E. A. Malari & Ors. V. Dr. Richmond Sisan Leigh (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling)

The applicants were defendants in Suit No. W/18/2001 at the High court of Delta State sitting at Warri. The respondent was the plaintiff. On 5th May 2006, the trial High Court adjudged the suit as follows:

“Accordingly I enter judgment for the plaintiff as per his paragraph 19 (i) (ii) (iii) and (iv) of his Amended State of Claim dated 18/7/2003.

(1) I make an order compelling the 1st set of defendants to receive from the plaintiff the balance sum of N700,000.00 (Seven Hundred Thousand Naira) forthwith being the outstanding balance as full consideration for the outright sale of all that piece or parcel of land lying, situate and being at Ubeji Town in the Warri South Local Government Area of Delta State measuring approximately 7 acres or 2.652 hectares which said plot is more particularly described and/or defined on the ground by Pillars/Beacons nos. DT 4861, DT 4862, DT 4863, DT 4864, DT 4865, DT 4866, DT 4867, DT 4868 and DT 4869 and on the survey plan dated 10/1/95 No. Dc/DT/0194 produced by Registered Surveyor D. O. Okorosobo.

(2) I declare that the plaintiff is entitled to the quiet and peaceful possession of all that said piece or parcel of land lying, being and situated at Ubeji Town in the Warri South Local Government Area of Delta State.

(3) I declare that the plaintiff is entitled to the Statutory Right of Occupancy of the said land in dispute.

(4) I hereby a permanent and perpetual injunction in favour of the plaintiff restraining the defendants herein and/or person claiming through them their agents, privies, servants and or workmen howsoever from further entering remaining damaging and/or selling and/or interfering and/or doing any act inconsistent with the plaintiffs ownership or possession and/or right or interest over the said land lying being or situate at Ubeji Town in Warri South Local Government Area of Delta State measuring approximately 7 acres or 2.625 hectares which said is more particularly describe and/or defined on the grounds by Pillars/Beacon No. DT 4861, DT 4862, DT 4863, DT 4864, DT 4865, DT 4866, DT 4867, DT 4868 and DT 4869.

(5) On cost Mr. Fregene ask for N10,000.00 in favour of the plaintiff,

I assess the cost of N8,000.00 against the 1st and 2nd sets of defendants jointly and/or severally. That is the judgment of this Honourable Court.”

The applicants not satisfied with the said judgment on 7/5/08 applied to the said High Court to set aside its judgment. On 11th June, 2009 the High Court in a considered ruling refused to set aside its judgment of 5th May 2006. Not satisfied with the said ruling the applicants on 25/6/2009 appealed to this Court against it vide a notice of appeal of the same date. Thereafter the applicants on 5th February, 2010 filed this motion seeking 4 prayers. However at the “hearing of this application the applicants withdrew prayers 1, 2 and 4 leaving only prayer 3 which seeks extension of time within which they may appeal against the judgment of 5th May 2006. For the purposes of this application paragraphs 5 to 17 of the affidavit in support are most germaine and are reproduced hereunder –

“5. That immediately the Plaintiff/Respondent/Respondent who is our distance relation received our Statement of Defence aforesaid, he invited the 1st set of Defendants/Appellants/Applicants to explore the possibility of an amicable settlement out of court of the matter at the lower court because he is my cousin and somehow related to the defendants/appellants/applicants herein.

6. That some of the 2nd to 20th Defendants/Appellants/Applicants and myself responded to the invitation of the Plaintiff/Respondent/Respondent and the Plaintiff/Respondent/Respondent told us to forget about the case and that he will accept the 100 x 100ft we promised to give him earlier and same was also contained in out Statement of Defence before he instituted the suit at the lower Court.
7. That Plaintiff/Respondent/Respondent and the Defendants/Appellants/Applicants finally agreed that the Plaintiff/Respondent/Respondent will not pursue the case at the lower Court and he promised to instruct his lawyer to withdraw the case.
8. That thereafter the Plaintiff/Respondent/Respondent told us and we verily believe him that he had instructed his lawyer to withdraw the case from court and that the Defendants/Appellants/Applicants should not bother to attend court with their lawyer.
9. That the Defendants/Appellants/Applicants thereafter instructed their lawyer to withdraw from the case as they have settled with the Plaintiff/Respondent’/Respondent by giving him a piece or parcel of land measuring 100 x 100ft at Ubeji Town.
10. That in view of the above, the Defendants/Appellants/Applicants and their lawyer did not attend court for the matter again and the 2nd set of Defendants/Appellants/Applicants did not also bother to file their Joint Statement of Defence.
11. That sometime in March 2008 some land owners who bought land from Ubeji community and have since developed same ad have started residing in them informed the Ubeji community Executive that they woke up to discover Writ of Possession issued by Warri High Court in their various premises in Ubeji Community.
12. That the community elders including myself demanded to see a copy of the said Writ of possession. The said writ of possession which was given to us carried suit No.W/8/2001: RICHMOND SISAN LEIGH VS. E. A. MALARI AND 19 ORS, indicated that judgment was delivered on 5/5/2006 and it was the lower court case we all agreed years back not to pursue any longer because the Plaintiff/Respondent/Respondent promised to withdraw same. Find attached hereto and marked Exhibit DOE 1 a certified true copy of the said writ of Possession dated 18/2/2008.
13. That the 2nd to 20th Defendants/Appellants/Applicants thereafter tried to contact the Plaintiff/Respondent/Respondent so as to confront him with the said writ of possession and Judgment referred to therein, but same Proved abortive.
14. That the 2nd to 20th Defendants/Appellants/Applicants were constrained to give a copy of the said Writ of Possession to the law firm of DON O. EGHO & CO. to advise them on the same.
15. That E. T. EDEMA EYEN, Esq, Solicitor in the law firm of DON O. EGHO & co. after perusing the said Exhibit DOE 1, informed us and we verily believed him that judgment was delivered on 5/5/2006 in Suit No.W/18/2001: RICHMOND SISAN LEIGH VS. E. A. MALARI & 19 ORS., and that the Plaintiff/Respondent/Respondent intends to execute the said judgment against Ubeji Community hence the various writ of possession that bonafide land owners discovered in their Premises.
16. That the 2nd to 20th Defendants/Appellants/Applicants informed E. T. EDEMA EYE, Esq. that they are not aware of the judgment of 5/5/2006 and that most of the premises were they discovered the writ of possession were built and developed sine late 80’s and early 90’s and moreso the said case was amicably resolved by both parties since sometime in late 2004.
17. That the 2nd to 20th Defendants/Appellants/Applicants promptly informed E. T. EDEMA EYEN Esq. that the said judgment was obtained without their knowledge and he should take steps to set aside the Judgment dated 5/5/2006 to avoid a situation whereby third parties who were not parties to the said matter from being embarrassed by the intended execution of same.

Also germaine are paragraphs 3 to 5 of the respondents counter-affidavit which read thus:

3. That I have read the said 32 paragraph supporting affidavit in conjunction with my Solicitors and I verily understand same.
4. That paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 21 and 22 of the affidavit in support of the application dated the 5th day of February 2010 are tissues of falsehood.
5. That in further reply to the averments in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 21 and 22 of the affidavit that are denied, I state that:

(a) I am not related to the Defendants/Appellants/Applicants.

(b) That I never at any time initiated any settlement moves with the Defendants/