UDO v. UDO & ORS
(2021)LCN/15743(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, May 06, 2021
CA/C/22/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
AKANIMO IME UDO APPELANT(S)
And
1. ANIEFON UMO UDO 2. ETOP UMO UDO 3. EKAN UMO UDO 4. AKANIMO PETER UMO 5. SUNDAY ANIEFIOK UMO 6. UDO JAMES UMO 7. ISAAC ANIEFIOK UMO 8. ETIM JAMES UDO 9. ABASIAMA PETER UMO 10. DAVID ANIEFIOK 11. EKPON JAMES UMO 12. NDIFREKE AKPAN MARK 13. EKERETE ITA UMO 14. ERNEST ANIEFIOK UMO 15. CHIEF SUNNY IBANGA 16. ISAAC IME UDO RESPONDENT(S)
RATIO
WHETHER OR NOT CIVIL ACTIONS CAN BE SETTLED BY CONSENT DURING TRIAL
In Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverswertung A.G. G.I.V. (2001) LPELR – 3465 SC at p.38 – 39 Iguh J.S.C stated:
“In Abel Woluchem v. Dr. Charles Wokoma (1974) 3 SC 153 per Ibekwe JSC. The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and in order to have binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for and in consideration of the abandonment of the claim or claims pending before the Court. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment, therefore the parties must reach a complete and final agreement on the vital issue in their terms of agreement. The consent judgment emerges the moment the Court on the application of the parties enters such a compromise agreement as the judgment of the Court. PER ABIRIYI, J.C.A.
WHETHER OR NOT A CONSENT JUDGEMENT CAN BE CHALLANGED ON A GROUNDS OF MISTAKE
A consent judgment can be challenged on grounds of mistake, fraud or conspiracy by a stranger to the suit by a fresh action instituted in a Court of competent original jurisdiction. See Afegbai v. A.G. Edo State (2001) LPELR – 193 SC, and Edun v. Odan Community, Ado Family and Okokomaika Community (1980) LPELR – 1022 SC. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): On 20th June, 2016 Hon. Justice N. F. N. Ntong in the High Court of Akwa Ibom State sitting at Ikot Ekpene delivered the following consent judgment:
“The Terms of Settlement in this Suit No. HT/FHR.6/2016 between Mr. Isaac Ime Udo and Aniefon Umo Udo and 18 others is hereby upheld accordingly. And same is entered as the consent judgment of the Court.”
The Appellant was not a party to the above consent judgment. But 16th Respondent was an Applicant in a fundamental rights enforcement procedure proceedings commenced in the High Court (the Court below) against the 1st – 15th Respondents and four police officers. The Court below on noticing that the fundamental rights enforcement proceedings were a result of a family feud among members of the same family except the 15th Respondent and the four police officers requested the parties to settle amicably out of Court. The parties settled out of Court and filed terms of settlement in the Court below. These were the terms of settlement adopted by the Court below on 20th June, 2016 reproduced above.
The Appellant who is a family member of the feuding parties and was aware of the dispute which culminated in the consent judgment over two years after the consent judgment, sought for extension of time within which to appeal, leave to appeal and extension of time within which to appeal against the consent judgment. The application was granted on 16th October, 2018. On the 26th October, 2018, the Appellant filed a notice of appeal. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the Appellant presented the following three issues for determination in the brief filed on 16th February, 2021:
1. Whether the learned trial Judge rightly assumed jurisdiction in the Suit (distilled from ground 1).
2. Whether considering the circumstances of the Appeal, the Appellant’s right to ownership of property and fair hearing has been denied (distilled from ground 2).
3. Whether the Respondents have proof (sic) the title to any of the properties purportedly shared (distilled from ground 3).
The 1st to 15th Respondents adopted the three issues submitted by the Appellant for determination in their brief filed on 9th March, 2021.
The 16th Respondents presented the following three issues for determination in the 16th Respondents brief filed on the 9th of March, 2021:
1. Whether the trial Judge was right to adopt the Terms of Settlement of the parties thereof as the consent judgment of that Court?
2. Did the consent judgment in suit HT/FHR.6/32016 lead to denial of the Appellant’s right to ownership of property and a denial of fair hearing?
