NATIONAL DIRECTORATE OF EMPLOYMENT (NDE) V. MRS. ABIMBOLA FOLASAYO & ORS
(2007)LCN/2569(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2007
CA/I/118/2003
RATIO
JUDGMENT AND ORDER – CONSENT JUDGMENT : WHETHER CONSENT JUDGMENT IN APPROPRIATE CASES CAN SUSTAIN A PLEA OF RES JUDICATA
“..it is true that a consent Judgment can, in appropriate cases, sustain a plea of res judicata. The fact that a Judgment was obtained upon consent of both parties will not bar it from operating as estoppel – see The Honda Place Ltd. V. Globe Motors Ltd. (2005) 14 NWLR (pt. 945) 273 SC” PER AUGIE, J.C.A.
JUDGMENT AND ORDER – CONSENT JUDGMENT AND JUDGMENT BASED ON ADMISSION : DISTINCTION BETWEEN A CONSENT JUDGMENT AND JUDGMENT BASED ON ADMISSION
“..there is a great difference between a consent Judgment and a Judgment entered on basis of admission. To have a consent Judgment, the parties must be ad idem as far as the agreement is concerned, and the Terms of Settlement must be filed in Court; it is when the Court makes an order based upon such Terms of Settlement that a consent Judgment emerges – see Ojora V. Agip (Nig.) Ltd, (2005) 4 NWLR (pt 916) 515. In contrast, where the claim is for a definite sum allegedly owed by the Defendant, and the Defendant admits owing part of this sum, the Court can and usually will enter Judgment for the sum admitted and leave the balance of the claim to be contested by the parties – see A.I.B. Ltd. v. Packoplast (Nig.) Ltd, (2003) 1NWLR (Pt. 802) 502; A.T.M. Plc v. B.V.T. Ltd. (2007) 1NWLR (pt. 1015) 259, & Ikpala Estates Hotel Ltd. V. NEPA (2004) 11 (Pt. 884) 249” PER AUGIE, J.C.A.
PRACTICE AND PROCEDURE – UNDEFENDED LIST PROCEDURE : WHETHER A COURT CAN ENTER JUDGMENT FOR AN ADMITTED SUM AND TRANSFER THE DISPUTED SUM TO THE GENERAL CAUSE LIST
“..it is a general principle that it is either the whole suit is heard as an undefended suit or the whole suit is transferred to the general cause list, but a Court can enter Judgment for an admitted sum and transfer the disputed sum to the general cause list – see A.T.M. Plc v. B.V.T. Ltd. (supra), where this Court observed as follows. The claim is for a liquidated sum alleged owed by the Defendant, and the Defendant admits owing part of it. There should be no difficulty in the Court entering Judgment for the sum admitted leaving the balance to be tried on the general cause list.” PER AUGIE, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
NATIONAL DIRECTORATE OF EMPLOYMENT (NDE) Appellant(s)
AND
1. MRS. ABIMBOLA FOLASAYO
2. MR. OLAJIRE ABIMBOLA
3. DR. BABATUNDE ISHOLA Respondent(s)
AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant, a statutory body established to give loans to unemployed Graduate Youths, was granted leave by the High Court, Ibadan, Oyo State to file an action under the undefended list against the Respondents, wherein it claimed N12, 403.66, being balance of the loan granted to the 1st Respondent and guaranteed by her husband, the 2nd Respondent and the 3rd Respondent, and interest on the sum at the rate of 9% per annum from January 1996.
The Respondents filed their Notice of Intention to Defend supported by a 12 paragraph Affidavit and a Further Affidavit of 6-paragraphs, to which was attached as Exhibit “AO1” – a Consent Judgment dated 24th January 1996, which the Appellant had obtained in an earlier action under the undefended list against the 1st Respondent and two other Defendants in Suit No. 1/596/95.
They later filed a Motion on Notice praying the lower Court for “an order dismissing/striking out the – suit for abuse of the process of the Court.
The Motion was supported by a 13-paragraph Affidavit wherein they averred-
7. That the claim in the said Suit No. 1/596/95 was the same with the present suit now before this Court.
8. The Defendants in Suit No. 1/596/95 disputed the Plaintiff’s claim under “Administrative and legal Charges”
9. That the Defendants pleaded liable to the sum of N26, 707.38K, which the Plaintiff consented to.
10. That on 24th January 1996 Judgment was entered against the Defendants in the sum of N26,707.38k.
11. That the Judgment (attached as Exhibit A) was a consent Judgment.
12. That the plaintiff is estopped from bringing the present action.
The Motion came up for hearing on the 9th of April 1997, and after counsel addressed the court, the learned trial Judge, M.O. Adio, J., held as follows-
“I therefore accept the submission of Chief Odunlade that the judgment of 24/1/96 is a consent judgment and the parties are estopped from relitigating the issue. Even though the 2nd & 3rd Defendants are different in the two case, the Plaintiff cannot split out action into several action on the same issue. It is trite that the court is under a duty to discourage proliferation and prolongation of disputes. In my view the issue in this case has been put to sleep in the judgment in I/596/95 of 24/1/96. the Application succeeds and the action is accordingly struck out. No order as to cost.”
Being dissatisfied with the Ruling, the Appellant appealed to this court with a Notice of Appeal containing two Grounds of Appeal and in the Appellant’s Brief settled by Prince Abioye A. Oloyede Assanike, it was submitted that the sole issue that calls for determination in this appeal is simply whether the-
“Judgment entered in I/596/95 was a consent judgment and constitute estoppel between the parties”.
The Respondent however submitted in their own Brief of Argument settled by Chief Obiyera Odunlade that the Issues for Determination are as follows-
(1) Whether the Appellant can bring a fresh case after the determination of suit I/559/95.
(2) Whether the Appellants could re-litigate on the subject matter of suit I/559/95 in which suit final judgment had been delivered.
In my view, the Respondents merely split the appellant’s issue into two; there is not much difference in the points canvassed that cannot be covered by the Appellant’s Issue, I will therefore adopt it in dealing with this appeal. The Appellant referred the court to the judgment in suit No. I/559/95, and citing Ajakaiye v. Mil. Gov. of Bendel State (1993) 9 SCNJ 242 submitted that the plea of estoppel cannot avail the Respondents because though the 1st Respondent was the 1st Appellant, the action was withdrawn against Oba Okunade Sijuade, Oni of Ife and Chief (Mrs.) Teju Alakija – the 2nd & 3rd Defendants in that case; that the judgment was not a consent judgment, citing Osobajo v. Amoda 91992) 7 SCNJ 317; that the sums being claimed in the two suits are different; and going in the alternative, that the judgment giving rise to estoppel can only be against the 1st Appellant.
The Respondents on their part simply argued that the parties in both Suits are the same; that the claims in both Suits are the same; and that the Appellant cannot split its action to several actions on the same Issue since the Issue in Suit No, I/413/96 has been put to sleep by the Judgment in Suit 1/596/95.
Yes, it is true that a consent Judgment can, in appropriate cases, sustain a plea of res judicata. The fact that a Judgment was obtained upon consent of both parties will not bar it from operating as estoppel – see The Honda Place Ltd. V. Globe Motors Ltd. (2005) 14 NWLR (pt. 945) 273 SC.
However, there is a great difference between a consent Judgment and a Judgment entered on basis of admission. To have a consent Judgment, the parties must be ad idem as far as the agreement is concerned, and the Terms of Settlement must be filed in Court; it is when the Court makes an order based upon such Terms of Settlement that a consent Judgment emerges –
see Ojora V. Agip (Nig.) Ltd, (2005) 4 NWLR (pt 916) 515. In contrast, where the claim is for a definite sum allegedly owed by the Defendant, and the Defendant admits owing part of this sum, the Court can and usually will enter Judgment for the sum admitted and leave the balance of the claim to be contested by the parties – see A.I.B. Ltd. v. Packoplast (Nig.) Ltd, (2003) 1NWLR (Pt. 802) 502; A.T.M. Plc v. B.V.T. Ltd. (2007) 1NWLR (pt. 1015) 259, & Ikpala Estates Hotel Ltd. V. NEPA (2004) 11 (Pt. 884) 249.
