Abel O. Woluchem v. Dr. charles Inkotariah Wokoma (1974)
LawGlobal-Hub Lead Judgment Report
D. IBEKWE, J.S.C.
This appeal is unusual in the sense that it is from a decision which is not what it purports to be a consent judgment. It is a rambling judgment, which does not seem to have decided anything. On the other hand, the trial in the court below was, in our view, marred by some serious procedural mistakes and errors in law to such extent that the whole proceedings could be described as a “comedy of errors”. Throughout the trial save during the contempt proceedings, no witnesses were called; the trial was conducted by means of affidavits and counter-affidavits.
To be able to do justice to the case therefore, we think that, we should review stage by stage, the proceedings in the court below. At every convenient moment, we shall endeavour to set down our views on the procedure adopted, and the law applied by the lower court.
On the 29th June, 1972 the plaintiff (herein respondent) filed an action in the Port Harcourt High Court for trespass against the defendant (herein appellant) claiming 500 Pounds damages for trespass and injunction. On the 31st of July, 1972 pleadings were ordered, but were never filed. Plaintiff was given 90 days within which to file his Statement of Claim and the defendant, 120 days to file the Statement of Defence.
On the 9th August, 1972, the plaintiff filed an ex parte motion praying for an interim injunction; that same day, the plaintiff also filed a motion on notice for an interim injunction. On the very next day, the 10th of August 1972, the ex-parte motion was heard in Chambers. The application was granted, pending the hearing of the motion on notice. The relevant portion of the proceedings reads as follows:
“In Chambers: Mr. Allagoa to move. Order granted as prayed. Defendant/Respondent to cease carrying on any operation on the land in dispute pending the determination of the motion on notice on 15/8/72.”
An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt.
It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice. In our view, therefore, it should be a rule of practice that the court will not save in exceptional circumstances grant interlocutory injunction on an ex-parte application. We also think that, it should, at least, be made a rule of prudence that all interlocutory applications in civil matters should be made and heard in open court. It is desirable that the courts in this country should desist from following the English practice of hearing applications in chambers for the simple reason that the set-up and the circumstances which obtain in England in such cases are different in Nigeria.
In the case before us, it happened that two identical applications, one ex parte, and the other on notice, were filed in court by the plaintiff on the same day namely, the 9th August, 1972. But for reasons which are not apparent from the record of appeal, the learned trial judge chose to hear the ex-parte application in chambers on the following day 10th August, 1972.We think that the learned trial judge should not have overlooked the fact that there were pending before the court two identical applications for the same relief. It seems to us that the ends of justice could have been better served by granting accelerated hearing in favour of the application on notice. At any rate, we are satisfied that an application of this kind should not be summarily dealt with in chambers, as was done in this case. The grant of interlocutory injunctions is governed by certain principles of law, whose application seems to be largely dependent upon a proper evaluation of the evidence.
The rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of his right, and at least, that he was likely to succeed on that issue, and also a prima facie case of infringement of his right. In exercising its discretion to grant the relief, the court would have regard to the balance of convenience. We fail to see how a court of law could be able to satisfy all or any of these principles before pleadings were filed, and without evaluating some sort of evidence, (be it oral or affidavit evidence) adduced by both parties.
At this state, we think it is desirable to refer to the case of Donmar Productions Ltd. v. Bart (1967) 1 W.L.R. 740 at 742, where Ungoed Thomas J., after considering at length the principles which govern the grant of interlocutory injunctions said, inter alia, as follows:
“So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial.
It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiffs can be cured by payment of damages rather than by the granting of an injunction. Of course, the burden of proof lies on the applicant
throughout.”
Since the ex parte application in the present case was dealt with summarily in chambers, it is not surprising that there is nothing on record to suggest that the learned trial judge ever directed his mind to the question as to whether the plaintiff’s application fell within the legal principles governing such prayer for an interlocutory injunction.
We shall now continue with the synopsis of events which took place at the trial. On the 22nd August, 1972, the motion on notice for an interim injunction came up for consideration and, after hearing arguments on both sides, the learned trial judge adjourned the matter till 4th September, 1972 for a ruling. But during the intervening period, precisely on August 29, the plaintiff brought an application for the committal of the defendant to prison for contempt, on the ground that the defendant had violated the order for an interim injunction made by the court in chambers.
