NNOLI & ANOR v. OLOWU (2020)

NNOLI & ANOR v. OLOWU

(2020)LCN/13973(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/IB/359/2014

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. PASTOR CHRIS NNOLI 2. THE REGISTERED TRUSTEES OF THE ENDURING LOVE CHRISTIAN ASSEMBLY APPELANT(S)

And

MR TAIWO OLOWU RESPONDENT(S)

RATIO

WHETHER OR NOT THERE CAN BE OTHER CONCLUSIONS OTHER THAN ONE ARRIVED AT BY THE TRIAL JUDGE IN AN ORIGINATING SUMMONS

In an Originating Summons, there cannot be any other conclusion other than one arrived at by the trial judge. Any excuse for not complying with clause 2 of the consent judgment including the reasonableness or otherwise of it would be appropriate in an action commenced by Writ of Summons where the facts are in dispute. See: Alims Nig. Ltd. vs. UBA (2006) 4 FWLR (pt. 341) 6901. Suleiman vs. Mr. Ibiso Nwuche & 2 Ors. (2012) 12 S.C. (pt. 11) 107. PER OKORONKWO, J.C.A.

WHETHER OR NOT WRITTEN AGREEMENT FOR TERMS OF SETTLEMENT BY PARTIES TO A DISPUTE BECOMES A CONSENT JUDGEMENT

WHETHER OR NOT CONSENT JUDGMENT IS BINDING ON THE CONSENTING PARTIES AND THEIR PRIVIES

The law is trite that a consent judgment is binding on the consenting parties and their privies and effective in respect of the matters settled therein. It has the same effect as the judgment of a Court given after Arije v Arije (2018) 16 NWLR (Pt. 1644) 57; Afegbai v. Attorney-General of Edo State & Anor (2001) 14 NWLR (Pt. 733) 425; Vulcan Gases Ltd vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V) (2001) 9 NWLR (Pt. 719) 610. PER OJO, J.C.A.

NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): In a considered judgment of the Ogun State High Court delivered 7th April, 2014 per N.O. Durojaiye (Judge) the Court pursuant to an Originating Summons filed by the Respondent herein at the High Court Abeokuta on 17/6/2011 for the construction and interpretation of an agreement between the appellant and respondent which became the basis of a consent judgment between the said Parties in Suit No. AB/77/08 Pastor Chris Nnoli & Anor vs. Mr. Taiwo Olowu which consent judgment was delivered on 14th October, 2010, interpreted the said consent judgment and held pursuant to the construction that partitioning or sharing of the land the subject matter of the consent judgment was done in disregard of the terms of the consent judgment and setting aside the partitioning, the Court ordered another partition in accordance with the terms of the consent judgment and under the supervision of the Principal Registrar 1 of that Court.

Dissatisfied with the judgment, the appellant brought this appeal upon the following grounds of appeal:

”The learned trial Judge misdirected himself and erred in law, when he

came to the conclusion that the Respondent unilaterally partitioned the land and in violent breach and total disregard of the terms of the consent judgment, and consequently set aside the partition of the land and ordered that the land be repartitioned under the direction of the Principal Registrar 1.
The learned trial judge misdirected himself and erred in law when he concluded that “…. it is very clear that what the Respondents considered in the partitioning exercise were selfish interests which are contrary to the terms and spirits of the consent judgment and that the 4 (four) laying pens which were ceded to the Applicant after the partitioning exercise, were only (i.e. small or insignificant), compared to the makeshift office store, the unused pond, feed mill and borehole.”
The learned trial judge misdirected himself and erred in law when it held that the “…the legal remedy opened to the Respondents upon failure of the Applicant to nominate a Surveyor was to go back to Court to complain that the Applicant was frustrating the implementation of the terms of the judgment and ask for a redress”.

From the grounds

of appeal, 1st appellant in his brief of argument filed 2/4/19 formulated three issues for determination viz:
Whether, the conclusion of the trial Court, that Appellant unilaterally partitioned the land in violent breach and total disregard of the terms of the consent judgment in Suit No. AB/77/08, is correct in view of the undisputed facts before it. (Grounds 1 & 4)
Whether the trial Court drew a correct inference that what was considered in the partitioning exercise was selfish interest and contrary to the terms and spirits of the consent judgment in Suit No. AB//77/08. (Grounds 2 & 4)
Whether there is any legal redress open to a litigant after Court has delivered a judgment except to execute or appeal. (Grounds 3 & 4).

The Respondent, similarly in his respondent’s brief of argument filed 2/12/19 raised three issues viz:
Whether having regard to the terms of the judgment voluntarily entered into by the parties and pronounced upon as consent judgment by the Court in Suit No. AB/77/08 BETWEEN PASTOR CHRIS NNOLI (2) REGISTERED TRUSTEES OF ENDURING LOVE CHRISTIAN ASSEMBLY AND MR TAIWO OLOWU, the defendants herein can

partition the land, the subject matter of the consent judgment in such a way that the structures and developments to the defendants?.
Whether the partitioning of the land in such a way that all more structures and development on the land will not form part of the land partition to the Applicant will not be a violent breach of terms of consent judgment voluntarily entered into the parties.
Whether, the Court has the powers to direct the Chief Registrar or any other officer of this Court to supervise the division or partition of the land to be in accordance with the terms of the consent judgment entered into by the parties.

The terms of settlement agreed by the parties which became embodied in the consent judgment of the Court at 29 – 30 of the record is reproduced.

TERMS OF SETTLEMENT
That the subject matter of this Suit, as it is presently fenced, shall be divided into two equal halves and shared between the Plaintiffs and the Defendants.

That both parties shall within 7 days engage separate surveyors or survey technicians, who shall work together, to partition the land and parties shall bear their cost.

That the Defendant shall take that part of the land in which he has more structures and developments.
That the Defendant shall compensate the Plaintiffs for that half of the land which he shall retain, by paying to the Plaintiffs, a total sum of N6.5 Million (Six Million Five Hundred Thousand Naira Only).
That the first installment of N500,000 (Five Hundred Thousand Naira Only) shall be paid by cheque, in favour of the 1st Plaintiff, on or before Thursday 14th of October, 2010.
That the Defendant shall pay the 2nd installment of N1.5 Million (One Million, Five Hundred Thousand Naira Only) to the Plaintiff on or before 30th November, 2010.
That the Defendant shall pay to the Plaintiffs the balance of N4.5 Million (Four Million Five Hundred Thousand Naira Only) on a monthly installment of N500,000 (Five Hundred Thousand Naira Only), from December, 2010 to August 2011.
There shall be no order as to cost
This shall be the judgment of the Court.
Court – The Terms of Settlement above dated 14th October, 2010, filed on 14th October, 2010 and executed by both parties and their respective Counsel is hereby made the judgment of this Court.

From the affidavit evidence filed, the trial judge elicited the respective case of the parties thus:-

For the applicant, herein respondent, the trial Court held:
Briefly put, the case of the Applicant is that a consent judgment was entered for him and the Respondents by the Court in Suit No. AB/77/08 – Pastor Chris Nnoli & 1 Or. Vs.Taiwo Olowu. The Applicant was the Defendant in that case while the Respondents were the Claimants therein. That the terms of settlement which was adopted by the Court in that suit on 14th day of October, 2010 was that the land in dispute should be partitioned into two, with the active participation of the respective parties’ surveyors in a manner prescribed in the said consent judgment.

It is the Applicants’ claim that the Respondents in total disregard to the manner of partitioning as prescribed in the terms of settlement unilaterally partitioned the land in total disregard to the terms of settlement. That all complaints made by the Applicant through his Solicitors fell on deaf ears as the Respondents and their thugs have chased the Applicant and his workmen away from the land.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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And for the respondent (herein appellant), the trial judge observed thus:
The Respondents, on the other hand, insisted that they did not unilaterally partition the land in total disregard to the terms of the consent judgment which they agree is binding on them and the Applicant. It is the case of the Respondents that the Applicant refused to provide a Surveyor to partake in the partitioning exercise and that the Applicant has also failed to meet other terms of the consent judgment, especially the payment of some money as compensation to the Respondents. According to the Respondents, the Applicant has brought this action in order to prevent the Respondents from levying execution against the Applicant under the consent judgment. The Respondents also attach a sketch drawing showing the way the land in dispute was partitioned.

The issue in the case for determination as the trial judge outlined is “whether the partitioning of the land in dispute was done in conformity with the consent judgment in Suit No. AB/77/08 and depending on the answer to the issue whether the Court can make an order for another partition under the supervision of the Court

Registrar 1”.

The trial Court resolved the issue in the negative holding that the partition did not comply with the agreement/terms of settlement of the parties in the consent judgment in that the partition was unilaterally carried out by the appellant and his chosen surveyor and that the appellant was motivated by selfish considerations in partitioning most of the physical structures to his (appellant’s) side” contrary to the terms and spirits of the consent judgment.