In this case, part of the record of proceedings in I/596/95 (Exhibit A) reads-
“Prince Oloyede – At this stage, I would pray that Judgment be now entered in favour of the Plaintiff in this suit in the sum of N2.6,707,38, which the 1st Defendant (1st Respondent herein) admitted at paragraphs(3) and (4) of her said Affidavit dated 15th January 1996. Chief Odunlade concedes that Judgment be entered in favour of the Plaintiff against the 1st Defendant in the sum of N2.6, 707.38 as admitted by her in her said Affidavit.
JUDGMENT
As prayed by Prince Oloyede, the Plaintiff’s counsel, and conceded by Chief Odunlade, the 1st Defendant’s counsel. JUDGMENT is hereby entered in this suit in favour of the Plaintiff against the 1st Defendant in the sum of N26, 707-38 as admitted by the 1st Defendant in her Affidavit dated and sworn on the 15th January 1996, particularly at paragraphs (3) and (4) thereof. There will be no order as to costs”.
Clearly, the Judgment of 24th January 1996 in 1/596/95 is NOT a consent Judgment; it is a Judgment entered in favour of the Appellant that was based on an admission by the 1st Respondent that she owed that amount to it.
The Respondents are not contesting the fact that the 1st Respondent pleaded liable to the sum of N26, 707.38k, and had disputed the Appellant’s claim under the head – “Administrative and Legal Charges”; It is their contention however that the Appellant is estopped from bringing the present action for-
(1) The sum of N12, 403.66 being balance of loan granted to the 1st Defendant and guaranteed by the 2nd and 3rd Defendants.
(2) Interest at the rate of 9% per annum from January 1995 on the sum of money until it is fully repaid.
Estoppel is a bar that prevents one from asserting a claim or right that contravenes what one has said or done before or what has been legally established as true; it is a bar that prevents the re-litigation of issues – see Black’s Law Dictionary, 7th Ed., Oyede V. Olusesi (2005) 16 NWLR (Pt. 951) 341; & Okposin V. Assam (2005) 14 NWLR (Pt. 945) 495 SC. For the principle to apply, the following pre-conditions must be present-
(a) The parties must be the same in the present case as in the previous case;
(b) The issue and subject matter must be the same in the previous suit as in the present suit;
(c) The adjudication in the previous case must have been given by a
Court of competent jurisdiction; and
(d) The previous decision must have finally decided the issues between the parties – see Okposin V. Assam (supra).
In this case, apart from the 1st Respondent, the Defendants are not the same, Exhibit A shows that Prince Oloyede withdrew the action against the 2nd and 3rd Defendants in 1/595/95, which was not opposed by Chief Odunlade, and the lower Court struck out the suit against them. The Appellant explained in paragraph 9 of its Affidavit in support of the present case that-
“The 1st Defendant was sued in Suit No. 1/596/95 together with two other people as guarantors who were later discovered to have been joined wrongly because the Plaintiff could not lay hands on the guarantee forms signed by the 2nd & 3rd Defendants herein before instituting the action”.
The 2nd and 3rd Defendants in the present case are Mr. Olajide Abimbola, the 1st Respondent’s husband, and Dr. Babatunde Ishola, who allegedly guaranteed the loan given to her, and the lower Court therefore erred when it held that-
“The 2nd and 3rd Defendants are different in the two cases, but the Plaintiff have themselves to blame, it is of no consequence and I therefore hold that the parties are the same”, (Italics mine)
The lower Court cannot approbate and reprobate at the same time; it can not say the Defendants are different and hold they are the same in one breath.
And It is certainly of consequence; the law says before a Judgment can operate as an estoppel, the parties to the two proceedings must be the same.
