ABEL O. WOLUCHEM V. DR. CHARLES INKO-TARIAH WOKOMA
(1974) LCN/1801(SC)
In the Supreme Court of Nigeria
Friday, March 29, 1974
Case Number: SC. 90/1973
RATIO
CONSENT JUDGMENT: WHETHER THE ARRANGEMENT REACHED BETWEEN THE PARTIES MUST BE INCORPORATED INTO THE JUDGMENT OF A COURTTO BE REGARDED AS CONSENT JUDGMENT
Be that as it may, we think that it is relevant to observe here that counsel for the parties in the court below had not been of much help either to their clients or to the court. Of course, it is possible that they were mistaken as to what constitutes a consent judgment. Because of its importance in practice, we think we should give some guiding principles.
The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment. In such a situation, the court may give judgment, or make an order of discontinuance or may order a stay, in so far as the circumstances of the case may permit. To give one or two illustrations:
(i) Where the settlement is that the parties shall do certain things which they have respectively agreed to do by the terms of settlement, there should be a decision making the agreed terms an order of the court which shall be carried out. If either party fails to carry out the court’s order, then on an application by the aggrieved party, the court will enforce it.
(ii) The settlement may consist of an agreement by the defendant to pay a liquidated sum of money by specified instalments. In such a case, the practice is for the court to give judgment for the total amount agreed to be paid coupled with an order for a stay of execution so long as the instalments are paid in accordance with the terms agreed upon between the parties. The implication of this kind of settlement is that if there is a failure to comply with the terms of instalmental payment, the party who suffers may proceed to levy execution.
(iii) The settlement may simply be in the form of an order of the court made by consent staying all further proceedings on the matter upon the terms agreed upon by the parties. The stay may be qualified or unqualified as the case may be.
We wish to draw attention to the fact that it is the backing of the court that gives the terms of settlement the force and validity of a judgment or order which must be complied with by the parties. We say so because we are mindful of the fact that where the court had made no order of any kind whatsoever (as was the case here) it would be impossible for the injured party to invoke the power of the court so as to compel the defaulting party to carry out the bargain struck by the parties. The aggrieved party can only seek his remedy upon the new agreement which has been reached between the parties. But that is another matter; such arrangement between the parties that has not been incorporated in a judgment of the court is not, and should never be regarded as, a consent judgment. PER D. IBEKWE, J.S.C.
INTERLOCUTORY INJUNCTION: WHETHER A COURT MAY GRANT AN INTERLOCUTORY INJUNCTION ON AN EX-PARTE APPLICATION
An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt.
It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice. In our view, therefore, it should be a rule of practice that the court will not save in exceptional circumstances grant interlocutory injunction on an ex-parte application. We also think that, it should, at least, be made a rule of prudence that all interlocutory applications in civil matters should be made and heard in open court. It is desirable that the courts in this country should desist from following the English practice of hearing applications in chambers for the simple reason that the set-up and the circumstances which obtain in England in such cases are different in Nigeria.
In the case before us, it happened that two identical applications, one ex parte, and the other on notice, were filed in court by the plaintiff on the same day namely, the 9th August, 1972. But for reasons which are not apparent from the record of appeal, the learned trial judge chose to hear the ex-parte application in chambers on the following day 10th August, 1972.We think that the learned trial judge should not have overlooked the fact that there were pending before the court two identical applications for the same relief. It seems to us that the ends of justice could have been better served by granting accelerated hearing in favour of the application on notice. At any rate, we are satisfied that an application of this kind should not be summarily dealt with in chambers, as was done in this case. The grant of interlocutory injunctions is governed by certain principles of law, whose application seems to be largely dependent upon a proper evaluation of the evidence.
The rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of his right, and at least, that he was likely to succeed on that issue, and also a prima facie case of infringement of his right. In exercising its discretion to grant the relief, the court would have regard to the balance of convenience. We fail to see how a court of law could be able to satisfy all or any of these principles before pleadings were filed, and without evaluating some sort of evidence, (be it oral or affidavit evidence) adduced by both parties.
At this state, we think it is desirable to refer to the case of Donmar Productions Ltd. v. Bart (1967) 1 W.L.R. 740 at 742, where Ungoed Thomas J., after considering at length the principles which govern the grant of interlocutory injunctions said, inter alia, as follows:
“So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial.
