EMMANUEL ILONA VS JOHN IDAKWO

Issue:

By a writ of summons in suit No. ID. 17/89 filed at the Idah High Court on 19th of September, 1989, Sunday Idakwo, the 1st Respondent herein as Plaintiff sued his brother John Idakwo (2nd Respondent) and Emmanuel Ilona (Appellant) as lst and 2nd Defendants claiming the following reliefs:- "(a) The lst Defendant to hand over to him all the properties, money and documents connected with the estate of their late father Joseph Idakwo Ejiga as the administrator of the estate. (b) The 2nd Defendant to vacate the plot of land at the Total Petrol Filling Station situate at Sabon Gari opposite St. Boniface Primary School Idah forming part of the estate of his late father and that any evidence of ownership of the land produced by the said Defendant be declared null and void." With the leave of the court granted as the proceedings progressed, the name of Ukwenya Ochijenu Utenu was joined as the 3rd Defendant while the name of John Idakwo was struck out as 1st Defendant and added as 2nd Plaintiff. Pleadings were filed, exchanged and subsequently amended. Each party called witnesses to support its case. After the parties had concluded their oral evidence, learned counsel for the Plaintiffs informed the court that his clients and the 2nd Defendant had reached a settlement out of court and that a memorandum to that effect had been filed in court. In his reaction, the learned trial judge Ochimana J in his judgment delivered on 24th October, 1994 entered a consent judgment. Then is no appeal against that consent judgment as between the Plaintiff and the 2nd Defendant. The trial court proceeded to consider the case as between the Plaintiffs and the 1st Defendant, Emmanuel Ilona and after reviewing the evidence and the written addresses of learned counsel, it dismissed the Plaintiffs' claim on the ground that they had failed to prove their case against the 1st Defendant on the preponderance of evidence to entitle them to judgment. Being aggrieved by this judgment, the Plaintiffs lodged an appeal against it to the Court of Appeal which in a unanimous decision delivered on 13th January, 1998 allowed the appeal, set aside the judgment of the trial court and vested on the Plaintiffs late father the title to the land covered by the Total Filling Station at Sabon Gari Idah. The lst Defendant is now challenging that judgment by this appeal to the Supreme Court.