3. Whether the Respondents have proved the title to any of the properties purportedly shared?
The Appellant filed Appellant’s reply brief to the 1st to 15th Respondents’ brief on 16th February, 2021 and a Reply Brief to the 16th Respondent’s brief on the same day. Both were deemed duly filed and served on 10/3/21.
Arguing issue 1, learned counsel for the Appellant contended that the mode of commencement of the suit in the Court below was contrary to the express provisions of Order 3 Rule 1 a-c of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. It was further argued that the originating motion by which the suit was commenced in the Court below did not contain any claims or relief bordering on properties or land as provided for under Order 4 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009.
It was submitted that the suit which was a fundamental rights action was not initiated by due process of law, and upon fulfillment of the condition precedent to the exercise of the trial Court’s jurisdiction in land/properties or sharing of estate matters as was the position of the Court in Madukolu & ors v. Nkemdilim (1962)1 All NLR 587.
It was submitted that the Court below had no jurisdiction to determine a suit essentially on sharing of family property under the Fundamental Rights Enforcement Rules 2009. The Court was referred to Egbuonu v. Bornu Radio TV Corporate (1997) 12 NWLR (pt. 531) 29; Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (pt. 842) 113; Achebe v. Nwosu (2003)7 NWLR (pt. 818) 103 and Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549.
Suit No. HT/FHR.6/2016 having not been commenced by a writ of summons for the relief of sharing the Estate of Late Chief Umo Udo Inyang, the Court below lacked jurisdiction to entertain same in the manner it did for jurisdiction cannot be waived or vested in the Court by parties, it was submitted. The Court was referred to Mobil Producing Unlimited v. Monokpo (2004) All NWLR (pt. 195) 575 and Okolo v. U.B.N. Ltd (2004 )3 NWLR (pt. 859)87.
On issue 2, learned counsel for the Appellant pointed out that the Appellant is a direct son of the late Chief Umo Udo Inyang and that he was not a party to the action. That the Appellant was not notified or heard when the suit transformed into the sharing of the estate of Late Chief Umo Udo Inyang.
On issue 3, it was submitted that the Respondents did not establish title to any of the properties shared. Items listed at page 50 (I guess of the record) it was contended are bona fide properties of the Appellant’s late father and that if the Appellant was notified or heard during the proceedings, the Appellant would have presented the title documents of his late father over the said listed properties.
Issue 1 formulated by the 1st to 15th Respondents was on the locus standi of the Appellant to appeal against the consent judgment of the Court below. It was his submission that locus standi is an issue that can be raised at any time even on appeal because it is a challenge to the jurisdiction of the Court. It was submitted that once the issue of locus standi is raised, it must be resolved first before any other consideration of the matter. The Court was referred to Agboola v. Agbodemu & Ors (2008) LPELR 8461 CA.
It was contended that there is nothing in the record that shows that the property of the late Ime Umo Udo was shared. The Court was referred to page 36 of the record of appeal which shows the properties that were meant to be shared amongst the sons of Late Chief Umo Udo Inyang. That there is nothing in the record to show that the property belonged to late Ime Umo Udo, father of the Appellant.
It was contended that if anyone was to challenge the sharing which was done, it is the son of late Chief Umo Udo Inyang who would do so as it is the properties of his late father that were shared but that is not the case. The sons of the late Ime Umo Udo having been represented by the 16th Respondent, it was argued, the Appellant has to show his own special right above other sons of Ime Umo Udo to enable him appeal as an individual. Father of the Appellant being late Ime Umo Udo the proper person that would have instituted the action, it was contended, would have been Appellant’s elder brother, Isaac Ime Udo who represented the family of late Ime Umo Udo during the settlement process.
It can be seen from page 36 of the record, it was argued, that the Court below instructed the committee to allow the first male child or any representative of the late sons of late Chief Umo Udo Inyang to represent their late father in the process.
It was submitted that the proper person to have made the challenge which the Appellant is making would have been his step brother the 16th Respondent who represented and stood for the family of late Ime Umo Udo. The Appellant, it was further argued, would have rightly sued his brother on any issue arising from the share given to their late father Ime Umo Udo. The father of the Appellant being late Ime Umo Udo was ably represented by the brother, 16th Respondent on record and he acted in that capacity to represent his late father’s family including the Appellant. It was contended that even though the Appellant was not physically present, he was represented and as such is stopped from instituting this action.