It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiffs can be cured by payment of damages rather than by the granting of an injunction. Of course, the burden of proof lies on the applicant throughout.” PER D. IBEKWE, J.S.C.
JUSTICES:
ELIAS, CHIEF JUSTICE OF NIGERIA
SOWEMIMO, JUSTICE, SUPREME COURT
IBEKWE, JUSTICE, SUPREME COURT
APPELLANTS
ABEL O. WOLUCHEM
RESPONDENTS
DR. CHARLES INKO-TARIAH WOKOMA
IBEKWE, JSC. (Delivering the Judgment by the Court) This appeal is unusual in the sense that it is from a decision which is not what it purports to be – a consent judgment. It is a rambling judgment, which does not seem to have decided anything. On the other hand, the trial in the court below was, in our view, marred by some serious procedural mistakes and errors in law to such extent that the whole proceedings could be described as a “comedy of errors.” Throughout the trial save during the contempt proceedings, no witnesses were called; the trial was conducted by means of affidavits and counter-affidavits. PAGE| 2 To be able to do justice to the case therefore, we think that, we should review stage by stage, the proceedings in the court below. At every convenient moment, we shall endeavour to set down our views on the procedure adopted, and the law applied by the lower court. On the 29th June 1972 the plaintiff (herein respondent) filed an action in the Port Harcourt High Court for trespass against the defendant (herein appellant) claiming £500 damages for trespass and injunction. On the 31st of July, 1972 pleadings were ordered, but were never filed. Plaintiff was given 90 days within which to file his Statement of Claim and the defendant, 120 days to file the Statement of Defence. On the 9th August, 1972, the plaintiff filed an ex parte motion praying for an interim injunction; that same day, the plaintiff also filed a motion on notice for an interim injunction. On the very next day, the 10th of August, 1972, the ex-parte motion was heard in Chambers. The application was granted, pending the hearing of the motion on notice. The relevant portion of the proceedings reads as follows:- “In Chambers: Mr. Allagoa to move. Order granted as prayed. Defendant/Respondent to cease carrying on any operation on the land in dispute pending the determination of the motion on notice on 15/8/72. An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt. It is well-settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice. In our view, therefore, it should be a rule of practice that the court will not save in exceptional circumstances grant interlocutory injunction on an ex-parte application. We also think that, it should, at least, be made a rule of prudence that all interlocutory applications in civil matters should be made and heard in open court. It is desirable that the courts in this country should desist from following the English practice of hearing applications in chambers for the simple reason that the set-up and the circumstances which obtain in England in such cases are different in Nigeria. In the case before us, it happened that two identical applications, one ex-parte, and the other on notice, were filed in court by the plaintiff on the same day namely, the 9th August, 1972. But for reasons which are not apparent from the record of appeal, the learned trial Judge chose to hear the ex-parte application in chambers on the following day 10th August, 1972. We think that the learned trial Judge should not have overlooked the fact that there were pending before the court two identical applications for the same relief. It seems to us that the ends of justice could have been better served by granting accelerated hearing in favour of the application on notice. At any rate, we are satisfied that an application of this kind should not be summarily dealt with in chambers, as was done in this case. The grant of interlocutory injunctions is governed by certain principles of law, whose application seems to be largely dependent upon a proper evaluation of the evidence. PAGE| 3 The rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of his right, and at least, that he was likely to succeed on that issue, and also a prima facie case of infringement of his right. In exercising its discretion to grant the relief the court would have regard to the balance of convenience. We fail to see how a court of law could be able to satisfy all or any of these principles before pleadings were filed, and without evaluating some sort of evidence, (be it oral or affidavit evidence) adduced by both parties. At this stage, we think it is desirable to refer to the case of Donmar Productions Ltd. v. Bart (1967) 1 WLR 740 at 742, where Ungoed-Thomas J., after considering at length the principles which govern the grant of interlocutory injunctions said, inter alia, as follows:- “So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial. It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiffs can be cured by payment of damages rather than by the granting of an injunction. Of course, the burden of proof lies on the applicant throughout.” (The underlining is ours). Since