EVANS IBETO v. ALHAJI ABDULAZEEZ AMINU (2006)

EVANS IBETO v. ALHAJI ABDULAZEEZ AMINU

(2006)LCN/2062(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 19th day of July, 2006

CA/K/123/2003

RATIO

APPEAL: WHETHER THE APPEAL COURT IS DUTY BOUND WHENEVER A PRELIMINARY OBJECTION ARE RAISED

It is settled law that whenever preliminary objection is raised on appeal, an appeal court is duty bound to resolve it first before disposing of the appeal before it on the merit. See All States Trust Bank Vs. King Davidson Ent. Ltd (2000) 12 NWLR (pt. 68) 298; Uba Vs. Yawe (2000) 8 NWLR (pt.670) 739 Beghe Vs. Tiza (2000) 4 NWLR (pt.652) 193. PER AMIRU SANUSI, J.C.A

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

Between

EVANS IBETO Appellant(s)

AND

ALHAJI ABDULAZEEZ AMINU Respondent(s)

AMIRU SANUSI, J.C.A (Delivering the leading Judgment): This is an appeal against judgment of the Kaduna State High Court (the lower court) dated 27th November, 2002. By Originating Summons dated 13/10/2002, the plaintiff/appellant claimed against the defendant/respondent as follows;
“An order of the court to exercise his rights under the agreement entered into between the plaintiff’ and the defendant dated 12th July, 1999.
And for such further order or orders of the Honourable Court may deem fit and just to make in the circumstance.”
The facts which gave rise to this appeal are as adumbrated in paragraphs Sand 6 of the affidavit supporting the Originating Summons and also as conceded by both parties, are that on 12/7/1999 the plaintiff now appellant gave a loan of the sum of two hundred and forty thousand Naira (N240,000) to his friend, the defendant. A written agreement of the said loan was drawn, wherein the defendant/respondent was to pay back the loan granted to him by the plaintiff on 12/8/1999. Sequel to that, the defendant/respondent deposited his document for purchase of a plot situated at Malam-Madori Road, Panteka, Kaduna covered by Certificate of Occupancy No KAD/A/001405 and a Sale Agreement between him (defendant/respondent) and the original owner from who he purchased same which was written in Hause language and later translate in to English language. The plaintiff/appellant failed to pay off the loan on 12/8/99 as agreed upon, hence the institution of the suit at the lower court by the plaintiff against the defendant. On 27/11/2002 the case came up for mention at the lower court. The plaintiff was represented by his counsel, one Samuel Idhiarhi Esq., whereas the defendant appeared personally without being represented by any counsel. The learned counsel for the plaintiff told the court that the matter was for mention and asked for an adjournment for mention. On referring to the plaintiff whether he had any objection to the learned counsel’s application, the defendant told the court that he had no objection and went further to admit the plaintiffs claims for the said sum owed by him. He further made an undertaking to settle the entire debt he owed on or before 31/3/2003. The court recorded same on page 9 of its printed record.
The learned counsel for the plaintiff thereupon stated thus;
“Mr Idhiarhi – In the circumstances we pray for Judgment as per our claims and concede to the date of payment.”
The lower court thereafter proceeded to deliver its consent judgment as follows:-
JUDGMENT
“Court – “As the defendant has admitted the plaintiffs claims in the total sum of N240,000.00 per the summons, judgment is hereby entered for the plaintiff and against the defendant per the summons in the total sum of N240,000.00 which the defendant undertook to liquidate on or before the 31/3/2003.”
It is the above quoted judgment that the plaintiff/appellant became dissatisfied with and appealed to this court. To that effect, he filed Notice of Appeal containing two grounds of appeal. The grounds of appeal are reproduced hereunder with the particulars:-
“GROUND OF APPEAL
Ground One
The learned trial judge erred in law in giving judgment to the plaintiff/appellant for the relief not sought and claimed.
Particulars of Error
That the appellant sought the order of the court to exercise his rights as contained in paragraph 5 of an agreement between him and the respondent dated 12th day of July, 1999 but the court erred in awarding a sum of N240,000 (Two hundred and Forty thousand Naira) to the appellant which he never claimed.
Ground Two
The decision is altogether unreasonable, unwarranted and can not be supported having regard to the claim and evidence.”
Briefs of argument were filed by parties. The appellant’s counsel filed his own brief on 10/4/2003. In the brief filed on behalf of the appellant by his counsel, the following issue was proposed for the determination of the appeal. The issue is:-
“Whether the learned trial judge can grant a relief not sought for by the plaintiff/appellant in his originating summons and affidavit in support.”
He also filed Appellant’s Reply Brief dated 14/6/06 sequel to and in reply to a Preliminary Objection raised and argued in the Respondent’s brief.
The Respondent’s counsel on the other hand also proposed one issue for determination of the appeal in his brief of argument dated 15/3/2004 and filed on 19/3/2004. The issue is “whether the judgment of the lower court was in accord with the appellant’s claim (Lifted from Ground No 1).” The issue will be considered in due course if the need arises.
The learned respondent’s counsel submitted in the brief, that the appeal is incompetent because leave of the lower court or this court was not sought and obtained before filing it since the judgment dated 27/11/2002 was a “consent judgment.” According to the respondent, by the provisions of section 241 ( 2)(c) of the Constitution of the Federal Republic of Nigeria 1999, there is no right of appeal against consent judgment except when leave is sought and obtained from this court or the lower trial court.
The other grounds of the learned respondent’s counsel’s objection are;
(a) That Ground No One is incompetent because the particulars of the said ground is narrative and/or argumentative and thus violates the provisions of Order 3 rule 2 (3) of the Court of Appeal Rules of 2002, and
(b) That Ground No 2 is also incompetent because in a civil appeal the ground must emanate from the from the proceedings and since the judgment was a ‘consent judgment’ no evidence was led.
In the light of the above submissions by the learned respondent’s counsel on the preliminary Objection, it was urged by him that the Notice of Appeal be struck out under Order 3 Rule 2(7) of this court’s rules.
Responding, the learned appellant’s counsel submitted in his Appellant’s Reply Brief that the judgment he is appealing against is not a consent judgment because consent judgment is one that is reached when both parties are ad idem unlike in the instant case. He cited the case of Afegbai Vs. Attorney General Edo State (2001) NWLR (pt.69) 1352 at 1373 para G; Vulcan Gasses Ltd Vs. GFLG (2001) FWLR (pt.,53) 1 at 44 para B. The learned counsel also argued that considering what transpired at the lower court whereby the appellant informed the court that the case was for mention and that he asked for another date before the respondent admitted the claims and the court went ahead to enter judgment. The latter can not be said to have satisfied the condition precedent to the delivery of consent judgment.
The learned appellant’s counsel further submitted that the lower court delivered its judgment on the date the case was merely fixed for mention, hence the judgment was a nullity. He referred to the cases of Faledu Vs. Kwoi (2003) 4 NWLR (Pt.829) 643 at 650 paras F-G, New Nigerian Newspaper Vs. Oteh (1992) 4 NWLR (pt.237) 626 at 633 Para G-J Kano Vs. BMPC Ltd (1978) 9-10 G 51 Williams Vs. Hope Rising Voluntary Funds Society. On the competence of the two grounds of appeal challenged by the respondent in the preliminary objection, the learned appellant’s counsel stated that no arguments were proffered on them. He said the respondent’s counsel merely stated the grounds of his objection without developing on it. He stated that the particulars to Ground One were not narrative or argumentative and said that they contained the errors complained of. The learned counsel for the appellant argued that the appellant’s/plaintiffs claim was not that of N240,000.00 but for the enforcement of an agreement between the plaintiff/appellant on one hand and the defendant /respondent on the other hand as provided in paragraphs 5 and 6 of the Agreement which the defendant/respondent had breached. With regard to the provisions of Order 3 Rule 2 (3) of Court of Appeal Rules of 2002, the appellant submitted that the provisions used the word “may” which clearly shows that it was ‘permissive’ and not mandatory. He cited the case of Plateau Investment and property Development Company Ltd Vs. Ebhota (2001) FWLR (pt.64) 374 at 417 Paras D-E. Again, on the respondent’s counsel’s submission that no evidence was given, he replied that the evidence does not necessarily mean evidence given on oath, adding that the judgment complained of was, not a default judgment but a judgment based on admission. He urged this court to discountenance the objection and dismiss same for being misconceived.
It is settled law that whenever preliminary objection is raised on appeal, an appeal court is duty bound to resolve it first before disposing of the appeal before it on the merit. See All States Trust Bank Vs. King Davidson Ent. Ltd (2000) 12 NWLR (pt. 68) 298; Uba Vs. Yawe (2000) 8 NWLR (pt.670) 739 Beghe Vs. Tiza (2000) 4 NWLR (pt.652) 193. It is on that backdrop that I deem it necessary to deal with the preliminary objection first, before considering the issue raised in the appeal if need be. In doing so, I shall firstly treat the second leg of the preliminary objection raised by the respondent as regards the two grounds of appeal. For ease of reference and even at the expense of being repetitive I shall reproduce the second ground of appeal below. It reads thus:-
“The decision is altogether unreasonable, unwarranted and can not be supported having regard to the claim and evidence.”
A close and dispassionate look at the second ground of appeal as couched, shows that the respondent was complaining that there was no evidence tendered during the proceeding since the judgment the appellant is appealing against was a consent judgment. I do not agree with that submission. Although the suit was instituted through Originating Summons, some exhibits were annexed to the summons such as the Agreement. Even though the learned trial judge delivered a ‘consent judgment’ based on the concession by the parties i.e. the defendant/respondent and the plaintiff/appellant, it will not be correct to say that no evidence was filed or tendered at the trial. I therefore overrule the objection in that regard.
The next point that attracts my attention is the way the second ground of appeal (which was meant to be an omnibus or general ground), was couched. This point is too fundamental and crucial to be glossed over by me. With due deference to the learned counsel for the appellant, this penultimate court and indeed the apex court of the land had for a long time decided that the way and manner the said omnibus ground was couched by the appellant is only suitable in criminal cases but not applicable to or suitable in civil cases. See Nwamvata Vs. Esumel (1998) 8 NWLR (Pt.563) 650 at 680. The way it was couched is therefore alien to and unsuitable in civil matter of this nature. It is therefore incompetent and ought to be and is hereby struck out by me. As regards the first ground of appeal, I do not share the view of the learned counsel for the respondent that it is narrative and/or argumentative. A critical look at the particulars thereto does not suggest that it was either narrative or argumentative. In my opinion, it did not violate the provisions of Order 3 Rule 2 (3) of the Court of Appeal Rules, 2002.
Let me now go to the first leg of the respondent’s preliminary objection which pertains to alleged non-acquisition of leave of this or the lower court by the appellant before appealing. It is the submission of the learned respondent’s counsel that the judgment of the lower court being a “consent judgment,” leave of this court or the lower court had to be sought and obtained and that such leave was never so obtained by him prior to the institution of his appeal. On that submission reliance was placed upon Section 241(2) (c) of the 1999 Constitution. The said section reads thus:-
“Section 241 (1)-
An appeal shall be from decisions of the Federal High Court or High Court to the Court of Appeal as of right in the following cases:-
(2) Nothing in this section shall confer any right of appeal:
(a) …
(b) …
(c) without leave of the Federal High Court of High court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.” (emphasis supplied).
Now the salient issue is, ‘Is the judgment of the lower court now being appealed against a ‘consent judgment’ or judgment with consent of the parties? It is settled law, that a consent judgment is a judgment in which terms are/ were settled and agreed upon by the parties to the action. In the instant case and as I highlighted earlier, when the case was called at the lower court, the defendant/respondent admitted his indebtedness to the plaintiff/appellant to the tune of N240,000 as claimed by the latter and gave the date he was to settle the debt. On hearing that, the learned counsel for the plaintiff/appellant agreed with such terms and date for payment as suggested by the defendant/respondent. The learned appellant’s counsel thereafter went further to urge the lower court to enter judgment as admitted by the defendant/respondent. In his own words, the learned counsel said thus;-
“In the circumstance we pray for judgment per our claims and concede to the date of payment.”
The lower court thereupon proceeded to deliver its judgment as per the plaintiffs/appellant’s claim. To my mind, the judgment delivered by the lower court which is now being appealed against is based on what was agreed upon by the parties or on which the terms were settled by the parties. See Lamurde Vs. Adamawa State JSC (1999) 11 NWLR (Pt.629) 86.
Thus, having resolved the issue as to whether the lower court’s judgment was a consent judgment, the next issue is whether the appellant has right to appeal against it to this court as of right. It is settled law, that by the provisions of Section 241 (2)(c) of the 1999 Constitution, appeal to this court against a consent judgment must be with leave of either this court or the lower court. There is no right of appeal as of right from High Court to this court against decision of a High Court delivered with the consent of parties, except with prior leave sought and obtained from this court or the lower court. See Korobotei Vs. Obubo (1999) 9 NWLR (pt, 620) 655 at 678; Lamurde Vs, Adamawa State JSC (supra). Consent judgment is therefore not appeal able as of right but only with leave by virtue of the provisions of Section 241 (2) (c) of