- LAU LOCAL GOVERNMENT v. KABIRU UMAR
(2014)LCN/7282(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2014
CA/YL/52/2013
RATIO
WHETHER THE COURT MUST CONSIDER THE CONS OF A TERM OF SETTLEMENT BEFORE GRANTING LEAVE IN RESPECT OF SAME
Be that as it may, it is also of crucial and indeed utmost importance that in an application to enter terms of settlement as the consent judgment of the Court, the Court must take the pains to go through the cons of the terms of settlement and consider same in line with the issues and claims of the parties before it. Let me explain. Parties cannot by seeking leave of Court to settle their dispute out of Court proceed to file terms of settlement in which claims not related to the claims in the given case are purportedly settled along with the claims in the suit before the Court. For example, in a claim for declaration of title to land, parties cannot settle and agree on terms as to chieftaincy stool and file such terms of settlement and expect the Court to enter such terms of settlement as the consent judgment of the Court in the given suit. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
JUSTICE
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
LAU LOCAL GOVERNMENTAppellant(s)
AND
KABIRU UMARRespondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Taraba State High Court delivered on 30/10/2012 per Ali I. Andenyangtso J. in Suit No. TRSJ/577M/2011: KABIRU UMAR v. LAU LOCAL GOVERNMENT, entering judgment in favour of the Applicant now Respondent against the Respondent now Appellant.
On 21/11/2011, the Respondent had instituted this suit as Applicant by way of application for the enforcement of his fundamental right against the Appellant as Respondent pursuant to Section 44(1) of the Constitution of Nigeria 1999 as Amended and the Fundamental Right (Enforcement Procedure) Rules 2009, claiming against the Respondent the following reliefs, namely:
(1) An order of Court declaring illegal, the refusal by the Respondent to release the Appellant’s property to with one underground water pipe, one water pump, weight bridge, boiler and armored cable sited within the Respondent territorial jurisdiction and a violation of the Application fundamental human right as enshrined in Section 44(1) of the 2010 Constitution of the Federal Republic of Nigeria.
(2) An order against the Respondent, his (sic) agents or whosoever acts for him (sic) or on his (sic) behalf to release forth to the Applicant’s property to wit: one underground water pipe, one water pump, weigh bridge, boiler and armored cable in his possession immediately and to refrain from doing anything whatsoever that would interfere with the unalienable fundamental human rights of the Applicant as guarantee under the 2010 Constitution of the Federal Republic of Nigeria.
(3) And for such order or further orders as the Court may deem just to make in the circumstances of this matter …………
The application was supported by an affidavit of 19 paragraphs deposed to by the Applicant now Respondent, annexed to which were several documents as Exhibits A, B, C, D, E, F, G, H, I, J, K, L and L.
As required by the Fundamental Rights (Enforcement Procedure) Rules 2009, the application was also accompanied with a statement in support stating the Name and particulars of the Applicant now Respondent, the facts, grounds and reliefs sought against the Respondent now Appellant together with the written address of his counsel. see pages 1- 38 of the main Record of Appeal.
Upon service of the processes, the Respondent now Appellant sought and obtained the leave of the Court below and filed its counter affidavit and written address of its counsel on 12/3/2012. See pages 1 – 11 of the supplementary Record of Appeal.
On 17/7/2012, the matter was duly heard and in a considered final ruling delivered on 3/10/2012, the Court below found in favour of the Applicant now Respondent against the Respondent now Appellant, holding inter alia thus:
“From the above, it is clear that the Respondent is privy to the refusal to release the items already auctioned and purchased in 2005 and sold to the Applicant as a third party ….. I agree with the learned counsel to the Applicant that the rights of the Applicant have been infringed upon in this matter as he has been prevented from evacuating the items which he legally and lawfully purchased from an auction validly and legally carried out by the State Government. It is therefore declared and ordered, granting the rights of the Applicant……”
See pages 39 – 50 of the main Record.
