emmanuel Ilona – 1st Defendant
2. Ukwenya Ochijenu Uteno – 2nd Defendant

Pleadings were then filed and exchanged accordingly. The 2nd defendant in his pleadings, raised a counter-claim praying the trial court to declare null and void the Right of Occupancy granted to the plaintiffs’ father in respect of the land on grounds or fraud and the whole claim on the land as res-judicata.

On the 29th of April, 1994, after all evidence in the case was taken and the learned counsel in the case were to address the court, the learned counsel for the plaintiffs/appellant (hereinafter referred to as appellants) announced in open court that the appellants and the 2nd defendant had settled their dispute out of court and that the memorandum of settlement setting out the terms of settlement which was accordingly signed by the parties and witnessed by a Legal Practitioner was filed in court. He then asked the trial court to adopt the memorandum accordingly. But the learned trial Judge did not react to the memorandum of settlement there and then. What he did was to order the learned counsel to file their written addresses and he later adjourned the case for judgment.

With due respect to the learned trial Judge, I think it was not proper for him to ignore the fact of the settlement of the case by the parties even in the circumstances of this case where only some of the parties settled their dispute. The court has a duty in my view to encourage settlement of civil cases before it in an effort to decongest the court and cut down on costs to parties. In my opinion, where parties to a civil matter agree to settle their controversies or disputes during or before actual trial or even after the trial before judgment as in this case, and they file a memorandum or settlement setting out the terms of settlement properly executed by them, such settlement shall be acted upon immediately by the court in giving judgment according to the terms of settlement, except where there is disagreement on the terms. In this case the learned trial Judge was informed of the settlement on the 24th of April 1994 when the memoradum was filed and he did not react to the memoradum until he came to write his judgment in the case on the 24th October 1994 – a period of six months interval. This attitude is undesirable and should be discouraged.

On the 24th of October, 1994, the learned trial Judge Ochimana, J. delivered his judgment which was in two parts. The first part was in respect of the settlement between the appellants and the 2nd defendant Mr. Uteno and the second part was between the appellants and the 1st defendant (hereinafter referred to as the respondent). By the first part of the judgment, the learned trial Judge ordered that:-

(P. 136 of record)

“The portion of land measuring 100 feet by 100 feet in which stood the uncompleted building opposite St. Boniface Primary School, Sabon Gad, Idah shall now vest in the plaintiffs while the remaining portion of land extending to the fence of the Total Pilling Station is declared for the 2nd defendant.”

There is no appeal against this order.

What remained then was the dispute on the ownership or title to the remaining land on which the Total Filling Station stands which was contested between the appellants and the respondent. In this respect, the learned trial Judge after hearing the whole evidence and the learned counsel thereon, and examining all the exhibits admitted at the trial came to the following conclusion: