GOV OF BORNO STATE & ORS v. GONIMI (2020)

GOV OF BORNO STATE & ORS v. GONIMI

(2020)LCN/14752(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/259/2018

RATIO

FRAUD: MEANING AND NATURE OF FRAUD

The Black’s Law Dictionary, 7th Edition, page 670, defines fraud as: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”
The Supreme Court in the case of Umanah V Attah (2006) LPELR-3356(SC) 40, C-E, per Onnoghen, JSC also defined the term ‘Fraud’ as follows:
“As defined in Vulcan Gases Ltd V GF Ind. AG (2001) 9 NWLR (Pt. 719) 610, 624: Fraud in most cases, involves dishonesty. Actual fraud takes either the form of [a] statement which is false or a suppression of what is true. The partial statement of fact and the withholding of essential qualifications may make that which is stated absolutely false and fix it under the head of suggesti falsi.”
In Onwudiwe V FRN (2006) 10 NWLR (Pt. 988) 383, 429-430, Niki Tobi, JSC stated –
“A fraudulent action or conduct conveys an element of deceit to obtain some advantage from the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be a deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.”
Again in Afegbai V AG Edo State (2001) 11 SCM 42, 60, his lordship, Karibi-Whyte, JSC, adopted the statement of Lord Selbourne LC in Earl of Anylesford V Morris (1873) 8 Ch. 484, 490, inter alia thus:
“Fraud does not here mean deceit or circumvention, it means an unconscientious use of power arising out of these circumstances and conditions and when the relative positions of the parties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is is able to repel the presumption by contrary evidence, proving it to have been in point of fact, fair, just and reasonable.”
Finally, in Adimora V Ajufo (1988) 1 NSCC 1005, his lordship, Oputa, JSC stated –
“Fraud implies a wilful act on the part of anyone whereby another is sought to be deprived by illegal and inequitable means, of what he is entitled to. Fraud for the purposes of civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green V Nixon (1857) 23 Bear 530.”
See also Onuchukwu V Nnoli (2013) LPELR-21223(CA) 19, A-C, per Jega, JCA; Banjoko V Ogunlaja (2013) LPELR-20373(CA) 24, C-D, per Uwa, JCA; Salami V WEMA Bank Nig Plc (2009) LPELR-8875(CA) 23, A-D, per Agbo, JCA; Solomon V Monday (2014) LPELR-22811(CA) 33-34, E-D, per Yakubu, JCA. PER HANNATU SANKEY, J.C.A.
FRAUD: EFFECT OF THE ESTABLISHMENT OF FRAUD IN TRANSACTIONS

As a matter of principle, fraud, if established, vitiates consent, however apparently well given. It vitiates even the most solemn of all transactions. In fact, fraud vitiates everything, even Judgments and Orders of the Court, where proved -Ugo V Obiekwe (1989) LPELR-3319(SC) 45-46, E-C, per Agbaje, JSC.
Based on all the above, a fraudulent act or conduct is a conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude by which an undue and unconscientious advantage is taken of another. It could also be an assertion that does not conform with facts. PER HANNATU SANKEY, J.C.A.

FRAUD: PROOF OF FRAUD

Fraud is said to be proved when it is shown that a false representation has been made by the person representing the facts in the following circumstances: (i) knowing or (ii) without belief in its truth, (iii) recklessly, carelessly whether it be true or false. Thus, the meaning of fraud as it pertains to representation, is where a person makes a false statement which he does not actually and honestly believe to be true, that statement is for the purposes of civil liability, as fraudulent as if he had stated that which he did not know to be true or he knew or believed to be false. PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

THE EXECUTIVE GOVERNOR OF BORNO STATE 2. THE HON. COMMISSIONER, MINISTRY OF LANDS & SURVEY BORNO STATE 3. THE HON. ATTORNEY-GENERAL BORNO STATE APPELANT(S)

And

ALHAJI BUKAR GONIMI RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This appeal is against the Judgement of the High Court of Justice Borno State in Charge number BOHC/MG/CV/103/38/2014 delivered on July 5, 2017 by Mussa, J.
The case leading to this appeal has a chequered history. I will however set out the brief facts as follows:
The Appellants herein (as Plaintiffs) sued the Respondent (as Defendant) before the lower Court vide an Amended Writ of Summons filed on October 8, 2015 and deemed filed on October 22, 2015. In their Amended Joint Claimants’ Statement of Claim, they claimed as follows:
a) “A declaration that the consent Judgement delivered in suit No. M/19/2000 is null and void having been obtained by fraud.
b) Declaration that the affected letters of grant which were revoked by the Executive Governor of Borno State remained revoked.
c) An order that the Defendant be restrained from development of the said land, having been revoked.
d) An order that the consent Judgement in suit No. M/19/2000 be set aside having been obtained by fraud.

e) The claimants jointly and

severally claim against the Defendant (Alhaji Bukar Gonimi) the sum of (10, 000, 000.00) as General damages for trespass.”

The Respondent had earlier on in the year 2000 instituted an action against the Appellants in Suit No. M/19/2000 for demolishing his properties covered by grants of Rights of Occupancy issued by the 2nd Appellant on behalf of the 1st Appellant in File Numbers: BO40127, BO40128 dated 19/2/97 and BO9992 dated 22/8/1999 at BOTP/150 Judgement 3 Extension, which letters of grants were said to have been revoked. While the suit was pending, the parties agreed to settle the matter out of Court. Terms of settlement were reached and signed by all the parties. It was then filed and adopted at the trial Court. The terms of settlement were thereafter entered as the Consent Judgement of the Court by Jiddum Mohammed J., in a Judgement delivered on September 26, 2003.

Three years thereafter in 2006, members of staff of the 2nd Appellant again proceeded to the land and demolished the structures put up by the Respondent. The Appellants claimed that they carried out the demolition of the structures on the land because the

grants of the Rights of Occupancy had been revoked. Unhappy with this development, the Respondent again approached the Court vide Suit No. M/24.2006 challenging the demolition of his structures covered by letters of grant No. BO/40127, BO40128 and BO/9992, being the legal owner of the land.
The Appellants in response, filed a motion No. BOHC/MG/CV/24MA/2006 seeking an order striking out the suit on the ground of incompetence, challenging the jurisdiction of the Court and seeking an order setting aside the Consent Judgement of 26-09-03 on the ground that it was obtained by fraud.
After hearing parties on the motion, the learned Judge, Mamza, J., acquiesced to the application and granted the prayers of the Appellants. She therefore struck out the Respondent’s Suit No. M/24/2006 for being incompetent and also set aside the Consent Judgement. Since there was a counter-claim by the Appellants, she adjourned the suit for hearing in respect of the counter-claim (Exhibit CW1B).
Aggrieved by this Ruling, the Respondent filed an appeal to the Court of Appeal, Jos Division in Appeal No. CA/J/89/2011. In its Judgement given in favour of the