It is against the above judgment of the Court below that the Appellant has filed its Notice of Appeal on 28/11/2012 challenging the decisions of the Court below delivered on 30/10/2012 on six grounds of Appeal.
On 24/3/2014, the Appellant sought and obtained the leave of this court and filed its Appellan’s brief, which was thus deemed as having been properly filed and served on the same date of 24/3/2014 and the matter adjourned to 28/4/2014 for mention.
On 28/4/2014, this Court was informed by counsel to the Appellant that in view of the failure of the Respondent to file the Respondent’s brief as provided by the Court of Appeal Rules 2011, the Appellant has filed a motion on same date of 28/4/2014 for leave to hear the appeal on the Appellant’s brief alone. The motion having been filed only on the same date when the matter came up for mention, the Court adjourned the matter to 5/5/2014 for the hearing of the motion.
However, on 5/5/2014, the counsel to the Appellant withdrew his motions and both was accordingly struck out by the court and the matter was adjourned to 19/5/2014 for the Respondent’s motion filed on 2/5/2014 to be heard.
On 19/5/2014, counsel to the Respondent applied to withdraw his motion and same having not been opposed by the Appellant counsel was granted by this Court and the motion was accordingly struck out and the Appellant was called upon to move his motion to hear the appeal on the Appellant’s brief alone. At this juncture learned senior counsel to the Respondent, A. J. Akanmode Esq., informed the Court that the parties can amicably resolve their differences in this appeal out of Court if granted the opportunity to so do. Learned counsel to the Appellants, J. A. Oguche, Esq., also expressed his readiness to settle the matter amicably out of Court. The matter was thus adjourned to 16/6/2014 for report of settlement.
Pursuant to the leave of Court to settle this appeal amicably out of Court, the parties have now filed on 30/6/2014 a “memorandum of settlement” as the end product of their agreement to settle this appeal amicably on their own terms.
On 1/7/2014, the parties through their counsel informed the Court of the filing of the memorandum of settlement by them as duly signed by their respective counsel, which memorandum of settlement was then sought by both counsel to be entered as the consent judgment of this court in this Appeal.
Now, by the terms of settlement as duly filed by the parties and signed by their respective counsel, the parties have agreed to settle the disputes in this appeal on the following terms, namely:
(1) That the Respondent shall be allowed to remove without any hindrance the items purchased by the Respondent at an auction sale from the Lau Tomato industry premises to wit:
(a) One underground water tank.
(b) One water pump.
(c) Weigh bridge scale
(d) One Boiler
(e) Water pipes
(f) Armored cables.
(2) The sum of N500,000.00 damages awarded against the Appellant in favour of the Respondent by the trial High Court of Justice Taraba State in its ruling dated 3/10/2012 has been waived.
(3) That judgment in this appeal be entered in terms of the agreement reached herein by the parties and that no cost be awarded in favour of any of the parties.
The term of settlement was duly signed for the Appellant by its learned counsel, J. A. Oguche Esq., while the learned senior counsel to the Respondent, A. J. Akanmode, Esq., and learned counsel in his chambers, Miss M. A. Vasumu signed for the Respondent.
Now, this Court has been requested by the parties through their respective counsel to enter these terms of settlement as the consent judgment of this Court in this Appeal pursuant to Order 16 (4) of the Court of Appeal Rules 2011.
The application for this Court to simply proceed to endorse these terms of settlement as the consent judgment of the Court pursuant to Order 16 (4) of the Court of Appeal Rules 2011 is seemingly a very straight forward one and deserving of neither much thought nor adjournment for that purpose by the Courts.
However, it must be borne in mind that generally, or should I say ordinarily, the issue of consent judgment is a rare bird to fly at this altitude of the penultimate Court of the land, as it is usually the turf of trial Courts before the issues in contention between the parties are pronounced upon by the courts.
