MR. SOLOMON ESHOGBA & ORS v. MR. JOSEPH OKOKO & ANOR
(2018)LCN/12385(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of February, 2018
CA/B/154/2015
RATIO
COURT AND PROCEDURE: WHETHER A CONSENT JUDGMENT REMAINS BINDING
“The law is settled law that a consent judgment remains binding on the parties unless and until it is set aside by a fresh action, if only it can be established that it was obtained by fraud. See Albert Afegbai v. Attorney-General, Edo State & Anor. (2001) 14 NWLR (Pt.733) 425 at 455, per Karibi-Whyte JSC.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURT AND PROCEDURE: PARTIES ARE TO BE CONSISTENT IN THEIR CASE
“A party to any matter or cause is expected to be consistent and honest in the presentation of his claim, as litigation is not a game of hide and seek, deceit or tricks. See Emmanuel Olamide Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 958) 438 at 471-472, per Tobi, JSC and Hon. Muyiwa Inakoju & 17 Ors. v. Hon. Abraham Adeolu Adeleke & 3 Ors. (2007) 4 NWLR (Pt. 1025) 423 at 627, per Tobi, JSC. As a person is required to be consistent in the prosecution of his claim, a party cannot blow hot and cold with one and the same breath, by approbating and reprobating on the same issue. See Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1 at 22, per Ngwuta, JSC.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. MR. SOLOMON ESHOGBA
2. MR. JOHN EDEKI
3. MR. EDISON ESHOGBA
(For themselves and on behalf of
Aziza Family of Ogiedi-Elume) Appellant(s)
AND
1. MR. JOSEPH OKOKO
2. MR. ODAFE OKOKO Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):
The appellants were the claimants in Suit No. S/30/2011, instituted in the High Court of Delta State, holden at Sapele. In paragraph 21 of their joint statement of claim the appellants claimed as follows:
1. A declaration that the Claimants are entitled to the Customary Right of Occupancy over all that parcel of land in dispute which is bounded by New Elume tarred road on one side, Oketebu Stream on the second side, by old footpath on the third side and Amebor Oketebu on the fourth side at OGIEDI-ELUME in Sapele Local Government Area of Delta State.
2. The sum of N5,000,000.00 (Five Million Naira) being damages for trespass and destruction of claimants rubber trees, oil trough, Agric Oil Palm Trees, Cassava farmland, Native Fish Ponds and Economic Trees.
3. An order of perpetual injunction restraining the defendants by themselves, agents, privies, servants or anyone claiming through them and whomsoever from further trespassing on the parcel of land.
4. Any other legal or equitable relied.
As defendants in the trial Court, the respondents filed a joint statement of defence and counterclaim, in which they denied the appellants’ claims and proceeded to counterclaim as follows:
6. A declaration that the unauthorized entry by the claims on the defendants family land described above and the disturbance/harassment of the 2nd defendant and another member of the Ovwere family, without the knowledge, consent or authorization of the defendants family, is unlawful and amounts to trespass.
7. An order directing the claimants to desist or stay clear from the defendants family said land known as Esengua land forthwith, and/or remove all illegal and unauthorized items deposited thereon by the claimants from the said Esengua land.
8. The sum of N10,000,000.00 (Ten Million Naira) being general damages for trespass on the defendants family said land.
9. Perpetual injunction restraining the Claimants, their agents, privies and servants, from continuing any further acts of trespass on the said Esengua land.
The trial Court took evidence from the parties and after the addresses or arguments of the counsel for the parties on 14/04/2014, the Court adjourned the case for judgment to be delivered on 28/05/2014. On the said 28/05/2014, the trial Court delivered its judgment, wherein it concluded as follows:
“Both the claim and counterclaim are hereby non-suited.”
This appeal is against the said decision and the processes relied upon by the appellants, in urging the Court to allow the appeal, are the appellants’ brief filed on 15/02/2017 and the appellants’ reply brief filed on 24/03/2017. On the other hand, the respondents adopted and relied on their brief filed on 20/02/2017 and urged the Court to dismiss the appeal.
The learned counsel for the appellants framed four issues for determination as follows:
(1) Whether the lower Court was right in law to non-suit the parties instead of entering judgment in Claimants favour in view of Claimants overwhelming evidence when compared to defendants counterclaim (Grounds 1 & 2).
(2) Whether the streams owned by families are issues in the case whose ownership is in contention to warrant non-suiting the claimants/appellants. (Ground 3).
(3) Whether the lower Court was right to non suit the defendants/respondents counter claim instead of dismissing it in view of their paucity of credible evidence in support of their case. (Ground 4).
(4) Whether the lower Court was right in law in holding that claimants failure to call the oil trough owner did not help claimant’s case instead of the defendants who claim that he is their agent on the land. (Ground 5).
Learned counsel for the respondents adopted the four issues as framed by the appellants. I also adopt these issues to determine this appeal. However, Issues 1 and 3 shall be treated together since they may be sufficient to dispose off the entire appeal.
ISSUES 1 AND 3
(1) Whether the lower Court was right in law to non-suit the parties instead of entering judgment in Claimants favour in view of Claimants overwhelming evidence when compared to defendants counterclaim (Grounds 1 & 2).
(3) Whether the lower Court was right to non suit the defendants/respondents counter claim instead of dismissing it in view of their paucity of credible evidence in support of their case. (Ground 4).
The argument of learned counsel for the appellants is that the trial Court was wrong to have nonsuited both their claim and the respondents’ counterclaim. Learned contended that:
“…it is our submission that in placing or juxtaposing the evidence of claimants alongside that of the defendants, the claimants evidence preponderates and out weights the evidence of the defendants and the claimants were therefore entitled to judgment in their favour and not a non-suit while the defendants case ought to be dismissed and not non-suited.”