Respondent, the Court of Appeal restored the Consent Judgement of 26-09-03 (Exhibit CW1A) as well as the Respondent’s claim in Suit No. M/24/2006, which had been struck out by the lower Court, with an Order that the case be remitted to the High Court to be heard before another Judge. It also held that in line with the law, in order for a consent Judgement to be set aside, the aggrieved party had to file a fresh suit before another Court. It could not be done via the filing of a motion.
Therefore, pursuant to the Judgement of the Court of Appeal, the Appellants proceeded to file a fresh suit, namely, Suit No. BOHC/MG/CV/38/2014, before the High Court of Borno State against the Respondent wherein they challenged the Consent Judgement entered in Suit No. M/19/2000 and sought an order for it to be set aside. The trial Court heard the parties on the case, and in its Judgement delivered on July 5, 2017, entered Judgement again for the Respondent, dismissing the Appellants’ claim.
The Appellants were dissatisfied with the Judgement. Therefore, with the leave of Court sought and obtained on 25-04-18, they filed this Appeal, vide their Notice of Appeal

on 03-05-18 wherein they complained against the decision of the trial Court on three Grounds. The Appellants sought the following relief:
“To allow the appeal, set aside the Judgement of the trial Court and entered (sic) for the Appellants as per their claim before the trial Court.”

At the hearing of the appeal on October 13, 2020, learned Counsel for the Appellants, H.Y. Gana, Esq. Deputy Director Civil Litigation (DDCL), Borno State Ministry of Justice, adopted and relied on the submissions in the Appellants’ Brief of argument filed on 19-11-18, but deemed filed on 26-11-18, as well as the submissions in the Appellants’ Reply Brief of argument filed on 22-09-20, both Briefs settled by the same Counsel, in urging the Court to allow the Appeal and set aside the Judgement of the trial Court.

On his part, learned Counsel for the Respondent, A.A. Sangei, Esq. adopted the submissions in the Respondent’s Brief of argument filed on 28-01-20, but deemed filed on 10-09-20, and settled by the same Counsel, in urging the Court to dismiss the appeal with substantial costs and affirm the Judgement of the trial Court in

its entirety.
The Appellants in their Brief of argument formulated one sole issue for determination from the three grounds of appeal thus:
“Whether having regards to the evidence adduced before the trial Court, the purported Consent Judgement was obtained by fraud [and] thereby [is] liable to be set aside by the learned trial Court Judge in the circumstances of this case.”
The Respondent on his part in his Brief of argument, also distilled a lone issue for determination thus:
“Whether or not, in view of the pleadings and evidence before the lower Court, the Appellants have established fraud and revocation of the Respondent’s titles to the land in dispute to entitle them to Judgement. (Grounds 1, 2 and 3)”

I have carefully examined the two sets of issues for determination framed by both parties vis-a-vis the three Grounds of Appeal. Given the fact that this Court as an appellate Court which reviews the decision of the trial Court, I am of the view that the issue crafted by the Appellants better addresses their grouse as canvassed in their grounds of appeal. It is therefore adopted in the determination of

the appeal.

ARGUMENTS
Whether having regards to the evidence adduced before the trial Court, the purported Consent Judgement was obtained by fraud [and] thereby [is] liable to be set aside by the learned trial Court Judge in the circumstances of this case.
In arguing this issue, learned Counsel for the Appellant refers to the definition of fraud in Black’s Law Dictionary 7th Edition, page 67-671 and Section 17 of the Penal Code, Cap. 102 Laws of Borno State of Nigeria, 1994. He also relies on the decision in Maduabu V Ray (2006) All FWLR (Pt. 3001) 1621, 1694 to submit that notwithstanding that the allegation of fraud was made in a civil suit, the standard of proof is beyond reasonable doubt.

Counsel submits that the central theme of the claim at the trial Court was fraud, and this was specifically pleaded with its particulars in the Claimants’ Amended Statement of claim. He argues that it is in evidence that there was revocation of the land of the Respondent by the 1st Appellant. Also, there was an instruction that the allotees of the land, including the Respondent, were to be allocated alternative plots land. In this regard,

he refers to the Statement of claim, the witness statement on oath, the revocation letter and the Memorandum to the Executive Governor (1st Appellant), Exhibit CW2G.

Counsel submits that it was also in evidence that there was a Consent Judgement entered, Exhibit CW1A, which terms were contrary to the instruction contained in the Memorandum, Exhibit CW2G, and in the letter of revocation. He contends that it is the Consent Judgement that is the fulcrum of the ‘Particulars of fraud’ pleaded in paragraphs 18 (a)-(e) of the Amended Statement of claim, because the Judgement did not reflect the intention that the revoked plots of land should not be returned to the allotees, but that alternative plots be given to them as compensation.
Relying on the definition of fraud in Ntuks V NPA (2007) All FWLR (Pt. 387) 809, 839, E, Counsel submits that there was a mischievous connivance by Counsel representing the Appellants in Suit No. M/19/2000, who signed the Terms of settlement in circumvention of the actual intention of the Appellants. He contends that this was done with the aim of achieving gain for himself and the Respondent, thus amounting to

fraud.
Counsel further submits that the Appellants established fraud by proving that the representation in the terms of settlement was untrue and that the Respondent knows this as a fact – Olufunmise V Falana (1990) LPELR-SC 137/1987; (1990) 3 NWLR (Pt. 136). He relies on the testimony of the Respondent and also his witness statement on oath to submit that the Respondent was aware that his plots of land had been revoked before the Consent Judgement was entered. Counsel submits that by this evidence, the Appellants had established fraud. Therefore, fraud having been established, it is capable of vitiating the trial.
In addition, Counsel submits that the Counsel from the Ministry of Justice who signed the Terms of settlement, being an agent of the Government, did not act under the instruction of his principal. Therefore, where an agent does not act on the instruction of his principal, such an action cannot be used against the principal.
Relying on the decision in Oboro V R.S.H. & P.D.A. (1997) 9 NWLR (Pt. 521) 425, Counsel also submits that the signature on the revocation letter, which was that of Maina Umara for the Honourable Commissioner,

was duly authorized since he is an officer in the Ministry of Land and Survey who can perform such a function. He therefore submits that the Appellants proved the allegation of fraud against the Respondent and his cohorts beyond reasonable doubt.

Counsel additionally submits that Counsel who represented the Appellants in Court when the Consent Judgement was obtained, did not file a Memorandum of appearance as required by the Rules of Court. He contends that this robbed the Court of jurisdiction, rendering the Consent Judgement, incompetent. He submits that the Consent Judgement cannot stand where it is tainted with fraud – McFoy V UAC (1961) 3 All ER 1172, per Lord Denning.