Be that as it may, it is also of crucial and indeed utmost importance that in an application to enter terms of settlement as the consent judgment of the Court, the Court must take the pains to go through the cons of the terms of settlement and consider same in line with the issues and claims of the parties before it. Let me explain. Parties cannot by seeking leave of Court to settle their dispute out of Court proceed to file terms of settlement in which claims not related to the claims in the given case are purportedly settled along with the claims in the suit before the Court. For example, in a claim for declaration of title to land, parties cannot settle and agree on terms as to chieftaincy stool and file such terms of settlement and expect the Court to enter such terms of settlement as the consent judgment of the Court in the given suit.
Now, the importance of these measures by the Court in ensuring that only issues and claims before it in any given suit are contained in the terms of settlement is underscored by the fact that once the court puts its imprimatur on the terms of settlement, it ceases to be the mere agreement or acts of the parties but becomes the judgment of the Court carrying with it the coercise powers of the Court and thus binding as a final judgment on the parties and which can only be appealed against with the leave of Court. See Race Auto Supply Company Ltd & Or v. Akibu (2006) 6 SCNJ 98 or (2006) 6 SC 1, where @ P. 17, his Lordship Ogbuagu JSC, defined what a consent judgment is in the following terms:
“It is a judgment entered pursuant to an agreement between the parties. See Woluchem v. Wokoma (1974) 3 SC 153 @ 166. A consent judgment thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the Court and it is only appealable with the leave of Court. See Otunba Ojora v. AGIP & Anor (2005) 4 NWLR (Pt. 916) 515.”
In present day litigation, it would appear that so much acrimony goes into it so much so that even at the conclusion of trial and delivery of judgment, the divide and resentment or bitterness between the parties are made more deeper and worse, thus it is a welcome development the idea of amicable resolution of disputes by the parties. In such circumstance, the parties are granted the liberty with the leave of Court, to take as it were their own destiny into their own hands to resolve as much as they so desire wholly their differences and disputes by themselves and present same to the Court to put its imprimatur to make it a final binding judgment between them.
This procedure in cases where they are successfully employed and applied results into what ardent practitioners and strong believers or apostles of the Alternative Dispute Resolution (ADR) Mechanism or concept refer to as “Win Win” situation. Both parties are made and have become winners, none is a loser. This augurs well for complete or total reconciliation and thus engender future cordial relationship between the parties to such amicable settlement. See Star Paper Mill Ltd & Anor v. Bashiru Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647, where @ P. 659; Muntaka Commassie, JSC had succinctly observed thus :
“It must be pointed out that it is one of the cordial principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented”
The need to allow the parties resolve their disputes amicably with the resultant effect of restored and cemented relationships is, in my view, one of the cardinal and core purposes of the provisions of Order 16 of the Court of Appeal Rules 2011 providing for Mediation Programme in the Court of Appeal in matters pending before the Court, particularly Order 16 (3) (a) and (4) of the Court of Appeal Rules 2011 as regard the instant appeal. To this end, I shall hereunder reproduce for emphasis the provisions of Order 16 (3) (a) and (4) of the Court of Appeal Rules 2011 as follows:
16(3): Without prejudice to the provisions of the foregoing, the parties shall –
(a) be at liberty at any time during the course of hearing of an appeal, to explore mediation or any other Alternative Dispute Resolution Mechanism as considered appropriate in the circumstances towards the resolution of their dispute.
16(4): Where any of the Alternative Dispute Resolution Mechanism adopted is successful, the Court shall adopt the agreement reached by the parties as the judgment of the court but where such Alternative Dispute Resolution Mechanism fails, the appeal shall be set down for hearing”
It is in the light of the above judicial and statutory authorities, that I have calmly studied the terms of settlement filed by the parties in this appeal, bearing in mind that it is entirely at the discretion of this Court to adopt the same or not as our judgment in this appeal, (see SPM Ltd v. Adetunji (supra) @ P. 661 paragraphs A – B per Muntaka Coomassie JSC), and I am completely satisfied and I so hold that the terms of settlement as filed by the parties and duly signed by their respective counsel is a product of the agreement of the parties to resolve the disputes in this appeal and thus is strictly bearing on the issues and claims in this appeal between the parties and not otherwise.
