HABIB BANK NIGERIA PLC V. LODIGIANI (NIGERIA) LTD (2010)

HABIB BANK NIGERIA PLC V. LODIGIANI (NIGERIA) LTD

(2010)LCN/3643(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of March, 2010

CA/K/240/07

RATIO

COURT: ATTITUDE OF COURT TOWARDS SETTLEMENT OF DISAGREEMENTS OUT OF COURT

JUDGMENT: REQUIREMENT FOR A CONSENT JUDGMENT

The explication of a consent judgment given by the Supreme Court in Menakaya in Menakaya (2001) 16 NWLR Part 738 page 203 worths referring to at this juncture.

ORDER: EFFECT OF AN ORDER STRIKING OUT A CASE

It must be emphasized that an order striking out a case is different from that of a dismissal which forecloses further litigation on the same subject matter. A striking out order keeps the claim alive. See, also, Oronti vs Onigbanjo (2004) 17 NWLR Part 903, page 601, where it was held that an order striking out a matter clearly preserves to the parties, the right to relitigate the matter, because, there has been no proper determination on the merits. PER THERESA NGOLIKA ORJI-ABADUA, JCA

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

HABIB BANK NIGERIA PLC Appellant(s)

AND

LODIGIANI (NIGERIA) LTD Respondent(s)