the ex-parte application in the present case was dealt with summarily in chambers, it is not surprising that there is nothing on record to suggest that the learned trial Judge ever directed his mind to the question as to whether the plaintiff’s application fell within the legal principles governing such prayer for an interlocutory injunction. We shall now continue with the synopsis of events which took place at the trial. On the 22nd August, 1972, the motion an notice for on interim injunction came up for consideration and, after hearing arguments on both sides, the learned trial Judge adjourned the matter till 4th September, 1972, for a ruling. But during the intervening period, precisely on August, 29th 1972, the plaintiff brought an application for the committal of the defendant to prison for contempt, on the ground that the defendant had violated the order for an interim injunction made by the court in chambers. PAGE| 4 When, on the 30th August, 1972, the application for committal came up for hearing, it was adjourned to the 31st August. After taking oral evidence on the 31st August and the 1st of September, 1972, respectively, the matter was further adjourned till the 5th of September, 1972. Meanwhile, on September 4th 1972, the learned trial Judge delivered his ruling in which he granted the application on notice for interim injunction, but failed to discharge the order which had been made earlier on in chambers. The contempt action came up again for hearing on the 5th September but it was further adjourned till 7th September. At the resumed sitting on the 7th of September, 1972 the trial took a dramatic turn. As the events which took place on that day, and on the subsequent dates of the trial are crucial for the purpose of this appeal, we think that the relevant proceedings should be set out, verbatim ad literatim, as follows:- RESUMED ON THURSDAY THE 7TH DAY OF SEPTEMBER, 1972. Plaintiff absent – asked by his employers unexpectedly to go off to Lagos for official consultations; he is expected back this morning, though by what flight is not known. Defendant present. Appearances as before. Mr. Allagoa (for plaintiff) announces that it is likely they would announce a final arrangement at the next adjournment. Chief Brown (for defendant) announces in agreement to the above that both sides have virtually completed an arrangement; they are agreed as to the amount or quantum of the settlement; what is left is the details which they hope to announce at the next adjournment Court. I view of the order for interim injunction made on 4th inst, and in view of the announcement by both sides above it is considered not worthwhile continuing with and completing the contempt action before this Court. Evidence has already gone a long way in this and I do not which to continue taking further evidence. But all must be warned, and particularly the defendant in the suit, that the Order of Injunction made on the 4th is the standing order of this court, and this must not be flouted in any manner whatsoever. There are only two alternative conditions under which this interim order will be discharged. First, there must be an announcement at the next adjournment of some definite arrangement about the whole dispute, acceptance to both sides. Or 2ndly: Failing such an agreement as indicated above the substantive suit must be prosecuted to finality before the interim order is discharged. PAGE| 5 The court is not an instrument of torture far from it; at the same time the court will not allow its orders to be flouted and tampled upon and made of no avail. I hereby strike out the contempt action. Adjourned to 9.00 a.m. on 12th September, 1972 for final settlement. (Sgd.) S. A. Wai-Ogosu, JUDGE 7/9/72 resumed Tuesday the 12th day of September, 1972 Parties present. Appearances as before. Mr. Allagoa for the Plaintiff announces that the two parties have agreed on the amount to be paid by the defendant to the plaintiff – as consideration for the plaintiff withdrawing the suit from the court and abandoning all his rights and interest in the land in dispute to the defendant. The amount agreed on is £8,000 (eight thousand pounds). The question as to how the amount involved is to be liquidated is still not yet resolved. Asks the Court for an adjournment to enable this point to be satisfactorily solved. Chief Brown for the defendant agrees that above is correct and does not oppose the application for adjournment. Adjourned to 29/9/72 for parties to appear in court to announce the arrangement. (Sgd.) S.A. Wai-Ogosu, JUDGE. 12/9/72 RESUMED FRIDAY THE 29TH DAY OF SEPTEMBER, 1972. Parties present. Appearances as before. PAGE| 6 Both counsel announce that certain matter still left to be ironed out in regard to the details of the settlement have not yet been cleared. There is every hope for a final settlement agreeable to both sides. They now ask for a further adjournment for the last time to November 7, 1972. Both counsel are free to announce to me in chamber before this date what settlement may have been arrived at. Adjourned to November 7, 1972. (Sgd.) S. A. WAI-OGOSU, JUDG