In law, therefore, such an amicable resolution and agreement on the rights of the parties showing clearly ascertainable rights acquired or abandoned or waived by the parties, is worthy of being adopted by this Court and entered as the consent judgment of this Court in this appeal and I so hold. See S.P.M. Ltd v. Adetunji (supra) where @ P. 659 paragraph H Muntaka Coomassie JSC had stated succinctly thus:
“Hence consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of Consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as a judgment which results from the decision of Court.”
I have earlier in this judgment described consent judgment at the penultimate Court of the land as a rare bird to fly at this altitude in view of the fact that the rights and liability of the parties have already been pronounced upon by the Court below prior to the appeal process in which it is now sought to resolve the disputes already pronounced upon one way or the other by the Court below.
The dangers inherent or the caveat to such consent judgment at the appellate Court after a pronouncement on the rights and liabilities of the parties by the Court below cannot be over emphasised, no matter how many times it is reiterated by the Courts. It is to be noted and pointed out at once that parties, no matter the overwhelming desire to allow them to amicably resolve their differences or disputes on their own terms, lack the power to agree on their own to set aside or allow or dismiss an appeal pending before the Court of Appeal. This is so because in law it is not and will never be open to the Court of Appeal or any appellate Court for that matter, worth its name, to allow or dismiss an appeal without first hearing it except as allowed by the rules of the Court in cases of want of prosecution or lack of diligent prosecution or of abandonment of the appeal by non filing of the Appellant’s brief as provided in Order 18 (10) (2) Court of Appeal Rules 2011, thus:
“Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution”
In SPM Ltd v. Adetunji (Supra), the need for this caveat on the inherent dangers of unscrutinized terms of settlement of Appeals by the parties, was underscored by the his Lordship Oguntade JSC; in his contribution to the lead judgment @ P. 662 paragraphs F – H, thus:
“Where there is an appeal against the judgment of the High Court, it is open to the Court of Appeal after hearing argument on the appeal to allow or dismiss the appeal. It is not open to the Court of Appeal to allow or dismiss the appeal without first hearing it. The parties before the Court below had asked that the judgment of the High Court be set aside on the ground that the appeal against it was meritorious. In other words, the parties have assumed a jurisdiction, which under the Constitution of Nigeria is vested in the Court of Appeal to reach the conclusion mutually that the judgment of the trial Court was wrong. I think that this was presumptious and unacceptable…..”
This caveat on the inherent dangers of unscrutinized terms of settlement does not in any way and is not so intended to rule out the possibility of properly intended Alternative Dispute Resolution of the disputes by the parties in such a way that would neither encroach upon or take away the ultimate jurisdictional competence of the Court of Appeal to reach mutual conclusion on the merit or otherwise of an appeal pending before it. Let me refer again to the words of Oguntade JSC; in SPM Ltd v. Adetunji (supra) @ P. 663 paragraphs A – G, wherein his Lordship stated thus:
“A judgment of Court often settle the issues in dispute between parties and makes a pronouncement on the rights and entitlements of the parties. There is nothing stopping parties after the judgment of a Court from changing their position from what it was in Court in order to compromise the terms of the judgment of the High Court. This is however, not the same thing as praying the Court of Appeal to allow an appeal which has not been heard on the ground that the parties had themselves come to the conclusion that the solemn judgment of the trial Court was wrong.”
