SAMMANIN FATIHU GALADANCHI v. ABDULMALIK & ANOR
(2014)LCN/7163(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of May, 2014
CA/K/218/2012
RATIO
CONTRACT: WHETHER PARTIES MAY BE BOUND TO THE TERMS OF AN UNREAD DOCUMENT
It is trite that when a document containing contractual terms is signed then in the absence of fraud or misrepresentation, the party signing it is bound and it is wholly immaterial whether he has read the document or not. See Ugbomor vs. Hadomeh (1997) 9 NWLR Part 520 page 307, Allied Bank Nig. Ltd. vs. Akubeze (1997) 6 NWLR Part 509 page 374.
In Star Paper Mill Ltd. vs. Adetunji (2009) 13 NWLR Part 1159 page 647, the Supreme Court, per Adekeye, J. S. C., held that it is the role of a judex in adjudication to encourage amicable settlement in a suit where it can adequately meet and satisfy the end of the justice.
The court has a discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged Terms of Settlement, which to all intents and purposes are Compromise Agreement, entered into by the parties to a suit, should be scrutinized and made an order of court.
When Terms of Settlement or in other words Compromise Agreement become an order of court on the application of the parties, it, in legal parlance, becomes a CONSENT JUDGMENT. According to Black’s Law Dictionary 8th Edition a Consent Judgment can also be referred to as AGREED JUDGMENT which means:-
“A settlement that becomes a court judgment when the judge sanctions it. In effect an agreed judgment is thereby a contract acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgment”. Under our procedural laws actions may be settled by consent during trial. In order to be legally binding on the parties it is imperative that it should be sanctioned by court. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
Between
SAMMANIN FATIHU GALADANCHI Appellant(s)
AND
ABDULMALIK
FARUKU KAWU Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The record before this Court portrays that the parties agreed to enter into a business transaction wherein the Appellant would advance the sum of N42,632,755.00 (Forty Two Million, Six Hundred and Thirty Two Thousand, Seven Hundred and Fifty-Five Naira only) as capital to be invested in the business. It was further agreed that the expected profit of the business shall be shared by apportioning (one quarter) to the Appellant and ‘be (three quarters) to the Defendants. The business transaction was executed as planned and profit was realized as anticipated to the tune of N30,357,645.00. It was averred in the Appellant’s pleading that his share of ‘bc portion then stood at N7,589,911.00, which not paid to him as agreed. Being vexed by that, the Appellant then proceeded to the Upper Sharia Court, Shahuchi on 1/7/2011 to lodge his claim. As a result, the Respondents were summoned by the Upper Sharia Court. Hearing was however, conducted, but, before the conclusion, the parties had on their own volition on 11/7/2011 reached an out of Court settlement which the Appellant’s a Counsel informed the Upper Sharia Court about on 22/7/2011. Upon the information, the Upper Sharia Court enquired from the parties and indeed confirmed that they reached a settlement even though the 2nd Respondent laboured fruitlessly to deny the same.
Following the same, the Upper Sharia Court after hearing the parties delivered its judgment on 29/8/2011 describing the parties’ venture as a partnership and then gave validity to the settlement by holding thus:
“the moment settlement has been reached or made it is forbidden under the Islamic law, to withdraw it even if other parties agreed to be withdrawn from the settlement, that will not be allowed under the Islamic law. See Provision of Tuhfa: – The reason why it is like that is because there will be an endless litigation that is why it is mandatory upon the Court to uphold the settlement since the parties involved were matured and sane. It is on the of the provision quoted above, I Mohd Abubakar Bello Upper Sharia Court Judge Shahuci (sic) held that the settlement made between the parties are hereby upheld by the court in order to get peace between them. Anybody who is not satisfy (sic) with the judgment can appeal to S. C. A. in 30 days from today 29/8/2011.”
The 1st Respondent was dissatisfied with the judgment that he appealed against it to the Appellate Division of the lower Court, i.e. High Court of Kano State which later heard the appeal and then allowed it and set aside the said judgment of the Upper Sharia Court. It is interesting to note that the Kano State High Court in considering the appeal took cognizance of certain principles of Islamic law. The lower Court in its appellate jurisdiction allowed the appeal, set aside the judgment of the Upper Sharia Court and remitted the case for retrial by Upper Sharia Court, Yan’awaki. See pages 156-160 of the record.
It is against this background that the Appellant, the Plaintiff in the suit, filed the present appeal to this Court which he based on six grounds of appeal. The parties filed their respective Briefs of Argument. The Appellant phrased only two issues for the determination of this Court in the following manner:
“1. Whether the lower Court was competent to hear and determine appeal from a decision based purely on the principle of Islamic Law emanating from the trial Court without being assisted by an assessor learned in Islamic law.
2. Whether the lower was right by refusing to consider and make pronouncement on the main issue of Sulhu(Reconciliation) raised and admitted by both parties and based its decision on the two incompetent grounds of appeal it earlier struck out relating to the evidence of PW1 and PW11.”
The Respondents, however, filed a Notice of Preliminary Objection on the ground that:
“1. Particulars (a), (b) and (c) did not correlate and/or have bearing with ground No. 1 of the Notice of Appeal dated the 9th June, 2010.
2. Issue No. 2 as contained in the Appellant’s Brief is not distilled from any of the 3 grounds of appeal contained in the Notice of Appeal dated the 9th June, 2010.
3. Ground number one is not a complaint that emanated from the judgment appealed against.
4. Particulars (a) did not correlate and/or has no bearing with ground No. 2.
5. No issue for determination has been distilled from ground No. 3 as such (sic) same is deemed abandoned.”
Further, the Respondents presented two issues for the consideration of this Court. They are;
“i. Whether the lower Court has the jurisdictional competence to hear and determine appeal from the decision of Upper Sharia Court on causes and matters outside the confines of Islamic Personal Law and whether section 6 of the Sharia Court slaw, 2000 has lawfully and justifiably widen the scope of the jurisdiction of the Sharia Court of Appeal to the extent that it can hear and determine appeal on all causes and matters beyond Islamic law of personal status.
ii. Whether the purported Sulhu that the Appellant claimed to have been severally admitted by the Respondent is made an integral part of the record of the trial Court.”
In the argument presented on behalf of the Appellant by his Counsel, Yakubu Abdullahi Esq., Sections 277(1), 277(2) and 272(1) mentioned therein seemed to have been muddled up, though the focal point made therein is that by Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the jurisdiction of the lower Court, i.e., High Court of Kano State, can only be exercised within the headings and or matters enumerated thereunder. Learned Counsel referenced Sections 277(1) of the Constitution and 6(2) of the Sharia Court Law of Kano State Law, 2000, and submitted that in any civil or criminal proceedings from the judgment of Upper Sharia Court, an appeal shall lie to the Sharia Court of Appeal. He equally pointed out that by Section 62 of the Kano State High Court Laws, Cap 57, the lower Court while exercising its appellate jurisdiction from the Upper Area Court, cannot exercise such appellate jurisdiction in matters that are subject to the appellate jurisdiction of the Sharia Court of Appeal. He cited the cases of Umaru vs. Aliyu (2011) 2 SCNJ 155 at 158-159; Goodwill vs. Witt (2011) 3 SCNJ 241 at 248; SLB Consortium vs. NNPC (2011) 4 SCNJ 155 at 170 and Mani Ziza vs. Ahmas Na Mamman (2006) 3 SLR Part 11 page 51 at 71, Section 62 of the Kano State High Court Laws Cap 57 which stipulates that the High Court shall have jurisdiction to hear appeals (other than appeals in respect of matters which are the subject of the jurisdiction of the Sharia Court of Appeal) from Upper Area Courts, and stressed that by the nature and procedure adopted at the trial Court, and the submissions of Counsel at the lower Court, the lower Court was dealing with an issue of Islamic law which is beyond its jurisdiction. He submitted that by the combined effect of Sections 277(1) and (2), 272(1) of the 1999 Constitution (as amended); 62 of the Kano State High Court Law Cap 57 and 5(2) of the Sharia Court Law 2000 of Kano State, the lower Court has no jurisdiction to hear and determine appeal No. K/80A/2011 against the judgment of the Upper Sharia Court Shahuci in suit No.CV-218-2011, therefore, the entire proceeding conducted thereon is a nullity.
With regard to issue No. 2, reference was made to the Notice and Grounds of Appeal dated 26/9/2011 filed by the Respondent at the trial Court, the two issues formulated by the Appellant herein at the lower Court, the findings of the lower Court at pages 159-160 of the record, the remarks of the lower Court at pages 149-151 of the record declaring the additional grounds of appeal and issues raised therein as incompetent and it was submitted that the lower Court’s decision was based on the incompetent additional grounds of appeal Nos. 4 and 5 and issues framed thereon. He further relied on the cases of Alhassan vs. Jaji (unreported) Appeal No. CA/K/93/86; and Idami vs. Kusumi (2007) 3 SL Part IV page 208 at 282; Adelekan Vs. Ecu-line N.V. (2005) NSCQR part II page 780 at page 806 para. A – H; Nwankwo Vs. Edcs (2007) SCNJ page 89 at page 99 para. 15-20; Umanah Vs Attah (2005) 27 NSCQR page 706 page 734; Aderigbigbe Vs. Abidoye (2009) 4 SCNJ page 259 at pages 274 – 275; Ekulo Farms Ltd Vs U.B.N. Nig. Plc (2005) JNSC (pt.15) 641. Dagaci of Dere Vs. Dagaci Ebwa (2006) 4 JNSC (part 14) page 446 at page 483 – 484 paras. G – B; Umoru Vs Akinvede (2005) 2 JNSC (part 7) page 746 at page 758 para; A- E Agbo Vs State (2006) 4 JNSC (part 13) page 253 at page 278 – 279 para; H – A Umanah Vs Attah (2005) 5 JNSC part 20 page 529 at page 542 para; C- D. Onochie Vs Odogwu (2005) 1 JNSC part 3 pages 441 – 442 para; G – A. Osa Sonavs Ajayi (2004) 18 (part) 1 page 409 at page 427 para; U. A. Kalgo JSC News Watch Vs. Attah (2005) NSCQR (part 1) page 438 at pages 467 – 458) Adejugbe Vs. Ologunja (2004) 17 NSCQR page 343 at page 352 para D – F; Mallam Nasidi & 2 Ors Vs. Zaida Hauna (2006) 3 SLR (part II) page 154 at page 155 – 157; Hada Vs. Malumfashi (1993) 7 NWLR (pt. 303) P. 17 Muhammad A; Idami Vs. Bukar Kusumi (2007) 3 SL (part IV) page 208 at page 282 ratio 9; Ta Baba Gano Vs. Shaibu Gano (2007)3 SLR (part IV) page 98 at page 99 ratio 1; Ibrahim Hamza Vs Lawan And Yusuf (2006) 2 SLR (Part III) page 142 at page 152 and Alhaji Umaru Haruna Mai-Aiki vs. Danladi Mai Daji (2006) 3 SLR (part II) page 39 at page 44. It was contended that the lower Court had a duty to pronounce on the issue of Sulhu (Reconciliation) raised and relied upon particularly by the Appellant herein. He argued that failure by the lower Court to consider the said issue of Sulhu is fatal to the judgment of the lower Court. He then urged that issue No. 2 be resolved in favour of the Appellant because the lower Court failed to consider the main issue of Sulhu raised before it for determination and wrongly applied the provision of Islamic Law and failed to advert its mind to the fact that the issue of sulhu (reconciliation was admitted by both the Respondents and the Appellant need no further evidence to prove.
The Respondents rendered argument in respect of their preliminary Objection at pages 4-14 of their Brief of Argument. They relied on several authorities such as Kalu vs. Onwuegbe (2008) ALL FWLR Part 435 page 1713; Omotosho vs. Ojo (2008) All FWLR Part 408 page 389; Regd. Trustees, L.C.N. vs. Obot (2009) ALL FWLR Part 477 page 67; Womilojo vs. Anibiri (2010) ALL FWLR Part 529 page 1002; W.A.E.C. vs. Adeyanju (2008) ALL FWLR Part 428 page 206; Lambo vs. Adetunji (2008) ALL FWLR Part 419 page 556; and submitted that Particulars (a), (b) and (c) in support of ground No.1 of the Notice of Appeal dated 9/6/2010 and filed on 26/6/2012 are incompetent for being vague and not having any correlation with ground No. 1. He stressed that issues Nos. 1 and 2 distilled from grounds Nos. 1 and 2 are liable to be struck out as same cannot stand having been formulated from incompetent grounds. He stated that Ground No. 1 was framed from a Ruling delivered by the lower Court on 24/4/2012 on an application made by the Appellant challenging the jurisdictional competence of the lower Court to hear and determine the case in question not appealed against.
He contended that where no leave of Court was obtained to argue the same, it is fatal. He further pointed out that the issue whether the lower Court sits with an assessor was decided in the Ruling of 24/4/2012. It was further contended that none of the three grounds of appeal contained the complaint of not sitting with assessors and that the lower Court did not make any pronouncement as to whether a party or parties to reconciliation (Sulhu) duly entered under Islamic Law can withdraw from it.
In relation to their arguments regarding the appeal proper, it was submitted that Sharia Court of Appeal is a creation of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and as such, it is only the Constitution that will confer, expand, limit or widen its jurisdiction. He relied on the cases of Fayemi vs. Oni ALL FWLR Part 554 page 1 at 71; A.G. Abia State vs. A.G of the Federation (2006) 16 NWLR Par 1005 page 265; PDP vs. CPC (2011) 17 NWLR Part 1277 page 485; It was submitted that the lower Court was the right venue of instituting Appeal No.K/80A/2011 being an appeal against the decision of the trial Court (Upper Sharia Court) on matters outside the confines of Islamic Personal Law. Learned Counsel for the Respondents explained in depth that the subject matter of the dispute at the trial Court was originally a claim of 1/4 of the total profit realized from the business transaction duly entered between the Appellant and the Respondents, and that was exactly what the Appellant stated at the trial Court when he was instituting the action at pages 106-107 of the record of appeal. He argued that the claim of the Appellant did not qualify for determination in accordance with Islamic Personal Law. He strongly submitted that the claim of the Appellant before the trial Court did not fall under any of the five items enumerated under Section 277(2) of the 1999 Constitution as amended, therefore, it is the State High Court and not the Sharia Court of Appeal that has the jurisdictional competence to hear and determine it. He referred to Usman vs. Kareem (2006) ALL FWLR Part 314 page 363; Garji vs. Garji (2007) All FWLR Part 345 page 494; and reiterated that the subject matter in dispute between the parties was in respect of the profit of the sum of N7,589,911.00 which the Appellant later claimed that a settlement for the sum of N5,211,200.00 was reached by the parties which he agreed to accept as full and final settlement of his entitlement, that the claim was absolutely the contemplation of section 277(21(a-e) of the 1999 Constitution as amended. He therefore, urged this Court to hold that Kano State High Court was the proper venue to institute Appeal No. K/80A/2011 and not Sharia Court of Appeal.
With regard to issue No. 2, learned Counsel submitted that the Respondents did not admit the existence of valid settlement between themselves and the Appellant. He referred to the 2nd Respondent’s testimony at page 116 of the record and the case of Alfa vs. Zakari (2010) ALL FWLR Part 575 page 283; Garuba vs. Kwara Investment Co. Ltd (2005) All FWLR Part 252 page 469; and Orji vs. Dorji ile Mills (Nig) Ltd (2010) ALL FWLR Part 519 page 999; and submitted that it could not have been possible that a party who did not sign on a document can be said to have consented and/or admitted to the existence and validity of the said document. Learned Counsel further contended that failure to produce the original copy of the purported settlement agreement is detrimental to the Appellant’s case. He argued it was not an integral part of the record of the trial Court and as such, it is fatal to the Appellant’s case at the lower Court. He then urged this Court to uphold the decision of the lower Court and hold that the lower Court was right in ignoring the settlement agreement.
He further cited the cases of Jallco Ltd & anor vs. Owoniboys Tech. Service Ltd (1995) 4 NWLR Part 391 page 534; Essien vs. Ekanem (2010) All FWLR Part 523 page 1993; and Ogli Oko Memorial Farms Ltd vs. N.A.C.B. Ltd (2008) All FWLR Part 419 page 400 to buttress his point.
In the Appellant’s Reply the cases of Akamb vs. Raji (1998) 12 NWLR Part 518-860; Agbiti vs. Nigeria Navy (2011) 2 SCNJ page 1 at 4 ratio, 5, 7, 8 and 9; North-South Pet. (Nig) Ltd vs. F.G.N. (2002) 17 NWLR Part 797 page 539 at 645 ratio 5; Duwin vs. Beneks (2008) 2 SCNJ Page 1 at 13 & 14; and African Newspapers vs. Akano (2012) ALL FWLR Part 505 page 245 at 256 paragraphs D-F Ratio 1 were further relied upon by Counsel.
I have carefully considered all the submissions of learned Counsel for the parties in respect of the Preliminary Objection raised by the Respondents and the respective issues phrased by the parties in their Briefs. I must admit that the grounds of appeal herein are deeper and wider than the parties had imagined and perceived. It is not as easy as the Appellant’s Counsel had argued particularly with the jurisdiction of the lower Court in relation to Islamic Personal Law. Regarding the Respondents’ Preliminary Objection, the same is hereby partly overruled by me. The Appellant is at liberty to raise the issue of jurisdiction of the lower Court at any time, even before this Court without leave of the Court.
In considering this appeal I find the first issue submitted by the Respondents and the Appellant’s second issue quite apt therefore, the issues to be considered in this are appeal are as follows:
“1. Whether the lower Court has the jurisdictional competence to hear and determine appeal from the decision of Upper Sharia Court on causes and matters outside the confines of Islamic Personal Law and whether section 6 of the Sharia Court slaw, 2000 has lawfully and justifiably widen the scope of the jurisdiction of the Sharia Court of Appeal to the extent that it can hear and determine appeal on all causes and matters beyond Islamic law of personal status.
2. Whether the lower was right by refusing to consider and make pronouncement on the main issue of Sulhu(Reconciliation) raised and admitted by both parties and based its decision on the two incompetent grounds of appeal it earlier struck out relating to the evidence of PW1 and PW11.”
Section 277 of the 1999 Constitution of the Federal Republic of Nigeria unambiguously laid out the scope of the Sharia Court of Appeal jurisdiction. It stipulated thus:
1. The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law which the court is competent to decide in accordance with the provisions of subsection (2) of this section.
2. For the purposes of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –
“a. any question of Islamic personal Law regarding a marriage concluded in accordance with that Law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;
b. where all the parties to the proceedings are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant;
c. any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;
d. any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm; or
e. where all the parties to the proceedings, being muslims, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.”
The fundamental and qualifying factor in Section 277 is “Islamic Personal Law”. It is the yardstick for determining or defining the jurisdictional circumference of the Sharia Court of Appeal. Personal law has been relatively defined. Although there has not been a clear cut definition of this terminology, ‘Personal Law’, some writers have described it as “the law and custom as to succession and family relations”. It has also been referred to as the law “by which an individual is governed in respect of various matters such as, the essential validity of a marriage, the effects of marriage on the proprietary rights of husband and wife, jurisdiction in divorce or nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables”.
It must be observed that the applicability of personal law depends solely on religion. For instance, Hindu, Muslim, Christian, Parsi, e.t.c are governed by their own personal laws as Hindu law, Muslim law, Christian law, Parsi law, respectively. From the religious point of view the personal law is defined as “that body of law which apply to a person or to a matter solely on the ground of his belonging to or its being associated with a particular religion”.
Section 277 of the 1999 Constitution as amended circumscribed the jurisdiction of Sharia Court of Appeal in relation to Islamic Personal Law.
It enumerated the items that shall be placed by way of appeal from the Upper Sharia Court to the Sharia Court of Appeal. It is only under paragraph (e) of Section 277 sub-section 2 of the 1999 Constitution that the Appellants may take refuge, but the qualification therein is that all the parties to the proceedings, being muslims, would request the court that hears the case in the first instance to determine it in accordance with Islamic Personal Law.
By the aforementioned section of the 1999 Constitution, the Sharia Court of Appeal, has no jurisdiction to hear and determine the appeal which does not raise any question on Islamic Personal Law.
A claim for ownership of land simpliciter is not, therefore, an appropriate case for which the Sharia Court of Appeal can exercise jurisdiction under Section 277(2)(a)-(e) of the Constitution of the Federal Republic of Nigeria, 1999. Such appeals should be filed at the High Court of a State which has jurisdiction to hear it. See Mununga v. Muninga (1997) 11 NWLR (Pt. 527) 1; Usman v. Kareem (1995) 2 NWLR (Pt. 379) 547; Garba v. Dogonyaro (1991) 1 NWLR (Pt. 165) 102″. See Furfuri v. Rawayyah (2008) ALL FWLR Part 401 page 1000 at 1011 – 1012, paras. F – A, per Adamu, JCA.
Its evident in the claims of the Appellant and the case he presented before the Court of first instance, i.e. Upper Sharia Court, that the same had nothing whatsoever to do with a marriage concluded in accordance with Islamic Law, question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant; any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant; any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim; and any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm.
I may perhaps mention that this case is dissimilar from the case of Kareem vs. Usman (1994) LPELR – 3430(SC) where Ogwuegbu, J.S.C., observed that the cause of action in the appeal involves a gift and the donors are Moslems. “Section 242(2)(c) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree No. 25 of 1985 vests the Sharia Court of Appeal with jurisdiction to exercise appellate and supervisory jurisdiction in civil proceedings involving question of Islamic Law which the court is competent to decide in accordance with the provisions of subsection (2) of that section.” He opined that the proper court to appeal against the decision of Grade II Area Court, Ilorin on a question of Islamic law relating to gift as in this case, is the Sharia Court of Appeal, Kwara State.