While contending that that the lower Court had jurisdiction to set aside the Consent Judgement obtained by fraud, Counsel concedes that a party seeking to resile from the terms of a mutually agreed settlement under a Consent Judgement, has the arduous task of proving that one of the circumstances enumerated in R.A.S. V Akib 10 MJSC 190, 217, G exist; or that the Judgement was given without jurisdiction. Failure to do that estops the party resiling there from – Haruna V Adamu

(2016) LPELR-…? (citation incomplete); Ibezim V Ndule (1992) NWLR (Pt. 216) 157.

Counsel submits that in the instant case, Counsel representing the Appellants before that Court had no authority to enter into any agreement with the Respondent, except in line with the instructions issued by the Executive Governor (1st Appellant), to wit: that alternative plots of land be allocated to the allotees of the revoked plots. Thus, anything contained in the Consent Judgement (Exhibit CW2G) which is outside this instruction contained in Exhibit CW1 (the Memorandum of the Executive Governor) and the revocation letter, in addition to the witness statement on oath (pages 18 to 24 of the Record), is fraudulent. Counsel therefore submits that the Respondent and his cohorts lacked the requisite authorization to enter into the Terms of settlement which was the basis of the Consent Judgement. The Court can therefore safely set it aside. Counsel finally urged the Court to allow the Appeal and set aside the Judgement of the trial Court.

In response, learned Counsel for the Respondent submits that a Court will refuse to set aside a Judgement on the mere allegation

of perjury, forgery, fraud or misrepresentation without facts or proof. Also, the fraud alleged must relate to matters which prima facie can be a reason for setting aside the Judgement, if they were established, and not matters which are merely collateral. The Court requires a strong case to be established before it can set aside a Judgement; and the action will be stayed or dismissed as vexatious unless the fraud alleged raised reasonable prospects of success and was discovered since the Judgement – Fabunmi V Agbe (1985) 1 NWLR (Pt. 2) NWLR 299, 319, B, per Obaseki, JSC. Counsel also submits that an allegation of fraud in civil matters must be pleaded and proved strictly with particulars – Ottih v. Nwanekwe (1990) 3 NWLR (Pt. 140) 550, 560, G; George V Dominion Flour Mills Ltd (1963) 1 All NLR 72;Nwobodo V Onoh (1984) 1 SC 1.

Counsel submits that in the instant case, based on the Claimants’ Amended Statement of claim, it was the Appellants who attempted to commit fraud against the Respondent, and not the other way round. Therein, they had averred that Counsel for the Claimants (now Appellants), Dibal, Esq. a Director of Civil Litigation with the

Ministry of Justice, who was also the Solicitor-General, and one Baba Kura Umar, the Permanent Secretary of the Ministry of Lands and Survey, signed the Terms of settlement dated 25-01-2000 in respect of Suit No. M/19/2000, contrary to the directives/approval of the Executive Governor of Borno State.
Counsel submits that the Claimants’ pleadings in paragraphs 28 (a)-(e) and paragraphs 29-34 of the Amended Statement of claim did not prove the allegations of fraud or forgery or misrepresentation to warrant the setting aside of the Judgement. This is because none of the allegations made by the Appellants were committed by the Respondent or his Counsel. Instead, Counsel who signed the Terms of settlement is in the same Chambers as H.Y. Gana, Esq. Counsel handling this appeal who, as the extant Solicitor-General and Permanent Secretary of the Ministry, is a principal Counsel in the Chambers of the Attorney-General. Counsel submits that the Appellants benefited from the Consent Judgement since the Respondent also waived his claim of general damages for the demolition of his structures on the land.
Counsel further submits that even though the Consent

Judgement was delivered on 26-09-03, the Appellants took no step to set it aside until 2016 when the Respondent had re-developed the land. The Appellants re-demolished the Respondents’ structures for the second time, prompting the Respondent to file Suit No. M/12/2006 wherein he claimed special and general damages. The Appellant then claimed that the Consent Judgement was fraudulently obtained and so filed a motion to set it aside. Counsel submits that the Appellants therefore did not act timeously. Instead, they waited for thirteen (13) years until the Respondent took steps to develop the land.

In respect of the contention that the Appellants’ Counsel in Suit No. M/19/2000 failed to file a memorandum of appearance in the suit filed by the Respondent wherein the Consent Judgement was entered, Counsel submits that the sin of the Appellant’s Counsel and his client therein, cannot be visited on the Respondent. Instead, the Appellants who alleged fraud must show that his opponent, i.e. the Respondent did something to misrepresent him or caused him to do or not to do something, or induced him or another person to act to his or her

detriment. This has not been done in this case. Therefore, the failure of the Appellant’s Counsel to file the memorandum of appearance in Suit No. M/19/2000 is the sole responsibility of the Appellants and their Counsel. Counsel further submits that the Appellants, having discovered that they had failed to file a memorandum of appearance after having been duly served the Respondent’s claim, approached the Respondent for a settlement out of Court.

Counsel also submits that the Appellants did not prove revocation of the plots of land as stated in paragraph 5 of their Amended Statement of claim as the purported letters of revocation failed to meet the requirement of the law. This is more so that the said letters of revocation, even though tendered, were rejected in evidence. Consequently, the Appellants cannot continue to claim on appeal that the land was revoked because same was not established in evidence.

In a brief reply on point of law, learned Counsel for the Appellants, H.Y. Gana, Esq. attempted to defend herself against the allegation in the Respondent’s Brief of having been personally involved in Suit No. M/19/2000 as Counsel

on Record when the Consent Judgement was entered. She states that at the time of the dispute, she was newly employed at the Borno State Ministry of Justice in Maiduguri. Thus, she merely carried out the instruction given to her by her then Director, T.A. Dibal, Esq. to adopt the ‘Terms of Settlement’ which gave rise to the Consent Judgement. She states that she was neither part of the negotiation of the terms nor the purported agreement. Therefore, she cannot be held to have participated in the fraud perpetrated by the Respondent and his cohorts, which was not in tandem with the instruction of the Executive Governor in the Memorandum wherein he ordered that the land in question be revoked and alternative plots be given to the allotees. Before going any further, I must point out that this amounts to giving evidence from the Bar, which is certainly not the purpose of a Reply Brief of argument. It is therefore discountenanced, without further ado.

Thereafter, Counsel proceeded to identify several paragraphs in the Respondent’s Brief of argument wherein she contends that Counsel for the Respondent made admissions and based on that, urged the

Court to hold that the Appellants had established their allegation of fraud at the trial Court, sufficient to set aside the Consent Judgement.

On the matter of the revocation of the land in question and the rejection of the letters of revocation in evidence, Counsel refers to page 103 of the Record where she contends that the Respondent himself had admitted that the land was revoked, as well as Exhibit CW2G (the Memorandum to the Executive Governor), and the evidence of PW1 and PW2. She submits that the revocation was therefore established by circumstantial evidence.
All other subsequent submissions made in the Reply Brief of argument were repetitions of submissions already made in the Appellants’ Brief of argument, and so are discountenanced. The purpose of a Reply Brief of argument is simply to respond to new issues of law raised in the Respondent’s Brief of argument, and no more.