MOHAMMED LAWAL GARBA, (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Kaduna State contained in a ruling delivered on the 19/2/07 relisting the suit No KDH/KAD/809/05 on its cause list after it was struck out on application by the plaintiff, Respondent herein.
The Respondent had in both the writ of summons dated 30 11 05 and the statement of claim dated 20/2/2006 at page 2 and 11 respectively of the record of appeal, made the following claims against the Appellant-
“1. A Declaration that the Defendant is not entitled to the sum of N8,689.00 (Eight Million, Six Hundred and eighty Nine thousand Naira) being management fee commission and processing fee charged on the performance Bond dated 21st June, 2005.
2. A Declaration that the said fee charable is limited to the actual amount routed through the Plaintiffs Account No. 1301171503 operated with the Apapa Branch of the Defendants Bank.
3. Special Damages on the sum of N4,179,689.00 (Million, One Hundred and Seventy Nine Thousand, Six Hundred and eighty Nine Naira Only) been the refund on the Performance Bond payable to the Plaintiff.
4. General Damages on the sum of N50,000.000.00 (Fifty Million Naira) for anticipated loss of profit, breach of the mutual agreement by the parties and trusting of the speedy completion of the Plaintiff contract with ECOBANK Plc by the Defendants refusal to grant the Plaintiff on overdraft facility.”
After the exchange of pleadings by the learned counsel for the parties, the matter was set down for hearing on the 01/06/06 on which day, the following is the record of what happened as contained at page 40 of the record of appeal –
Iroajamma:- The matter is for proof, the defendant have filed a motion on notice we are not opposing. Parties are however discussing settlement. We therefore ask for a date for report of settlement.
Okechukwu:- That is the position. Before the Court is a motion seeking for the prayer as contained on the face of the motion paper. The plaintiff/respondent are not opposing, we therefore move in terms of our application and urge the court to grant our application as prayed.
Iroajamma:- No objection.
Court:- Application as brought and moved is granted and the matter is adjourned to the 20/06/06 for report of settlement.
Then on 20/6/06, the proceedings were as follows –
Iroajamma:- We are happy to inform the Court that parties have taken steps towards settlement and that the defendant have paid 80% or the claim. On account of this development we are humbly applying that this suit be struck out.
UDONIAH:- No objection.
Court:- Matter struck out based on the settlement.
The import of the above proceedings is that the parties had taken steps to settle the case and that Appellant had paid 80% of the Respondents’ claims as a result of which learned counsel applied to the High Court for the case to be struck out. In the concise order of the High Court. “The matter struck out based on settlement.”
The matter was undoubtedly removed from the High Court causelist of the instance of the Respondent on the ground of settlement by being struck out.
Later by a motion dated and filed on the 25/7/06, the Respondent prayed the High Court for the following reliefs –
1. AN ORDER relisting the above named suit which was struck out by this Honourable Court on 20th June, 2006.
2. And such further order(s) as the Honourable Court may make in the circumstances of this case.”
The Appellant opposed the motion and accordingly filed a counter affidavit in reaction to the affidavit in support thereof After hearing learned counsel, the High Court in the ruling aforementioned, relisted the suit thereby resulting in the present appeal, the Appellant being dissatisfied with it.
With the leave of the High Court, a Notice of Appeal containing a single ground of Appeal was filed on the 11/4/07 against the ruling In the Appellant’s brief of argument filed on the 3/8/07, the following issue was distilled from the ground of appeal for decision in the appeal –
“(1) Whether the lower Court was right in relisting the suit based on the totality of facts before it. For the Respondent, the issue was formulated at page 4 of the Respondents’ brief of argument to filed on the 7/9/2007 in the following terms.”
For the Respondent the issue was formulated at page 4 of the Respondent’s Brief of argument filed on 7/9/2008 in the following terms –
“Whether the trial judgment properly ordered the relisting of the suit, based on all the oral and documentary evidence available before her.”
It is clear that the only difference between the issues is as to the form they were couched by learned counsel. As a result, I would use the issue formulated by the learned counsel for the Appellant in the determination of the appeal
It was submitted for the Appellant on the issue that the averments in the Responds’ affidavit in support of the application to relist particularly paragraphs 3 (a) (c) and (d) are contrary to the earlier reason given by the learned counsel when he applied that the case be struck out because the Appellant had paid 80% of the Respondents;’ claim. Also that the Appellants’ had exhibited evidence that the Respondent had agreed on the sum of N4,010,629 88 which was credited to its account as requested in its counter affidavit to the motion to relist the suit but that the High court had relied on the Respondents’ letter dated 22/5/2006 to hold that there still pending issues to be determined in the suit It was contended by learned counsel that the letter did not in any way say that any amount was outstanding after the payment of the agreed sum and after making reference to a portion of the Respondent’s letter, he said if the amount paid was not final payment it would leave clearly stated so. Furthermore, it was submitted that as the Court would not infer terms into clear terms agreed to by the parties, the parties are bound by the terms they agreed on, relying on OYENETIN V. AKINKUGBE (2001) 1 NWLR (693) 40 @ 57. He said the Respondents’ letter being in clear terms should be taken as it is on the figure stated as accepted final payment because the parties intended it to be final payment The case of NIMANTEKE ASSOCIATES .V. MARCO CONSTRUTION CO. LTD (2009) 2 NWLR (174) 374 @ 427 was cited on the duty of the court to strictly interpret clear terms of agreement between parties.
On the assumption that the parties had not agreed that the amount paid was final payment, it was argued by learned counsel that there was misrepresentation or misconception by the parties which the High Court acknowledged in its ruling. He said on that ground, the High Court should have struck out the application to relist as obtained a judgment of a Court on ground of misrepresentation or misconception can only be relisted by fresh action, citing authority, the case of VULCAN GASES LTD. V. G.P.INDUSTRIES A.G. 2001) 9 NWLR (719) 610 @ 646.
In conclusion, we were urged by learned counsel to allow the appeal and dismiss the application to relist the suit
The submissions by the learned counsel for the Respondent were that since the suit was struck out
because the Appellant had paid 80% of the Respondent’s claim, there was still 20% to be settled and that was why no terms of settlement were filed in the Court to be entered as consent judgment. According to him, the Respondent applied for the suit to be struck out on the understanding that negotiation will continue and settlement reached but that there was no consensus that the money paid by the Appellant was full and final settlement of the their suit.
The cases of ADEDEJI V. OLOSO (2007) ALL FWLR (346) 611 @ 657 AND RAS LTD. V. AKIB (2006) 10 MJSC 190 @ 207 were cited on the definition of a consent judgment and it was contended that none of essentials of a consent judgment were shown to exist in the appeal and so the authorities cited by the learned Appellant’s counsel are not relevant. In addition, that the Appellants’ silence despite repeated assertions by the Respondent that there were outstanding issues to be settled between them lends credence to the fact that there was never any final settlement between the parties.
It was also argued that there was no evidence to support the Appellant’s averment in paragraph 4 (d) of the counter affidavit to the application to relist which is said to be an after thought Relying on section 151 of the Evidence Act, (which was set out), learned counsel argued that the Appellant is estopped from denying their outstanding liability since the silence amounted to implied admission.
In another vein, it was submitted that a matter is struck out when it was not heard on the merit and a plaintiff is allowed to re-file a fresh suit and so cannot by any stretch of imagination amount to a final judgment. That a plaintiff whose suit is struck out has the opportunity to go back to the same Court by either applying for the case to be relisted or commence a fresh suit. Reliance was placed on CROWN FLOUR MILLS V. OWODUNNI (2005) ALL FWLR (257) 1553 @ 1568 and it was further submitted that relisting a case struck out was discretionary, which the High Court in its ruling exercised judicially and judiciously.
It was once more submitted that there was never any settlement, concessus or agreement between the parties of the suit between them which the Appellant called final and were urged to dismiss the appeal for lacking in merit.
I would start a consideration of the issue canvassed by learned counsel in the appeal by observing that the Respondent’s case was not heard on the merit by the High Court before the request for it to be struck out for the reason given by him.
Hearing a case on the merit involves the production of evidence by the parties in support of their respective pleadings, the evaluation or assessment of such evidence by the Court and decision/s by the Court on the issues joined by the parties which finally determines their rights thereto.
The record of the appeal clearly shows that there terms of the settlement said to have been reached by the parties filed in the High Court for the purpose of being made the judgment of the case between them.
In these circumstances, there was therefore no judgment whether on the merit or on the terms of settlement (or consented to by the parties) entered by the High Court in the case. That explains why the case was simply “struck out based on the settlement.” I have perused the High Court Civil Procedure) Rules and cannot find provisions which allow or permits a plaintiff to apply for the striking out of a matter he filed because parties “have taken steps towards settlement”. There can be no dispute that the High Court possesses the inherent discretionary power and jurisdiction to relist a matter which was not heard on the merit but which was struck out of the cause list for any reason See EASTERN BREWERIES PLC .V. INUEN (2000) 3 NWLR (650) 662 @ 675 ANYAFULU V. AGAZE (2005) 3 NWLR (912) 416 @ 432.
The plaintiff, the Respondent in this appeal, had a duty in law to inform or notify the High court of the efforts or move by the parties to settle the matter amicably out of Court and the High Court has a duty to encourage such settlement by the parties OBAYIUWAN V. EDE (1998) 1 NWLR (535) AND ISULIGHT (NIG) LTD V. JACKSON (2005) 11 NWLR (937) 631 @ 658 where it was held that a plaintiff is bound to so inform the Court of the parties having settled out court in order to have the matter struck out, the action having been compromised.
In the case of ABEY .V. VAREX (1999) 14 NWLR (657) 138 @ 159, the Supreme Court had held that –
“It is in consonance with, the right of parties to settle civil actions out of Court and the established practice is that this should be encouraged by the courts whenever there is such a move by the parties at any stage of pending civil proceedings save in specified circumstances in which public interest or policy element is involved.”
In the present appeal, where the plaintiff informed the High court that parties have taken steps towards settlement, it is clear that settlement was not yet completed and the parties were still in the process of negotiating the terms and conditions which are to be agreed upon as the complete and final settlement of the case by them outside of Court. The proper thing was therefore for the parties to have completed the steps towards settlement and then reported back to the High Court, the final terms and conditions agreed upon by them which would be made the judgment of the High Court in the case, binding on the parties WOLUCHEM V. WOKOMA (1974) 3SC 753. Before final settlement of the outstanding issues by the parties in the case, the appropriate application by the Respondents and order by the High Court should have been one for adjournment of the matter to another date to enable the parties complete the process of final settlement and a report , the terms there of, made to the High Court. In order to avoid going into the facts which may arise and affect the merit of the outstanding dispute between the parties, it suffices for me to say that at the time the High Court struck out the case of the Respondent, the parties had undoubtedly not concluded the settlement that court was informed they had taken steps towards. So if the effort or attempt to finalize or complete the settlement failed out of court, the Respondent was entitled to go back to the High Court for the resolution of the outstanding dispute between the parties in the case, if any. The Respondent could apply in the circumstances for the High Court to relist the case and the High court had the inherent jurisdiction to make an order relisting the case and restoring it on the cause list for determination of the outstanding claim made by the Respondent REG.,TRUSTEES OF IFELODUN V. KUKU (1991) 5 NWLR 1989 65, OKNT .V. ONIGBANJO (2004) 17 NWLR (903) 601 @ 613.
It is at the trial of the outstanding dispute that the High court should determine whether or not there was misrepresentation or misconception in the payment and acceptance of the amount acknowledged by the parties in their negotiation to settle the case out of court. Consequently the authorities cited by the learned counsel in their respective submissions are not yet ripe for application in this appeal except the case of CROWN FLOUR MILLS .V. OWODUNNI on the entitlement of the Respondent to apply for the case to be relisted.
In the final result, based on the totality of the facts before it, my finding for the reasons given above is that the High court was right in relisting the Respondent’s case for determination of the outstanding issues in dispute between the parties.
Consequently, I revolve the lone issue in the appeal against the Appellant and hereby dismiss the appeal for want of merit.
Parties are to bear their respective cost of the appeal.
JOHN INYANG OKORO, J.C.A: I am in complete agreement with the reasons and conclusion of my learned brother, Garba, JCA in the lead judgment just delivered by him, having been availed a copy of the said judgment before now The lone issue submitted by the parties for the determination of this appeal has been thoroughly, efficiently and, quite admirably resolved by my learned brother in line with the law and practice relating thereto. I just have a few words to add in support only.
A plaintiff who has brought his complaint before a court has unfettered right to withdraw same if he so desires before judgment is entered. This he can do by applying to the court to withdraw same. Where such an application is granted, the proper order by the court is to strike out the suit, meaning that the right of the parties have not been finally determined by the court. It means also that the parties can apply to relist the matter for the determination of the issues on the merit. See Crown Flour Mills V. Owoduni (2005) All FWLR (Pt 257) 1553.

Again, even where a matter has been filed in court, the parties are not precluded from exploring avenues for amicable settlement of their grievance out of court. Courts do encourage parties to peacefully settle their disagreements and thereafter inform the court of the outcome of the settlement. No court can insist or compel the parties to complete their case before it where there is room for amicable settlement See Obayiuwana V. Ede (1998) 1 NWLR (pt 535) page 670.
What happened in the instant appeal is that having settled up to 80% of their grievances, they thought it would be easy to settle the balance of 20% for which they urged the court to strike out the case which the trial court obliged. When the Respondent as plaintiff discovered that they could not agree on the balance of 20%, he returned to the court for that aspect to be determined by the court. I share the view of my learned brother in the lead judgment that the learned trial judge was absolutely right and grounded in law to have granted the application to relist the matter.
Consequently, I hold that this appeal by the Appellant has no basis whatsoever and is also dismissed by me. I abide by all the consequential orders made in the lead judgment. I also agree that parties should bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, JCA: I had read in advance, the leading judgment of my Learned brother, M L Garba, J C A, and I entirely agree with him that this appeal is devoid of merit. It is clear on the record of this appeal that no consent judgment of any nature was entered in favour of the parties before the trial Court, as no terms of which were settled and agreed to by the parties to the action were presented before the trial Court.
The explication of a consent judgment given by the Supreme Court in Menakaya in Menakaya (2001) 16 NWLR Part 738 page 203 worths referring to at this juncture.

