SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. EDWARD AZUKAEME & ORS
(2010)LCN/4130(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of December, 2010
CA/PH/198/2006
RATIO
APPEAL AGAINST CONSENT JUDGMENT: WHETHER LEAVE MUST BE SOUGHT AND GRANTED BEFORE AN APPEAL COULD BE FILED AGAINST A CONSENT JUDGMENT
I agree, that to qualify as consent judgment there must be consensus ad idem between the parties, see also Karibi whyte JSC in ALABERT AFEGBAT V. A.G. EDO STATE & ANOR (2001) 14 NWLR (pt. 733) 425 at 454. I, however, do not agree with the counsel that there was no consensus ad idem between the parties on 17th January, 2006 when the learned trial judge made the order, the subject of the appeal, against his client. The respective counsel for Plaintiff/Respondent and 1st Defendant had unequivocally moved the court to order the 3rd Defendant/Appellant to pay over the sum of N25, 000, 000.00 the 3rd Defendant owed the 1st Defendant to the Plaintiff. And according to the 1st Defendant’s counsel, that would put “to rest the quarrel between the Plaintiff and 1st Defendant.” To this Mr. Nwude for the 3rd Defendant / Appellant had neither difficulty nor qualms acceding to. He also emphasised that he had instructions not to oppose this application. There is clearly an agreement, approval or permission by the parties ad idem made voluntarily for the court to make the orders, it made on 17th January 2006. The order, as it affects the 3rd Defendant / Appellant, can not in the circumstance, be appealed without leave of court. It is a consent judgment. This appeal required leave previously sought and granted before it could be filed. This appeal was filed in clear defiance of section 241(2)(c) of the 1999 Constitution. The appeal is incompetent. It is in nullity ab initio as the constitution has ordinarily taken away from the Appellant right to appeal a consent judgment, unless upon leave of court. It was filed without due process of law and without fulfilling condition precedent to the exercise by this court of its jurisdiction. This has therefore robbed this court of its jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 ALL NLR 587; INAKOJU V. ADELEKE (2007) ALL FWLR (Pt. 353) 3 at 87. PER EJEMBI EKO, J.C.A.
CONCEPT OF WAIVER: DEFINITION OF THE CONCEPT OF “WAIVER”
The definition of what the concept waiver is in ARIORI v. ELEMO (1983) 1 SCNLR 1 per Eso JSC at page 13 is most apposite for this discourse. The learned jurist had stated thus – “- – what is waiver? Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in the system of court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – see VYVYAN v VYVYAN per Sir John Romilly M.R at page74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not Under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the right, interest, profits or benefits conferred upon or accruing him by and under the law, but he intentionally decides to give up all these, or some of them. He can not been permitted the exercise of his rights, or that he has suffered by his not having exercised his right. He is, to put it in another way, stopped from raising the issue. See also Halsbury’s Laws of England 3rd Edn. Vol. 14 para 1175.” Recently, in BELLO NASIR v. CIVIL SERVICE COMMISSION, KANO STATE (2010) 41.1 NSCQR 265 AT 283-284 Mukhtar JSC firmly reiterated the point when she affirmed that- “It is the law that where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on appeal on the particular point or procedure. In the present case, since the appellant did not object against the procedure which the respondents motion on notice brought at the trial court, he is thereby estopped under the principle of waiver to raise the point at this stage. See TSOKWA OIL CO. LTD v. BANK OF THE NORTH(2002) 5 SCNJ 176 at 192; KOSSEN (NIG) LTD V. SAVANNAH BANK LTD (1995) 12 SCNJ 29; OJOMO v. IJE (1987) 4 NWLR [pt.64] 216 at 244 – 245; KADUNA TEXTILES LTD v. UMAR (1994) 1 NWLR [pt.319] 13” Under this principle of estoppels of waiver a party is not permitted to complain on appeal against the procedure he had voluntarily submitted to, and partook in. He is also not permitted to advance arguments contrary to his arguments at the trial court. See NWOKORO v. ONUMA (1999) 9 SCNJ 63 at 76; C.C.B. v. MBAKWE (2002) FWLR [pt.109] 1678 at 1692 D – G. In short, the court of justice does not permit a party to approbate and reprobate on the same issue or Point. PER EJEMBI EKO, J.C.A.
COUNSEL’S AUTHORITY TO ENTER AGREEMENTS: WHETHER A COUNSEL CAN ENTER INTO AGREEMENT WITH OTHER COUNSEL IN THE CONDUCT OF A CASE, OR COMPROMISE HIS CLIENT’S CASE
The general authority of counsel to enter into agreement with other counsel in the conduct of the case, or to compromise his client’s case is recognized as binding in Nigerian jurisprudence as could be seen from the cases of VULAN GASES LTD v. GESELLSHAFT FUR INDUSTRIES LTD (2001) 9 NWLR [pt.719] 610. The only qualification is where the authority of client to enter into compromise is expressly limited by the client. PER EJEMBI EKO, J.C.A.
CONSENT JUDGMENT: WHAT IS A CONSENT JUDGMENT
There is a thin line between waiver and consent judgment. The former in most cases gives rise to the latter. what consent judgment means is that; if either party is willing to consent to a judgment or order against himself, or if both parties are agreed as to what judgment or order to be made, the court ought to give due effect to such consent. See JOSEPH AFOLABI v. JOHN ADEKUNLE (1983) 8 SC 98 at page 100. PER EJEMBI EKO, J.C.A.
CONSENT JUDGMENT: WHETHER A CONSENT JUDGMENT IS CONSTITUTIONALLY RECOGNIZED
Consent judgment is not illegal. The 1999 Constitution sanctified it in section 241 (2) (c) thereof where it provides that nothing in the said section shall confer any right of appeal, without leave of the High court or court of Appeal, from a decision of the High court made with the consent of the parties. The sanctity of mutual agreement of parties in litigation and their right to compromise is thus recognized by the constitution, and the parties are denied the right to renege on it without leave of court. PER EJEMBI EKO, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
Justice of The Court of Appeal of Nigeria
EJEMBI EKO. Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
1. EDWARD AZUKAEME
2. EDIEBEKA INDUSTRUAL SERVICES LTD
3. EORTUNE INT?L BATNK PLC Respondent(s)
RATIO DECIDENDI
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The 1st Respondent, as the plaintiff, had approached the Rivers State High Court (coram: P.N.C. Agumagu, J) claiming against the Defendants jointly and/or severally the following reliefs-
a.The sum of N46,165,000.00 being agreed 10% commission with the 1st Defendant and professional and project Management fee as Consulting Engineer for is Defendant on the total value of contract No 09860 awarded by the 3rd Defendant to the 1st Defendant for which the 2nd Defendant is a financier thereof.
b. Interest thereon the said sum at the rate of 21% from January 2000 till judgment and thereafter at 10% until final liquidation thereof.
The suit was originally brought on the undefended list procedure. In due course it was transferred to the general cause list. The Defendants in the suit were
1. EDEBEKA INDUSTRIAL SERVICES LTD
2. FORTUNE INTERNATIONAL BANK PLC
3. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD.
The 3rd Defendant is the present Appellant. The suit against the 2nd Defendant was at a point in the proceedings dropped. The suit against the 2nd Defendant was formally struck out on 5th October, 2005. Thus leaving only the 1st and 3rd Defendants to continue in the defence of the suit.
The 1st Defendant did not file any statement of defence. He offered no defence at all to the suit.
On 4th October, 2005 the 3rd Defendant, the present Appellant, filed an application seeking extension of time within which to file its statement of defence and an order deeming the statement of defence exhibited thereto as duly filed and served. The same 3rd Defendant, on 8th November, 2005, filed another motion seeking an order dismissing the suit it for “lack of reasonable cause of action.” It appears from page 115 that the 3rd Defendant’s motion filed on 4th October, 2005 seeking extension of time to file 3rd Defendants statement of defence was granted and the said statement of defence was deemed filed and served. The effect of this is that the 3rd Defendant’s statement of defence was a subsisting process. However, it is further apparent from page 115 of the Record that the 3rd Defendant’s motion filed on 8th November, 2005 had not been taken and was yet to be taken, as at 17th January, 2006.
This appeal by the 3rd Defendant concerns the proceedings of the trial court on 17th January, 2006, found at pages 10 – 111 of the Record, Before then, on 28th September, 2005, the Plaintiff had filed an application seeking
a. “An order entering final judgment against the defendants as per the Plaintiff’s statement of claim as follows:-
Judgment against the 1st defendant for the sum of N38,800,000.00 (Thirty Eight Million, Eight Hundred Thousand Naira) being 10% agreed commission of which the 3rd defendant is in custody of N25,000,000.00 (Twenty Five Million Naira)
b. Judgment against the 3rd defendant for the sum of N25,000,000.00 (Twenty Five Million Naira) being part of the disputed sum in its custody as partial settlement/satisfaction of N38,000,000.00 being claimed from the 1st defendant.
c. Interest at the rate of 21% upon the said sum of N38, 800, 000.00 from January 2000 till judgment is delivered in the suit and thereafter at 100% until final liquidation thereafter.”
This motion at pages 94 – 97 of the Record prompted the 3rd Defendant to file its motion of 4th October, 2005 at pages 98 – 103 of the Record. The Plaintiffs motion for judgment, filed on 28th September, 2005, was, heard. It was granted, as neither the 1st Defendant nor the 3rd Defendant, through their respective counsel, opposed it.
On 17th January, 2006, when the motion for final judgment war moved, Mr. Ajie, Plaintiff’s counsel’ submitted inter alia _.
“As long as the 1st Defendant has no defence to our action, We can proceed against him. This is without prejudice to our right to proceed against other defendants later –
The next issue is whether the 3rd Defendant can be ordered by Hon Court to pay over to the Plaintiff the judgment sum in this suit”‘
As it concerned the 3rd Defendant, in particular, Mr. Ajie of counsel for the Plaintiff submitted at page 110 of the Record – ;
“On 17.7.2000 this court made an order securing the sum of the disputed sum of N25,000,000.00 with the 3rd Defendant. The order is still subsisting. It has not been set aside. The 3rd Defendant admits that it is in custody of the said sum. 3rd Defendant said so is in its affidavit before this Hon. Court. We submit that from the date this order was made the 3rd Defendant became a trustee of the said sum for whom ever (at) the end of the day the court will decided that it should be given to -c –
We submit that the court did not intend that the 3rd Defendant should take benefit of the money it (was) asked to keep. – –
We submit that it will amount to a breach of trust for 3rd Defendant to refuse to return this money to the court, 3rd Defendant has no beneficial interest in this money. It is the Plaintiff that has.
In the light or the foregoing we humbly urge that the Hon. Court to grant out prayers as prayed.”
Mr. Achinehu, who appeared for the 1st Defendant, had no problem conceding to the prayers of the Plaintiff, as advanced by Mr. Ajie of counsel. The response of Mr. Achinehu, at page 110 of the Record is categorical. It is as follows:
“We are not denying the fact that the Plaintiff did some job for us. The said amount of N25M in custody of the 3rd Defendant is the balance of the money due to 1st Defendant for the job the Plaintiff executed for it.
We are not ready to contest and we do not infact wish to contest plaintiffs claim against us. That is why the 1st Defendant did not file any process in Plaintiff this balance of N25M so as to put to rest the quarrel between the Plaintiff and the 1st Defendant.”
Mr. Nwude, of counsel for the 3rd Defendant, the present Appellant, in the light of the submission of Plaintiff’s counsel and Mr. Achinehu for 1st Defendant stated unequivocally on behalf of 3rd Defendant as follows:
“We are not opposing this Application. This is my instruction.”
Thereafter at page 111 of the Record the trial Judge ruled as follows:
Court: In the light of the foregoing, I hereby rule that the Plaintiff’s; prayers as contained in the Plaintiff’s motion on Notice dated 28.9.2005 which was filed on the same date, be and they are hereby granted as prayed.
This order was not entered against the 3rd Defendant in default of its filing statement of defence as Appellant’s counsel is suggesting. The 1st Defendant, beneficially entitled to the N25,000,000.00 from the 3rd Defendant, at the instance of the Plaintiff, specifically requested that the amount be paid to the Plaintiff “so as to put to rest the quarrel between the Plaintiff and the 1st Defendant.” The 3rd Defendant agreed. And the order was made accordingly.
The 3rd Defendant, as the Appellant, lodged this appeal on three grounds of appeal. The grounds shorn of their particulars are:
1. “The Learned (sic) erred in law when he granted plaintiff motion dated 28th September, 2005 when he by the records lf the court 3rd Defendant had filed its statement of Defence on 4.10.2005.
2. The Learned Trial Judge misdirected himself in law and totally abdicated his judicial responsibility when he acted on the face of Plaintiffs motion dated 28.9.2005 and did not consider the affidavit in support of the said motion, vis-a-vis the statement of Defence filed by the 3rd Defendant on 4.10.2005 and which was in the court’s records.
3. The learned Trial Judge erred in law when he entered and granted plaintiff motion dated 28.9.2005, when there was a pending motion filed by 3rd Defendant challenging the competence of the: suit against the 3rd Defendant.”
It is from the foregoing grounds of appeal that the 3rd Defendant/Appellant has formulated three (3) issues for determination as follows: –
1. “whether the Plaintiffs statement of claim disclosed a reasonable cause of action against the 3rd Defendant/Appellant that can ripen into default judgment?
2. whether the lower court can validly grant the motion for judgment in default of pleadings against the 3rd Defendant/Appellant which had filed its statement of Defence?
3. whether the failure to oppose the motion for judgment against the 3rd Defendant/Appellant which had filed its statement of Defence and also a motion asking the court to strike out the suit for non-disclosure of a reasonable cause of action.”
with all deference to all the counsel in this appeal; the issue in this appeal, in view of the circumstances the order was made against the 3rd Defendant on 17th January, 2006, is simply –
whether the learned trial Judge was right in law to have made the order he made against the 3rd Defendant on 17th January, 2006
The Appellant submits that since the 3rd Defendant had filed his statement of Defence and its application urging the trial court to strik out the suit against it for not disclosing any reasonable cause of action the order made on 17th January, 2006 against (3rd Defendant) should not have been made. on his part the Plaintiff/Respondent submits that the order made on 17th January, 2006, as it affects the 3rd Defendant/Appellant, was a consent judgment.
I have painstakingly’ read the Record of appeal and the briefs of argument. It is true the 3rd Defendant had filed statement of Defence. The 1st Defendant did not file any statement of Defence. The 3rd Defendant had also filed an application praying that the Plaintiff’s suit against it be struck out for disclosing no reasonable cause of action. As at 17th January, 2006 the 3rd Defendant, through its counsel, had all the rights to insist on its extant processes and argue against the trial court granting’ the application for final judgment. It also had the right to waive its insistence on those subsisting processes and submit to the said application, as it did. Counsel for 3rd Defendant/Appellant also had an option to compromise. He settled for compromise. This clearly is a waiver I will come a non to the issue of waiver after considering the preliminary objection.
On 31st October, 2006 the Plaintiff, now Respondent in this appeal, filed notice of preliminary objection to the competence of this appeal. The ground of the preliminary objection is that the decision/order appealed, being a consent ruling/decision, requires leave of court under section 241(2)(c) of the 1999 Constitution. And that the appeal filed without the necessary leave of court is incompetent. In the notice he cited GALANDU V. KAMBA (2005) ALL FWLR (Pt, 288) 1119 at page 1128 C-E. Further to this notice the plaintiff/Respondent filed a written address on 25th April, 2007 wherein he further adumbrated his contention that the appeal against the consent judgment/ order is incompetent, the Appellant having not obtained leave under section 241(2)(c) of the Constitution before filing it. He emphasized the point that appeals, generally, are creations of the statutes and therefore failure to comply with statutory provisions prescribed for bringing appeals renders the appeals incompetent and also denies the appellate court of jurisdiction to entertain such appeals. This is the trite position of the law. The authority of AFRIBANK NIGERIA PLC V. AKURARA (2006) ALL FWLR (Pt. 304) 401 at page 429 is quite apposite.
The plaintiff/Respondent further called in aid the definition of Consent contained in BLCAK LAW DICTIONARY 7TH Edition at page 300 to writ:-
“Agreement, approval or permission as to some act or purpose especially given voluntarily by a competent person”
Consent as a noun in OXFORD ADVANCED LEARNERS DICTIONARY 6TH EDITION page 242 means permission to do something; or an agreement about something, or an agreement that something be done. Consent judgment, in its ordinary or natural meaning, therefore is a judgment, decision or order which parties in litigation voluntarily agreed to be entered for, against or between them. This class of judgment is ordinarily not appealable as of right by dint of section 241(2) (c) of the 1999 Constitution. The plaintiff/Respondent for this drew our attention to YELWA V. UMAR (2005) ALL FWLR (Pt. 291) 1670 at 1688. Section 241 (2) (c) of the 1999 Constitution is very clear on this when it takes away the right granted under subsection (1) of the section, to the effect that an appeal shall lie, as of right, from decision of the High Courts to the Court of Appeal in the r3numerated circumstances. Under section 241 (2) (c) of the Constitution nothing in subsection (1) of section 241 shall confer any right of appeal, without leave of court, that is the High court or court of Appeal, from a decision of a High Court made with the consent i.e. voluntary permission, approval or agreement of the parties.