It was submitted on Appellant’s issue one that the Court below had jurisdiction to hear the fundamental rights application.
What determines the issue of jurisdiction, it was submitted, is the writ of summons and statement of claim in an action commenced by writ of summons and the originating summons and affidavit in support in respect of a suit commenced by originating summons. The Court was referred to A.G. FED v. Guardian Newspapers Ltd (1999) 9 NWLR (pt. 618)187.
The Court below, it was submitted, had jurisdiction to hear the fundamental rights application which led to the settlement. Courts, it was submitted, are encouraged to evolve processes aimed at amicable settlement of disputes. The Appellant, it was contended, was represented by his brother who was the Applicant in the application for enforcement of fundamental rights. Thus, he is covered by the terms of settlement reached by the parties.
Arguing Appellant’s issues 2 and 3 together, learned counsel for the 1st to 15th Respondents submitted that the Appellant’s right to fair hearing was not breached. That the properties in question did not belong to the Appellant’s father but to his late grandfather that was shared by his sons and the Appellant’s father being deceased at the time he was represented by Appellant’s brother Isaac Ime Udo during the settlement.
The settlement process, it was pointed out, was not meant for all members of late Chief Umo Udo Inyang’s family to “partake”. It is the direct sons of the late Chief Umo Udo Inyang that are principal members of the family.
It was contended that if the Appellant was to challenge the sharing, it would have been proper if he challenged the person that stood on behalf of his late father in respect of the share given to their late father Ime Umo Udo.
Issue of title was not at stake in the matter, it was contended.
Arguing issue 1, learned counsel for the 16th Respondent submitted that the High Court (Civil Procedure) Rules 2007 of Akwa Ibom State empowers a Judge to explore amiable settlement of any matter before him for peaceful resolution of such matter. Therefore, the consent judgment which was a product of the amicable settlement of the matter was valid, it was submitted. That it was right to settle the inter-family feud.
It was contended that the Appellant cannot cry foul in this matter as the sharing was made to the principal members of the family as representatives of their fathers’ houses and for onward partitioning by the said principal members to their younger ones. That the sharing was done directly to the households of the sons to late Chief Umo Udo Inyang who was the grandfather of the Appellant. The Court was referred to page 58 lines 24 – 28 of the record.
That the Appellant in his motion for leave to appeal as an interested party stated in his grounds for seeking to be joined that he is the 4th son of late Ime Umo Udo. Therefore he could not qualify as a principal member of his father’s house. That 16th Respondent who was the 2nd son qualified as a principal member of that family. That it is now the duty of the 16th Respondent to call his brothers including the Appellant and share the property to them. That the Appellant has not stated whether the 16th Respondent has refused to partition what was given to him on behalf of his father’s household to his brothers.
On issue 2, learned counsel for the 16th Respondent submitted that where there are disputes as to occupation rights among family members and the family members cannot settle amicably as in this case which gave rise to destruction of properties and assault occasioning harm to individuals, the Court has the right to intervene and order partitioning and the jurisdiction of the Court cannot be questioned. The Court was referred to Lewis v. Bankole (1909)1 NLR 81. The 16th Respondent, it was submitted, was qualified to represent the household of the Appellant’s father and receive the shared property on behalf of his family. That the Appellant cannot be heard to complain that he was shut out from the panel as he is not a principal member of his family. Furthermore, sharing was done to the children of late Umo Udo Inyang and not to the grandchildren such as the Appellant. The Court was referred to page 58 of the record.
The Appellant, it was argued, is not complaining about the property shared to his family as directed by the Court. No other member of the family has come out complaining except the Appellant. Therefore this appeal, it was contended, is brought maliciously and should be dismissed. On the allegation of the Appellant that he was denied fair hearing, it was contended that the Appellant cannot be heard to complain of being denied fair hearing since he was represented by the principal members of his father’s household. It was contended that the Appellant was aware of the pendency of the suit in the Court below but stood by and refused to apply to be joined in the suit. Therefore, he cannot now be heard to complain for equity aids the vigilant and not the indolent.
