BARR. (CHIEF) GODSON OKOYE v. BARR. C.C MOJEKWU
(2019)LCN/13460(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/E/160/2018
RATIO
EVIDENCE: WHAT HAPPENS WHEN A PIECE OF EVIDENCE IS UNCHALLENGED AND UNCONTROVERTED
The law is trite that where a piece of evidence is unchallenged and uncontroverted, the trial Court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim. See the case of ADEKANBI v. OSENI & ANOR (2017) LPELR-42370 (CA).PER ABUBAKAR SADIQ UMAR, J.C.A.
MISREPRESENTATION: DEFINITION
On what constitutes a misrepresentation, this Court, Per NWOSU-IHEME JCA in the case of DAEWOO (NIG) LTD. V NTIA & ORS (2015) LPELR-40603 (CA) held thus:
“A misrepresentation is an untrue statement made by one party to a contract to the other before or at the time of contracting with regard to some existing fact or to some past event which is one of the causes that induced the contract.” See SAGAY- Nigerian Law of Contract, 2nd Edition Chapter 9, page 295.”PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
BARR. (CHIEF) GODSON OKOYE Appellant(s)
AND
BARR. C.C MOJEKWU Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Anambra State High Court, Aguata Judicial Division, delivered by C.N Mbonu Nwenyi J., on the 25th day of January, 2018. In the said ruling, the learned trial judge granted the reliefs sought by the Respondent in motion No. AG/526M/2017 thereby striking the purported consent of the parties to withdraw the suit and consequently setting down the suit for Pretrial Conference.
BRIEF FACTS OF THE CASE
The facts that culminated into this interlocutory appeal is that by a Writ of Summons dated 17th day of May, 2016, the Respondent as Plaintiff in the Court lower instituted an action against the Appellant as Defendant praying for a declaration and an Order of the Court below for the recovery of his professional fees in respect of the legal services purportedly rendered to the Appellant as at the time the latter engaged his services to initiate an action against one Prof. Chukwuma Soludo and the Sun Newspapers Limited which according to the Respondent was done as instructed.
Parties filed and exchanged pleadings and the matter was thereafter
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adjourned to the 12th day of June, 2017 for Pretrial Conference. Prior to the date scheduled for the said Pretrial Conference, parties agreed to settle and in formalizing their intentions prepared and signed a Joint consent Application for leave to withdraw the suit on the condition that the Appellant shall pay the legal fees or part thereof.
It is the case of the Appellant that after the filing of the joint consent and application for leave to withdraw the suit by the parties, the Respondent on the 1st day of June, 2017 filed a motion on notice to set aside the joint consent and application for leave to withdraw the suit. It is also the case of the Appellant that he filed a written address on point of law challenging the competency of the motion, relying on Order 23 Rule 2 of the High Court Rules of Anambra State, 2006 but that the Learned Trial Judge discountenanced the said Order and granted the prayers of the Respondent.
The case of the Respondent on the hand is that although he initially agreed to an amicable settlement with the Appellant, however, the said settlement was subject to the payment of his legal fees of part thereof but instead of
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honouring this undertaking, the Appellant reneged his promises.
It is also the case of the Respondent that before the Appellant could file the said Joint Consent to withdraw the suit, the Respondent first in time filed and notified the Appellant that the earlier consent given had been rescinded and same withdrawn through an application filed on the 22nd day of May, 2017 by 10:00 am with treasury receipt No. 09032115 but that the Appellant ignored the said notice and on the same day, filed the Joint Consent at 2:30 pm with treasury receipt No. 0832141. The Respondent further stated that the consent never existed in the first place and thus, the alleged consent was not amicable or on agreement of both parties and therefore cannot stand.
At the conclusion of hearing of the said application and upon address by counsel to the parties, the learned trial judge at pages 173 of the Records held thus:
This Application in my mind is such that this Court can grant and same is granted as prayed. The purported consent to withdraw is hereby struck out. This suit is being set down for Pre Trial Conference.”
The Appellant aggrieved by the
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ruling of the Court below, on the 26th day of February, 2018 filed a Notice of Appeal dated on 6th day of February, 2018.
The Appellant?s Brief of Argument dated the 7th day of March, 2018 and filed on the same date was settled by WILLIAMS OGUGUA, ESQ. The Respondent?s brief dated the 29th day of March, 2018 and filed on the same date was settled by F.C OHAJAKA ESQ.
Learned counsel for the Appellant distilled two issues for determination of this appeal to wit:
1. Whether the learned trial Court properly considered Order 23 Rule 2 of Anambra State High Court (Civil Procedure) Rules 2006 before reaching his decision in the matter made on the 25/1/2018 in the suit and or otherwise the ruling a nullity.
2. Whether by filing a consent (sic) to withdraw suit No. AG/86/2016 by both the appellant and the respondent sufficient for the Court to strike out the suit.
Learned counsel for the Respondent on the other hand also distilled two issues for the determination of this appeal to wit:
1. Whether the purported joint consent to withdraw the suit still exist in the first place between the
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Appellant and the Respondent and pending before the Court given the recession of the consent to withdraw filed and moved timeously by the Respondent.?
2. ?Whether the Ruling of the Trial Court sequel to the Application of the Respondent occasioned miscarriage of Justice.”
APPELLANTS ARGUMENT ON ISSUE 1 AND 2
On the two issues distilled and argued together by learned counsel for the Appellant, counsel submitted that the learned trial Court did not consider nor show understanding of Order 23 Rule 2 of the Anambra State High Court (Civil Procedure) Rules 2006. Counsel relying on the aforementioned Order of the said Rules of Court submitted further that by filing consent to withdraw the matter by the parties was sufficient for the trial Court to strike out the suit.