Not only must the parties be the case, the subject matter of both proceedings must also be the same, and in this case, Judgment was entered in the Appellant’s favour for the admitted sum of N2.6,707.38k, leaving a disputed balance of N10, 000.00 to be contested, and the lower Court was definitely off the mark when it held that “there is no other transaction of indebtedness” between the parties; and that “the Plaintiff cannot split out actions into several actions on the same issue”, True enough, it is a general principle that it is either the whole suit is heard as an undefended suit or the whole suit is transferred to the general cause list, but a Court can enter Judgment for an admitted sum and transfer the disputed sum to the general cause list – see A.T.M. Plc v. B.V.T. Ltd. (supra), where this Court observed as follows.
The claim is for a liquidated sum alleged owed by the Defendant, and the Defendant admits owing part of it. There should be no difficulty in the Court entering Judgment for the sum admitted leaving the balance to be tried on the general cause list.” (Italics mine)
No issue has been raised as to why the Appellant did not pursue its case to its logical conclusion in I/596/95 but it would have been in order for the lower Court to transfer the disputed claim to the general cause list for hearing, and for this lower Court to dismiss the Respondents’ Application and do same.
The interest claimed still had to be assessed and proved at a trial also, thus, the only option open to the lower Court was to have transferred the whole suit to the general cause list for adjudication and not to strike out the action. The end result is that the appeal succeeds and is allowed. The Ruling delivered by the lower Court in Suit No, I/431/96 on the 9th of April 1997 is hereby set aside, and the said Suit is remitted to the Chief Judge of Oyo State for assignment to another Judge for hearing. I make no order as to costs.
K.B. AKAAHS, J.C.A.: I was privileged to read in draft the judgment of my learned brother, Augie J.C.A. I agree with her reasoning and conclusion that there is merit in the appeal. There is a clear distinction between a judgment given in consequence of an admission to a certain amount in a claim and a consent judgment. A consent judgment can arise where the plaintiff is satisfied with the amount admitted and decides to forgo any other sum that is disputed or there is a negotiated settlement of the amount admitted by the defendant.
Usually terms of settlement are drawn up which have been agreed by the parties and they are filed in court and they become the judgment of the court.
It then becomes a final judgment and the plaintiff will be estopped from instituting another suit to claim the amount he had earlier agreed to forgo.
See: OJORA v. AGIP (NIG) LTD. (2005) 4 NWLR (pt. 945) 273. The Supreme Court held in MENAKAYA v. MENAKAYA (2001) 16 NWLR (pt. 738) 203 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 agree 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.
But where, for instance, there is a liquidated claim with interest and the debt is admitted but the interest chargeable is being disputed, the trial Judge can enter judgment for the admitted sum and then order pleadings to be filed leading to calling of evidence to establish the interest. See: ISHOLA V. S.G.B. LTD. (1997) 2 NWLR (pt. 488) 405 SC.; A.I.B. LTD v. PACKOPLAST (NIG) LTD. (2003) 1 NWLR (pt.802) 502; IKPALA ESTATES HOTEL LTD v. NEPA (2004) 11 NWLR (pt.884) 249 A.T.M. PLC v. B.V.T. LTD. (2007) 1 NWLR (pt.1015) 259. Such a judgment is not final but interlocutory See: KENLICK HOLDINGS LIMITED v. R.E. INVESTMENT LTD. (1997) 11 NWLR (pt.529) 438. In the instant case, apart from the 1st defendant who admitted part of the claim in respect of which judgment was entered, the case against the guarantors could be pursued for the realization of the balance of the amount claimed which is N10,000.00.
In the circumstances, I too will allow the appeal and set aside the Ruling of M.O. Adio J. delivered on 9/4/97 in suit No. 1/431/96. The suit is remitted to the Chief Judge of Oyo Slate for assignment to another Judge.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my brother A.A Augie, JCA.
I agree with his reasoning and conclusions. I also allow the appeal, and the order remitting the suit back to the learned Chief Judge of Oyo State for assignment to another Judge for hearing.
I abide with the order as to costs.
Appearances
Prince Abloye A. Oloyede-Asanike with A. Adeoye, Esq.For Appellant
AND
Chief Obiyera OdunladeFor Respondent