In the appellant brief, appellant contend that there was a ruling by P.A. Onamade (Judge) on an interlocutory application by respondent to restrain appellant from unilaterally partitioning the land or carrying on further construction… on the land pending the determination of the substantive case. It is apposite to say at the outset that the ruling on the interlocutory application expired with the judgment and was no longer normative. For the respondent, the following argument was rendered.

The suit was commenced by originating summons and not by Writ of Summons. It was meanly for the Court to interpret clauses 3 & 4 of the consent judgment in

Suit No.AB/77/08, nothing more. The law on originating summons is settled both statutorily and the case laws. The law simply is that originating summons is adopted in non-contentious case, where the facts are not disputes. Pleadings are not required. Affidavit evidence supported with documents are usually adopted. It is adopted for interpretation of contract, deed, will constitution, written laws, other documents or any other question of law in any document. See Agbakoba vs. Director SSS (1999) 3 NWLR (pt. 505) 314, Keyamo vs. House of Assembly, Lagos State (2002) 18 NWLR (pt. 799) 603.
In other-words, the above proposition is to the effect that what the trial judge was anjoined to do in an originating summons is to construe the document in question and apply it to the facts.
In this case, clause 2 of the consent judgment stipules that thus:
“That both parties shall within 7 days engage separate surveyors or survey technicians who work together to partition the land and the parties shall bear their cost.”
This, in my view, is the crux of the matter. In an Originating Summons, there cannot be any other conclusion other than

one arrived at by the trial judge. Any excuse for not complying with clause 2 of the consent judgment including the reasonableness or otherwise of it would be appropriate in an action commenced by Writ of Summons where the facts are in dispute. See: Alims Nig. Ltd. vs. UBA (2006) 4 FWLR (pt. 341) 6901. Suleiman vs. Mr. Ibiso Nwuche & 2 Ors. (2012) 12 S.C. (pt. 11) 107. The question resolves to one point. Did the parties comply with clause 2 of the consent judgment? The answer is simple and is No. That is the basis of the trial Court’s judgment and there is no basis to fault it. Matters of sentiments or subjective reasoning are kept aside.

Accordingly, the appeal lacks merit and is dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I read before now, the judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA.

I agree with my learned brother that the appeal lacks merit. Clearly, the parties did not comply with Clause 2 of the consent judgment. This appeal which is lacking in merit is hereby dismissed.

FOLASADE AYODEJI OJO J.C.A.: I have been opportuned to read the lead judgment delivered by my learned brother,

Nonrerem Okoronkwo, JCA. I am in complete agreement with him that the crux of the instant appeal is whether the parties complied with clause 2 of the consent Judgment.

The law is settled that when parties mutually agree to reach a compromise in relation to their dispute and reduce same into writing, such constitutes a contract which creates new rights between them in substitution for the claim or claims pending before the Court. The written agreement by the parties becomes a consent Judgment. See Woluchem v Wokoma (1974) 3 SC 153; Race Auto Supply Company Ltd & Ors v Akib (2006) 13 NWLR (PC, 997) 333; Star Paper Mill Ltd & Anor v Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647.
Pursuant to the terms of settlement settled and filed by parties in Suit No. AB/77/2008, the lower Court entered a consent Judgment. The terms of the said Judgment of Court is that both parties shall within 7 days engage separate Surveyors or Survey Technicians to work together to partition the land at a cost to be borne by both of them. Furthermore, the partitioning was to be carried out in such a way that the Respondent takes the portion where he has more structures

and development. The Appellants acted contrary to the terms of the said Judgment, They unilaterally partitioned the land in total disregard of the terms of the Judgment. They also partitioned the land in such a way that most of the Respondent’s structures fell in their own portion of the land. The law is trite that a consent judgment is binding on the consenting parties and their privies and effective in respect of the matters settled therein. It has the same effect as the judgment of a Court given after Arije v Arije (2018) 16 NWLR (Pt. 1644) 57; Afegbai v. Attorney-General of Edo State & Anor (2001) 14 NWLR (Pt. 733) 425; Vulcan Gases Ltd vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V) (2001) 9 NWLR (Pt. 719) 610. The lower Court was therefore right when it made Orders to facilitate the enforcement of a valid Judgment of Court.

In the circumstance, I agree that this appeal is devoid of merit and ought to be dismissed. It is also dismissed by me.

Appearances:

Francis Ogunbowale Esq. with Valentine Ogunbowale Esq. For Appellant(s)

O.D. Odusanya Esq. For Respondent(s)