This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on 22-6-2000.
Apart from the 1st Appellant, the parties in this appeal are beneficiaries and executors of the estate of the 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 also left behind by the deceased. the property was shared accordingly with the Respondent in this appeal having 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 16-08-1995 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 variation of the agreement to provide better terms for her. On the 1st Appellant refusing 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/2418/97 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 8-1-1998, 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 4-5-1998. In compliance with the terms of the consent judgment, the Respondent on receipt of the sum of N50,000.00 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. There upon 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 30-3-1998, the following questions were sought for determination and subsequent relief: -
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a
Whether by the terms of settlement dated 8th January 1998 in suit No CD/2418/97 and entered as the judgment of the Court on 4th May 1998, the Respondent is entitled to forcibly wrest from the Appellants 6 shops in the building before the completion of the construction •work.
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b
Whether under the said terms of settlement dated 8th January 1998, the Respondent is entitled to 6 shops on the completion of the reconstruction of the redevelopment project as contained in the redevelopment contract dated 16th August 1995.
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c
Whether under the said terms of settlement the Respondent is entitled to the 6 shops at the expiration of the redevelopment contract dated 16th August 1995. If the answers to questions 1 and 2 are in the negative and the answer to question 3 in the affirmative, the applicants shall be praying the Honourable Court for the following order(s):-
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i
An order of perpetual injunction restraining the Respondent, her servants, agents or any person claiming through her from disturbing the quiet possession of 1st Appellant during the currency of its term as stipulated under the contract agreement dated 16th August 1995"
The Originating Summons supported by a 20 paragraph affidavit, a further 26 paragraph affidavit and opposed by a counter affidavit of 47 paragraphs and a further counter affidavit of 30 paragraphs, was heard by Shitta-Bey J. of the Lagos High Court who in his ruling delivered on 18- 11-1998, 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 22-6-2000, the Court of Appeal allowed the Respondent's appeal, set aside the orders of the trial Court and granted the Respondent possession of the four shops and two stores in dispute between the parties. The Appellants as applicants before the trial Court who lost in the contest, have now appealed to this Court by a Notice of Appeal which contains seven grounds of appeal. When the appeal came up for hearing on 14-3-2006, the Respondent who was duly served with the Appellants' brief of argument and the hearing notice of the date for the hearing of the appeal, was not only absent but was also not represented by counsel and no Respondent's brief was filed on her behalf. Consequently, the appeal was heard under Order 6 rule 8 (7) of the rules of this Court on the Appellants' brief of argument alone which distilled the following three issues for the determination of the appeal from the seven grounds of appeal filed by the Appellants.
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1
Whether having found the application of the Applicants/Respondents/Appellants to the High Court, Lagos for the interpretation of the consent judgment proper, are the learned Justices of the Court of Appeal, Lagos allowed to rewrite the Agreements between parties.
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2
Whether by the consent judgment of the Lagos High Court, the Respondent/Appellant is entitled to 4 shops and 2 stores on the completion of the reconstruction of the building OR at the expiration of the redevelopment project as contained in the redevelopment contract dated 16th August 1995.
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3
What is the literal and grammatical meaning of the phrase "upon the completion of the project for redevelopment of the property.”
Taking into consideration that this appeal arose from the ruling of the trial Lagos State High Court on the application of the Appellants by originating summons for the interpretation of the consent judgment between the parties, all the three issues arising from the grounds of appeal challenging the decision of the Court of Appeal setting aside the ruling of the trial Court in favour of the Appellants could be taken together. This is because all the three issues are merely complaining on the interpretation of the terms of settlement embodied in the consent judgment.