RESOLUTION OF SOLE ISSUE
The sole issue to be determined in this Appeal is whether the Consent Judgement entered into in Suit No. M/19/2000 by Jiddum Mohammed, J. on 26-09-03, was vitiated by fraud and so should be set aside. Fraud and the

particulars of fraud alleged are set out in paragraphs 28 (a)-(e) of the Claimants’ Statement of claim as follows:
“28. The claimants aver that the purported consent judgment was obtained by fraud.
Particulars
a) The counsel representing the defendants in suit No. M/19/2000 wherein consent judgment was obtained acted contrary to the instruction of his clients who were the defendants in suit No. M/19/2000 and now the claimants herein.
b) The instruction to the defendants’ counsel in suit No. M/19/2000 was that alternative plots be allocated to the allottees not re-allocation of the plots to the allottees which were revoked.
c) Counsel to the defendants in suit No. M/19/2000 signed a terms of settlement contrary to the directives/approval given by the Executive Governor of Borno State in the revocation letter to the effect that alternative plots be allocated to the allottees whose plot (sic) were revoked.
d) The purported judgment in favour of the allottees in suit No. M/19/2000 was not dated.
e) The claimants further aver that the purported terms of settlement which became the judgment of the Court was not

dated and signed by the actual parties.” (Emphasis supplied)

a deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.”
Again in Afegbai V AG Edo State (2001) 11 SCM 42, 60, his lordship, Karibi-Whyte, JSC, adopted the statement of Lord Selbourne LC in Earl of Anylesford V Morris (1873) 8 Ch. 484, 490, inter alia thus:
“Fraud does not here mean deceit or circumvention, it means an unconscientious use of power arising out of these circumstances and conditions and when the relative positions of the parties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is is able to repel the presumption by contrary evidence, proving it to have been in point of fact, fair, just and reasonable.”
Finally, in Adimora V Ajufo (1988) 1 NSCC 1005, his lordship, Oputa, JSC stated –
“Fraud implies a wilful act on the part of anyone whereby another is sought to be deprived by illegal and inequitable means, of what he is entitled to. Fraud for the purposes of civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is

taken of another: Green V Nixon (1857) 23 Bear 530.”
See also Onuchukwu V Nnoli (2013) LPELR-21223(CA) 19, A-C, per Jega, JCA; Banjoko V Ogunlaja (2013) LPELR-20373(CA) 24, C-D, per Uwa, JCA; Salami V WEMA Bank Nig Plc (2009) LPELR-8875(CA) 23, A-D, per Agbo, JCA; Solomon V Monday (2014) LPELR-22811(CA) 33-34, E-D, per Yakubu, JCA.
As a matter of principle, fraud, if established, vitiates consent, however apparently well given. It vitiates even the most solemn of all transactions. In fact, fraud vitiates everything, even Judgments and Orders of the Court, where proved -Ugo V Obiekwe (1989) LPELR-3319(SC) 45-46, E-C, per Agbaje, JSC.
Based on all the above, a fraudulent act or conduct is a conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude by which an undue and unconscientious advantage is taken of another. It could also be an assertion that does not conform with facts. Fraud is said to be proved when it is shown that a false representation has been made by the person representing the facts in the following circumstances: (i) knowing or (ii) without belief in its truth, (iii) recklessly, carelessly

whether it be true or false. Thus, the meaning of fraud as it pertains to representation, is where a person makes a false statement which he does not actually and honestly believe to be true, that statement is for the purposes of civil liability, as fraudulent as if he had stated that which he did not know to be true or he knew or believed to be false.
It is plain from the Record of Appeal that the following facts are not in dispute, namely:
i. The Respondent was the owner of plots of land (some of which he purchased from their original owners) covered by letters of grants Nos. BO/40127, BO40128 and BO/9992.
ii. Being the rightful and legal owner, he commenced development of the property by setting up structures thereon.
iii. At some point in the development of the land, based on certain reasons contained in Exhibit CW2G, the 2nd Appellant recommended to the 1st Appellant, the Executive Governor of Borno State, vide a memorandum addressed to him, that the said plots of land be revoked for overriding public interest pursuant to Section 28(2) (b) of the Land Use Act, 1978, and that alternative plots of land be allocated to the allottees –

Exhibit CW2G.
iv. On the same document, Exhibit CW2G, the Executive Governor accepted the recommendation and approved same, expressly directing therein that alternative plots of land be given to the allottees of the land.
v. The Appellants alleged that based on the directives of the Governor above, revocation letters were served on the grantees of the Rights of occupancy over those plots of land, inclusive of the Respondent. (It is noted however that an attempt to tender the revocation letters in evidence was unsuccessful and they were rejected and duly marked “Rejected”.
vi. The Respondent however denied being served any Revocation letter.
vii. Based on the alleged revocation of the plots of land under Section 28(2) (b) of the Land Use Act (supra), the 2nd Appellant proceeded to demolish the Respondent’s structures on the plots of land.
viii. Aggrieved by this, the Respondent proceeded to file an action before the Borno State High Court sometime in the year 2000, namely Suit No. M/19/2000.
ix. After the Appellants had been served the process and before they filed a memorandum of appearance, in line with the High

Court Rules of Borno State, parties agreed on terms of settlement of the suit out of Court.
x. The terms of settlement were drafted and signed by both parties and by their respective Counsel (Exhibit CW1G).
xi. The Terms of settlement were duly filed in Court and with the express agreement of both parties, it was entered as the Consent Judgement of the Court in respect of the suit on 26-09-03 (Exhibit CW1A).
xii. Subsequently in 2006, the Respondent filed a suit, namely Suit No. M/24/2006, challenging the demolition of his structures yet again on the land. In response, the Appellants filed a motion on notice wherein they challenged the jurisdiction of the Court to entertain the suit and seeking an order setting aside the Consent Judgement of 26-09-03 on the ground that it was obtained by fraud, as their Counsel, T.A, Dibal, Esq. acted outside the instructions/directives of the Executive Governor of Borno State expressed in Exhibit CW2G, when he agreed to re-allocate the land to the Respondent, instead of allocating alternative plots of land to the allottees.
xiii. After hearing in the motion, Mamza, J. granted the prayers in the motion on

notice and set aside the Consent Judgement on the ground that it was fraudulently acquired.
xiv. Aggrieved by this ruling, the Respondent filed an appeal to the Court of Appeal, Jos Division where the Judgement was set aside on the ground of lack of jurisdiction of the trial Court, and the Consent Judgement restored. In addition, the suit was remitted to the Chief Judge of the Borno State High Court for re-trial of the Respondent’s claim in respect of the demolition of his structures on the land in dispute, before another Judge of the High Court. The Court of Appeal also added that for a Consent Judgement to be set aside, the aggrieved party must file a fresh suit before another High Court.
xv. It is in line with this decision that the Appellants proceeded to file a fresh suit before the Borno State High Court which has given rise to this Appeal.
xvi. After a full hearing of the suit, in which pleadings were filed, evidence front-loaded, witnesses testified, exhibits tendered and Counsel filed their written addresses, Judgement was entered against the Appellants on the ground that they failed to prove the allegation of fraud which could

vitiate the Consent Judgement.