In the instant appeal, the dispute between the parties as indicated in the matter presented by the Appellant at the Upper Sharia Court arose from the partnership business or transaction/agreement entered into by the parties before they embarked on the business relationship. It entailed the business of importation of goods and sharing the profit realized very proportionately. It was a pure business transaction or a partnership venture. The goods were imported and sold as planned but the rate of sharing was not complied with, and as such, the 1/4% portion of the anticipated profit was not paid to the Appellant. The Respondents contended that the profit was not realized which then resulted in their inability to fulfill the terms of the Sales Agreement between the parties. This then spurred the Appellant to filing the action at the Court of first instance.
It is trite that it is the claim of the Plaintiff that determines the jurisdiction of the Court, therefore, it is the claim of the Plaintiff or in this case, the Appellant, at the time of presentation of the same before the Upper Sharia Court that would determine whether the claim bordered on the Islamic Personal Law as adumbrated in Section 277 of the 1999 Constitution (as amended).
In fact, the record before this Court clearly shows that the issue of settlement of the matter out of Court surfaced through the Appellant’s Counsel in reaction to the 2nd Respondent’s assertion that they did not make profit except loss. The Appellant’s Counsel then retorted that was why they wanted a consent judgment. It is also explicit in the record that the said terms of settlement were not drawn up in accordance with Islamic law and principles nor was it meant to be determined in accordance with the same. There is, equally, a clear manifestation that it was the Court of first instance, in dealing with the issue of the said settlement between the parties in the course of writing its judgment that made reference to the provisions of the Islamic law touching on settlement. The trial Upper Sharia Court merely remarked that the moment settlement has been reached or made, it is forbidden to withdraw it and then entered judgment in line with that after ascertaining from the parties how and where the settlement was drawn up. After the judgment, the trial Court advised that any discontented party should appeal to the Sharia Court of Appeal within 30 days from the date of the judgment. The Respondents, then, chose to appeal against the said judgment before the High Court of Kano State rather than the Sharia Court of Appeal.
One outstanding point in the record is that the parties neither consented to the matter being decided in accordance with Islamic Personal Law nor invited the Upper Sharia Court to determine their claims based on Islamic Personal Law as prescribed by Section 277 of the 1999 Constitution as amended. The Appellant merely sued the Respondents before the Upper Sharia Court on a failed business deal or contract and wanted to enforce the terms of their business agreement or have the same complied with.
The record further reveals that it was the Respondents who, at the time of filing their Notice of Appeal, transformed the case of ordinary business transaction or partnership venture between the parties into, apparently, a question of Islamic Law, by raising the issue of absence of ingredients of valid settlement according to Islamic law in the purported settlement between the parties. To compound the problem, the Respondents seemingly anchored their Notice of Appeal on Islamic law and principles, the lower Court was, in turn, caught up in making remarks laced with the same.
Notwithstanding the confusion or lack of appreciation of the law applicable to the instant parties’ case on the part of both the trial Upper Sharia Court and the lower Court, it is a well established principle of law as was rekindled by the Supreme Court in the case of Alhaji Ahmadu Babale vs. Amina Aminu Abdulkadir (1993) 24 N.S.C.C part 1 page 271 or (1993) 2 SCNJ 110, that the jurisdiction of the Court is determined by the claim of the plaintiff, per Karibi Whyte; J.S.C. Then, Kawu, J. S. C., stated that:
“The duty of a trial court is to resolve the dispute between the parties as presented by them. As was clearly pointed out by this Court in Adebanjo v. Brown (1990)3 NWLR. (Pt. 141) 561 it is not the business of a trial Court to make out a case for a party as the trial Upper Area Court would appear to have done in this case. In my view the Upper Area Court was in error to have come to the conclusion that the dispute between the parties related to an issue of joint inheritance under Islamic personal Law when the evidence before the Court did not support such a conclusion.”
What the parties appear to have between them is a joint venture which has been defined as an association of two or more persons formed to carry out a single business enterprise for profit in which they combine their property, money, efforts, skill, and knowledge. It is a contractual agreement that joins together two or more parties for the purpose of executing a particular business undertaking where all parties agree to share the profit and loss of the enterprise. The contributions of the respective parties need not be equal or of the same character.
However, there must be some contribution by each co-adventurer that promotes the enterprise [ii]. A joint adventure is not created by operation of law. It may also be described as a ‘Partnership’. The word ‘Partnership’, according to Business Dictionary.com, is a type of business organization in which two or more individuals pool money, skills, and other resources, and share profit and loss in accordance with terms of the partnership agreement. In absence of such agreement, a partnership is assumed to exist where the participants in an enterprise agree to share the associated risks and rewards proportionately. This was exactly what the parties ventured.
I must admit, after a thorough study of the record of the proceedings of the Upper Sharia Court, that I am unable to find any scintilla of evidence to support the contention of the Appellant that this matter fell under the Islamic Personal Law which he contended robbed the lower Court of the jurisdiction to hear and determine the appeal presented by the Respondents. As I stated earlier, there are no features in the case that can bring it under the jurisdiction of the Sharia Court of Appeal as provided by Section 277 of the 1999 Constitution (as amended). The plaintiff’s claim did not match any of the circumstances enumerated under Section 277 of the Constitution. Also, as I earlier stated, it is the duty of a trial court to resolve the dispute between the parties as presented by them. I must observe it was wrong of the trial Upper Sharia Court to have painted the scenario or given the impression of having dealt with the Appellant’s claim under Islamic Personal law and even advised any aggrieved party to appeal to the Sharia Court of Appeal within 30 days from the date of judgment, i.e 29/8/2011.
It is my considered view that the lower Court rightly assumed jurisdiction to hear the appeal emanating from the said decision of the Upper Sharia Court, as this is a pure case of business relationship, i.e. a joint venture/partnership in the business of buying and selling. Section 62 of the Kano High Court Laws, Cap 57 specifically mentioned and excluded matters which are the subject of the jurisdiction of the Sharia Court of Appeal. As I had examined and stated earlier, the suit commenced by the Appellant at the Upper Sharia Court did not fall within the causes over which the Sharia Court of Appeal has jurisdiction. The whole confusion was just a figment of the Appellant’s imagination. Furthermore, Section 6(2) of the Sharia Court Law 2000 is subordinate and subject to the 1999 Constitution of the Federal Republic of Nigeria (as amended) and cannot take precedence over that.
The 1999 Constitution as amended has, in unmistakable terms and words, circumscribed the items of Islamic Personal Law in respect of or over which the Sharia Court of Appeal has jurisdiction.
It is trite that any aspect of a State Law that is in conflict with any provisions of the grundnorm or basic norm of this Country, i.e the Constitution of the Federal Republic of Nigeria, 1999 as amended is void. In view of the foregoing, I have no other conviction than to resolve this issue No 1 in favour of the Respondents.
Now considering issue No. 2, raised by the Appellant, that is to say, whether the lower Court was right by refusing to consider and make pronouncement on the main issue of Sulhu (Reconciliation) raised and admitted by both parties and based its decision on the two incompetent grounds of appeal it earlier struck out relating to the evidence of PW1 and PW11,’ it is pertinent to have a closer look at the remarks made by the lower Court in that respect. The lower Court dealt extensively with the position of the said Reconciliation Agreement at pages 154-156 of the record thus:
“We have keenly noted that the counsel of both parties in this appeal dwelt much on the validity or otherwise of the sulh agreement between the parties before the trial Court. We have perused the certified true copy of the trial Court proceedings in Hausa language and its certified in English true translation, but we are unable to see the content of the document in question where it was tendered or received in evidence in the entire proceeding which the lower Court relied upon in arriving at its decision in the judgment delivered on 29th August, 2011. We have seen however, where the lower Court collected a photocopy of the document in question from the Respondent but after series of questions to the parties ordered that the original of the said document be brought or produced on the next adjourned date. By virtue of the trial Court’s order on page 8 that the original be brought or produced it means that the lower Court rejected the photocopy of the said document even though it failed to record that in its proceedings in accordance with the provisions of Order 13A Rule 6(2) and (3) above.
In the same vain, we have seen on page 14 of the certified true translation of the lower Court’s copy of proceeding where the trial Court upheld the settlement between the parties contained in the agreement in question but we could not see where the trial Court recorded that the said document was exhibited and same was admitted by the trial Court allotted to it distinctive letter number in accordance with the requirement of the provisions of Order 13A Rule 6(1) above. The document produced by the 2nd Appellant was also not have been indicated that it was tendered and rejected by the trial Court in accordance with Order 13A Rule 6(2) i.e. the document claims to have revoked the sulh agreement.
We have equally noted that the copy of the proceedings in Hausa language of the trial Court in this case in accordance with the Order 26 Rule 2 was supplied pursuant to Order 26 Rule 3(1) and (2) of that Court civil procedure rules, 2000 with its certified English true translation were made available to this Court for the just determination of this appeal.
This copy of proceedings of the trial Court, this Court and of course the parties herein are bound by its contents, it being a certified true copy.
This being the position of the law, neither the parties nor this Court can fill in any gap or lacuna therein. This deprives this Court of dealing on merit with the grounds, issues and arguments in respect of the document in question. The supply or making available the contents of those two documents in the written address of the Respondent is of less value and cannot be considered by this Court as forming part of the certified true copy of proceedings of the trial Court.
And this Court for the same reason cannot look into them with a view to determine the authenticity and probative value of the said documents viz a viz the grounds of appeal and the opposition thereto, as they do not form part of the certified true copy of the proceedings of the trial Court.”
As rightly pointed out by the Appellant, the Reconciliation Agreement reached on 11/7/2011 was part of the record particularly at pages 171-173. Also, the withdrawal letter dated 12/7/2011 and written by the 2nd Respondent, Faruk Abdullahi Kawu is at pages 174 and 175 of the record wherein he admitted that the amicable settlement was reached but that he was resiling from it due to what he perceived as a mistake.
It is instructive to recognize that the issue is not whether the photocopy of the Settlement Paper presented to the trial Upper Sharia Court was admitted in evidence or as an Exhibit before the trial Court or made part of the record of the trial Court as harped on by the lower Court, but, whether the parties indeed reached an out of court settlement at all with intent to bring to an end the suit filed by the Appellant at the Upper Sharia Court.
This is because, as noted by the Supreme Court on the effect of out of court settlement before the completion of a trial without obtaining an order of court to embody the agreed terms, in Obayiuwana vs. Ede & Ors. (1990) 1 NWLR Part 535 page 670;
“Where the parties compromise or settle pending proceedings, whether before, at or during the trial, without making provision, expressly or by necessary implication, for obtaining an order of court to embody the agreed terms, such a compromise or a settlement constitutes a new and independent agreement or bargain between the parties made for good consideration and its effect is as follows – (a) it puts an end to the proceeding which have been compromised or settled, for they are thereby spent and exhausted.
(b) it precludes parties from taking any further steps in the action; and
(c) it supersedes the original cause of action altogether.”
My lord, Oseji, J. C. A., in asserting the seriousness of an out of a Court settlement said in Folarin & anor vs. Idowu & ors (2013) LPELR-22123(CA),
“A party shall not be allowed to blow hot and cold in an agreement he had tacitly endorsed and subscribed to, this will be contrary to public policy and as it relates to our jurisprudence it is irrational and unacceptable. This court made a commendable point on it in the case of EZERIOHA vs. IHEZURO (2009) LPELR (4122) where it held at page 20 thus:- “Where parties and concerned members of the community elect that a dispute be settled out of court and in furtherance of the same there was mediation and the terms of settlement announced which are acceptable to the parties, the court of justice should not treat such mediation lightly. Since agreements are meant to be honoured and equity acts in personam the law and equity will act in unison to estop a party to such mediation or out of court settlement who had accepted the terms of settlement from reneging and acting to the contrary of what he had accepted.”
The said suit at the trial Upper Sharia Court, Shahuchi, was instituted by the Appellant on 1/7/2011. It was after the action was commenced and hearing started and the trial Court adjourned the matter to 22/7/11 for continuation of hearing, that the parties explored settlement out of Court which they achieved on 11/7/2011, by production of the Reconciliation Agreement. At page 123 of the record, the trial Court recorded and noted that “the Plaintiff submitted the terms of the settlement to the Court, while the 2nd Defendant submitted a letter of his objection to the settlement.” It was also shown at page 113 that the Settlement Paper was submitted to the trial Court and the Court rightly showed the Paper to the parties which they all acknowledged as the ‘Settlement Paper’. The 1st Defendant admitted before the trial Court that he participated in the settlement process. The 2nd Defendant was also confronted with the signature on the document shown as his signature to which he replied “That is not how I do my signature.”
Then, at the sitting of the trial Court on 12/8/2011, one Sani Danbaba, one of the witnesses to the Reconciliation Agreement was present in Court and informed the Court that the original copy of the said document was with Alh. Aminu Nasidi and, that Alh. Aminu Nasidi had travelled. The trial Court then heard his evidence. He stated at pages 114 – 115 of the record as follows:
“On The 1st Sitting the settlement has not been reached but on the 2nd sitting, it took place in Alh. Aminu Nasidi’s residence, where the Plaintiff put a claim against the Defendants. Alh. Aminu Nasidi asked the Defendants whether they have agreed to give him what he want from them, the 1st Defendant said Alh. Aminu we agreed to whatever you decided, then Alh. Aminu said if you agreed then can we write it? The 1st Defendant said we have agreed, then Alh. Aminu brought a paper and gave it to the 2nd Defendant but he refused to collect it, we beg Alh. Aminu to write it, after he has written the terms of settlement he read it to the hearing of everybody, the Plaintiff signed the paper so also the 1st Defendant. The 2nd Defendant also signed the paper, Alh. Aminu also signed the paper and I was the last person that signed the paper as a witness, we prayed after that, and Alh. Aminu told the Plaintiff to go and withdraw the matter from Court since they have settled, that is all I know, just one day after the 2nd Defendant confronted me and told me he has to go and notify the Plaintiff.”
A photocopy of the said Settlement Paper was shown to Sani Danbaba, which he, also identified, as the settlement paper. During the hearing at the Upper Sharia Court, the 1st Defendant admitted to the Court that they had settled the matter and he, too, signed the Agreement paper.
The 2nd Defendant, after denying signing the document, later said he did put a question mark on it at the signature column. The record shows that even though the original copy of the agreement was not produced, the photocopy, the secondary evidence of the document as prescribed by the Evidence Act since the Original was in the custody of Alh. Aminu Nwidi who was said to have travelled to Sandi Arabia outside Nigeria, was received by the trial Court and it was in the trial Court’s custody. All the parties were confronted with the contents of the photocopy, the secondary evidence, the contents of which they admitted were the settlement terms. It was only the 2nd Defendant who tried to rescind it the following day. He admitted putting a question mark on the column for signature. Although question mark is used for someone or something that causes feelings of doubt or uncertainty, it is pertinent to note that a mark is a signature, but a signature is not necessarily a mark. Signatures encompass marks and actions of all sorts that are indicative of identity and intent. The legal rule is that unless a statute specifically prescribes a particular method of making a signature, signature may be made in any number of ways.
The 2nd Defendant said he participated in the settlement because of Aminu. By his evidence, at page 116 of the record, he was present when the terms of settlement were written by Alh. Aminu. Alh. Aminu initially asked him to write the terms after they had concluded but he refused to write it. Then Alh. Aminu wrote it himself and gave it to him to sign, he then wrote a question mark on the signature column. This contradicted the 2nd Respondent’s earlier testimony at page 111 of the record where he stated that on the day the settlement was written, he did not have the copy of the settlement paper, and he did not know what they have written in there because they did not allow him to read it. The trial Upper Sharia Court asked him thus: “2nd Defendant, it was indicated on the paper that you have signed though it was a photocopy? From the question asked, it is clear the trial Court observed the 2nd Defendant’s signature on the paper.