On issue 3, the learned counsel for the 16th Respondent referred the Court to page 58 lines 22 and 23 of the record and pointed out that the Court below directed that inventory of the property of Ime Umo Udo Inyang and not the property of Ime Umo Udo the Appellant’s father be taken. That the panel investigated the ownership of the properties and ascertained that they were owned by Late Chief Umo Udo Inyang and had so remained unpartitioned until the Court ordered their sharing.
That the 16th Respondent and their elder brother Isong Umo Udo as principal members of the Ime Umo Udo household were present and participated in the panel’s sitting without presenting any document to show that their father late Ime Umo Udo owned those properties. If the Appellant’s elder brothers did not present documents of title to the panel one then wonders where the Appellant, a 4th son got his documents from.
In the Appellant’s reply brief to the 1st to 15th Respondents brief, it is contended that since the Appellant was granted leave to appeal as an interested party it shows that he has locus standi in the matter. That the Appellant had interest in his father’s and grandfather’s estate. It was Appellant’s further argument that he was not represented since the action was not filed in a representative capacity but was a fundamental rights action.
In his reply brief to the 16th Respondent’s brief, Appellant maintained that a fundamental rights action could not have been used to deprive the Appellant of his rights to ownership of his late father’s and grandfather’s estate.
In my view, the only issue for determination in this appeal is whether the Court should set aside the consent judgment of the Court below. As I pointed out earlier in the judgment, what led to the application for enforcement of fundamental rights by the 16th Respondent against the other Respondents was a feud in respect of family property. From the grounds on which the application was brought and the affidavit in support of the application, the feud was fierce and dangerous. See paragraphs (a), (c), (g), and k of the grounds on which the application was brought:
(a) On 28/11/2015, the 1st – 14th Respondents invaded the timber market where the Applicant has sheds at Utu Ikot Ekpenyong along Uyo Road in Ikot Ekpene. They trespassed into his nearby oil palm plot and cut down all the young agricultural oil palm stands, and then they entered the Timber Market, destroyed the Timber sheds of the Applicant and even set one on fire for no just cause.
(c) At the scene, the 1st – 14th Respondents came out again with dangerous weapons and chased the I.P.O and photographer away, pounced on the Applicant, tore his shirt, beat him up and dragged him to the Palace of the 15th Respondent i.e Village Head of Utu Ikot Ekpenyong, whom they claimed sent them.
(g) The 1st – 14th Respondents have reached an agreement with the 15th Respondent to forcefully take over the Applicant’s land at the Timber Market and sell to the 15th Respondent, a move I have resisted.
(k) All that the 16th – 19th Respondents have been doing to the Applicant, have been at the instance and instigation of the 1st – 15th Respondents.
Paragraphs 3, 4, 5, 6, 7, 19 and 23 of the Affidavit in support of the application reproduced immediately hereunder read as follows:
“3. That on Saturday 28/11/2015 at about 4.pm, I was in my Timber shed opposite Julius Berger Camp along Uyo Road in Utu Ikot Ekpenyong Village, Ikot Ekpene L.G.A., where I saw the 1st – 14th Respondent entered a nearby bush to my Timber shed. They stayed there for some time and later left without doing anything.
4. That I left the Timber shed for my resident and came back around 5.pm. And while I was staying there, the 1st – 14th Respondents later came back and entered my oil palm plantation near my Timber shed, cut down all the young oil palm trees and since they were armed with sticks, machetes, daggers, shotguns and planks, as I was alone, I was afraid to go near to them but stood afar off and shouted at them to know why they were cutting down my young oil palm trees.
5. That the 1st – 14th Respondents after destroying all my oil palm stands moved into the Timber market, put down the sign-post of the Timber market, destroyed some Timber sheds, while setting some on fire, including a nearby room where my mother was staying, but she managed to crawl out of the room and escaped being burnt as he is very sick and barely able to walk.
6. That at this point I was shouting and my mother was also shouting for help, but no help was forth-coming even from the soldiers guarding the Julius Berger Camp Site. They went into my office broke all the tables, chairs, lockers, destroyed my receipts, documents and stole the sum of N250,000.00 that was in one of the drawers.