Mr. Irerhime, the Appellant/Respondent’s counsel in reply to the preliminary objection submits, and I agree, that to qualify as consent judgment there must be consensus ad idem between the parties, see also Karibi whyte JSC in ALABERT AFEGBAT V. A.G. EDO STATE & ANOR (2001) 14 NWLR (pt. 733) 425 at 454. I, however, do not agree with the counsel that there was no consensus ad idem between the parties on 17th January, 2006 when the learned trial judge made the order, the subject of the appeal, against his client. The respective counsel for Plaintiff/Respondent and 1st Defendant had unequivocally moved the court to order the 3rd Defendant/Appellant to pay over the sum of N25, 000, 000.00 the 3rd Defendant owed the 1st Defendant to the Plaintiff. And according to the 1st Defendant’s counsel, that would put “to rest the quarrel between the Plaintiff and 1st Defendant.” To this Mr. Nwude for the 3rd Defendant / Appellant had neither difficulty nor qualms acceding to. He also emphasised that he had instructions not to oppose this application. There is clearly an agreement, approval or permission by the parties ad idem made voluntarily for the court to make the orders, it made on 17th January 2006. The order, as it affects the 3rd Defendant / Appellant, can not in the circumstance, be appealed without leave of court. It is a consent judgment. This appeal required leave previously sought and granted before it could be filed.
This appeal was filed in clear defiance of section 241(2)(c) of the 1999 Constitution. The appeal is incompetent. It is in nullity ab initio as the constitution has ordinarily taken away from the Appellant right to appeal a consent judgment, unless upon leave of court. It was filed without due process of law and without fulfilling condition precedent to the exercise by this court of its jurisdiction. This has therefore robbed this court of its jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 ALL NLR 587; INAKOJU V. ADELEKE (2007) ALL FWLR (Pt. 353) 3 at 87.
The preliminary objection has substance and it is hereby sustained. The appeal, being incompetent is, is hereby struck out.
Let me consider the issue of waiver for whatever it is worth now, though it touches the merits of the appeal.
The definition of what the concept waiver is in ARIORI v. ELEMO (1983) 1 SCNLR 1 per Eso JSC at page 13 is most apposite for this discourse. The learned jurist had stated thus –
“- – what is waiver? Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in the system of court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – see VYVYAN v VYVYAN per Sir John Romilly M.R at page74 (reported also in 54 E.R. 817).
The exercise has to be a voluntary act. There is little doubt that, a man who is not Under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the right, interest, profits or benefits conferred upon or accruing him by and under the law, but he intentionally decides to give up all these, or some of them. He can not been permitted the exercise of his rights, or that he has suffered by his not having exercised his right. He is, to put it in another way, stopped from raising the issue. See also Halsbury’s Laws of England 3rd Edn. Vol. 14 para 1175.”
Recently, in BELLO NASIR v. CIVIL SERVICE COMMISSION, KANO STATE (2010) 41.1 NSCQR 265 AT 283-284 Mukhtar JSC firmly reiterated the point when she affirmed that-
“It is the law that where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on appeal on the particular point or procedure. In the present case, since the appellant did not object against the procedure which the respondents motion on notice brought at the trial court, he is thereby estopped under the principle of waiver to raise the point at this stage. See TSOKWA OIL CO. LTD v. BANK OF THE NORTH(2002) 5 SCNJ 176 at 192; KOSSEN (NIG) LTD V. SAVANNAH BANK LTD (1995) 12 SCNJ 29; OJOMO v. IJE (1987) 4 NWLR [pt.64] 216 at 244 – 245; KADUNA ILES LTD v. UMAR (1994) 1 NWLR [pt.319] 13”
Under this principle of estoppels of waiver a party is not permitted to complain on appeal against the procedure he had voluntarily submitted to, and partook in. He is also not permitted to advance arguments contrary to his arguments at the trial court. See NWOKORO v. ONUMA (1999) 9 SCNJ 63 at 76; C.C.B. v. MBAKWE (2002) FWLR [pt.109] 1678 at 1692 D – G. In short, the court of justice does not permit a party to approbate and reprobate on the same issue or Point.
From the proceedings of 17th January, 2006 I have no doubt that the 3rd Defendant, now Appellant, waived its right to insist that it has subsisting statement of Defence and a pending application praying that the suit against it be struck out for not disclosing any reasonable cause of action. The 3rd Defendant is therefore stopped from saying that it was not permitted to insist on those extant processes.
The authority Mr. Nwude of counsel to the 3rd Defendant/Appellant had to compromise the defence of the 3rd Defendant generally or upon instruction of his client is not disputed. Thus, as Blackburn, J put it in the 1866 case of STRAUSS v. FRANCIS 176 E.R. 926, counsel has apparent authority to make the compromise. Mr. Nwude of counsel, being ordinarily retained to conduct the case without limitation, was clothed with authority to do everything, which in his discretion, is best for the interest of his client in the conduct of the case; and if within that authority he entered into agreement or compromise with other counsel in the matter; on every principle, that agreement or compromise should be held binding on the client, the 3rd Defendant. The general authority of counsel to enter into agreement with other counsel in the conduct of the case, or to compromise his client’s case is recognized as binding in Nigerian jurisprudence as could be seen from the cases of VULAN GASES LTD v. GESELLSHAFT FUR INDUSTRIES LTD (2001) 9 NWLR [pt.719] 610. The only qualification is where the authority of client to enter into compromise is expressly limited by the client. There is no evidence of such limitation in this case. All that we have is that the counsel, Mr. Nwude, had instructions to compromise the 3rd Defendant’s case. The 3rd Defendant therefore estopped from denying the compromise or to Say that the compromise does not bind him. The court does not usually form the practice of investigating every counsel’s authority. The general authority is presumed. The courts normally presume that a counsel who announced his appearance for a litigant has the authority of such litigant.
The learned trial Judge, acting on the compromise of Mr. Nwude of counsel to the 3rd Defendant, was therefore right in law to have made the order, he made, on 17th January, 2006 directing the 3rd Defendant, now Appellant, to pay the Plaintiff the N25, 000,000.00 the 3rd Defendant owed the 1st Defendant. There is a thin line between waiver and consent judgment. The former in most cases gives rise to the latter. what consent judgment means is that; if either party is willing to consent to a judgment or order against himself, or if both parties are agreed as to what judgment or order to be made, the court ought to give due effect to such consent. See JOSEPH AFOLABI v. JOHN ADEKUNLE (1983) 8 SC 98 at page 100. It does not therefore lie in the mouth of the 3rd Defendant, the Appellant, to complain that the trial court made its terms of compromise on 17th January, 2006 an order of court and therefore gave due effect to it.
Consent judgment is not illegal. The 1999 Constitution sanctified it in section 241 (2) (c) thereof where it provides that nothing in the said section shall confer any right of appeal, without leave of the High court or court of Appeal, from a decision of the High court made with the consent of the parties. The sanctity of mutual agreement of parties in litigation and their right to compromise is thus recognized by the constitution, and the parties are denied the right to renege on it without leave of court.
All I have been trying to say in this judgment is that this appeal is frivolous and it smacks of an abuse of process. since I had concluded that the appeal is incompetent I shall, and I do hereby, strike out the appeal. costs assessed at N60,000.00 are hereby awarded in favour of the 1st Respondent, the Plaintiff at the trial court
ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother, EKO, JCA, just delivered. I am in total agreement that the appeal is not only an abuse of court process it is incompetent. I adopt the lead judgment as my own.
I abide with consequential orders including costs in the lead judgment.
T. O. AWOTOYE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother EJEMBI EKO JCA. I am in entire agreement with it. I have nothing to add. This appeal is incompetent. It is hereby struck out.
I abide by the consequential orders and order as to costs.
Appearances
O.J. Irerhime with G. HallidayFor Appellant
AND
E. B. Edoki (Mrs.)For Respondent
