Chief Etete S. Owoh & Ors V Chief Kingston U. Asuk & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

This is an appeal from the decision of the Court of Appeal Port-Harcourt Division. In the judgment delivered by that Court on 14th February, 2001, the Court set aside the decision of Woryi J. of the High Court of Justice of Rivers State Bori Division delivered on 3rd April, 1996 striking out the Plaintiffs’ action brought against the Defendants. The Appellants who were the Plaintiffs at the trial High Court, for themselves and as representing Asarama Community, brought their action in 1988 against the Respondents who were the Defendants in that Court and in paragraph 30 of their statement of claim, sought for the following reliefs;

“(1) A Declaration that the Defendant in the 1st set of Defendants is not the Okan-Ama His Royal Highness the Okan-Ama of Asarama, Andoni.

(2) A Declaration that his purported appointment, installation and coronation of the 1st set of Defendant by the 2nd Defendants as His Royal Highness the Okan-Ama of Asarama-King of Asarama on the 8th of January, 1988 is unconstitutional and against the custom and tradition of Asarama/Andoni people and to that extent irregular, null and void and of no effect whatsoever.

(3) A Declaration that the said purported installation and coronation is clandestine and fraudulent on the Asarama people and is null and void.

(4) A Declaration that the procedure adopted by the 2nd set of Defendants in the appointment, installation and coronation of the 1st Defendant is irregular and contrary to the custom and tradition of Asarama/Andoni people and is thus null and void and of no effect whatsoever.

(5) An injunction restraining the 1st set of Defendant from parading himself as the Okan-Ama-King of Asarama in the Andoni or anywhere.

(6) An injunction restraining the 2nd set of Defendants, their servants, agents, or privies from holding out, parading or in any manner howsoever representing the 1st set of Defendant as the Okan-Ama of Asarama.”

The case went into hearing on pleadings before Mannuel J. where the Plaintiffs’ first witness testified in chief. However in 1992, the case was transferred to the same Court presided by Woryi J. where the matter was commenced afresh. It was here that on 8th November, 1995, the parties told the trial Court that they had settled their dispute and that the Plaintiffs were no longer pursuing their claims against the Defendants. Learned Counsel to the Plaintiffs explained to the Court that he was merely instructed to withdraw the action and not to apply for its discontinuance because the parties had decided on their own without involving their learned Counsel, to settle their dispute. Learned trial Judge however was of the view that since the matter was part-heard, a formal application was required. While awaiting the parties to take appropriate steps to terminate the proceedings in the matter before the trial Court, another set of interested parties in the case applied to be joined as Plaintiffs. At the same time learned Counsel to the existing parties in the case who had earlier agreed to settle their dispute, also filed their terms of settlement duly executed not by the parties to the action themselves but by their learned Counsel.

The motion on notice by the parties wishing to join the action as Plaintiffs was heard by the trial Court and in its ruling, the application was dismissed. In the same ruling delivered on 3rd April, 1996, the learned trial Judge also considered the Terms of Settlement filed by the parties but refused to adopt the same as the judgment of the Court on the ground that the Court was not satisfied that the parties themselves were involved in the drawing up of the said Terms of Settlement. Part of this ruling at pages 165 – 166 of the record of appeal reads–

“Thus a document containing the terms of settlement in a case, fought on a representative capacity, cannot be adopted by the Court to have favoured fair trial or uninhibited, mutual consent, if it is not duly executed by all or any of the authorizing or consenting parties in the suit. Howbeit, parties may settle orally without filing a written terms of settlement. It is not the duty of Courts to compel parties who have reported amicable settlement out of Court, to continue the Court prosecution of such mutually settled case.

For these reasons, and in the interest of justice, the final order of this Court shall be:

(1) That this case shall be and it is hereby, deemed as settled mutually and amicably by the parties themselves out of Court.

(2) That the document titled ‘Terms of Settlement’ dated 10th January, 1996 and filed by the parties on 7th February, 1996, shall be and it is hereby rejected by the Court. The Court accordingly hereby declines to adopt it as the judgment of this Court, for its not being duly, sufficiently and personally executed by the hands of any of the litigating parties themselves.