the 1999 Constitution. See also Akanbi Vs. Durosaro (1998 )11 NWLR (pt.577) 288.In the instant case there is no dispute that the appellant herein did not seek and obtain the leave of this court or the court below as mandatorily required by the said constitutional provisions. Having failed to obtain such leave to appeal against the said judgment therefore, the appeal before this court is defective procedurally and that defect renders it incompetent. See Owoniboys Technical Service Ltd Vs. John Holt Ltd (1991) 6 NWLR (pt.I99) 550; Williams Vs. Hope Rising Voluntary Funds Society (1982) 1/2 SC 145. Where the institution of an appeal is procedurally defective, especially for want of prior leave to lodge same, such defect renders the appeal incompetent and invalid due to the fundamental breach See Enigbokan Vs. Baruwa (1998) 8 NWLR (pt.560 96.
In the Appellant’s Reply Brief, the learned counsel raised an important point that the trial court delivered its judgment which he appealed against on the date the case was merely fixed for mention. He cited some decided authorities. Ordinary, I should have glossed over or refused to comment on such submissions because there was no ground o appeal covering that point and naturally, no issue was raise on that point for the determination of this court. It was also not raised by the respondent in his preliminary objection. It therefore should not have been raised at all, by the appellant in the Reply brief as ‘Reply Brief is meant to simply be a reply on or response to fresh issue (s) raised in the respondent’s brief. It not an avenue for the appellant to make or introduce new or fresh case or issue.
The appellant’s counsel was therefore wrong to have introduced the extraneous issue in his Reply brief which was never canvassed in the Respondent’s brief of argument. At any rate, I also regard it as an important point which ought not be ignored or swept under the carpet or shoved off so easily. In view of its importance therefore, I shall first of all humbly observe that all the cases cited and relied upon by the learned Appellant’s counsel on that point are not relevant to the facts of the instant appeal. The authorities cited largely relate to default judgments, fair hearing etc unlike the present case. Although this case was earlier fixed for mention, the appellant’s counsel upon the admission of the debt by the respondent (who gave an undertaking to pay same off on a named date), decided to move the lower court to award “judgment as per their claim, and he also confirmed to the court that the date the defendant/respondent agreed to pay back the sum was agreeable or acceptable to them. By so doing, both parties no longer wanted to be given any further date for any hearing or for further proceedings in the matter.
I have earlier in this judgment held that the second ground of appeal is incompetent. I therefore uphold the preliminary objection of the respondent on that leg. The said ground of appeal is therefore hereby struck out. The issue raised on it and all arguments advanced thereon must also be and are accordingly struck out since nothing can be built on or from nothing. See UAC Vs. Mcrov (1962) AC 152.
Coming to the other leg of the objection which has to do with failure on the part of the appellant to first seek and obtain leave of this court or the lower court, I have also earlier held that the institution of the appeal by the appellant is procedurally defective and such gross failure to seek leave had also rendered the entire appeal incompetent. The institution of the appeal without obtaining the leave of either of the two courts which is a prerequisite in appeal against consent judgment, runs riot and violent to the provisions of Section 241(2)(c) of the 1999 Constitution.
For that reason therefore, the preliminary objection by the respondent’s counsel on that point is well-taken and is accordingly sustained. In view of the said constitutional provisions, the appeal is incompetent and must be struck out. It is accordingly so struck out by me.
In the light of all that I have posited above, the preliminary objection succeeds on two points raised and fails on two points. But the two point on which it is sustained, will not however affect my decision that the entire appeal is incompetent since the fundamental defect in the appeal could not be cured. By way of conclusion, I must say that it is trite law, that where a preliminary objection on the incompetence of an appeal is upheld, it will not be necessary to go further to consider the arguments in support of issues for determination distilled by the parties to the appeal. See Onyemeh VS. Egbuchuatam (1996) 5 NWLR (pt. 448) 255 NEPA Vs. Ango (2001) 15 NWLR (PT. 737) 627; NNE Plc Vs. Denclag (2005) 4 NWLR (pt.916) 549 at 613/614.On the whole, since it has been decided by me that the appeal is incompetent, I feel the only appropriate order I should make is to strike it out and I hereby do same. I am not prepared to award any costs, so each party should bear his own costs.