It is also the submission of counsel that the cited Order of the Anambra State High Court (Civil Procedure) Rules did not provide for withdrawal of consent to withdraw a suit and still fall back on the same suit after the parties have jointly signed the consent to withdraw a suit as in the instant suit.
Relying on the provisions of Order 23 Rule 1 (2) Anambra State High Court (Civil Procedure) Rules 2006, ?
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counsel argued that the Rules did not provide that withdrawal of a suit shall not be a defence to an any subsequent claim and the only soft landing available to the Respondent was the filing of a fresh suit and not to hang on the previous suit which by implication is no longer in the cause list of the Court as the consent to withdraw the suit has superseded the original cause of action altogether and Court has no further jurisdiction in respect of the original cause of action which has been superseded. Counsel referred this court to ABEY V ALEX (1999) 14 NWLR (pt. 637) at 159 and submitted that if the terms of such new agreement or out of Court settlement are breached or not complied with the injured or the aggrieved party must seek his remedy based on the agreement or out of court settlement.
It is the submission of counsel for the Appellant that the Court lacked the full import of the Order 23 Rule 2 of the Anambra State High Court (Civil Procedure) Rules, 2006 otherwise, it would not have expected the parties to come to Court to move it to adopt Exhibit A on the 12th June, 2017 when the
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Respondent had filed a Motion to set aside the joint consent to withdraw the suit signed by both parties and the Appellant filed written address on the issues of law challenging the competence of the motion. Counsel submitted further that the action is founded on the agreement or out of Court settlement and the trial Court ought to have struck out the suit and ask the Respondent to exploit Order 23 Rule 2 of the Anambra State High Court (Civil Procedure) Rules 2006 by filing a fresh suit as the orchestrated in Exhibit B but the trial Court cannot revive the withdrawn suit by the written consent of the parties but rather an aggrieved party can file a fresh claim as provided by Order 23 Rule 1 of the Anambra State High Court (Civil Procedure) Rules 2006.
On the whole, it is the submission of counsel for the Appellant that the Court cannot revive through a motion a suit withdrawn under Order 23 Rule 1 of the Anambra State High Court (Civil Procedure) Rules 2006 because such consent to withdraw the suit filed in Court supersedes the original suit and sufficient for the Court to strike out the suit and if the terms of such settlement out of Court is breached
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or not complied with, the injured or aggrieved party can bring a new claim but not on the old suit. Counsel finally urged this Court to allow the appeal and resolve same in favour of the Appellant.
RESPONDENT’S ARGUMENT ON ISSUE 1 AND 2
On the two issues distilled and argued together by learned counsel for the Respondent, counsel submitted that the purported consent to withdraw the suit seized to exist before the Court given the rescission of consent to withdraw filed and moved timeously by the Respondent. It is the contention of the Respondent that a Joint consent to withdraw a suit out of Court must be in ad idem, voluntary, unambiguous amongst parties and devoid of any form of inducement, misrepresentation, deceit and fraud.
Counsel for the Respondent submitted that the filing of the process titled Joint consent by the Appellant earlier withdrawn by the Respondent through its formal application before the trial Court was an afterthought because as at the time of filing the purported consent, the Respondent has withdrawn his consent based on misrepresentation, deceit and none compliance of his own bargain and to that extent, there was
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no joint consent existing before the trial Court let alone being mutually and voluntarily given.
In response to the contention of counsel for the Appellant that the learned trial judge did not consider the provisions of Order 23 Rule 2 of the Anambra State High Court (Civil Procedure) Rules 2006, learned counsel for the Respondent submitted that the said provisions of the Rules of Court cannot come into play because there was no consent so to speak before the Court and the Appellant cannot stampede the Court to speculate something that was not in existence. Moreover, the position would have been different if the Respondent had not filed any application to withdraw consent timeously.
Counsel to the Respondent submitted further that the Respondent went as far as deposing to an Affidavit in support of the motion dated and filed on the 1st June, 2017 wherein facts were stated as to why the application to set aside the purported Joint Consent was necessary. The said facts were neither controverted nor challenged by the Appellant via a Counter Affidavit and same were considered and evaluated by the learned trial judge before the granting of the said
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application.
Counsel referred this Honourable Court to the case of ADEFARASIN V DAYEKH (2007) 11 NWLR (PT 1044) PG. 89.
In response to the submission of counsel to the Appellant that the application of the Respondent seeking for withdrawal of consent was unfounded under the relevant provisions of the Anambra State High Court Civil Procedure Rules (2006), learned counsel for the Respondent relying on Order 39 Rules 1 & 2 of the same Rules of Court under consideration submitted that the said Rules of Court provides a platform under which any party who desire to ask/pray to Court for anything can so do and at that point, the Court has the power to exercise it discretionary powers in either ways depending on substantial evidence place before it.
Relying on the case of NALSA & TEAM ASSOCIATES V N.N.P.C (1991) 8 NWLR (PT 212) 652 AND A.G. FEDERATION V A.I.C LTD (1995) 2 NWLR (PT 378) 388, learned counsel for the Respondent submitted that in the interest of justice, where two adversely competing applications is before a Court, one constructive and the other potentially destructive, the Court is enjoined to give priority to the application
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that would resuscitate the action. It is the submission of counsel that the Appellant should not be allowed to hide under the provisions of Order 23 Rule 2 of the Anambra State High Court Civil Procedure Rules (2006) or technicality to perpetuate injustice or carry out vendetta mission.
On the whole, counsel urged this Honourable Court to resolve the issues distilled in favour of the Respondent and against the Appellant.
RESOLUTION
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. However, I consider the issue stated below as apt and germane determination of this appeal.
ISSUE FOR DETERMINATION
Whether the tri
