AKALI & ORS v. OMAMOGHO & ORS
(2022)LCN/16139(CA)
In the Court of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, March 17, 2022
CA/AS/321/2019
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. MR. MEKE AKALI 2. MR. GODWIN OKOME 3. MR. DAVID IGHONMIEYETAN 4. MR. SAMUEL ARUNRUNTOTUOMA (Suing For Themselves And On Behalf Of Members Of Dibofun Descendants Union Oko-Otsetse Community In Warri North Local Government Council Area, Delta State) APPELANT(S)
And
1. HON. GODWIN TORITSEJU OMAMOGHO (For Himself And On Behalf Of Tebu Community) 2. P. A H. J OPOROKUN (The Olaraja Of Jakpa Community) 3. SIR E. K. GBARAGADA 4. MR. GABRIEL AWALA 5. ELDER JONATHAN OKORO 6. MR. JAMES AMONA 7. MR. MICHEAL EYIDE 8. MR. BESIDONE ESIMAJE 9. MR. ELVIS OMATSEYE (For Themselves And On Behalf Of Uwangue Descendants, Jakpa Community) 10. SHELL PETROLEUM DEV. CO. OF NIG. LTD 11. HRM ARUWATSE II, THE OLU OF WARRI 12. MR. GODMERCY OKOTIE 13. WILSON MENE 14. SAMSON OGODUWA 15. RICHARD OMARE 16. GODFREY ANUGENGEN 17. JOHNSON OGBODUWA 18. MICHAEL OMATSULI (For Themselves And On Behalf Of Uwangue Family Of Udo) 19. JACKSON OJUMUDE 20. AUGUSTINE OF – EYENO 21. HON. ISAAC WILKIE 22. REV. JACKSON TUOYO 23. CHARLES OKOTIE 24. EMMANUEL TONGBE (For Themselves And On Behalf Of Tebu Community) 25. ISAAC DORSU 26. MATTHEW ITSEKURE 27. GODWIN AMITA 28. SUNDAY URUMATSOMA 29. JACKSON ENEJUERI 30. ALFRED ATSEYINKU (For Themselves And On Behalf Of Uwangue Family Of Ajamita Community, Olero Creek, Benin River) 31. BOYO DAVID 32. ESUKU ANTHONY (For Themselves And On Behalf Of Jkpatie Community) 33. PA. BENSON EDEMA 34. PA AKORO OKOME 35. MR. EMMAUNEL EJEWINO 36. MR. LUCKY ODOGUN (For Themselves And On Behalf Of Ugbomo Uwangue Family) RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY IS ALLOWED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION OUT OF A GROUND OF APPEAL
KEKERE–EKUN, JSC held in ENGR. GEORGE T. A. NDUUL v BARR. BENJAMIN WAYO & ORS (2018) LPELR–45151 (SC) that:
“It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but the content and quality. Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided…”
See; OGUNYADE v OSHUNKEYE (2007) 15 NWLR (PT. 1057) 218.
Furthermore, it was also held in OKEZIE & ORS v MAINSTREET BANK LTD & ORS (2015) LPELR–40886 per OBASEKI–ADEJUMO, JCA that:
“the law is settled that a party is not allowed to formulate more than one issue for determination out of a ground of appeal. This essentially presupposes that proliferation of issues for determination by the parties will not be countenanced by the Court.
…This is the principle against proliferation of issues for determination. In the instant case learned counsel has submitted two issues for determination out of a single ground of appeal for determination thereby rendering the issues incompetent.”
See also; NWANKWO & ORS v YAR’ADUA & ORS (2010) 12 NWLR PART 1209, P.518.
Flowing from the above, the issues formulated by the Appellants are accordingly rendered incompetent and struck out. PER OBASEKI-ADEJUMO, J.C.A.
THE PURPOSE OF A RESPONDENT’S BRIEF
It is important that I point out that a Respondent’s brief is meant to defend the judgment appealed and not support the Appellant’s brief. See; HUSSAINI ISA ZAKIRAI v SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR–42349 (SC) and OZURUMA NSIRIM v DR W. AMADI (2016) LPELR–26053 (SC).
