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  • Race Auto Supply Co. Ltd v. Akib
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  • 2006-09-04
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Race Auto Supply Co. Ltd v. Akib

RACE AUTO SUPPLY COMPANY LIMITED

ABDUL JAFFAR ARAFAT AKIB

SAMSAMOT AKIB

MODANIYAT AKIB

V

ALHAJA FAOSAT AKIB

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE JSC ( Presided )

UMARU ATU KALGO JSC

IGNATIUS CHUKWUDI PATS-ACHOLONU JSC

MAHMUD MOHAMMED JSC ( Read the Lead Judgment )

IKECHI FRANCIS OGBUAGU JSC

SC.376/2001

FRIDAY, 9TH JUNE, 2006

APPEAL - Brief of argument - Reproduction of grounds of appeal therein - Impropriety of

CONTRACT - Agreements - Court reading terms not contained therein into - Impropriety of

COURT - Agreement - Terms not agreed upon by parties thereunder Court reading into the agreement - Impropriety of

DOCUMENT - Agreements - Court reading terms not contained therein into - Impropriety of

JUDGMENT AND ORDERS - Consent judgment - Meaning of - Scope of bindingness of


JUDGMENT AND ORDERS - Consent judgment - Setting aside of - How and by whom may be done

JUDGMENT AND ORDERS - Consent order - How construed

JUDGMENT AND ORDERS - Judgment of a court - Clerical slips or omissions therein - Inherent power of same court to clarify or correct - Extent of - Whether extends to matters of law - Whether exercisable by another Judge

JUDGMENT AND ORDERS - Judgment of court - Errors or omissions therein - Power of court to correct - How exercised

JUDGMENT AND ORDERS - Judgment of court - Subjection of to interpretation by a court of coordinate jurisdiction - Impropriety of - Rule 1 of Order 46, High Court of Lagos High (Civil Procedure) Rules, 1994 considered

JUDGMENT AND ORDERS - Judgment of court - Whether comes within the words ‘other written instrument’ under rule 1 of the Order 46  of Lagos High Court (Civil Procedure) Rules,  1994

STATUTE - High Court of Lagos State (Civil Procedure) Rules, Order 46, rule 1 thereof - ‘Other written instruments’ thereunder’ Whether extends to judgments of court - Impropriety of subjecting judgment of a court of co-ordinate jurisdiction

WORDS AND PHRASES - ‘Consent judgment’ - Meaning of - Scope of bindingness of

WORDS AND PHRASES - ‘Instrument’ - Meaning of

Issue:

Whether a party interested in a judgment can by way of an application by originating summons ask a court of co-ordinate jurisdiction to resolve any question of construction of words or phrases or interpretation of any part of the judgment.

Facts:

Apart from the 1st appellant, the parties in this appeal are beneficiaries and executors of the estate of late Alhaji Abdul Wahabi, Akibu of Lagos who died and left behind property at 14, Okoya street, Lagos Island, Lagos. In accordance with the will of the deceased, the property was shared and the respondent in this appeal was granted a room and a parlour on the ground floor of the building. However, the 2nd, 3rd and 4th appellants as executors of the estate of the deceased and on behalf of the beneficiaries of the estate including the respondent, procured the 1st appellant to redevelop the property in order to enhance its rating value. The redevelopment contract was executed between the appellants on 16th August, 1995 and as a result the 1st appellant moved into the property to demolish it preparatory to erecting a modern structure as stipulated in the agreement. However, the respondent who was not satisfied with the terms of the redevelopment agreement refused to allow the commencement of the work and demanded a variation of the agreement to provide better terms for her. On the 1st appellant’s refusal to agree with the respondent for better terms of the redevelopment agreement, the 1st appellant with the support of the 2nd, 3rd and 4th appellants who executed the redevelopment agreement, filed an action No. CD/2818/ 97  at the Lagos High Court to enforce the agreement against the respondent who was the only defendant in the action.

In the course of the proceedings in the suit, the parties comprising the appellants in this appeal as plaintiffs and the respondent as defendant, agreed to settle the dispute between them out of court. The terms of settlement signed by the parties in the presence of their learned counsel on 8 th January, 1998, was filed at the trial court which the learned trial Judge,

Obadina J. (as he then was), adopted as the judgment of the court on 4th May, 1998. In compliance with the terms of the consent judgment, the respondent on receipt of the sum of N50,000.00 (fifty thousand naira) from the 1st appellant for her relocation from the property during the period of the execution of the project, vacated the premises to allow for the commencement of the reconstruction.

Upon the completion of the reconstruction of the property at No. 14, Okoya street, Lagos Island, the respondent demanded for the keys of the four shops and two stores being her share in the property from the 1st appellant who refused. Thereupon the respondent forcibly occupied the four shops and two stores resulting in the appellants proceeding to the trial Lagos State High Court for redress. In the originating summons filed by the appellants as applicants on 30th March, 1998, they raised some questions bordering on the interpretation of the terms of settlement dated 8th January, 1998  which they sought determination of and subsequent reliefs. The originating summons which was opposed by the respondent was heard by Shitta-Bey J. of the Lagos High Court who in his ruling delivered on 18th November, 1998, granted all the prayers of the appellants against the respondent who immediately appealed to the Court of Appeal, Lagos against the ruling. In its judgment delivered on 22nd June, 2000, the Court of Appeal allowed the respondent possession of the four shops and two stores in dispute between the parties. The appellants appealed to the Supreme Court. The Supreme Court in determination of the appeal, considered Order 46, rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994 which provides thus:

“Any person claiming to be interested under a deed will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for declaration of the rights of the parties interested.”