ABUBAKAR ABDULKADIR JEGA, J.C.A: I have had a preview of the judgment of my learned brother, Sanusi, JCA, just delivered. My learned brother has meticulously and exhaustively dealt with the preliminary objection filed and argued in this appeal. I am in full agreement with the reasoning and conclusion reached therein. I too upheld the preliminary objection raised by the learned counsel to the respondent. In the absence of a competent appeal, the appeal is struck out. No order on costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Sanusi, JCA. I agree with his reasoning and the conclusion reached that the preliminary objection raised by the respondent is meritorious and should be upheld.
I add the following brief comments for emphasis. There is no doubt that the crux of the preliminary objection is whether or not the proceedings before the trial court on 27/11/02 culminated in a consent judgment.
The appellant as plaintiff at the Court below filed an originating summons dated 14/11/02 wherein he sought the following reliefs against the respondent as defendant:
1. “An order of the Court to exercise his rights under and agreement entered into between the plaintiff and the defendant dated 12th day of July 1999.
2. And for such further order or orders as the Honourable Court may deem fit and just to make in the circumstances.”
In the supporting affidavit deposed to by one Sarah Bala, Litigation Secretary in the firm of Messrs H. O. Ajibo & Co Solicitors to the plaintiff it is averred in paragraphs 5, 6, 7 and 8 as follows:
“5. That he gave a friendly loan of N240,000.00 to the defendant on the 12th day of July 1999 and an agreement was drawn up an executed whereby the defendant was to repay the loan on 12/8/99 and in consequence he deposited with him the title documents to a plot situate and being located at Mal. Madori Road, Panteka, Kaduna covered by Certificate of Occupancy No. KDA/A.001405 and Sale Agreement between the original owner of the Plot covered by the said C. of O. and Sale Agreement in Hausa and its English translation are attached and marked as exhibits 1, 2, 3 and 4 respectively.
6. That the defendant was to repay the loan of 12/8/99 as per their agreement.
7. That by Exhibit 1 if the defendant defaulted the plaintiff shall exercise his rights as contained in paragraph 5 of the agreement.
8. That despite repeated demands, the defendant has failed, refused or ignored to repay the loan.”
On 27/11/02 the following transpired in court as contained at page 9 of the printed record:
“27 – 11- 2002
Plaintiff – Absent
Defendant – Present in Court Speaks Hausa
Ibrahim Sanusi: affirmed to interpret English to Hausa and vice versa.
Samuel Idhiarhi: The matter is for mention. I ask for another date for mention.
Defendant: No objection. However I admit the plaintiff’s claims in the total sum of N1240,000.00 which I undertake to pay on or before 31/3/2003.
Mr. Idhiarhi: In the circumstances we pray for judgment per our claims and concede to the date of payment.
JUDGMENT
As the defendant has admitted the plaintiff’s claims in the total sum of N240,000.00 per the summons, judgment is hereby entered for the plaintiff and against the defendant per the summons in the total sum of N240,000.00 which the defendant undertook to liquidate on or before the 31/3/2003.
SGD. HON. JUDGE
27/11/2002”
The contention of learned of learned counsel for the respondent is that the judgment was a consent judgment for which leave to appeal must be sought and obtained under the provisions of Section 241 (2) (c) of the 1999 Constitution. It is contended that the requisite leave was neither sought nor obtained and that the appeal is therefore incompetent.
