Aba South Local Government & Ors V. Mrs Leticia Nwajiobi & Ors (2007)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

This is an appeal against the ruling of the High Court of justice, Aba, Abia State delivered on the 15th December, 1998 by Honourable Justice J. F. Ogbuagu (1) (as he then was). The appellants were the defendants in the court below, while the respondents were the plaintiffs in that court.

This appeal as can be gathered from the record of proceedings and the briefs of learned counsel on both sides has a chequered history. In a writ of summons dated 18th day of May, 1998, the plaintiffs now respondents took out the said writ against the defendants/appellants and claimed as follows:

“(a) A declaration that the plaintiffs are entitled to a quiet and peaceable possession (sic) their stalls at the Cementery Market, Eziukwu Road, Aba.

(b) A further declaration that the plaintiffs having been paying their stallage fee regularly cannot forcibly be ejected from Cementary Market, Eziukwu Road, Aba by the defendants.

(c) An injunction restraining the defendants from ejecting the plaintiffs.”

On the 8th day of July, 1998, when the matter came up before the learned trial Judge for hearing, learned counsel for the 3rd defendant/respondent Mr. Nwaogwugwu M. O. J. Esq. informed the court thus:

“My Lord, we have settled the matter out of court amicably. The terms of settlement have been in the court. I apply that the said settlement be made the judgment of the court.”

The learned trial Judge in response to the above held that:

“Since the parties have settled the matter amicably out of court, the ‘report of settlement of the above suit’ is hereby made the judgment of the court and is also a consent judgment. The document filed on the 3rd July, 1998 is hereby marked exhibit “A” and shall be pasted in the court record book.”

The report of settlement referred to above, without the heading reads thus:

“1. The plaintiffs shall be allocated forty (40) stores out of the about 119 stores now been constructed by Noonnec Nigeria Limited, after completion of the project.

2. The plaintiffs are to collect and complete the official allocation forms from Noonnec (Nig.) Ltd. on payment of the prescribed fee of One Thousand Naira (N1,000.00) per form.
3. The plaintiffs are to complete the allocation forms and submit same en bloc to Noonnec on or before 15th July, 1998.
4. That plaintiffs shall pay the sum of N85, 000.00 (Eighty- Five Thousand Naira) per store to Noonnec Nigeria Ltd., instead of N 100, 000.00 (One Hundred Thousand Naira) paid by the other allotees.
5. The plaintiffs shall be allocated stores in the area where they are presently occupying at the Cementary Market Eziukwu Road, Aba, i.e. starting from 4th Gate from School Road end to 3rd Gate at Cementary Road starting from the transformer.”

As can be gleaned from the record of proceedings of the trial court, the respondents tried to comply with the condition set out in the consent judgment but the appellants particularly the 3rd appellant did not co-operate with them. In fact, the 3rd appellant put various impediments to ensure that they did not implement the conditions therein contained in the consent judgment.

This attitude of the 3rd appellant, in my view prompted the respondents to file a motion on notice dated the 8th day of October, 1998, four months after the judgment was delivered praying for the following orders: