Dason Multi-purpose Co-operative Society (Nigeria) V. Imekanson Tradco & Press Limited & Ors (2002)
LawGlobal-Hub Lead Judgment Report
ABOYI JOHN IKONGBEH, J.C.A.
this is an appeal from the ruling of D. Abel-Tariah, J., of the Rivers State High Court siting at Port Harcourt. In the ruling, delivered on 15/12/92, the learned trial Judge entered what we described as “judgment in default of pleadings” in favour of the plaintiff the 1st respondent herein. There were three defendants, i.e., the 2nd and 3rd respondent herein as 1st and 2nd defendant respectively, and the appellant herein as 3rd defendant. The learned Judge made the following consequential orders in the ruling appealed from:
“1. That the terms of settlement filed on 25/4/92 be and is hereby adopted as the judgment of this Court in this suit as between Plaintiff Appellant and the 1st and 2nd Defendant/Respondents.
- That there is no cost against any of the parties”. (Italics mine).
Thus the orders, as the italicized words show, appeared not to have been directed against the 3rd defendant at all but only against the 1st and 2nd defendants. Curiously, however, it is the 3rd defendant who has brought this appeal against the ruling and the order embodied therein. The appeal is based on two grounds out of which Mr. A.J. Jamabo formulated the following two issues for determination on behalf of the appellant in its brief of argument:
“(a) Whether or not the audi alteram partem rule enshrined in the 1979 Constitution was complied with before delivering judgment in the case.
(b) Whether the trial Judge exercised his discretion judiciously when he abandoned the 3rd defendant’s motion for extension of time to file defence and delivered judgment”.
Mr. O. T. Amachree adopted these issues in the brief he filed on hehalf of the plaintiff/respondent. The 1st and 2nd defendants never filed any papers and never participated in the appeal.
To really appreciate the controversy involved in this rather curious appeal, it is necessary to recall the facts that led up to it. The relevant facts are rather straight forward and not disputed. A summary of the genesis of the whole controversy can be gathered from paragraphs 4-13 of the statetnent of claim. At the centre of all the confusion was the 1st defendant, i.e., the Rivers State Housing and Property Development Authority. Sometime in June 1988 the plaintiff applied to this defendant for the purchase of the property at No. 3 Okoroma (or Njemanze) Street, Diobu Port Harcourt. A tenant occupied the main building while the 3rd defendant carried on business in a temporary structure on the land. The 1st defendant refused to sell but would only rent it out if the plaintiff accepted that. It accepted and the two entered into a tenancy agreement on 01/06/90 and the plaintiff paid the year’s rent agreed on. The former tenant was given quit notice. The plaintiff, not having given up the hope of buying the house, kept negotiations with the 1st defendant alive. Eventually the latter capitulated and on 20/12/90 it agreed to sell. It was agreed that the year’s rent earlier paid by the plaintiff be regarded as part payment of the purchase price. In January, 1991, the plainiiff paid a further sum to bring the total part payment up to 20% of the purchase price. Approval was given to it to build a fence round the plot and to carry out some minor renovation
Then in July, 1991, things started to fall apart. The Ministry of Lands and Housing queried what it described as the unauthorized construction work being carried out by the plaintiff on the plot. It was ordered to produce its articles of association. When it did so on 25/07/91 the 1st defendant’s of officers threatened to cancel the offer for sale made to it because its share-holders were non-indigenous to Rivers State. The threat was carried out on 18/11/91 when the 1st defendant wrote to the plaintiff cancelling the offer for sale. It had, meahwhile sold the same property to the 3rd defendant/appellant on 24/10/91. The latter who was still operating from the temporary structure, immediately moved into the main building and put up it signboard on it.
Feeling lost and helpless, the plaintiff headed for the Court claiming ageinst the three defendants jointly and severally four declarations nullifying the cancellation of the offer to it and the sale to the 3rd defendant/appellant and affirming the earlier offer to it. It also sought an order of specific performance of the agreement between the 1st defendant and it and damages for trespass. It further sought two orders of injunction restraining all the defendants from continuing any further acts of trespass on the land. In the alternative, it claimed damages for breach of contract of sale.
It served its statement of claim, filed on 06/07/91, along with the writ. Appearance was entered on behalf of each defendant, the 3rd defendant’s/appellant’s being filed on 17/12/91. On 30/01/92, as none of the defendants had by that date filed a statement of defence, a motion on notice was filed on behalf of the plaintiff seeking judgment in default of pleadings.
From what both parties stated in their respective briefs of argument, it would appear that negotiations were opened, soon after the entering of appearances and the filing of the motion for judgment, for a settlement out of court. Certain terms of settlement were proposed that were unacceptable to 3rd defendant/appellant, who consequently opted out of the negotiations. It refusal to authorized the signing of the the document containing the terms of reference on its behalf. The plaintiff, on the one hand, and the 1st and 2nd defendant, on the other, however, caused the document to be signed and filed in Court on 28/07/92. On 11/11/92 the 3rd defendant/appellant caused to be filed a motion on notice seeking leave to file a statement of defence out of time.
On 17/11/92 the parties, except the 1st and 2nd defendant, appeared before the learned trial Judge, who adjourned the matter to 11/12/92 for “motion for judgment”. On the latter date the learned Judge Recorded the plaintiffs counsel as informing the Court that-
“… He filed a motion for judgment … but before motion was heard 1st and 2nd defendants entered into settlement negotiations which had now been concluded and the terms of settlement filed accordingly. Counsel for plaintiff therefore applies that judgment is entered in the suit as per the terms of settlement.”
The 1st defendant’s/appellant’s counsel took objection, informing the Court that –
“… He is not a Party to the settlement because he did not sign and wants motion to more his for extension of time.”
To this the 1st defendant’s counsel retorted
“….A defendant cannot compel a plaintiff to go on with if matter if he decides that the settlement obtained with any of the parties is sufficient in satisfaction of his rights or if he decides to waive his rights against the other defendant”
Naturally enough, he was supported by the plaintiff’s counsel who thought that the 3rd defendant’s/appellant’s objection to judgment at that stage was –
“… Misconceived, and should not be entertained and that plaintiff satisfied with the settlement entered into with 1st and 2nd defendants.
He therefore applies under Order 30 Rule 3(1) that judgment be entered on the terms of the settlement so filed between the plaintiff and 1st and 2nd defendant.”
Counsel for the 3rd defendant/appellant stuck to his gun. The record from here reads:
“The Counsel for 3rd defendant adopts his earlier objection, and says the motion filed by plaintiff is in default of pleadings and has nothing to do with terms of settlement. It is a motion brought under Order 25 Rules 1 and 2. It is a Counsel submits that in the motion the Plaintiff/Applicant held not asked for judgment based on the terms of settlement. Nalsa and Team Association v. N. N P. C [1991] 8 N. W. L. R. (Pt. 212) page 652 at 676-677. The authority enjoins the Court to take the motion for extension of time before a motion for a motion for dismissal of an action.
Counsel for Plaintiff replies to the effect that it is true that the motion is for judgment in default of pleading and until this moment there is no pleadings filed by 1st and 2nd defendants who are parties to the settlement and by order 30 Rule 3 enjoins plaintiff to come by may of settlement. The 3rd defendant is not a party to the terms of settlement and therefore has no locus, and Plaintiff is entitling, to Judgment in respect of 1st and 2nd defendant, irrespective of what 3rd defendant had filed. In the further affidavit filed in support of this motion in Paragraph 3 states that 3rd defendant is not willing to settle. Paragraph to 5 of the further shows why the 3rd defendant opted out of the settlement.”
The learned Judge then adjourned to 15/12/92 for ruling. In the ruling, after reviewing the submissions of counsel we concluded as follows:
“I have listened to the application for judgment made by Counsel for Plaintiff/Applicant. I have read the further affidavit in support and further affidavit in support. I have read the terms of settlement filed by the Plaintiff/Applicant, 1st and 2nd Defendants.
There is no pleadings (sic) filed by any the Defendants up till date. There is also no counter affidavit filed by any of the Defenadnt including 3rd Defendant/Respondent. There is neither a counter claim nor cross-action in this suit.
I have listened to the objection of the 3rd Defendant/Respondent to the effect that he opted out of the settlement and has filed a motion for extension of time within which to file a defence. I hold that this would not stop any other party from selling with Plaintiff neither can it stop the plaintiff from discontiming the matter or obtaining judgment in terms of the settlement and waive other right if he is satisfied with the terms of the settlement. You cannot force a plaintiff to continue a suit against you.
If the term is not in the interest of any other party there are other option open to that party in law and 3rd Defendant/Respondent should explore those avenues.
In the circumstance therefore upon reading the affidavit deposed to by Ejike Ozoude, Counsel in the chambers of Amachree and Amachree, Counsel for Plaintiff/Applicant and the further affidavit in support deposed to by T.A. Dokubo, plaintiff/Applicant director.
Upon reading the terms of settlement, having heard Counsel for Plaintiff/Applicant and counsel Counsel for Defendant, having been (sic) satisfied there are no pleading filed by any of the defendant, there been (sic) no counter claim and cross action in this suit, I hereby grant the plaintiff/Applicant application for judgment in default of pleading…” (Italics mine)
The two issues that Mr. Jamabo formulated on behalf of the appellant should really have been one. The complaint that runs through the two is that the learned Judge denied the appellant the right to fair hearing by ignoring its motion for leave to file its statement of defence out of time and entering judgment for the plaintiff based on the settlement reached behind its back by the plaintiff and the other defendant and which judgment adversely affected its interests. Counsel on its behalf submitted that “such a judgment compromised its right to be heard and constituted an infringement of the old maxim audi alteram partem and thereby violates the mandatory provisions of section 33(1) of the 1979 Constitution…” In counsel’s view, the Judge should have heard the motion and decided it on way or the other. The 3rd defendant/appellant could not, in the circumstance that prevailed, be accused of being in default of defence because “There is a word of difference between default of defence where there is a motion for extention of time to file defence and the position where a defendant is carefree to the motion for judgment…” It was counsel’s contention that the Judge should not have accepted the settlement between the plaintiff and the other defendant because “where a plaintiff files an action against three (3) defendant, he cannot settled with two (2) defendant and claim to have no judgment against the thired”. The effect of the refusal or neglect on the the part of the part of the Judge to consider the 3rd defendant’s/appellant motion for leave to file to file a statement of defence out of time was “the defence of the 3rd defendant/appellant was shut out … while a purported judgment was delivered pre-empting its defence.”
Mr. Amachree, for the plaintiff/respondent, started with the observation that –
“..The trial Judge did not ignore appellant’s motion which was fixed and has not been heard because of the appellant premature appeal. Finally appellant was well aware of the settlement reached but voluntarily opted out of it because the truth was unfavouarble to it, on the wrong notion that no agreement could be accepted without its participation.”
Learned counsel went on by pointing out that –
“The judgment appealed against is not a consent judgment against the appellant. The fine point missed all through the case of the appellant is that the judgment does not include the appellant but is between the 1st and 2nd defendant/respondent.”
With all due respect to Mr. Amachree, the first part of his submission is an unacceptable double-speak, which, to make matters worse, overlooks the true state of the facts on the ground. How can counsel in one breath concede that the appellants’ motion “was never fixed” for hearing and in another maintains that the Judge “did not ignore the appellant’s motion”? Whose responsibility was it to fix the motion for hearing? Was it the Court’s or the appellant’s? What else could the appellant have done other then drawing the Judge’s attention to its pending motion and asking that it be heard before the plaintiff’s/respondent’s motion for judgment? It is, with respect, unreasonable to contend, as, Mr. Amachree has done, that it was the filing of this appeal by the appellant that had stopped the judge from fixing the motion for hearing. The appeal was filed after the judgment had been delivered. Or is counsel suggesting that the judge planned to fix the motion for hearing after the judgment? Of what use was the fixing of the motion for hearing going to the appellant after the event, which it had sought to prevent by the motion? The appellant had filed the motion to prevent any judgment that was sure to adversely affect its rights.
At any rate the record shows, contrary to Mr. Amachree’s contention, that the Judge had no intention whatsoever of hearing the motion before or after the judgment, which fact is evident from the advice that he offered to the appellant to explore other options to get itself out of the adverse effect of the arrangement made between the Plaintiff and the other defendants. I also cannot understand counsel’s contention that, because it decided to opt out of the negotiations that resulted in the settlement, the appellant had itself to blame. That contention, with, respect, is not consonant with the freedom of action and decision guaranteed to the appellant by our Constitution. Under the Constitution nobody, can, without the consent of another, bind that other with a decision. Only a court of law can bind people with its decision. Even then the person to be bound must first be heard. Mr. Amachree was clearly wrong when he observed that the appellant had “the wrong notion that no agreement could be accepted without its participation.” The appellant’s notion was the correct one in law. An agreement can only bind the participants. It cannot bind outsiders and no court has the power force it on such outsiders. This appears to me to be elementary.
Considering all the Facts and circumstances of this case, I have no doubt in my mind that the appellant has a very valid ground to complain about the orders made by the trial Judge. No doubt, the ruling and the orders were expressed to be against the 1st and 2nd defendants. Looking at the orders critically, However, it becomes manifest that it was really, the rights of the 3rd defendant/appellant that were ordered away and not any of the right of either the 1st or the 2nd defendant. One cannot do real justice by looking only at the orders made by the judge. One has also to look critically at the terms of settlement adopted in the first order as judgment of the Court. The operative part of the document embodying the terms of settlement referred to by the Judge, and which was filed on 28/07/92, reads:
“The Suit arose out of the wrongful act of 1st defendant which after selling the properry in dispute to plaintiff purportedly cancelled the sale and subsequently resold the property to 3rd defendant. Upon allocation of the property to him 3rd defendant took possession and locked the entrance to the building with a padlock over property of plaintiff in the building 3rd defendant was given further impetus by a letter written by 1st defendant instruction plaintiff to vacat and give up possession to him. By its letter dated 6th of March, 1992 1st defendant has now reversed its decision and restored plaintiff ownership and possession of the property. In the premises above, it is now agreed between the plaintiff, 1st and 2nd defendant to this case to have it settled amicably.
The terms of settlement to which all the parties mentioned above have consented are as follows: –
(1) Plaintiff is henceforth the bonafide entitled to the statutory right of occupancy in and over No.5 Okoroma (Njemanze) Street, Mile 1 Diobu, Port Harcourt subject to the terms and conditions of contract between it and the 1st defendant.
(2) 1st defendant’s offer and allocation of No.5 Okoroma (Njemanze) Street, Mile 1 Diobu, Port Harcourt to the 3rd defendant was done error and 1st defendant hereby rescinds its offer and allocation and state too that all previous correspondence with the 3rd defendant in this regards are of no effect.
(3) That the plaintiff, the 1st and 2nd defendants have agreed to bound by these terms of settlement and have also agreed not to derogate from them.
(4) In the spirit of the peaceful settlement of the case, parties to this settlement shall bear their cost and will not as for for costs from one another.”
As can be seen, while the first clasu of the terms only inferentially affected the appellants’ the second one went all out for its juggler, tearing it part by stipulating that “the 1st defendant its off… to the 3rd defendant was done in error and the 1st defendant hereby rescinds its offer and allocation and state too that all previous correspondence with 3rd defendant in this regard are of no effect”
The 1st defendant, which had been the architect of the grief suffered by all concerned, had nothing at all lose. The appellant on the other hand stood to lose every right it might have by the disputed plot. How could anybody seriously say, therefore, that the judgment entered by the learned trial Judge had nothing to do with the appellant? More galling was the fact that it was to lose those right not because it had been found that there was no merit in his claim to them, but just because the plaintiff and the other defendants had decided that he should lose them. No private’s individuals have such powers under our law. To further worsen matters, the appellant had filed a motion to be allowed to file a defence stating why it thought that the sale to it was superior to the other made to the plaintiff/respondent. It insisted in open court through it counsel to be heard on it. The judge told it that there was no point as, in his view; it had other opions open to him. Like what? The judge did not say. As far as he was concerned there was no reason for the plaintiff/respondent to continue with its case. After all it had achieved what it had set out for by its settlement with the 1st and 2nd defendant. It was immaterial to him that the settlement had been reached behind the back of the 3rd defendant. What, from his viewpoint, would have been the point in proceeding further?
It is really sad to observed that inspite of the 3rd defendant’s/appellant’s pending motion the Judge still proceeded on the footing that none of the defendant had filed a statement of defence. To him, the fact that the 3rd defendant had filed a motion seeking leave to file its statement of defnce out of time was immaterial because in his view, “this would not stop any other party from setting with the plaintiff.” It was his view also that any other person, particularly the 3rd defendant/appellant, not satisfied could seek other avenues of obtaining redress. It is indeed true 1st plaintiff/respondent had the option whether or not to proceed against any of the defendants. In a situation, however, as in the present case, where what it had arranged with the other defendant amounted to stealing the 3rd defendant’s/appellant’s right to be heard on whether or not it had any right over the disputed property or whether or not the property should go to the plaintiff/respondent, the Judge should have intervened to prevent the theft. It cannot, in the circumstance of this case, be said that the plaintiff/respondent had discontinued its action against the 3rd defendant/respondent. For all practical purposes, there was nothing left to discontinue. It had got to the very end of its quest, which was to have the disputed plot, albeit through a backhand deal.
From the way things went the only option I could see open to the appellant was to take another action against the plaintiff/respondent and the 1st defendant. This, no doubt, was what the Judge had in mind when he suggested other options. But then, why should a Judge advocate such multiplicity of proceedings? The law enjoins every Judge and the parties to take and finish all related matters in one trial. See Ijale v. A.G. Leventis & Co. Ltd [1965] N.S.C.C. 132 @ 134-135. This was a matter that could and should have been dealt with in the proceedings before the learned Judge in this case. With all due respect he was guilty of shirking his duty by suggesting that the 3rd defendant/appellant should seek relief elsewhere. He should have heard the appellant’s motion to avoid the necessity for a fresh action by the appellant.
In the circumstance of this case I hold that the Judge was wrong in rushing to such judgment adverse to the appellant who, as the 1st and 2nd defendant admitted, had refused to be part of the negotiations out of which he had opted. By making the order that he made the learned Judge imposed upon the appellant the terms of settlement that it had nothing to do with and which it had earlier rejected. This was especially condemnable when the Judge had not given the appellant a hearing on the desirability of entering judgment at that point. Where is the justice in that? I see none. The Judge should have instead of rushing to judgment, heard the appellant’s motion for leave to defend. That would have better met the justice of the matter. There might or might not be merit in it. That however, was not the point. By refusing to hear the motion the Judge allowed the 1st and 2nd defendants to negotiate away 3rd defendant/appellant’s rights to the plaintiff/respondent.
In all the circumstances, I think the appellant has persuaded me to allow its appeal. I accordingly allow it. I set aside the ruling of the trial court and the order therein depriving the appellant of whatever rights he may have in the plot without first being heard on the matter. I order that the matter be remitted to the Rivers State High Court before a Judge other than Abel-Tariah, J. The new Judge shall take the appellant’s motion to file a statement of defence out of time on its merit.
The plaintiff/respondent and the 1st defendant/respondent are to pay costs of N5, 000.00 to the appellant.
Other Citations: (2002)LCN/1096(CA)