As afore-stated, from the Statement of claim of the Claimants (now Appellants), the allegation of fraud was hinged on the act and/or omission of their Counsel, T.A. Dibal Esq., who was then both the Director of Civil Litigation and Solicitor General with the Ministry of Justice, Borno State.
The relevant paragraphs of the Statement of claim are as follows:
“17. The Claimants aver that the defendant Alhaji Bukar Gonimi who is a plaintiff in suit No. M/24/2006 before High Court No. 8 Maiduguri is challenging the demolition of his properties covered by letter of grant No. BO/40127, BO/40128 and BO9992 as the holder and legal owner. The file in suit No. M/24/2006 is hereby pleaded.
18. The claimants aver that the revocation was made based on a memorandum by the Honourable Commissioner for Land and Survey to the Executive Governor of Borno State recommending to the Governor the need to revoke the said letters of grant to maintain law and order in the affected areas.
19. The claimants aver that the defendant illegally entered the said land and put up some structures after it was duly revoked by the

Executive Governor of Borno State on 25/1/2000.
20. The claimants aver that based on the recommendation by the Honourable Commissioner for Land and Survey to the Executive Governor the said plots were revoked with directive for alternative plots to the allottees as contained in the approval dated 25/1/2000.
21. The claimants aver that there was no counter directive/approval contrary to the directive/approval given that alternative plots be given to the allottees at the time of signing of the terms of settlement.
22. The claimants aver that while suit No. M/19/2000 was pending there was a purported terms of settlement signed on behalf of Borno State by late Dibal Esq. of the Ministry of Justice and Baba Kura Umar of Ministry of Land and Survey which was filed and became the Judgement of the Court.
23. The claimants aver that the purported terms of settlement which became the consent Judgement of the Court was contrary to the approval/directive by the Executive Governor of Borno State.
24. The claimants aver that the approval/directive by the Executive Governor of Borno State stipulated that alternative plots be allocated to the

allottees that were affected by the revocation.
25. The Counsel who signed the terms of settlement which was made the consent Judgement of the Court did not include what was directed and/or approve[d] by the Executive Governor of Borno State as the condition for revoking the allottees land in the terms of settlement.
26. The claimants aver that the condition given for the revocation is to allocate an (sic) alternative plots to the allottees and not re-allocation of the plots revoked to allottees affected by the revocation.
27. The claimants aver that the terms of settlement made by late Dibal which became the consent Judgement is to the effect that the revoked plots of the allottees be allocated back to them contrary to the approval/directive of the revocation.
28. The claimants aver that the purported consent Judgement was obtained by fraud.” (Emphasis supplied)

The Respondent’s defence in his Statement of defence was that the letters of grants of Rights of occupancy over his plots of land were never revoked, that he was not served any letters of revocation, that he was not informed that he was to be allocated alternative

plots of land, that there was non-compliance with requirement of the law for a lawful revocation, that whatever transpired between the Executive Governor and his Counsel should not concern him, and that the consent Judgement was not obtained by fraud – paragraphs 4, 6, 7, 8, 9, 13, 14, 15, 19 and 20 of the Statement of defence.

The memorandum of the 2nd Appellant to the Executive Governor of Borno State (which contains the instructions of the Governor) is Exhibit CW2G, while the Consent Judgement of the High Court of Borno State and the Terms of Settlement entered into by the parties is is Exhibit CW1A. The contents of the Memorandum of the Commissioner for Land and Survey to the Executive Governor (Exhibit CW2G) states inter alia as follows:
“MEMORANDUM TO THE EXECUTIVE GOVERNOR ON THE MATTER OF FOYO 3 COMMERCIAL LAYOUT
Your Excellency may wish to be informed of a current problem over a strip of land in the popularly known Bolori Stores area. The site was originally conceived for its commercial viability and granted to successful allottees as Foyo 3 Commercial Layout sometime in 1996.
…

It is however necessary that Your Excellency notes that in spite of the long time after the grant of the area to the mentioned allottees, the area still remained undeveloped owing to controversy and resistance by illegal occupants in the area and interests of personalities affected by the development.
6. Just recently, some development of structures have commenced in the area which has attracted a lot of attention and has led to serious rancour and even possible breakdown of law and order in the area.
7. Your Excellency may in view of the above therefore wish to exercise the powers conferred by Section 28(2) (b) of the Land Use Act of 1978 and revoke/withdraw all Right of Occupancy over the original Foyo 3 Layout and the extensions/annextures (sic) granted in BO36944 and BO9992 for overriding public interest and allow area free in the interest of peace and order in the area.
8. The Ministry of Land and Survey shall, if you have no objection, Your Excellency, prepare an alternative site elsewhere with a view to relocating the genuine

government allottees of plots in area, please.
Signed 25/1/2000
Alhaji Modu Alhaji Musa
HONOURABLE COMMISSIONER”
Hon. Commissioner Lands/Survey
Reference to your submission above.
All plots on Foyo 3 Commercial Layout is revoked.
Pls. find alternative to the allottees.
Signed
25/1/2000” (Emphasis supplied)

Based supposedly on these directives of the Executive Governor, the terms of settlement were filed by the parties in Suit No. M/19/2000, which was signed by Dibal, Esq. as the Permanent Secretary, Ministry of Justice on behalf of the Appellants, as well as by Baba Kura Umar, as the Permanent Secretary, Ministry of Lands and Survey (Exhibit CW1A). They stipulated inter alia as follows:
“WHEREAS the plaintiffs have instituted action against the defendants for:
a) A declaration that the landed properties with developments thereon and which are covered by right of occupancy Nos. BO/40128/14, BO/9992/14 and BO/40127/14 are legally granted to the plaintiffs with rights and interest thereon,
b) A declaration that the illegal demolition and destruction of the plaintiffs shop built of

block cement and zinc are malicious, illegal, null and void.
c) An injunction perpetually restraining the defendant and/or whosoever acting or claiming through from trespassing or entering or cause to be trespassed or entered on to the land/properties aforesaid.
d) The sum of N1.5 million as special and general damages.
e) The cost of this suit.
AND WHEREAS counsels (sic) for the defendant has examined the plaintiff’s claim and is of the view that it will be in the interest of justice to settle the matter out of court, which the counsel the the plaintiffs has agreed.
NOW THIS AGREEMENT WITNESS THAT:-
1. The plots are to be re-allocated to the various allottees (i.e. the plaintiffs)
2. The sum of …Naira be paid to Alhaji Bukar Gonimi as full and final compensation for the properties which were destroyed.
3. The plaintiffs are to withdraw the suit against all the defendants.
4. This term of Agreement shall be registered in court and be treated as the judgment of the court.” (Emphasis supplied)

Finally, the High Court in Suit No. M/19/2000 entered Judgement based on the above

terms of settlement of the parties on September 26, 2003 per Justice Jiddum Mohammed. He held inter alia as follows (at pages 1 and 2 of Exhibit CW1A):
“The parties agreed between themselves and settled the dispute amicably. They have filed terms of settlement signed by them and their two counsels. They are now asking the Court to adopt the terms of settlement and enter Judgment according to the terms of settlement. Since this is their intention the Court has no objection also commending such moves to settle disputes in this nature. I now adopt the terms of settlement reached by the two parties and herein enter Judgment for them in accordance with their terms of settlement. This is the end of the dispute and parties are advised to comply with the terms of settlement in executing the Judgment.” (Emphasis supplied)

From the pleadings of the parties and the above Exhibits, it is evident that the crux of this appeal is whether or not the allegation of the Appellants that the Consent Judgement was obtained by fraud (i.e. deceit or dishonesty) was proved/established sufficient to vitiate the said Judgement.
It is unassailable from the

facts that, whereas the instructions from the Executive Governor in writing was that the grants of the Rights of occupancy to the allotees of BO/40127, BO/40128 and BO/9992 be revoked and alternative plots be given to the allottees, inclusive of the Respondent, the Appellants’ Counsel, T.A. Dibal, Esq. who was also then the Solicitor General and Permanent Secretary of the Ministry of Justice, agreed with the Respondent and based on that agreement, filed Terms of Settlement which were contrary to this express written instruction issued by the Governor (1st Appellant) on 25-01-2000, long before the Consent Judgement was entered on 26-09-03.
There is no indication however that the Respondent was privy to any such directive or was a part of the dissembling or misrepresentation by the Appellants’ own Counsel, Dibal, Esq. Thus, by this suit, the Appellants sought an order of the trial Court to set aside the Consent Judgement because it was obtained by fraud/deception/falsehood on the part of their own Counsel.
The facts of this case are eerily similar to those in the case of Vulcan Gases Ltd V Gesellschaft Fur Industries Gasverwertung A.G. (GIV) (2001) LPELR-3465 (SC)

with only slight differences. However, the case also hinges on the issues of a consent Judgement entered contrary to the express instruction of a party to his Counsel and the duty of Counsel to his client thereto. For a better appreciation of the findings of the Supreme Court therein, which has a bearing on the facts of this appeal, it may be necessary to give a background history of the dispute between the parties therein:
Following an agreement between the parties sometime in 1978, the Respondent, a foreign company with its headquarters in Geneva, Switzerland, shipped some quantities of oxygen and acetylene producing machines to the Appellant at a total price of $606, 852.00 US Dollars. The goods were cleared by the Appellant from the Nigerian Ports Authority Lagos without production of the original Bill of Lading, and it thereby avoided payment for the said machines. When the Claimant failed to pay the purchase price of the goods, the Respondent was obliged to commence winding-up proceedings in Suit No. FHC/KD/3/82 against the Appellant in the Sokoto Judicial Division of the Federal High Court. This was with a view to

recovering from the Appellant the total contract price of US Dollars $606, 852.00, for which the goods were sold.
In the course of the proceedings, the parties went into negotiation with a view to resolving their differences out of Court and the learned Judge was duly informed of this development on 8th June, 1983. The negotiation was between Counsel for the two parties. In particular, the Respondent, through its Solicitors in Geneva, drew up its terms of settlement and got same delivered to its Counsel in Nigeria on 22nd November, 1983, with the clear instruction to settle the case strictly on the conditions stipulated therein.
For some undisclosed reasons however, the Respondent’s Counsel in Nigeria on 6th November, 1986 purported to agree to terms of settlement with the Appellant’s Counsel which were at complete variance with those which his client had authorized. When the Respondent became aware of this unauthorized development, it wrote to both its Counsel in Nigeria and to Counsel for the Appellant, stating categorically that it did not authorize the settlement on the terms in question and that it unequivocally rejected the same.

This was based on the ground that its Counsel in Nigeria had exceeded the express written instructions and authority given to him by the Respondent. These letters were both dated 18th December, 1986. The Respondent in those letters made it clear that it did not recognise the validity of the transaction entered into by its Counsel. In reply however, the Appellant’s Counsel asserted that the authority of the said Respondent’s Counsel to bind his client could not be questioned and that he would therefore insist on the recognition of the disputed terms of settlement of the claim. For his own part, the Respondent’s Counsel in Nigeria wrote to the Registrar, Federal High Court, Sokoto, on 14th May, 1987 conveying his client’s rejection of the disputed terms of settlement. The immediate reaction of the Appellant’s Counsel was to address their letter of the 25th May, 1987 to the Respondent’s Counsel stating that they had since filed a copy of the terms of settlement in Court and that they would proceed to seek Judgement based thereunder. This was in spite of the fact that they had been effected with the actual notice that the said

Terms of Settlement were in dispute and unacceptable to the Respondent on the ground that they were reached by the Respondent’s Counsel without authority and contrary to his instructions.
Although the Appellant’s Counsel by their letter of 25th May, 1987 to the Respondent’s Counsel claimed that a copy of the Terms of Settlement had been filed by them in Court, it is instructive that this representation was in fact incorrect. It was not until two months thereafter, that is to say, on the 27th July, 1987 that the Appellant’s Counsel went ahead to file the alleged Terms of Settlement in Court. Strangely enough, it was on the same day, that is to say the 27th July 1987, that the Appellant’s Counsel moved the Court in the absence of the Respondent and its Counsel, to enter Judgement in the suit in terms of the disputed Terms of Settlement. The fact that there was a dispute as to the Terms of Settlement was however, not brought to the notice of the Court by learned Counsel for the Appellant. It was under such circumstance that the learned trial Judge, Ofili J., in the mistaken belief that the purported Terms of Settlement

represented the true agreement between the parties entered a consent Judgement in respect thereof. He observed:
“… I am satisfied that the terms of settlement constitute the mutual agreement of the parties and I therefore enter Judgement on terms of the settlement in Exhibit A. No order as to costs.”
In consequence of this development, the Respondent engaged the services of of the Law Firm of Beatrice Fischer and Company, Legal Practitioners and instructed them to apply for the consent Judgement to be set aside. This fresh proceeding, which was commenced before the Federal High Court, Sokoto Judicial Division by way of Originating Summons, is the origin of the Appeal before the Supreme Court.
By the Originating Summons, the Respondent, as Applicant, sought for some orders inter alia as follows:
1. “A declaration that the consent judgement dated 27th July, 1987 and given by this Honourable Court in Suit No. FI-IC/KD/3/82, was given under a mistake of fact and misrepresentation, and is therefore a nullity.
2. A consequential order setting aside the consent Judgement dated the 27th day of July, 1987…”

In his Ruling delivered on 25th January, 1989, the learned trial Judge granted reliefs 1 and 2, holding that the consent Judgement was given under misrepresentation and mistake of fact. Accordingly, it set aside the consent Judgement in the following words:
“The application succeeds and accordingly I make the following orders:
1) The consent Judgement dated 27th July 1987 and given by this Court in Suit No. FHC/KD/3/82 is a nullity because there was no agreement between the parties.
2) The said consent Judgement dated 27th July, 1987 is hereby set aside.” (Emphasis supplied)
Dissatisfied with this decision, the Appellant lodged an appeal to the Court of Appeal, Kaduna Division. That Court, in a unanimous decision dismissed the appeal, holding that in-as-much-as the parties were not ad idem in respect of the terms of settlement upon which the trial Court erroneously acted, they could not form the basis of or sustain a consent Judgement as known to law. It was therefore the opinion of that Court that the trial Court was right to have set aside the said Consent Judgement. Aggrieved by this decision, the

Appellant further appealed to the Supreme Court. The issues for determination before the Supreme Court were –
1. “Whether the Court of Appeal was correct in affirming the decision of the Federal High Court that it had jurisdiction to entertain the suit of the Respondent.
2. Whether the Court of Appeal was correct in affirming the decision of the Federal High Court that set aside the consent Judgement in Suit No. FHC/KD/3/82 in the entire circumstances of the case.”
At the Supreme Court, the main contention of the Appellant, just as in the instant case, was that in the case before the trial Court, it was not privy to the instructions handed over to the Respondent’s Counsel by its client, nor was it aware that the Respondent’s Counsel had limited and written instructions, nor was it aware that the compromise agreement reached with the Respondent’s Counsel was at variance with and contrary to his client’s instructions and that the said agreement was immediately repudiated by the Respondent the moment it was communicated to it.
In its Judgement, the Supreme Court per Iguh, JSC (particularly at pages 35-39

of the E-Report) held –
“It is long settled that a consent Judgement or Order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the Judgement or order is based, e.g. on ground of a common mistake, fraudulent misrepresentation or misconception…
In order to have a consent Judgement, therefore, the parties must reach a complete and final agreement on the vital issue in their terms of agreement. They must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary…
Where, however, [the] purported consent Judgement is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent Judgement binding on the parties would have emerged. The result in such a case is that the so-called consent Judgement can be set aside but by a fresh action. See Talabi V Adeseye (1972) 8-9 SC

20.
The Court therefore has a discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned and made an Order of the Court.” (Emphasis supplied)
Just like it was before the Supreme Court, it is this jurisdiction that the Appellant in this appeal invited the trial Court to exercise, alleging that the Consent Judgement in issue was vitiated by fraud/misrepresentation on the part of their Counsel, T.A. Dibal, Esq. and that there was in fact, no consensus ad idem between the parties in the terms of the compromise agreement, which was the basis of the Consent Judgement.
The basis of the fraud alleged by the Appellants is that, whereas the directive/instruction of the 1st Appellant, being the Executive Governor of Borno State, as contained in the written Memorandum of the Commissioner of Land and Survey to him which he approved, Exhibit CW2G, was express and explicit in stating that the grants of the Rights of Occupancy were to be revoked and alternative pieces of plots of land be given to the allottees of the said grants

pursuant to the powers vested in him by Section 28(2) (b) of the Land Use Act, 1978, learned Counsel for the Appellants, T.A. Dibal, Esq. varied his client’s instruction without their prior knowledge and consent in the Terms of Settlement to read that after the revocation, the plots of land were still to be re-allocated to the same allottees, inclusive of the Respondent. The issue which has also been thrown up by these facts and circumstances, is the right of a party to repudiate the action of his Solicitor which is not in tandem with his instructions.
The law is settled that where the authority of Counsel has been expressly limited by his client, and Counsel has in defiance of such authority and/or instruction, consented to an Order or Judgement contrary to his client’s clear instructions, various considerations would arise. If the limitation of authority is known or communicated to the other side, consent of Counsel outside the limits of his authority and in breach of the express instruction of his client will be inconsequential and of no effect. SeeVulcan Gases Ltd V Gesellschaft Fur Industries Gasverwertung A.G. (GIV) (supra);

Strauss V Francis (1866) LR 1 QB 379, 382.
Where, however, the limitation of the authority is unknown to the other side who enters into the compromise in the belief that the opponent’s Counsel has the ordinary unlimited authority of his client, the position would appear, to some extent, to be fluid and uncertain. As his lordship, Iguh, JSC held in Vulcan Gases Ltd V Gesellschaft Fur Industries Gasverwertung A.G. (supra) at page 43 thereof:
“It is my view that the Court possesses the discretionary jurisdiction to examine the circumstances of a particular case, in order to determine whether or not the compromise entered into by Counsel should be sanctioned by the Court. The remedy, being discretionary, must be exercised with the utmost care and with regard to the justice or otherwise of allowing an Order to stand.”
His lordship continues at page 49, B of the Report as follows:
“It therefore seems to me that the Court has ample jurisdiction to interfere with or to set aside a Judgement or order based on a compromise even though the limitation of authority of Counsel was unknown to the other side. This jurisdiction being

discretionary must be exercised judiciously and with extreme caution having regard to the injustice or otherwise of allowing an Order to stand.”
I will now proceed to examine the decision of the trial Court and whether in the full circumstances of the case, the learned trial Judge exercised his discretion rightly in allowing the Consent Judgement to stand. The question is whether the Consent Judgement of Jiddum Mohammed, J., is truly a Consent Judgement or whether, in all the circumstances of the case, it was a nudum pactum and consequently liable to be set aside.
The facts of the case have already been set out in extenso above. It is evident as aforesaid, that the Appellants’ grouse is mainly with their Counsel, T.A. Dibal, Esq. who acted completely outside the express written instructions of his clients by agreeing that the land in question which had ostensibly been revoked, be re-allocated to the same persons. Exhibit CW2G is unassailable proof of the written instructions of the clients.
The Respondent had approached the Court when his structures on the land were demolished in Suit No. M/24/2006. The Appellant responded by

filing a motion on notice No. BOHC/MG/CV/24MA/2006 challenging the jurisdiction of the Court and seeking an Order for the Consent Judgement to be set aside. By the Ruling of the Court in Exhibit CW1B, the Consent Judgement was set aside on the ground that it was obtained fraudulently. However, on a further appeal to the Court of Appeal, Jos Division, the Ruling was set aside on the ground of lack of jurisdiction, and the Consent Judgement was restored. Based on the Order of the appellate Court which remitted the case for re-hearing of the claim of the Respondent on its merit, the Appellant proceeded to file a fresh suit to have the Consent Judgement set aside. By all these steps taken by the Appellants since the Consent Judgement was entered in 2003, it would be uncharitable, to say the least, to contend as the Respondent has done, that the Appellants did not act timeously. They did but evidently, they took the wrong steps by seeking to set aside the Consent Judgement via a motion on notice instead of by filing a fresh suit. Now, the ratio decidendi of the Judgement appealed against is contained at page 179 of the Record. In summary, the