It is crystal clear that it was after thorough examination of the document and satisfying itself that all the parties participated at the settlement meetings and indeed signed the document, that the trial Court, in its judgment of 29/8/2011, upheld the terms of the settlement by expressing thus: “The settlement made between the parties are hereby upheld by the Court in order to get peace between them.” By this remark, the trial Court confirmed and supported the terms of settlement entered into by the parties, as creating new rights and obligations between them, and putting an end to the proceedings before it which have been compromised or settled.
It is trite that when a document containing contractual terms is signed then in the absence of fraud or misrepresentation, the party signing it is bound and it is wholly immaterial whether he has read the document or not. See Ugbomor vs. Hadomeh (1997) 9 NWLR Part 520 page 307, Allied Bank Nig. Ltd. vs. Akubeze (1997) 6 NWLR Part 509 page 374.
In Star Paper Mill Ltd. vs. Adetunji (2009) 13 NWLR Part 1159 page 647, the Supreme Court, per Adekeye, J. S. C., held that it is the role of a judex in adjudication to encourage amicable settlement in a suit where it can adequately meet and satisfy the end of the justice.
The court has a discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged Terms of Settlement, which to all intents and purposes are Compromise Agreement, entered into by the parties to a suit, should be scrutinized and made an order of court.
When Terms of Settlement or in other words Compromise Agreement become an order of court on the application of the parties, it, in legal parlance, becomes a CONSENT JUDGMENT. According to Black’s Law Dictionary 8th Edition a Consent Judgment can also be referred to as AGREED JUDGMENT which means:-
“A settlement that becomes a court judgment when the judge sanctions it. In effect an agreed judgment is thereby a contract acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgment”. Under our procedural laws actions may be settled by consent during trial. In order to be legally binding on the parties it is imperative that it should be sanctioned by court.
A comprise settlement between parties to a dispute may be described as a contract whereby new rights are created between them in substitution for and in consideration of the abandonment of the claim or claims pending before the court. A Consent Judgment or order by nature is as effective in law in respect of all the matters which are settled as any other judgment or order arrived at after hearing a matter on merit. The essence is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings of a court in a matter heard on its merit.
Although it is desirable to inform the court where the matter is pending of the intended settlement, it is not a requirement of the law before such out-of-court settlement can be effected. Where parties, in the circumstance, are able to successfully and amiably resolve the issue in dispute, the implication is that the compromise or settlement thus reached constitutes a new and an independent agreement. The import of this compromise is the concession on both sides to avoid the necessity of determining liability under the original claim before the court. In this arrangement, the plaintiff would have to forego part of his claim while the defendant would meet part of the total claim against him or as the parties may wish to settle their matter. See CBN vs. Beckiti Const. Ltd. (1998) 6 NWLR Part 553 page 23.
Furthermore, the Supreme Court in Abey & Ors. v. Alex & Ors. (supra) that:
“parties are entitled to settle or compromise all or any of the questions or dispute between them on any term and condition on which they agree even without the approval or sanction of the court, or prior reference to the court.
Such an agreement or out of court settlement between the parties supersedes the original cause of action altogether and the court has no further jurisdiction in respect of the original cause of action which has been so superceded. If the terms of such new agreement or out of court settlement are breached or not complied with, the injured or aggrieved party must seek his remedy based on the agreement or out of court settlement.”
It is well established that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called settlement.
When the terms of such settlements are reduced into writing, it is now called ‘terms of settlement’, when the terms of settlement are filed they are called, and made the judgment of the court. It is then crystalised into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal, except with the leave, of court. Hence, consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the court.
The court has discretion to enter terms of settlements as its judgment or not, particularly where terms of settlement are not ascertainable or the rights acquired or abandoned not clearly spelt out.
Having stated the basic principles of law regarding an out of Court settlement while the matter is pending, it is seems clear that the lower Court was utterly wrong in not giving effect to the terms of settlement reached by the parties which the trial Upper Sharia Court carefully scritinised by putting the settlement paper before the parties, and, upon their confirmation of the terms, upheld the same notwithstanding the approbation and reprobation by the 2nd Respondent who only endeavoured to rescind the agreement a day after the same was entered into by the parties. The fundamental point is that all the parties were present and agreed on the terms in the presence of some witnesses which said terms were reduced to writing and signed by them. By this compromise they that brought the proceedings at the Upper Sharia Court to an abrupt end, they were precluded from taking further steps in the matter and it has superceded the original cause of action. The 1st Respondent was emphatic that they had reached an agreement and he signed the documents. The trial Upper Sharia Court observed what the 2nd Respondent scribbled as his signature. I therefore resolve this issue touching on the lower Court’s refusal to consider and make pronouncement on the Compound Agreement or Reconciliation raised and admitted by both parties in favour of the Appellant.
The provisions of Section 277 of the 1999 Constitution has eloquently demonstrated that based on this, this appeal is hereby allowed in part the lower Court has jurisdiction to hear and determine the appeal.
Therefore, the judgment of the lower Court is hereby set aside and the judgment of the Upper Sharia Court is hereby affirmed with N50,000.00 Costs against the 2nd Respondent in favour of the Appellant.
ABDU ABOKI, J.C.A.: I have the privilege of reading the lead judgment of my learned brother T. N. ORJI-ABADUA, JCA and I agree with her reasoning and conclusions in the lead judgment. I abide the consequential order as to costs therein.
ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of her Lordship Orji-Abadua JCA. I abide by the consequential orders in the lead judgment.
Appearances
Umar Usman Esq; A.T. Abubakar Esq; holding brief of Yakubu Abdullahi Esq;For Appellant
AND
I. G. Waru Esq;For Respondent
