Dason Multi-purpose Co-operative Society (Nigeria) V. Imekanson Tradco & Press Limited & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A. 

this is an appeal from the ruling of D. Abel-Tariah, J., of the Rivers State High Court siting at Port Harcourt. In the ruling, delivered on 15/12/92, the learned trial Judge entered what we described as “judgment in default of pleadings” in favour of the plaintiff the 1st respondent herein. There were three defendants, i.e., the 2nd and 3rd respondent herein as 1st and 2nd defendant respectively, and the appellant herein as 3rd defendant. The learned Judge made the following consequential orders in the ruling appealed from:

“1. That the terms of settlement filed on 25/4/92 be and is hereby adopted as the judgment of this Court in this suit as between Plaintiff Appellant and the 1st and 2nd Defendant/Respondents.

2. That there is no cost against any of the parties”. (Italics mine).

Thus the orders, as the italicized words show, appeared not to have been directed against the 3rd defendant at all but only against the 1st and 2nd defendants. Curiously, however, it is the 3rd defendant who has brought this appeal against the ruling and the order embodied therein. The appeal is based on two grounds out of which Mr. A.J. Jamabo formulated the following two issues for determination on behalf of the appellant in its brief of argument:

“(a) Whether or not the audi alteram partem rule enshrined in the 1979 Constitution was complied with before delivering judgment in the case.

(b) Whether the trial Judge exercised his discretion judiciously when he abandoned the 3rd defendant’s motion for extension of time to file defence and delivered judgment”.

Mr. O. T. Amachree adopted these issues in the brief he filed on hehalf of the plaintiff/respondent. The 1st and 2nd defendants never filed any papers and never participated in the appeal.

To really appreciate the controversy involved in this rather curious appeal, it is necessary to recall the facts that led up to it. The relevant facts are rather straight forward and not disputed. A summary of the genesis of the whole controversy can be gathered from paragraphs 4-13 of the statetnent of claim. At the centre of all the confusion was the 1st defendant, i.e., the Rivers State Housing and Property Development Authority. Sometime in June 1988 the plaintiff applied to this defendant for the purchase of the property at No. 3 Okoroma (or Njemanze) Street, Diobu Port Harcourt. A tenant occupied the main building while the 3rd defendant carried on business in a temporary structure on the land. The 1st defendant refused to sell but would only rent it out if the plaintiff accepted that. It accepted and the two entered into a tenancy agreement on 01/06/90 and the plaintiff paid the year’s rent agreed on. The former tenant was given quit notice. The plaintiff, not having given up the hope of buying the house, kept negotiations with the 1st defendant alive. Eventually the latter capitulated and on 20/12/90 it agreed to sell. It was agreed that the year’s rent earlier paid by the plaintiff be regarded as part payment of the purchase price. In January, 1991, the plainiiff paid a further sum to bring the total part payment up to 20% of the purchase price. Approval was given to it to build a fence round the plot and to carry out some minor renovation

Then in July, 1991, things started to fall apart. The Ministry of Lands and Housing queried what it described as the unauthorized construction work being carried out by the plaintiff on the plot. It was ordered to produce its articles of association. When it did so on 25/07/91 the 1st defendant’s of officers threatened to cancel the offer for sale made to it because its share-holders were non-indigenous to Rivers State. The threat was carried out on 18/11/91 when the 1st defendant wrote to the plaintiff cancelling the offer for sale. It had, meahwhile sold the same property to the 3rd defendant/appellant on 24/10/91. The latter who was still operating from the temporary structure, immediately moved into the main building and put up it signboard on it.

Feeling lost and helpless, the plaintiff headed for the Court claiming ageinst the three defendants jointly and severally four declarations nullifying the cancellation of the offer to it and the sale to the 3rd defendant/appellant and affirming the earlier offer to it. It also sought an order of specific performance of the agreement between the 1st defendant and it and damages for trespass. It further sought two orders of injunction restraining all the defendants from continuing any further acts of trespass on the land. In the alternative, it claimed damages for breach of contract of sale.

It served its statement of claim, filed on 06/07/91, along with the writ. Appearance was entered on behalf of each defendant, the 3rd defendant’s/appellant’s being filed on 17/12/91. On 30/01/92, as none of the defendants had by that date filed a statement of defence, a motion on notice was filed on behalf of the plaintiff seeking judgment in default of pleadings.

From what both parties stated in their respective briefs of argument, it would appear that negotiations were opened, soon after the entering of appearances and the filing of the motion for judgment, for a settlement out of court. Certain terms of settlement were proposed that were unacceptable to 3rd defendant/appellant, who consequently opted out of the negotiations. It refusal to authorized the signing of the the document containing the terms of reference on its behalf. The plaintiff, on the one hand, and the 1st and 2nd defendant, on the other, however, caused the document to be signed and filed in Court on 28/07/92. On 11/11/92 the 3rd defendant/appellant caused to be filed a motion on notice seeking leave to file a statement of defence out of time.

On 17/11/92 the parties, except the 1st and 2nd defendant, appeared before the learned trial Judge, who adjourned the matter to 11/12/92 for “motion for judgment”. On the latter date the learned Judge Recorded the plaintiffs counsel as informing the Court that-

“… He filed a motion for judgment … but before motion was heard 1st and 2nd defendants entered into settlement negotiations which had now been concluded and the terms of settlement filed accordingly. Counsel for plaintiff therefore applies that judgment is entered in the suit as per the terms of settlement.”