7. That I wanted to go and report this incident to the 15th Respondent, my Village Head, Chief Sunny Ibanga, but as they were leaving they told me point blank that it was my said Village Head who sent them to destroy my Timber shed and kill me, so I had no alternative than to rush to the Nigerian Police Force, Area Command and lodge a complaint against the 1st – 14th Respondents.
19. That the 1st – 14th Respondents have reached an agreement with the 15th Respondent to forcefully take over my land at the Timber market and sell to the 15th Respondent, a move I have resisted.
23. That all that the 16th – 19th Respondents have been doing to me, have been at the instance and instigation of the 1st – 15th Respondents.”
On the above depositions, it is not surprising that the Court below stated as follows:
“Again, I have entreated both parties to reconciliation. They appear amenable to reconciliation. For today and from today, this Court hereby direct the Village Head Obong Sunny Ibanga and Family Head Obong Alfred Ekpo JP to involve all the members of their Council and the other principal members of their family and parties in this matter to:
1. Take inventory of the property of Umoh Udoh Inyang (now deceased).
2. Share it, apportion or alienate them accordingly to the children of the said Umoh Udoh Inyang whereupon the children whether live or dead who have benefitted shall further share same to their subsequent generation accordingly.
Finally, the parties reported settlement and the Court below entered the consent judgment which the Appellant, grandson of the deceased owner of the property shared as per the terms of the consent judgment wants this Court to set aside.
In Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverswertung A.G. G.I.V. (2001) LPELR – 3465 SC at p.38 – 39 Iguh J.S.C stated:
“In Abel Woluchem v. Dr. Charles Wokoma (1974) 3 SC 153 per Ibekwe JSC. The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and in order to have binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for and in consideration of the abandonment of the claim or claims pending before the Court. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment, therefore the parties must reach a complete and final agreement on the vital issue in their terms of agreement. The consent judgment emerges the moment the Court on the application of the parties enters such a compromise agreement as the judgment of the Court. As can be seen from the grounds upon which the application for enforcement of the 16th Respondent’s fundamental right was brought, affidavit in support of the application, and part of the proceedings of the Court below the alleged abuse of the 16th Respondent’s fundamental right was recognized by the Court below (and rightly so) as a feud among family members over the property of their deceased father and grandfather who died intestate. The feuding parties agreed to settle the dispute amicably, the 16th Respondent thereby abandoned the claim for the enforcement of his fundamental rights. Both parties now entered into an agreement to share the family property. Therefore, the argument of the Appellant that a fundamental rights proceedings cannot metamorphose into sharing of property is misconceived.
A consent judgment can be challenged on grounds of mistake, fraud or conspiracy by a stranger to the suit by a fresh action instituted in a Court of competent original jurisdiction. See Afegbai v. A.G. Edo State (2001) LPELR – 193 SC, and Edun v. Odan Community, Ado Family and Okokomaika Community (1980) LPELR – 1022 SC.
Although, all sixteen Respondents have shown that the Appellant was only a grandson and not a son of his late grandfather whose property was shared under the agreement and he would nevertheless get his share from his own branch of the family which was represented at the sharing, he still proceeded to this Court to challenge the sharing. The procedure by which he has approached the Court is wrong. He ought to have instituted an action in a Court of competent original jurisdiction. This he did not do. It does not matter that the Court granted him leave to appeal.
Arguments of Appellant on want of fair hearing are neither here nor there. The issue of want of fair hearing did not arise.
The only issue for determination formulated by the Court is resolved against the Appellant and in favour of the Respondents.
The appeal is dismissed. Parties shall bear their costs of the appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. ABIRIYI, JCA. He has carefully examined and concluded on the sole issue submitted for determination of the appeal.
I agree with the reasoning and conclusion reached in the judgment.
I also dismiss the appeal as lacking in merit.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read a draft of the leading judgment delivered by my learned brother, James S. Abiriyi, JCA.
For the reasons given, I agree entirely that there is absolutely no merit in this appeal.
I also dismiss the appeal.
Appearances:
Anietie Lazarus, Esq. For Appellant(s)
Aniedi A. Akpan Abotti, Esq. – for the 1st to 15th Respondents
Idorenyin Ekanem, Esq. – for the 16th Respondent For Respondent(s)