Counsel submitted that the counterclaim ought to have been dismissed and not nonsuited because the evidence of the 1st respondent, who testified on behalf of both respondents, was ‘spurious and without any substance’.
The judgment of the trial Court spans pages 198 to 206 of the record of appeal. The trial Court, after summarizing the evidence adduced by the parties and the legal arguments of their respective learned counsel, made some findings of both facts and law. The trial Court found and held that it was ‘unable to come to a decision based on the evidence adduced by both parties in the case’. See page 205 of the record. And on page 206 of the record of appeal, the following conversation took place between the learned trial Judge and learned counsel for both the appellants and the respondents:
Court:- …. I am unable to come to a decision based on the evidence adduced by both parties in the case.
I therefore call on the parties to address me on the issue of non-suit, so that I am not compelled to dismiss both the claim and the counter claim of the parties.
G.U. Kerewi: In the interest of Justice, I plead with the Court to Non-suit the parties, so that they can put forward the Claimants case properly.
E.O. Okirikpo: I also align myself with the claimants’ counsel, and that the parties be non suited so that we can put forward our case more convincingly.
(Underlining mine for emphasis)
After the plea of learned counsel, reproduced above, the trial Court proceeded to nonsuit both the claim and counterclaim.
The decision of the trial Court, nonsuiting both the claim and counterclaim; based on the facts as recorded and reproduced above, can be described as an agreed judgment or a consent judgment.
The Supreme Court, in the case of Albert Afegbai v. Attorney-General, Edo State & Anor. (2001) 14 NWLR (Pt.733) 425 at 454, per Karibi-Whyte JSC; described a consent judgment as follows:
“There is a consent judgment where parties to an action in Court have fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties ? See N.W.R.D. v. Jaiyesimi (1963) 2 All NLR 215; (1963) 2 SCNLR 37. See also Woluchem v. Wokoma (1974) 3 SC. 135; (1974) 1 All NLR 605 at p. 617.”
In this case, although the parties did not settle the matter outside the Court and thereafter apply for judgment to be entered as agreed, since both parties in open Court agreed that the case be nonsuited, the decision or judgment nonsuiting the action, as agreed between the parties, qualifies a species of consent judgment.
The law is settled law that a consent judgment remains binding on the parties unless and until it is set aside by a fresh action, if only it can be established that it was obtained by fraud. See Albert Afegbai v. Attorney-General, Edo State & Anor. (2001) 14 NWLR (Pt.733) 425 at 455, per Karibi-Whyte JSC.
It should be noted that the learned counsel for the appellants was also their counsel in the trial Court. I wish to remind us that civil litigation is a very serious legal business. A party to any matter or cause is expected to be consistent and honest in the presentation of his claim, as litigation is not a game of hide and seek, deceit or tricks. See Emmanuel Olamide Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 958) 438 at 471-472, per Tobi, JSC and Hon. Muyiwa Inakoju & 17 Ors. v. Hon. Abraham Adeolu Adeleke & 3 Ors. (2007) 4 NWLR (Pt. 1025) 423 at 627, per Tobi, JSC.
As a person is required to be consistent in the prosecution of his claim, a party cannot blow hot and cold with one and the same breath, by approbating and reprobating on the same issue. See Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1 at 22, per Ngwuta, JSC.
Since the decision appealed against is a consent judgment and it was not set aside in the trial Court as required by law, the appellants are not entitled to have these two issues resolved in their favour. Consequently, Issues 1 and 3 are hereby resolved against the appellants.
By the resolution of Issues 1 and 3 against the appellants, the appeal itself has been fully determined, as the decision sought to be set aside subsists and remains binding on the parties.
To be brief, I find no merit in this appeal which is hereby dismissed.
The sum of N50,000.00 is hereby awarded as costs in favour of the respondents against the appellants.
JIMI OLUKAYODE BADA, J.C.A.:I read before now the draft of the lead Judgment just delivered by my learned brother MOORE ASEIMO ADUMEIN, JCA and I agree with my lord’s reasoning and conclusion.
My Lord has dealt with the issues in this appeal appropriately. It is also my view that this appeal lacks merit and it is also dismissed by me.
I abide by the consequential orders made in the said lead Judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My Lord, MOORE ASEIMO ABRAHAM ADUMEIN, JCA, obliged me with the draft of the leading Judgment just delivered. I agree that being unmeritorious, this appeal ought to be dismissed.
My contribution shall be circumscribed to this comment that it is a rudimentary principle of procedure that parties must be consistent in their case. It is also a trite law that parties as litigants are not permitted to approbate and reprobate in the conduct of their case. See EZOMO V. A.G. BENDEL STATE (1986) 4 NWLR (Pt. 36) 448 at 462; KAYODE V. ODUTOLA (2001) 11 NWLR (Pt. 725) 659; DR. MICHAEL EMUAKPOR ABEKE V. BARRISTER A.A. ODUNSI & ANOR (2013) LPELR 20640.
For these and the more detailed reasons in the leading Judgment that I, too, shall enter an order dismissing this appeal.
Appeal dismissed.
I abide by the consequential order.
10
Appearances:
G. U. Kerewi, Esq.For Appellant(s)
E. O. Okirikpo,Esq.For Respondent(s)
>
Appearances
G. U. Kerewi, Esq.For Appellant
AND
E. O. Okirikpo,Esq.For Respondent