Essentially learned counsel for the appellant argued in his reply brief that the judgment did not satisfy the condition precedent to the delivery of a consent judgment. He relied on the authorities of: Afegbai Vs A. G. Edo State (2001) FWLR (69) 1352 at 1373G and VULCAN GASES LTD Vs G. F Ind. A. G. (2001 FWLR (53) 1 at 44 B to the effect that the parties must be ad idem as to the agreement and the terms of settlement must be filed in Court.
The Supreme Court in: Vulcan Gases ltd. Vs G. F. Ind A. G.(2001) 9 NWLR (719) 610 at 645 F – G cited with approval its earlier decision in Abel Woluchem Vs Dr. Charles Wokoma (1974)3 S. C. 153 per Ibekwe, JSC thus:
“The rule is that actions may be settled by consent during the trial, usually such settlement is a compromise and in order to have 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 where 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 Vulcan Gases Ltd Vs G. F. Ind. A. G. (supra) at 645 H His Lordship Iguh, JSC had this to say:
“In order to have a consent judgment therefore, the parties must reach a complete and final agreement on the vital issues in their terms of settlement. The must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary. The consent judgment emerges the moment the court on the application of the parties enters such compromise agreement as the judgment of the court.”
See also: Afegbai Vs A. G. Edo State (2001) 14 NWLR (733) 425 at 454 H the word “consent” was interpreted by the Supreme Court in: Abdulkarim Vs Incar (Nig.) Ltd. (1992) 7 NWLR (251) 1 at 16 f – G per Nnaemeka Agu, JSC as follows:
“Now it is recognized that the word “consent” has at least two shades of meanings. It could be used in the narrow technical sense with reference to a consent judgment or order in which the parties, irrespective of their claims and contentions in a case agree to strike a compromise embodied in an agreement signed by the parties and subsequently made an order of court. See: Nigeria Water Resources Devt. Ltd Vs Jaiyesimi (1963) 1 ALL NLR 215; (1963) 2 SCNLR 37. This type of judgment or order is not based on any findings of court or the merit of the party’s case on issues in litigation in the case. It is based solely on what the parties themselves have agreed. There is also the broad sense in which the word “consent” is used to qualify a judgment or other decision to which a party submits mainly because he cannot resist it he has nothing to offer against it but he may not necessarily have agreed to it. Both types of judgments or orders are consent judgments/orders all the same.”
In light of the various authorities referred to above it is my considered view that the judgment of the trial court delivered on 27/11/02 has all the features of a consent judgment. The defendant/respondent not only admitted the plaintiff/appellant’s claim, he went further by offering to pay the amount owed on or before 31/3/2003. Learned counsel for the plaintiff/appellant thereupon applied for judgment to be entered and further conceded to the date of payment. Therefore, although not reduced into writing the parties had reached a complete and final agreement on the claim and were ad idem as far as the compromise agreement was concerned. The defendant/respondent offered to pay the amount owed and the plaintiff/appellant’s counsel agreed to accept the payment on the date suggested.
It is presumed that the plaintiff’s counsel by the authority of his client and with full knowledge of the facts consented to the judgment being entered.
The result of all that I have said is that the judgment of the trial court delivered on 27/11/02 was a consent judgment. As no leave has been obtained by the appellant to appeal therefrom in compliance with section 241 (2) (c) of the 1999 Constitution there is no competent appeal before this court.
Accordingly I agree with my learned brother, Sanusi, JCA that this appeal ought to be and is hereby struck out.
I abide by the order on costs contained in the leading judgment.