It was held therein that for there to be a consent judgment, there must have been an agreement of the parties on all aspects of the matter to be covered by the consent judgment Thus, where the parties agreed on some aspects and have not agreed on others, they should be permitted to reach an agreement on the latter, or resolve the points of disagreement by evidence before judgment is pronounced The judge cannot proceed to judgment without a hearing and in the absence of the parties arriving at terms of settlement. In this case, there was an agreement on some “specific proposals”, but, on some aspects the matter was left to further discussion, while on yet some other aspects, the parties did not reach an agreement at all. In these circumstances, the parties should have been afforded the opportunity of adducing oral evidence. The trial Judge should have proceeded to trial by calling on the parties to adduce evidence in support of their respective cases.
In the instant appeal, the suit between the parties, was, on the application of the Plaintiff, who instituted the same, struck out by the trial Court. It seems clear, therefore, that the said suit was not struck out for want of diligent prosecution nor for lack of jurisdiction. It was struck out on the promptings of the Plaintiff, which is tantamount to an application for withdrawal of a suit.

It is a long aged principle, which was, also, embedded in the Rules of High Court of Kaduna State that an order striking out a matter, gives an opportunity to the party who instituted the action to apply to the Court for an order relisting the same, or to file a fresh action. Striking out a suit means removal of the suit from the cause list of a Court. Therefore, save in matters struck out for want of jurisdiction, any cause or suit struck out may, by leave of Court be relisted. As I earlier mentioned, except in cases struck out for lack of jurisdiction, an order striking out suit is not a final decision which can deprive the trial Court of jurisdiction to reconsider the matter. In Anyafulu vs Agazie (2005) 3 NWLR Part 912 page 416, it was held inter alia, that once a matter is struck out by a trial Court, it means that the matter has not been heard or determined on the merits. Therefore, if a party whose matter is struck out has sufficient reasons why the matter must be heard on the merits, he can apply to the Court which struck out the suit based on good reasons explaining why the matter should be heard on the merits.

If the Court is satisfied with the party’s explanation, the Court can relist the matter and hear it on the merits. It must be emphasized that an order striking out a case is different from that of a dismissal which forecloses further litigation on the same subject matter. A striking out order keeps the claim alive. See, also, Oronti vs Onigbanjo (2004) 17 NWLR Part 903, page 601, where it was held that an order striking out a matter clearly preserves to the parties, the right to relitigate the matter, because, there has been no proper determination on the merits.
The suit between the parties herein was struck out on the application of the Respondent, basically on the fact that about 80% of the Appellant’s indebtedness in respect of which the suit was initially instituted had been liquidated by the Appellant The said suit could be relisted under the Kaduna State High Court (Civil Procedure) Rules, although there will need for an amendment to be effected reflecting the exact unpaid balance of the sum being claimed by the Appellant.
Accordingly, I, too, dismiss this appeal with no order as to costs.

Appearances

G. UDONDIA ESQ
N. EKANEM ESQ.For Appellant

AND

B.A. EBEBEZER ESQ.
R. USMAN (MS)For Respondent