Mobil Producing Nig. Unltd & Anor V. Lawrence D. Hope (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

Appeal Nos. CA/C/7/09 and CA/C/8/09 were consolidated by order of court on 19/5/2009. Appeal No. CA/C/7/09 arose from an interlocutory ruling delivered on 13/12/2004 while Appeal No. CA/C/8/09 arose from a final ruling delivered on 31/10/2005 in the same Suit No. HEK/8/83.

The Notice of Appeal in CA/C/7/09 was filed on 1/6/2006 while that of CA/C/8/09 is dated 21/11/2005.

The Plaintiff commenced Suit NO. HEK/8/83 by Writ of Summons dated 24th February, 1983 and claimed in his further amended State of Claim dated 28th July, 2000 and filed on 4/8/2000 the following reliefs:

“(i) A declaration of this Honourable Court that the plaintiff is entitled to the Statutory Right of Occupancy to all that piece or parcel of land known as and called USAN UKU MKPOK verged red in survey plan No.AQ3/85 (LD) dated 12th January, 1985 lying and situate at Mkpok Eket in Eket Urban which annual value is N20.00 (Twenty Naira).

(ii) N30.000,000.00 (Thirty Million Naira) being special and general damages for trespass in that the 1st Defendant in or about March 1976 without the consent, leave, permission or licence of the plaintiff entered the land aforesaid which was under the quiet and undisturbed possession and enjoyment of the Plaintiff by clearing same, destroying the Plaintiff’s shrines, economic crops in purported pursuance of a sublease by the 2nd defendant, we refer the court to the particulars of special damages at page 8 of the records of proceedings.

(iii) Perpetual injunction to restrain the Defendant, their servants privies, assigns and agents form further interference with the use and right of the plaintiff over the said land.

(iv) An order of this Honourable Court for the 1st defendant to remove all the structures it has erected on the land aforesaid.

The parties duly filed and exchanged pleadings. Thereafter they opted for an out of court settlement. This led to the Plaintiff being paid the total sum of N18,892,440.00 out of which amount a cheque of N16,058,574.00 was made out in the name of the plaintiff and another cheque in the sum of N2,833,866.00 made out in the name of Joseph Ekanem, Esq. the Legal Practitioner who represented him. The Plaintiff signed for and collected the said sum of N16,058,574.00. According to the Plaintiff the money he received was part payment out of N75,754,204.00 the defendants agreed to pay him but the defendants said the amount was in full and final settlement of the agreement reached to terminate the case.

Shortly after collecting the money the plaintiff registered his protest that the money he received was not for full and final settlement of the dispute over the land. This is contained in the counter-affidavit of 25/10/2002 which was in reaction to the defendants’ motion on 29th July, 2002 praying the High Court to dismiss the suit. The court in its ruling struck out the motion and ordered for the hearing of the substantive suit but the plaintiff filed a Notice of discontinuance of the suit on 26/10/2005 and the matter was struck out. The defendants are aggrieved and appealed against the two Rulings.

The following four issues were identified by the appellant? For determination:

1. Whether the learned trial Judge in ruling on the 1st Defendant/Appellants motion on notice dated 29th July, 2002 ought to have resolved the conflicts in the parties respective affidavit evidence one way or the other rather than striking out the motion on notice because of the said conflicts.
2. Whether there was enough evidence laid before the trial court to enable the learned trial judge to evaluate and determine the issue of “accord and satisfaction” raised by the 1st defendant/appellant in its motion on notice dated 29th July 2002
3. Was the Plaintiffs/Respondent’s Notice of Discontinuance dated 26th October, 2005 competent in the face of the provisions of Order 29 Rule 3 of the High Court of Akwa Ibom State (Civil Procedure) Rules 1989 or an abuse of the process of the court.
4. Was the trial court right in upholding the Notice of Discontinuance dated 26th October, 2005 and striking out the suit instead of dismissal after issues have been joined and affidavit evidence adduced by both parties.

The Respondent identified two issues for determination which are:

1. Whether it was proper for the lower court to strike out the motion of and order full hearing of HEK/8/83 instead given the circumstances.
2. Whether the court was right to strike out Suit No. HEK/8/83 based on the Notice of Discontinuation of the Plaintiffs (sic) of 26/10/05.

I think there is only one issue that calls for determination in this appeal and it is simply this:

Whether the learned trial Judge was right to strike out the suit instead of dismissing it after the Respondent had filed Notice of Discontinuance of the suit.