learned trial Judge declined to set aside the Judgement on the ground that –
1) The Appellants had not complied with their Memorandum (Exhibit CW2G) which instructed that alternate plots of land be allocated to the Respondent;
2) The Appellants had not acted timeously in seeking to set aside the Consent Judgement;
3) The Appellants failed to give sufficient particulars of the fraud alleged and failed to prove it strictly, basing their allegations on “mere allegation of perjury”.
With the greatest respect to the learned trial Judge, these findings appear to be at variance with the evidence adduced before the Court as reflected on the Record. I have already gone through and critiqued the evidence earlier on in the body of this Judgement, and so will not repeat it here. Suffice it to say that, based on the decision of the Supreme Court in Vulcan Gases Ltd V GFIG AG (supra), where a party is able to establish by evidence that his Counsel acted contrary to his explicit and express written instructions in arriving at terms of settlement with the other party and this results in a Consent Judgement, and it is shown that the Counsel

misrepresented the instructions of the client, then the so-called Consent Judgement can be set aside because it no longer represents the compromise agreement of the parties as they are not ad idem with respect to the so-called agreement. It is nudum pactum. Consequently, I am satisfied that this is a proper case for the intervention of the Court.

One last issue before I end this Judgement. From the reliefs sought by the Appellants in their Notice of Appeal, they have asked the Court to enter Judgement for them as per their claim before the trial Court. While the issue of the Consent Judgement which has been adequately dealt with is a foregone conclusion, I cannot say the same for the claim in respect of the issue of the revocation of the plots of land in dispute upon which reliefs II and III thereof are hinged.
Revocation is both a matter of fact and a matter of law. As earlier stated in the body of the Judgement, the alleged letters of revocation said to have been issued and served on the allottees of the plots of land, were rejected when tendered in evidence by the Appellants and marked “Exhibits CW2D, CW2E and CW2F rejected”,

respectively. They are therefore not in evidence before the trial Court in proof of the alleged revocation. Secondly, even if they were in evidence, there must be proof that they were duly served according to law on the Respondent, more so that he has denied receiving any such letter of revocation.
On the issue of law, the legal and mandatory requirements in Sections 28(6), 29 and 44 of the Land Use Act, 1978 have to be strictly complied with before an Order for revocation can be enforced by a Court of law. In Orianzi V AG Rivers State (2017) LPELR-41737(SC) 44-47, F-A, Kekere-Ekun, JSC stated thus-
“As rightly observed by the learned trial Judge, for the purported revocation to be valid, prior notice must be given to the holder of the right of occupancy, as required by Section 28(6) and 44 of the Land Use Act. The holder is also entitled to compensation by virtue of Section 29 of the Act.”
This compliance has not been established before the trial Court in the instant case. It would appear that the Appellants were too distracted by and more focused on the issue of the Consent Judgement, such that they did not place any premium on

proving the other reliefs claimed in their Statement of claim. They are therefore not entitled to the award of Reliefs II, III and V in paragraph 34 of their Statement of claim.

Finally, I wish to state for the sake of emphasis and clarity that in line with the express claim of the Appellants in their Writ of summons and Amended Joint Claimants’ Statement of claim, paragraph 34 thereof, (at pages 6 to 17 of the printed Record of Appeal), this Judgement is only in respect of the Consent Judgement of the High Court of Borno State in suit No. M/19/2000 delivered on September 26, 2003, Coram: Jiddum Mohammed, J., wherein a Consent Judgement was entered.
However, based on the extant decision of the Court of Appeal, Jos Division in Appeal No. CA/J/89/2011, whereby Suit No. M/24/2006 filed by the Respondent was remitted to the Borno State High Court for re-hearing on the merit, the same still remains pending before that Court until it is disposed of. Therefore, this decision has no bearing on that suit.

In the result, based on all the above findings, I resolve the sole issue for determination in favour of the Appellants. I find that the

Consent Judgement of the High Court of Borno State in Suit No. M/19/2000 delivered on September 26, 2003, is liable to be set aside.
Consequently, the Appeal has merit. It succeeds and is allowed in the following terms:
1. The Judgement of the High Court of Justice of Borno State in Suit No. BOHC/MG/CV/38/2014 between the Executive Governor of Borno State & 2 others V Alhaji Bukar Gonimi delivered on July 5, 2017 by Mussa, J., is hereby set aside.
2. The Consent Judgement of the High Court of Justice, Borno State in Suit No. M/19/2000 delivered on September 26, 2003 by Jiddum Mohammed, J. (Exhibit CW1A), having been tainted by fraud, is also set aside.
3. Accordingly, I enter Judgement for the Appellants in terms of Reliefs I and IV in paragraph 34 of their Amended Joint Claimants Statement of claim.
4. Reliefs II, III and V in paragraph 34 of their Amended Joint Claimants Statement of claim cannot be granted, there being no factual basis and/or credible proof offered in satisfaction thereof, upon which this Court can act pursuant to its power under Section 15 of the Court of Appeal Act, 2004.
Parties are ordered to bear their costs.

UZO IFEYINWA NDUKWE-ANYANWU J.C.A.: I read in draft the judgment just delivered by my learned brother SANKEY JCA. I agree with her reasoning and final conclusion. I have nothing useful to add to the details expose of the law in this appeal.

I also hold that the appeal has merit. It is allowed.
I abide by all the consequential orders listed in the lead judgment including that as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
My Lord has in dealing with the question whether the consent Judgment which is the epicentre of this appeal is inflicted with the necessary vice/vices in law that justify it being set aside, delved into detailed analysis of extant judicial authorities handed down by the apex Court on the subject. His Lordship’s conclusion that the consent Judgment of the High Court of Borno State in Suit No. M/19/2000 delivered on September, 26, 2003 is set aside having been tainted by fraud is faultless. This appeal is therefore meritorious.

Therefore,

I adopt his Lordship’s order that the Judgment of the lower Court in Suit No. BOHC/MG/CV/38/2014 is hereby set aside.
I also adopt his Lordship’s order that Reliefs I, II, III and V in paragraph 34 of the Amended joint claimants’ statement of claim are not grantable, hence refused.

Appearances:

Y. Gana Esq., Deputy Director, Civil Litigation (DDCL), Borno State Ministry of Justice For Appellant(s)

A. Sangei Esq. with him, M. S. Umar, Esq., A. L. Mohammed Esq. and K. Adamu Esq. For Respondent(s)