On what, how, when and purport of consent judgment in our Law, see generally the following relevant cases, Habib Bank Nig Plc v. Lodigiam Nigeria Ltd (2010) 14 NWLR (Pt. 1213) 330; A.G. Lagos State v. Isaac Osuoka & Ors (2010) 4 NWLR (Pt. 1183) 68, a decision of the Lagos Division of the Court of Appeal Lagos of which my Lord, Adamu Jauro, JCA on this panel in this judgment, was also a member of the panel in that decision; Chief Udogu Onomaku & Anor v. Eze Ifeoba Akubue (2009) 15 NWLR (Pt. 1165) 539; Dr. Agha Eresia – Eke & Ors . Elder Jackson Orikoha & Ors (2010) 8 NWLR (Pt. 1197) 421; Adewunmi v. Plastex Nig Ltd (1986) 3 NWLR (Pt. 32) 767 @ Pp. 784 – 875; Obayinwana v. Ede (1998) 1 NWLR (Pt. 535) 679 @ P. 678.
In bringing this judgment to a close, I also need to point it out that on the face of the terms of settlement as filed in this Court neither of the parties themselves had appended their signatures as it was duly signed by their respective counsel as earlier alluded to some where else in this judgment.
However, having considered the current state of the law on the general ambit of the counsel’s authority to act for his client, including compromising a suit on behalf of his client in the exercise of his discretion to the best of the general interest of his client, I am satisfied that the terms of settlement duly signed by the respective counsel to the parties is proper and in law binds the parties to this appeal. See Bessoy Ltd v. Honey Legion Nig Ltd & Ors (2010) 4 NWLR (pt. 1184) 300 @ P. 324 where A. G. Mshelia, JCA had succinctly stated thus:
“It is within the general ambit of a counsel’s authority to compromise a suit on behalf of his client and to enter into terms of settlement. In exercising this authority, a counsel is to do everything which in the exercise of his discretion he thinks best for the general interest of his client. No limitation can be imposed by the client on the implied authority of counsel to compromise proceedings unless his limitation has been brought to the attention of the opposite party. Once, however, a client has retained a counsel, he is bound by the counsel’s agreement, however, much he may disapprove”
It is in the light of all that I have stated above that I have come to the inescapable conclusion in this judgment, and I so hold firmly, that this appeal is a proper and deserving one in which the terms of settlement, shown to have been a genuine total settlement of the rights and obligation of the parties in this appeal, should be adopted by this Court and entered as the consent judgment of this Court.
In the result, the terms of settlement filed by the parties on 30/6/2014 and duly signed by the respective counsel on behalf of their respective parties in this appeal, is hereby entered as the consent judgment of this Court in this appeal.
Consequently, it is hereby ordered as followed:
(1) The Respondent shall forthwith be allowed to remove without any hindrance the items purchased by the Respondent at an auction sale from the Lau Tomato Industry premises to wit:
(a) One underground water tank
(b) One water pump
(c) Weigh Bridge Scale
(d) One Boiler
(e) Water Pipes
(f) Armoured Cables
(2) The sum N500,000.00 (Five hundred thousand Naira) damages awarded against the Appellant in favour of the Respondent by the trial High Court of Justice Taraba State in its ruling of 3/10/2012 stands waived by the Respondent.
(3) There shall be no order as to cost.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother BIOBELE ABRAHAM GEORGEWILL, J.C.A. just delivered and I agree entirely with my Lord that the need to allow parties resolve their dispute amicablly would in effect restore and cement the relationship beteween the parties.
Consequent upon the foregoing the terms of settlement filed by the parties on 30/6/2014 and duly signed by the respective Counsel for the parties is also entered by me as the consent judgment in this appeal.
I abide by the consequential orders made in the said lead judgment.
ADAMU JAURO, J.C.A.: I have been afforded the oppourtunity of reading in advance the lead judgment just dlivered by my learned brother, BIOBELE, ABRAHAM GEORGEWILL, JCA.
I am in complete agreement with the reasoning and conclusion reached in the said judgment and adopt same as mine.
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Appearances
J. A. OgucheFor Appellant
AND
A. J. Akanmode Esq. with Miss M. A. VasumuFor Respondent
