Felix Nwanze Obi V. Stephen Young Obi & Anor (2004)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

This is an appeal against the ruling of Odita, J., sitting at High Court No.2, Asaba, in the Asaba Judicial Division, delivered on 12th April, 1995 striking out the suit.

The plaintiff, by paragraph 24 of his statement of claim is claiming for the following:

“Whereof the plaintiff claims as follows:

1. A declaration that the plaintiff and his brothers by his mother Mrs Ashimedue Obi, are entitled to a share of one fourth (1/4) of the whole estate at No. 36, Onaje Road, Asaba, according to Asaba customs.
2. A declaration that the 1st and 3rd defendants’ occupation of the land at No. 30, Onaje Road, Asaba to the exclusion of the plaintiff and his brothers is wrongful.
3. An order of court that the 2nd defendant shares the land in accordance with Asaba custom.
4. An order of court that the 3rd defendant renders account of all monies received from the structure erected on the land.
5. An order of court that the 3rd defendant remove his structure thereon.
6. Injunction restraining the 1st and 3rd defendants from further entering the land or premises at No. 36, Onaje Road, Asaba or tampering with the land there, by planting economic trees thereon, until the estate is divided in accordance with Asaba customs and tradition and the plaintiff and his brothers receive their shares of estate.”

The defendants entered appearance but did not file any statement of defence. The plaintiff then brought a motion on notice praying for judgment in favour of the plaintiff because the defendants failed to file any defence whatsoever. Instead of giving judgment to the plaintiff, the trial Judge asked the plaintiff to prove his case. PW1 was the plaintiff himself. It was during the course of his examination in chief that the trial Judge stopped him and made the following order:

“It is hereby ordered that the 2nd defendant call all his children as the Diokpa of Chief Obi Dikewiwe, the male sons of each wife of the said Chief Obi Dikewiwe at No. 36, Onaje Road, Asaba, to share the said land within 21 days from today. The plaintiff agrees and is hereby ordered to commission a surveyor to survey the land as shared. I am doing so in view of section 35 of the High Court Law since the 2nd defendant said he had already shared the land but was denied by the plaintiff and the 1st defendant. It is hereby fixed that the partition must be carried out by 23rd July, 1994. Case is adjourned to 1st August, 1994 for report of settlement. This date is by consent of the parties.”

On the adjourned date, the parties informed the court that settlement was not reached. The matter was then adjourned to 14/9/94 for report of settlement. On that day, the defendants were in court but the plaintiff was absent. The matter was further adjourned.

On 9/11/94, parties were present in court and informed the court they could not reach settlement. The Judge then ordered that the sharing must be done on 26/11/94 and report of settlement on 26/11/94. On the next three subsequent adjournments, the plaintiff did not appear. On 12/4/95, the plaintiff was absent from court. The case was struck out by the trial Judge.

The plaintiff is dissatisfied with the striking out. He therefore appealed to this court. The amended notice of appeal contains four grounds of appeal. Without their particulars the grounds of appeal read:

“1. The learned trial Judge erred in law when he struck out the suit on a date which he fixed for mention being a date he fixed for report of settlement.

2. The learned trial Judge erred in law when he gave summary judgment in the suit by the order he made in terms of the plaintiff’s claim, but turned back to set aside his own judgment suo motu without any legal grounds of striking out the suit after the said judgment or decision, without any reason expressed for so doing.
3. The trial Judge erred and misdirected himself when he descended on the arena and made himself an interested party by insisting on the settlement of the suit instead by entering formal judgment as judgment terminating the suit.
4. The trial Judge erred and misdirected himself when he failed to perform his legal role as an impartial arbiter who should listen and record the proceedings and the case of the patties as presented to him, but he abdicated that position, made himself a litigant, pressing for a particular remedy in the suit and failed to record aspects of the case of the plaintiff which he did not like.”

In compliance with the rules of this court, parties filed and exchanged their respective briefs of argument. Four issues were identified in the appellant’s brief for the determination of the appeal.

They are:

“1. Whether the trial Judge acted rightly in law when he struck out the entire suit on a date he fixed for mentioning the suit for purposes of a report of settlement which he imposed suo motu, after granting the substantive reliefs sought by the plaintiff in his claim and writ?.

2. Whether the trial Judge acted rightly in law when he assumed further jurisdiction in the suit in which he is already functus officio by the fact that by his order, he granted the reliefs sought at the close of the plaintiff’s case or a motion/or judgment which in law constituted ‘judgment’ in the suit before the striking out of the suit?.
3. Whether the trial Judge acted rightly in law, when he played the role of a litigating party, as plaintiff, by insisting on termination of the suit by settlement out of court and not by formal judgment by the court when neither party on record asked for same?.
4. Whether the trial Judge performed his legal judicial role as an impartial arbiter, when he failed to record the essential elements of the plaintiff’s reliefs proved before the court, and he hung the record of proceedings in midair, thereby omitting the conclusion which would have clarified the full entitlement of the plaintiff’s reliefs?.”

On the other hand, the respondents formulated three issues, in their joint brief, for the determination of the appeal. The issues are: