YUSSUF v. PERSONAL TRUST SAVING & LOANS LTD & ANOR
(2021)LCN/15912(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, May 11, 2021
CA/L/109/2015
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALHAJA ADUKE YUSSUF APPELANT(S)
And
1. PERSONAL TRUST SAVING & LOANS LIMITED 2. RALLS VENTURES RESPONDENT(S)
RATIO:
THE IMPORT AND DEFINITION OF CONSENT JUDGMENT
As a necessary preclude, the import of consent judgment was vividly captured in the case of Woluchem v. Wokoma (1974) 3 SC 153/(1974) 1 SC 115 at 128 (REPRINT) /(1974) 9 NSCC 181 at 189 wherein Ibekwe, JSC, incisively, declared:
“The rule is that actions may be settled by consent during trial. Usually, such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between parties 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. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment.” OBANDE FESTUS OGBUINYA, J.C.A.
THE AGREEMENT OR CONSENSUS AD IDEM OF PARTIES TO A CONSENT JUDGMENT
It follows that, a consent judgment, which is also agreed judgment, is a judgment based on the agreement of parties to an action and given a stamp of legality and efficacy by the Court. In practice, the parties negotiate settlement out of the bowel of the Court, reduce their terms of agreement into writing, sign and file same in Court and request the Court to make it judgment for the parties. Hence, consent or agreed judgment is predicated on the consensus ad idem of parties. It is binding on the parties much the same way as a judgment obtained after a full-scale trial of an action. It is only appealable with the leave of the Court that handed it down to the parties pursuant to Section 241(2)(c) of the Constitution, as amended. It is liable to be set aside in the presence of deserving circumstances such as fraud, mistake, misrepresentation et cetera. It is a final decision of a Court that issued it. It cannot be rewritten by a Court. For a valid consent judgment, the parties must be consensual on the vital issues in the agreement, their consent must be free and voluntary, the terms of settlement must be executed and filed in Court which must enter it as judgment for the parties, see Woluchem v. Wokoma (supra); Talabi v. Adeseye (1972) 1 All NLR (Pt. 2) 25/(1972 8 – 9 SC 20; Babajide v. Adisa (1966) All NLR 249; Abey v. Alex (1999) 14 NWLR (Pt. 637) 148; Vulcan Gases Ltd. v. G. F. Ind. A. G. (2001) 9 NWLR (Pt. 719) 610; Ogunkunle v. Registered Trustees of C & S (2001) FWLR (Pt. 62) 1866; Afegbai v. A.G., Edo State (2001) SCNJ 438/(2001) 14 NWLR (Pt. 733) 425; R.A.S.C. Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333; S.P.M. Ltd. v. Adetunji (2009) 13 NWLR (Pt. 1159) 647; D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Arije v. Arije (2018) 16 NWLR (Pt. 1644) 67; Sunday v. FRN (2019) 4 NWLR (Pt. 1662) 211. OBANDE FESTUS OGBUINYA, J.C.A.
APPLYING THE LITERAL RULE FOR THE INTREPRETATION OF DOCUMENTS
Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminun-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of documents, in order not to insult the law.
CONSENT JUDGMENT MUST BE ACCORDED ITS ORDINARY MEANING WITHOUT ANY EMBELLISHMENTS
Indisputably, the Court proceeding judgment, catalogued above exhibits, all the ingredients of a consent judgment. In fact, it merits the appellation of a classic exemplification of a consent judgment. In due loyalty to the desire of law, I have perused the consent judgment with the finery of a toothcomb. Admirably, it is rebellious to ambiguity and woolliness which signifies that it must be accorded its ordinary meaning without any embellishments. First and foremost, it is apropros to appreciate the connotation of a party in litigation. A party is a person by/or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, see Green v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. OBANDE FESTUS OGBUINYA, J.C.A.
THE ENTITLEMENT OF PARTIES TO SETTLE ANY DISPUTE BETWEEN THEM ON ANY TERM AND CONDITION WITHOUT THE SANCTION OF THE COURT
In a bid to amputate the long arm of the law, lack of effect of consent judgment on a non-party, the first respondent invented the defences that the appellant donated the property to it, as collateral for the loan, and, ipso facto, a privy to the transaction. In Abey v. Alex (supra) at 159, Uwaifo, JSC, eloquently and incisively, proclaimed:
“…the 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 not 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. In other words, this cause of action is founded on that agreement or out-of-Court settlement. OBANDE FESTUS OGBUINYA, J.C.A.
THE INTERFERENCE WITH THE EXERCISE OF DISCRETION AND THE SACRED PRINCIPLES OF LAW ON THE APPLICATION OF CONSENT JUDGMENT
It cannot be gainsaid that the lower Court, on the footing of the above juridical survey on consent judgment, with due respect, did not act judicially. This is because, it desecrated the sacred principles of law on the application of consent judgment. An appellate Court is usually loath to interfere with an exercise of discretion save where it is wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takon v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533. The lower Court’s exercise of discretion was guilty of one of the negative elements of discretion – infraction of the law – to compel an appellate Court to interfere with it. This made it highly injudicious to magnet the interventions of this Court. It will smell of judicial sacrilege to allow the decision, which has disclosed serious hostility to the law to stand. The only way to pacify/appease the law is its vacation by this Court. In the end, I have no choice than to resolve the solitary issue in favour of the appellant and against the first respondent. OBANDE FESTUS OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision (ruling) of the High Court of Lagos State, holden in Lagos Division (hereinafter addressed as “the lower Court”), coram judice: O.O. Atilade, J., in Suit No. ID/22/2009, delivered on 20th June, 2014. Before the lower Court, the appellant and the second respondent were the respondents while the first respondent was the applicant.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In 2003 and 2004, the first respondent, at the behest of the second respondent, granted overdraft facilities to the second respondent for the sum of N7,800,000 and N900,000 respectively. The overdraft loans were guaranteed by Otunba Lateef Tolani Alade, Alhaja Faidat Bimpe Alade and irrevocable power of attorney over the property at No. 4 Hunmoni Street, Aiyetoro Aguda, Surulere, Lagos Sate which is registered as No. 36 at page 36 in volume 200IE of the Lands Registry office, Ikeja, Lagos State. The overdraft facilities were for 99 days and 270 days respectively. After the expiration of the maturity dates of the overdraft loans, the second respondent failed to repay the loan sums, including accumulated interests thereon, despite repeated demands made by the first respondent. Sequel to that, the first respondent, via a writ of summons filed on 13th January, 2009, beseeched the lower Court for the payment of the sum of N10,166,642.74, arising from the overdraft facilities, and accrued interests thereon.
Subsequently, the first and second respondents settled and executed Terms of Settlement in the matter. On 28th October, 2009, the lower Court, as found at pages 42 and 43 of the record, entered consent judgment for the parties as per the Terms of Settlement. The second respondent failed to comply with the consent judgment. As a result, the first respondent, on 8th June, 2011, filed an application seeking to levy execution against the immovable property of the judgment debtor (second respondent) situated and known as No. 4 Hunmoni Street, off Aiyetoro Street, Aguda, Surulere, Lagos (the property). The appellant, on becoming aware of the first respondent’s application, filed an application, on 24th June, 2011, for leave to be heard as an interested party to that application. On 20th March, 2013, the lower Court granted the appellant’s application. In reaction, the first respondent filed another application, on 30th May, 2013, similar to that of 8th June, 2011, which reflected the name of the appellant as a party. The appellant joined issue with the first respondent by filing a counter-affidavit to it. The application was duly heard by the lower Court. In a considered ruling, delivered on 20th June, 2014, reflected at pages 117 – 124, the lower Court granted the first respondent’s application.
The appellant was dissatisfied with the decision. Hence, on 3rd July, 2014, the appellant lodged a 4-ground notice of appeal, copied at pages 132 – 136 of the record, wherein she prayed this Court for:
i) AN ORDER setting aside/reversing the Ruling of Hon. Justice Atilade (of the High Court of Lagos State, Lagos Division) delivered on 20th June, 2014, which granted the 1st Respondent’s application dated 30th May, 2013, for leave to execute the consent judgment of 28th October, 2009, against the Appellant’s property at 4, Hunmani Street, off Aiyetoro Street, Aguda, Surulere, Lagos.
ii) AN ORDER allowing the appeal.
iii) AN ORDER dismissing the 1st Respondent’s motion on notice dated 30th May, 2013.
iv) SUCH FURTHER or other orders that this Honourable Court may deem fit make in the circumstances of this case.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 25th February, 2021.
During its hearing, learned appellant’s counsel, Kolawole Abiri, Esq., adopted the appellant’s brief of argument, and appellant’s reply brief of argument, both filed on 2nd March, 2017, and 8th May, 2017, respectively, as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Olumide Adubi Esq., adopted the first respondent’s brief of argument, filed on 18th April, 2017 but deemed properly filed on 26th April, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it. The second respondent was, duly, served with the processes, but it filed no brief of argument.
In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether the learned trial Judge had the jurisdiction to levy execution on the Appellant’s property at 4, Hunmani Street, off Aiyetoro Street, Aguda Surulere, Lagos and Registered as No. 36 at page 36 in Volume 200IE of the Lagos State of Nigeria Lands Registry Office Ikeja in satisfaction of the Consent Judgment of 28th October, 2009 between 1st and 2nd Respondents.
2. Whether the learned trial Judge was right interpreting the Consent Judgment of 28th October, 2009, as if same still formed part of the original suit/action between the 1st and 2nd Respondents.
3. Whether the learned trial Judge was right in interpreting the Appellant’s case, as contained in her counter Affidavit and Written Address dated 10th June, 2013, as one seeking to set aside the Consent Judgment of 28th October, 2009.
In the first respondent’s brief of argument, learned counsel crafted a single issue for determination, viz:
Did the lower Court properly exercise its powers when it ordered execution to be levied on the property situate at 4, Hunmoni Street, off Aiyetoro Street, Aguda, Surulere, Lagos and registered as No. 36 at page 36 in Volume 200IE of Lagos State of Nigeria Limited Registry Office Ikeja?
A close look at the two sets of issues shows that they are identical in substance. Infact, the first respondent’s solitary issue can be, conveniently, subsumed under the appellant’s. Given this oneness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal. In my view, the appellant’s issue one, which encompasses her issues two and three, is sufficient to dispose of the appeal.
Arguments on the issue
Learned appellant’s counsel submitted that the appellant was not a party to the suit and terms of settlement. He stated that the property was not mentioned in the consent judgment. He asserted that consent judgment cannot be enforced against a non-party to it. He relied on Babajide v. Adisa (1966) 1 All NLR 254; Agwarangbo v. Nakande (2000) 9 NWLR (Pt. 672) 341; Vulcan Gases Ltd. v. G.F.I.G. (2001) FWLR (Pt. 53) 1; Re: Ogunmowola (1990) 2 (Pt. 428) 90; Talabi v. Madam Adeseye (1972) 1 All NLR (Pt. 2) 255; Alpha Properties Int’l Ltd. v. NDIC (2006) 1 NWLR (Pt. 962) 624. He reasoned that the lower Court had no jurisdiction to grant the application and its decision was a nullity. He cited APGA v. Anyanwu (2014) 7 NWLR (Pt. 1407). He relied on Woluchem v. Wokoma (1974) 9 NSCC 181 at 184. He took the view, contrary to that of the appellant, that the appeal is about the propriety of leving execution not about consent judgment. He conceded that consent judgment does not affect a third party. He cited Talabi v. Madam Adeseye (supra). He described the appellant as a privy to the second respondent. He opined that property was mentioned in the suit and ought not be mentioned in the consent judgment. He noted that the appellant did not willingly give irrevocable power of attorney over the property to the first respondent. He insisted that the case of Alpha Properties Int’l Ltd. v. NDIC (supra), cited by the appellant, is inapplicable to the case.
On behalf of the first respondent, learned counsel contended that the lower Court was right in granting the application because, evidence showed that the property was used as security for the overdraft facilities. He narrated the nature of consent judgment and that execution would follow non-compliance with it. He relied on Woluchem v. Wokoma (1974) 9 NSCC 181 at 184. He took the view, contrary to that of the appellant, that the appeal is about the propriety of levying execution not about consent judgment. He conceded that consent judgment does not affect a third party. He cited Talabi v. Madam Adeseye (supra). He described the appellant as a privy to the second respondent. He opined that the property was mentioned in the suit and ought not be mentioned in the consent judgment. He noted that the appellant willingly gave an irrevocable power of attorney over the property to the first respondent. He insisted that the case of Alpha Properties Int’l Ltd. v. NDIC (supra), cited by the appellant, is inapplicable to the case.
On points of law, learned appellant’s counsel posited that the appellant was not a privy of the first respondent. He cited Sosan v. Odemuyiwa (1986) 5 SC 152 at 164; Coker v. Sanyaolu (1976) 9 – 10 SC 203 at 223.
Resolution of the issue
A clinical examination of the stubborn issue reveals that it orbits around a recondite subject in law. It chastises the lower Court’s grant of the first respondent’s application to levy execution in satisfaction of the consent judgment between the respondents. It is a summon on this Court to consider the propriety or otherwise of the decision within the purview of consent judgment.
As a necessary preclude, the import of consent judgment was vividly captured in the case of Woluchem v. Wokoma (1974) 3 SC 153/(1974) 1 SC 115 at 128 (REPRINT) /(1974) 9 NSCC 181 at 189 wherein Ibekwe, JSC, incisively, declared:
“The rule is that actions may be settled by consent during trial. Usually, such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between parties 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. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”
It follows that, a consent judgment, which is also agreed judgment, is a judgment based on the agreement of parties to an action and given a stamp of legality and efficacy by the Court. In practice, the parties negotiate settlement out of the bowel of the Court, reduce their terms of agreement into writing, sign and file same in Court and request the Court to make it judgment for the parties. Hence, consent or agreed judgment is predicated on the consensus ad idem of parties. It is binding on the parties much the same way as a judgment obtained after a full-scale trial of an action. It is only appealable with the leave of the Court that handed it down to the parties pursuant to Section 241(2)(c) of the Constitution, as amended. It is liable to be set aside in the presence of deserving circumstances such as fraud, mistake, misrepresentation et cetera. It is a final decision of a Court that issued it. It cannot be rewritten by a Court. For a valid consent judgment, the parties must be consensual on the vital issues in the agreement, their consent must be free and voluntary, the terms of settlement must be executed and filed in Court which must enter it as judgment for the parties, see Woluchem v. Wokoma (supra); Talabi v. Adeseye (1972) 1 All NLR (Pt. 2) 25/(1972 8 – 9 SC 20; Babajide v. Adisa (1966) All NLR 249; Abey v. Alex (1999) 14 NWLR (Pt. 637) 148; Vulcan Gases Ltd. v. G. F. Ind. A. G. (2001) 9 NWLR (Pt. 719) 610; Ogunkunle v. Registered Trustees of C & S (2001) FWLR (Pt. 62) 1866; Afegbai v. A.G., Edo State (2001) SCNJ 438/(2001) 14 NWLR (Pt. 733) 425; R.A.S.C. Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333; S.P.M. Ltd. v. Adetunji (2009) 13 NWLR (Pt. 1159) 647; D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Arije v. Arije (2018) 16 NWLR (Pt. 1644) 67; Sunday v. FRN (2019) 4 NWLR (Pt. 1662) 211.
Now, the gravamen of the appellant’s chief grievance, indeed, her trump card on the nagging issue is that, the lower Court ignored the content of the consent judgment in granting the first respondent’s application. I have, in total fidelity to the dictate of law, consulted the record, the spinal cord of the appeal. My port of call is the residence of the consent judgment which colonises pages 42 and 43 of the record. Since the consent judgment is the cynosure of the appellant’s agitation/grudge, it is imperative to pluck out its salient portions from its abode in the record, ipsissima verba, as follows:
Suit No: ID/22/2009
BETWEEN:
PERSONAL TRUST SAVING & LOAN LIMITED – CLAIMANT/APPLICANT
RALLS VENTURES – DEFENDANT/RESPONDENT
TERMS OF SETTLEMENT
UPON THIS TERMS OF SETTLEMENT coming before this Honourable Court.
UPON READING THE TERMS OF SETTLEMENT dated 27th day of October, 2009 signed by both parties and their Counsel filed on the 27th day of October, 2009, at High Court Registry, Lagos.
AND AFTER HEARING B. Olugbani of Counsel for the Defendant/Respondent urge the Honourable Court to enter JUDGMENT as per THE TERMS OF SETTLEMENT dated 27th day of October, 2009 and A. Adesokan of Counsel for the Claimant/Applicant not opposing the application.
JUDGMENT be and is hereby entered in favour of Claimant/Applicant against the Defendant/ Respondent as per the terms of Settlement dated 27th day of October, 2009 as follows:
1. That the Defendant proposed to pay the sum of N6,000,000.00 (Six Million Naira) only as the total and final repayment sum to the Claimant for its indebtedness
2. That the said N6,000,000.00 (Six Million Naira) will be paid in five installmental payment effective from 30th November, 2009.
3. That the sum of N2,000,000.00 (Two Million Naira) shall be paid by or on the 30th November, 2009.
4. That the sum of N1,000,000.00 (One Million Naira) shall be paid by or on the 31st December, 2009.
5. That the sum of N1,000,000.00 (One Million Naira) shall be paid by or on the 31st January, 2010.
6. That the sum of N1,000,000.00 (One Million Naira) shall be paid by or on the 28th February, 2010.
7. That the sum of N1,000,000.00 (One Million Naira) shall be paid by or on the 31st March, 2010.
8. That the attached cheques herein acknowledge by the Claimant are evidence to the Defendant’s commitment to the settlement photocopies of the cheques attached.
9. That these terms of settlement shall be entered as the final JUDGMENT of this Honourable Court…
Dated this 28th day of October, 2009.
There is no gainsaying the fact that the consent judgment, displayed above, which is the subject of appellant’s onslaught, falls within the wide four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, Section 258 of the Evidence Act, 2011.
Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminun-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of documents, in order not to insult the law.
Indisputably, the Court proceeding judgment, catalogued above exhibits, all the ingredients of a consent judgment. In fact, it merits the appellation of a classic exemplification of a consent judgment. In due loyalty to the desire of law, I have perused the consent judgment with the finery of a toothcomb. Admirably, it is rebellious to ambiguity and woolliness which signifies that it must be accorded its ordinary meaning without any embellishments. First and foremost, it is apropros to appreciate the connotation of a party in litigation. A party is a person by/or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, see Green v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229.
In law, parties encompass privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566; Omoloye v. A.G., Oyo State (1987) 4 NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v. Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ 115; Abubakar v. B.O.&A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82.
Incidentally, I am unable to find or locate, even with prying eagle-eye of an appellate Court, the appellant in the nomenclature and configuration of the parties laid out at the cradle of the consent judgment. The import of this is obvious. The appellant was not a party to the consent judgment – the contempt of which parented the first respondent’s application that mothered the appeal. Throughout the length and breadth of the body of the consent judgment, the res, No. 4, Hunmoni Street, of Aiyetoro Street, Aguda, Surulere, Lagos (the property), which is casus belli between the feuding parties, is not mentioned. In the glaring absence of the appellant as a party thereto, she never consented to the Terms of Settlement which sired the consent judgment. The elementary position of the law is that consent judgment operates for or against parties to it. It has no effect, either by way of estoppel or otherwise, against a person who is not a particeps in its proceeding. A consent judgment is similitude of a contract as it gives birth to new rights and obligations. It is a notorious principle of law that a stranger to a contract is not bound by it even if it is made for his benefit. The appellant was an alien to the consent judgment and, de jure, it had/has no binding force on her howsoever.
By parity of reasoning, the property, which was not factored into the agreement in the consent judgment, enjoys the same fortune. In the face of this current and inelastic position of the law, the lower Court, with due reverence, fractured the law when it gave its imprimatur to the first respondent to levy execution on the property.
In a bid to amputate the long arm of the law, lack of effect of consent judgment on a non-party, the first respondent invented the defences that the appellant donated the property to it, as collateral for the loan, and, ipso facto, a privy to the transaction. In Abey v. Alex (supra) at 159, Uwaifo, JSC, eloquently and incisively, proclaimed:
“…the 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 not 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. In other words, this cause of action is founded on that agreement or out-of-Court settlement.
It is discernible from this magisterial pronouncement, in the ex cathedra authority, that the birth of a consent judgment heralds the abortion/extinction of an original cause of action. A consent judgment drowns the original cause of action that occasioned the claim in Court which, in turn, midwifed the consent judgment. It divests the Court of its requisite jurisdiction to entertain any grievances germinating from the original cause of action. Thus, the original cause of action stands extinguished/banished in the presence of consent judgment. Indubitably, the first respondent’s cause of action, which was warehoused in the loan contract/offer letter of 8th December, 2003, wherein, the property was pledged as security, lost relevance. The instant consent agreement, delivered on 28th October, 2009, lords over that original cause of action. The lower Court was drained of the vires to adjudicate over it. The donation of power of attorney in favour of the first respondent, which was part of the erstwhile original contract, vaporizes with it. It acquired the pitiable status of an orphan without any legal parentage to perch and command any validity. The consent judgment, to all intents and purposes, castrated its effervescence: The hallowed principle of law, weaved in Abey v. Alex (supra), demolishes the defence of privy contrived by the first respondent. In any event, to my mind, the fact that the appellant is a mother-in-law to the Chief Executive Officer of the second respondent does not, in the least, bring her within the perimeter of any of the privies chronicled earlier on. The appellant is not the wife of the Chief Executive Officer in order to count her in as privy in law. In all, the defences of donation of power of attorney over the property to the first respondent and privy to the original transaction, erected, brandished and paraded by the first respondent fly in the face of the law. They are defeasible and disabled from their inception.
My noble Lords, for the sake of completeness, the application, the outcome of which transfigured into the appeal, was an invitation to the lower Court to exercise its discretion: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560. An exercise of discretion does not grant the Court the unbridled liberty to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina George Ind. Ltd. (supra).
To act judicially denotes “… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”, see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously…is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A Ltd. (supra), at 164, Per Ogbuagu, JSC.
It cannot be gainsaid that the lower Court, on the footing of the above juridical survey on consent judgment, with due respect, did not act judicially. This is because, it desecrated the sacred principles of law on the application of consent judgment. An appellate Court is usually loath to interfere with an exercise of discretion save where it is wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takon v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533. The lower Court’s exercise of discretion was guilty of one of the negative elements of discretion – infraction of the law – to compel an appellate Court to interfere with it. This made it highly injudicious to magnet the interventions of this Court. It will smell of judicial sacrilege to allow the decision, which has disclosed serious hostility to the law to stand. The only way to pacify/appease the law is its vacation by this Court. In the end, I have no choice than to resolve the solitary issue in favour of the appellant and against the first respondent.
On the whole, having resolved the sole issue in favour of the appellant, the destiny of the appeal is plain. It is imbued with merit. Consequently, I allow the appeal. Accordingly, I set aside the decision/ruling of the lower Court delivered on 20th of June, 2014. The first respondent’s application, filed on 30th May, 2013, is dismissed. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read before now, a copy of the lead judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA, in which this appeal has been allowed. The issue distilled for determination in this appeal has been very eloquently and comprehensively resolved therein, and I agree with the conclusions reached.
I also allow the appeal and abide by the orders made by my learned brother.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft, the judgment just rendered by my learned brother Obande Festus Ogbuinya, JCA. For the more detailed reasons in the lead judgment, I also allow the appeal. I abide by all the consequential orders.
Appearances:
Kolawole Abiri, Esq. For Appellant(s)
Olumide Adubi, Esq. – for first Respondent
No legal representation for the second respondent For Respondent(s)