Where a Respondent is not comfortable with a finding, not the entire judgment, which he considers fundamental, he can challenge same by filing a cross-appeal. See; CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR (PT. 123) 512 and OBI v INEC (2007) 11 NWLR (PT. 1046) 565.
Also, where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent’s Notice. See; KAYILI v YILBUK (2015) LPELR – 24323 (SC). PER OBASEKI-ADEJUMO, J.C.A.
DEFINITION OF A CONSENT JUDGEMENT
Consent judgment is where parties to a suit in Court have agreed with each other, as to how to settle their disputes; they are to approach the Court to give judgment on the term they have agreed upon. It serves as a final disposal of the dispute between the parties, see CBN v INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR; WOLUCHEM v WOKOMA (1974) 3 SC P. 153.
Furthermore, the Supreme Court held on the requirements of a valid consent judgment in STAR PAPER MILL TYPE & ANOR v ADETUNJI & ORS (2009) LPELR–3113 (SC) per ADEKEYE, JSC thus:
“The requirements of valid consent judgments are:- (a) Parties must reach a complete and final agreement on the vital issues in their Terms of settlement. (b) They must be ad idem (c) Their consent must be free and voluntary.”
Also, in RACE AUTO SUPPLY CO. LTD & ORS v AKIB (2006) LPELR–2937 (SC) it was held that:
“The term “consent judgment” in law is a technical term. It comes into being as the case of Woluchem v Wokoma (1974) 3 SC 153 tells us at pages 166 and 168 as follows: P. 166 – “In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in Court. When the Court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the Court.” PER OBASEKI-ADEJUMO, J.C.A.
WHETHER OR NOT A CONSENT JUDGEMENT HAS THE SAME EFFECT AS A JUDGMENT GOTTEN AFTER FULL TRIAL IN COURT
A Consent judgment has the same effect as a judgment gotten after full trial in Court. What is the effect of a judgment?
The Court in ALHAJI ISA NOEKOER v EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS (2018) LPELR–44350 (SC) per PETER-ODILI, JSC thus:
“It is necessary to point out that the judgment of the trial Court is an executor and therefore remains subsisting and must be obeyed even if the person affected by it believes that it is void. The validity and it being the subsisting judgment remains until it is set aside by a Court of competent jurisdiction and not by wishful thinking.” PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the final judgment of the Delta State High Court, Warri division per R. D. Harriman, J delivered 12th February, 2019.
The facts leading to this appeal can be summed thus; the 1st set of Respondents instituted an action in 2005 at the High Court of Justice, Delta state of Nigeria, at Warri Judicial Division against Shell Petroleum Development Company Limited on behalf of Tebu, one of the children of Uwangue claiming compensation for Shell Petroleum Development Company Nigeria Limited’s operation on Uwangue land in Jakpa and its environs. Since the commencement of the said suit at the lower Court, there were several applications for joinder which were granted. The suit suffered several setbacks and hearing could not commence as there have been several joined parties. The Appellants were joined in the suit at the lower Court after a motion for joinder dated 4th November, 2016, and they became 10th–13th Claimants/third set of Claimants. Prior to being joined, the parties had made moves to settle the matter amicably and the erstwhile parties had even put forward a written terms of settlement. On the Court’s directive, the parties set to draw up another terms of settlement. However, the new terms of settlement excluded the Appellants; they were not listed as parties in the suit in the records of proceedings for the 12th February, 2019, the terms of settlement and the enrolment of judgment.
Dissatisfied with the consent judgment, the Appellants filed their Notice of appeal dated 26th February, 2019 and on appeal added the issue of fraudulent contrivance on the part of the other parties against the Appellants to shut them out and deprive them from their constitutionally guaranteed right of fair hearing.
The Appellants filed their brief of argument on 5th July, 2020 but deemed filed on 23rd June, 2021 which was prepared by D. O Orovwigho Esq.; F. O. Orere Esq.; S. O. Amagiya Esq.; C. N. Chukwudi Esq. of D. N. Orovwigho & Co. The following issues were distilled for determination:
1. Whether the presiding Judge erred in law when he granted a consent judgment to all but the 3rd set of claimants, the Appellants in this appeal, going by the circumstances of the case.
2. Whether the consent judgment was valid at law regard being had to the fact that despite it being labelled as “Consent” judgment, there as apparently no unanimity or consent among all concerned parties, which is a basic requirement for a consent judgment.
3. Whether the act of construing the suit in such a manner as to exclude and shut out the Appellants long after they had been joined in the suit, and deprive them of their right to fair hearing did not amount to fraudulent misrepresentation and vitiates the whole proceedings.
4. Whether the said consent judgment should not be set aside upon appeal same having failed to meet even the most basic requirement(s) for a valid consent judgment.
The 1st Respondent in like manner also filed his brief of argument on the 10th August, 2021 and settled by Patrick Oganwu; F. D. Inomisaghan Esq.; S. P. Siketi Esq of Patrick Oganmwu & Associates, wherein a sole issue was formulated for determination:
1. Whether the Court below was right in entering the terms of settlement filed at the Court below as judgment in the suit as it relates to the parties to the terms of settlement?
The 33rd to 36th Respondents also filed their brief of argument on the 29th September, 2021 and were represented by Efe Eduvie, Esq. of Magnus Egin Atie & Co; Oruru Chambers. The issues formulated by the Appellants were adopted.
It is important that I point out that the 1st Respondent withdrew his preliminary objection and the Appellants in like manner withdrew their reply to the preliminary objection and both were accordingly struck out by this Court.
APPELLANTS’ ARGUMENTS
Appellants posited in issue 1 that at the time the lower Court entered the consent judgment; there was motion for extension of time to file their statement of defence dated 26th October 2018. Counsel to the Appellants further posited that unless all pending applications are dealt with, the Court cannot stand and should not take any action on the substantive suit. ODEDO v OGUEGO (2015) 13 NWLR PT. 1476, PAGE 229 AT 254 PARA B–E; (2016) ALL FWLR PT 815 PG 201 AT 225, PAR G–A was cited to submit that the Court must hear and pronounce on all applications properly served before it. Counsel further submitted that the lower Court erred when he delivered judgment without first disposing of the pending motion.
On issue 2, Counsel submitted that the purported consent judgment was inappropriate, improper, void, wrong and delivered in error. Relying on the dictum of Ogbuagu, JSC in AGBAREH v NIMRA (2008) 33.2 NSCQR PAGE 970 AT 979 RATIO 8, he further submitted that consent judgment must be in light of admissible evidence of surrounding circumstance but without direct evidence (testimony) of the parties intention.
Counsel further relied on the cases DANA IMPEX LTD v ADEROTOYE (2006) 3 NWLR PART 966; RACE AUTO SUPPLY CO. LTD v AKIB (2006) 13 NWLR PART 997 AT 355; HONDA PLACE LTD v GLOBE MOTOR HOLDING NIG. LTD (2005) ALL FWLR PART 283 PG. 1 AT 15 PAR F–H to submit that the action of the lower Court in directing the Appellant to enter the witness box and lead their evidence is void and of no effect, as the Court was at that point in time functus officio as far as the suit was concerned.
Counsel argued in issue 3 that the other parties had acted with fraudulent intent i.e to deprive the Appellants of their right to fair hearing by deceptively making it seem as if the Appellants were not part of the suit, even though they had been joined as the 10th–13th Claimants and third set of Claimants for nearly two years. He further argued that it is trite that any judgment or order acquired, sought or obtained by means of fraud or misrepresentation is null, void, unlawful and liable to be set aside upon application.
In issue 4, Counsel opined that the purported consent judgment be set aside and based on the opinion that it offends against the principle of fair hearing, that it runs contrary to the pleadings, and neither is it supported by the available evidence before the lower Court. He relied on the cases of ODEDO v OGUEBEGO (2015); YARO v AREWA CONSTRUCTION LTD (2007) VOL. 30 PART 11 PAGE 1193 AT 1200 RATIO 9; ATOLAGBE v SHORUN (1985) 1 NWLR (PT. 2) 360; ADIMORA v AJUFO (1988) 3 NWLR (PT. 80); ARISON v MIL. GOVT. OGUN STATE (2009) 38. 2 NSCQR PG 750 RATIO 6.
1ST RESPONDENT’S SUBMISSIONS
Counsel submitted that the lower Court was right in entering the Terms of settlement as consent judgment as it relates to parties to the said Terms of settlement. Relying on the cases UHS v CPL INDUSTRIES LTD (2010) ALL FWLR PT. 552 PG 1794 AT 1 and RASC LTD v AKIB (2006) 13 NWLR (PT. 997) 333 [PG. 1800, PARAGRAPHS] to define consent judgment.
He further submitted that the lower Court was right when he entered the terms of settlement filed on 27th July, 2018 as judgment of Court as against the parties that are signatories to it and thereafter adjourned the Appellants’ case for trial to 15th March, 2019. He cited the case of STAR PAPER MIL LTD v ADETUNJI (2009) ALL FWLR PT 488 and SOUTH AMERICA AND MEXICAN COMPANY, BAND OF ENGLAND (1885) 1 C11. 37.
Counsel contended that the Appellants had all the time in the world to be heard because the same day, the terms of settlement was entered as judgment of Court, they were not shut out or foreclosed by any order of Court whatsoever.
He further contended that it is a principle of law that disputing parties are at liberty to settle their differences, among themselves and parties cannot be forced to settle their differences. In addition, he stated that no consent judgment can bind in any form a party who was not shown to have consented to it and if it is discovered that the consent judgment had been obtained by fraud or misrepresentation, the judgment can be set aside. The cases of TAIYE OSHOBOJA v AMUDA & ORS (1992) 6 NWLR (PT. 250) 690; VULCAN GASES LTD v OKUNLOLA (1993) 2 NWLR (PT 274) and Order 29 Rule 1 of the High Court of Delta State (Civil Procedure) Rules, 2009.
1st Respondent argued that the Appellants were not made parties to the consent judgment and same is not binding on them. He further argued that the Appellants’ submission that parties to the consent judgment were fraudulently misrepresented is unfounded and is misleading for all parties excluding the Appellants were represented and neither of the parties has challenged the consent judgment apart from the Appellants. It is the submission of the 1st Respondent that the Appellant lacks the locus to impose on the Defendants/Respondents the parties to settle with, thus the Appellants’ right to fair hearing has not been breached.
In conclusion, Counsel submitted that the appeal lacks merits and should be dismissed.
33RD – 36TH RESPONDENTS’ BRIEF
Counsel arguing the entire adopted Appellants’ issues together submitted that in a case for settlement, every party to the suit must endorse the terms of settlement. Where a party fails to endorse the terms, it means that he does not agree with the term of settlement and there is no judgment. He further submitted that where any party is excluded, there is no agreement and any judgment based on the terms of settlement is illegal, null and void and of no effect whatsoever. Counsel urged the Court to order that the terms of settlement should be endorsed by all parties in the suit no matter what time they were joined.
The 33rd to 36th Respondents at this juncture went on a voyage of their own by making submission on issues not appealed against by the Notice of appeal or raised from the grounds of appeal and issues in the preliminary objection that has been withdrawn and struck out. I shall accordingly discountenance these submissions.
In conclusion, the 33rd to 36th Respondents’ Counsel agrees with the arguments of the Appellants and urged the Court to set aside the judgment of the lower Court and order that all parties in the process of Court should endorse the terms of settlement after ascertaining the amount payable as compensation by Shell petroleum development company Nigeria Limited for their operation on the land up to date including the arrears.
RESOLUTION.
I have considered the issues of the parties, and the 1st Respondent’s sole issue encompasses the four issues formulated by the Appellants. I shall therefore adopt the issue for determination of this appeal.
However, before I delve into the determination of this appeal. The Appellants’ Notice of appeal as gleaned from the record before the Court is at page 313. There are two grounds of appeal as against the three grounds of appeal implied by the Appellants, upon which the Appellants formulated four issues for determination. The Appellants did not specifically state from which ground each issue was formulated; aesthetically, the fact that the issues are more than the grounds of appeal implies that there is proliferation of issues. KEKERE–EKUN, JSC held in ENGR. GEORGE T. A. NDUUL v BARR. BENJAMIN WAYO & ORS (2018) LPELR–45151 (SC) that:
“It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but the content and quality. Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided…”
See; OGUNYADE v OSHUNKEYE (2007) 15 NWLR (PT. 1057) 218.
Furthermore, it was also held in OKEZIE & ORS v MAINSTREET BANK LTD & ORS (2015) LPELR–40886 per OBASEKI–ADEJUMO, JCA that:
“the law is settled that a party is not allowed to formulate more than one issue for determination out of a ground of appeal. This essentially presupposes that proliferation of issues for determination by the parties will not be countenanced by the Court.
…This is the principle against proliferation of issues for determination. In the instant case learned counsel has submitted two issues for determination out of a single ground of appeal for determination thereby rendering the issues incompetent.”
See also; NWANKWO & ORS v YAR’ADUA & ORS (2010) 12 NWLR PART 1209, P.518.
Flowing from the above, the issues formulated by the Appellants are accordingly rendered incompetent and struck out.
It is important that I point out that a Respondent’s brief is meant to defend the judgment appealed and not support the Appellant’s brief. See; HUSSAINI ISA ZAKIRAI v SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR–42349 (SC) and OZURUMA NSIRIM v DR W. AMADI (2016) LPELR–26053 (SC).
Where a Respondent is not comfortable with a finding, not the entire judgment, which he considers fundamental, he can challenge same by filing a cross-appeal. See; CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR (PT. 123) 512 and OBI v INEC (2007) 11 NWLR (PT. 1046) 565.
Also, where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent’s Notice. See; KAYILI v YILBUK (2015) LPELR – 24323 (SC).
A Respondent without a cross–appeal or Respondent’s Notice will not be allowed to attack the judgment, and the effect of violating this rule is that arguments in his brief in support of the Appellant will be ignored. See; OBI v INEC (SUPRA).
In this instant case, the 33rd–36th Respondents supported the Appellants’ arguments and also attacked the sharing of the compensation money in the consent judgment. The resultant effect is that their arguments in their brief will be ignored.
The crux of this appeal borders on consent judgment and the validity of same.
Consent judgment is where parties to a suit in Court have agreed with each other, as to how to settle their disputes; they are to approach the Court to give judgment on the term they have agreed upon. It serves as a final disposal of the dispute between the parties, see CBN v INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR; WOLUCHEM v WOKOMA (1974) 3 SC P. 153.
Furthermore, the Supreme Court held on the requirements of a valid consent judgment in STAR PAPER MILL TYPE & ANOR v ADETUNJI & ORS (2009) LPELR–3113 (SC) per ADEKEYE, JSC thus:
“The requirements of valid consent judgments are:- (a) Parties must reach a complete and final agreement on the vital issues in their Terms of settlement. (b) They must be ad idem (c) Their consent must be free and voluntary.”
Also, in RACE AUTO SUPPLY CO. LTD & ORS v AKIB (2006) LPELR–2937 (SC) it was held that:
“The term “consent judgment” in law is a technical term. It comes into being as the case of Woluchem v Wokoma (1974) 3 SC 153 tells us at pages 166 and 168 as follows: P. 166 – “In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in Court. When the Court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the Court.”
P.168 – “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 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 line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end in a full trial. As Lord Herschei, L.C. explained in the case of In Re: South American and Mexican Company, Ex parte Bank of England (1895) 1 Ch. 37 at 50: “The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.” (EMPHASIS MINE)
See also the case of VULCAN GASES LTD v GESELLSCHAFT FUR IND.GASVEWERTUNG A.G (2001) LPELR–3465 (SC).
A Consent judgment has the same effect as a judgment gotten after full trial in Court. What is the effect of a judgment?
The Court in ALHAJI ISA NOEKOER v EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS (2018) LPELR–44350 (SC) per PETER-ODILI, JSC thus:
“It is necessary to point out that the judgment of the trial Court is an executor and therefore remains subsisting and must be obeyed even if the person affected by it believes that it is void. The validity and it being the subsisting judgment remains until it is set aside by a Court of competent jurisdiction and not by wishful thinking.”
In this instant case, the 1st set of Respondents instituted this action in 2005 against Shell Petroleum Development Company Limited on behalf of Tebu, one of the children of Uwangue claiming the following for Shell Petroleum Development Company Nigeria Limited’s operation on Uwangue land in Jakpa and its environs:
a. DECLARATION that 1st plaintiff is entitled to fair and adequate compensation from the defendants, their servants/agents/privies and all whomsoever for the reacquisition/re-leasing of plaintiff’s community land measuring 11.674 hectares more or less which was earlier in 1974 acquired/leased from the 1st plaintiff’s community to enable the 1st defendant to lay pipes thereon and which the 1st Defendant is empowered to acquire/lease by law for a maximum period of 20 years and which upon reacquisition the 1st defendant has been advised by the 2nd Defendant to refuse payment therefore and he said 1st Defendant in consequence thereof still refuses to make payment.
b. PERMANENT INJUNCTION restraining the 1st Defendant, its servants/agents/privies and all whomsoever from dealing with all persons including the 2nd Defendant, save and except the 1st plaintiff alone regarding the matter of payment for the aforementioned reacquisition/re-leasing of 1st plaintiff’s community land.
c. ORDER that the 1st Defendant do pay to the 1st Plaintiff a fair and adequate compensation and despite the 2nd Defendant’s advice to the 1st defendant not to pay plaintiff reacquisition money/release fees to be agreed upon between the 1st plaintiff and the 1st Defendant together with the additional amount of N50,000,000.00 (Fifty Million Naira) to the 1st Plaintiff to surrender the 1st Defendant’s pipes to the 1st Defendant which it abandoned on 1st Plaintiff’s community land since January 1994 when the 20 year maximum period it is empowered by law to remain on the land upon acquisition/leasing thereof elapsed.
While the 2nd set of Claimants’ claim against the 1st Defendant/10th Respondent is for:
“the sum of N13,244,325.08k (Thirteen Million, Two Hundred and forty–four Thousand, three Hundred and Twenty Five Naira Eight Kobo) being outstanding payment for expired lease of way (ROW) for the loss of the use of 2nd set of claimants land for a total of 13,016 (thirteen point Zero one six) hectares of land approximately which land the 1st defendant acquired in the course of its exploration in its North Forcados Trunkline Extension in 1974 for a period of 20 years.”
See page 319 of the record.
The Appellants were joined as parties at the lower Court on 16th October, 2018. The Appellants claimed against the 1st Defendant/10th Respondent as follow:
a. The sum of N8,905,656.42k being money due and payable to the Claimants by the 1st Defendant for the occupation (by laying pipe on Claimants land) of Claimants land at Oko–otsetse for 40 years, that is from 1974–2014.
b. The sum of N222,641.41k per year, commencing from 2015 until the 1st Defendant intends and do discontinue her occupation of Claimants land at Oko – Otsetse.
The Terms of settlement which is at page 318–322 on the record was executed by the existing parties in the proceedings before the Appellants were joined on 16th July, 2018. The terms of settlement were executed before the Appellants were joined as parties to the suit.
In this instant case, majority of the parties were joined to avoid multiplicity of suit against the 10th Respondent/1st Defendant. Each set of Claimants had their own private claims of compensation against the 10th Respondent for their use of the land at Otsetse where the 10th Respondent “North Forcados Trunk Line Extension”.
It would amount to miscarriage of justice for the lower Court to stay the terms of settlement between the 10th Respondent and the 1st Respondent and 2nd set of Respondents who even instigated this case since 2005 after these parties have come to an agreement.
These terms of settlement becomes binding on the parties who are signatories to it.
I don’t agree with the submissions of the Appellants that the consent judgment renders their suit against the 10th Respondent functus officio. Their claims against the 10th Respondent differ from the 1st and 2nd Respondents.
A consent judgment also implies that the parties are at an agreement and have come to certain terms they want the Court to endorse.
The Appellants’ case (claims) is yet to be heard or proven before the lower Court. The lower Court therefore adjourned the matter to 15th March, 2019 for trial.
It can be deduced from the record that the Appellants are desirous to be parties to the terms of settlement (Consent judgment) but it takes two to come to an agreement. The 10th Respondent must also be interested in entering into terms of settlement with them.
Finally, the consent judgment in this instant suit is not binding on the Appellants; they are not parties to the terms of settlement.
In conclusion, I resolve the issue against the Appellants.
Having resolved the issues in this appeal against the Appellants, the appeal is unmeritorious and is accordingly dismissed.
In the result, the final judgment of the Delta State High Court, Warri division per R. D. Harriman, J delivered 12th February, 2019 is hereby affirmed.
Parties should bear their costs.
MISITURA OMODERE BOLAJI–YUSUFF, J.C.A.: I have read the judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JC.A. I agree with his reasoning and conclusion that this appeal has no merit. It is settled law that a consent judgment cannot and does not bind a person who is not a party to it either directly or by representation. See OGUNKUNLE ORS V. ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM & ORS (2001) LPELR-2339 AT 12(G). In IGWEH & ANOR V. IGWEH & ORS (2019) LPELR-48724(CA) AT 21-22(C-E), this Court per AGIM, JCA (as he then was) held as follows:
“The 1st, 3rd and 4th defendants cannot be bound by the terms of settlement they did not sign and there is nothing to show that they authorized the 2nd defendant to sign same on their behalf. The signature of each party to the suit voluntarily appended to the document containing the settlement terms is conclusive proof of his consent to the terms therein. In the absence of the signatures of the 1st, 3rd and 4th defendants on the document containing the terms of settlement and in the absence of their written authority to the 2nd defendant to sign the consent terms on their behalf, there is no evidence that the 1st, 3rd and 4th defendants consented to the terms of settlement. This Court in FMBN v Capital Bank of Africa Ltd & Ors (CA/L/180/99 unreported judgment delivered on 12-7-2001), held that A consent judgment is one in which:
1. The parties are ad idem as far as the agreement which underlines it is concerned.
2. The consent given by each of the parties in order to breathe legal life into such judgment must be seen to be free and voluntary.
3. The terms of settlement which constitutes the consent must be filed in Court after each of the parties shall have appended his signature to it. It further held thus- Having not been favoured with an opportunity to express its approval or disapproval of the terms of settlement before they were incorporated as the judgment of Court made to be binding on it, that judgment to the extent to which the appellant is concerned, is a nullity and it (appellant) is entitled ex-debito justitae, to have it set aside. See Aladegbemi vs. Fasanmade (1988) 3 NWLR (Pt.81) 120.”
In the instant case, each set of claimants had their own separate and distinct claim against the defendant, now the 10th respondent. Each set of the claimant is entitled to negotiate and agree on terms of settlement suitable to them or elect not to settle. Whatever a set of claimants chooses is not binding on the other set. The claim of the Appellants that they were excluded from the terms of settlement is far from the truth. The 1st and 2nd set of claimants had already reached an agreement on terms of settlement and filed same on 27/7/18 before the Appellants were joined as parties to the case on 16/10/18. Obviously, the Appellants cannot be bound by the term of settlement to which they are not parties and did not sign and which was filed before they became parties. The assertion that the other parties acted with fraudulent intent is totally misconceived. The contention that the Court was functus officio when it adjourned the case for trial of the Appellants’ claim is wrong. Where there are several claimants in a case with independent claims as in this case, the Court remains ceased of the matter until all the claims are determined notwithstanding the fact that some of the claimants opted for settlement instead of trial. The lower Court adjourned the case for trial so that the Appellants can prove their case or enter into negotiation for settlement if they so wish.
For the above reasons, I too dismiss the appeal.
JOSEPH EYO EKANEM, J.C.A.: I read in advance, the lead judgment of my learned brother, OBASEKI-ADEJUMO. JCA, which has just been delivered.
I agree with the reasoning and conclusion therein which adopt in holding that the appeal has no merit. I also dismiss the appeal and affirm the decision of the trial Court.
Appearances:
D. O. Orowugho, for 1st & 2nd Appellants For Appellant(s)
Patrick Oganwu, for 1st Respondent
Eduvie Efe, for 33rd – 36th Respondent For Respondent(s)