When, on the 30th August, 1972, the application for committal came up for hearing, it was adjourned to the 31st August. After taking oral evidence on the 31st August and the 1st of September, 1972, respectively, the matter was further adjourned till the 5th of September, 1972.
Meanwhile, on September 4th 1972, the learned trial Judge delivered his ruling in which he granted the application on notice for interim injunction, but failed to discharge the order which had been made earlier on in chambers.
The contempt action came up again for hearing on the 5th September but it was further adjourned till 7th September. At the resumed sitting on the 7th of September, 1972 the trial took a dramatic turn. As the events which took place on that day, and on the subsequent dates of the trial are crucial for the purpose of this appeal, we think that the relevant proceedings should be set out, verbatim ad literatim, as follows:-
RESUMED ON THURSDAY THE 7TH DAY OF SEPTEMBER, 1972.
Plaintiff absent – asked by his employers unexpectedly to go off to Lagos for official consultations; he is expected back this morning, though by what flight is not known.
Defendant present.
Appearances as before.
Mr. Allagoa (for plaintiff) announces that it is likely that they would announce a final arrangement at the next adjournment.
Chief Brown (for defendant) announces in agreement to the above that both sides have virtually completed an arrangement; they are agreed as to the amount or quantum of the settlement; what is left is the details which they hope to announce at the next adjournment
Court.
In view of the order for interim injunction made on 4th, and in view of the announcement by both sides above it is considered not worthwhile continuing with and completing the contempt action before this Court. Evidence has already gone a long way in this and I do not wish to continue taking further evidence.
But all must be warned, and particularly the defendant in the suit, that the Order of Injunction made on the 4th is the standing order of this court, and this must not be flouted in any manner whatsoever. There are only two alternative conditions under which this interim order will be discharged. First, there must be an announcement at the next adjournment of some definite arrangement about the whole dispute, acceptance to both sides. Or 2ndly: Failing such an agreement as indicated above the substantive suit must be prosecuted to finality before the interim order is discharged.
The court is not an instrument of torture far from it; at the same time the court will not allow its orders to be flouted and trampled upon and made of no avail.
I hereby strike out the contempt action.
Adjourned to 9.00 a.m. on 12th September, 1972 for final settlement.
(Sgd.) S. A. Wai-Ogosu,
JUDGE
7/9/72
resumed Tuesday the 12th day of September, 1972
Parties present.
Appearances as before.
Mr. Allagoa for the Plaintiff announces that the two parties have agreed on the amount to be paid by the defendant to the plaintiff ‘ as consideration for the plaintiff withdrawing the suit from the court and abandoning all his rights and interest in the land in dispute to the defendant. The amount agreed on is 8,000 (eight thousand pounds).
The question as to how the amount involved is to be liquidated is still not yet resolved. Asks the Court for an adjournment to enable this point to be satisfactorily solved.
Chief Brown for the defendant agrees that above is correct and does not oppose the application for adjournment.
Adjourned to 29/9/72 for parties to appear in court to announce the arrangement.
(Sgd.) S.A. Wai-Ogosu, JUDGE.
12/9/72
RESUMED FRIDAY THE 29TH DAY OF SEPTEMBER, 1972.
Parties present.
Appearances as before.
Both counsel announce that certain matter still left to be ironed out in regard to the details of the settlement have not yet been cleared. There is every hope for a final settlement agreeable to both sides. They now ask for a further adjournment for the last time to November 7, 1972. Both counsel are free to announce to me in chamber before this date what settlement may have been arrived at.
Adjourned to November 7, 1972.
(Sgd.) S. A. WAI-OGOSU,
JUDGE
29/9/72.
RESUMED WEDNESDAY THE 8TH DAY OF NOVEMBER, 1972
Parties present.
Appearances as before.
Chief Idamiebi-Brown
Since the last adjournment my client has made every effort to get the money to satisfy the judgment from the Bank. I am not in a position to tell yet whether or not there is any hope of getting the money.
Mr. Allagoa replies:-
Our interest is no longer in the land again since after our acceptance of the consent judgment of this court on 8th September, 1972.
We are now talking about the money and we did offer last time to assist the defendant in getting the money to satisfy the judgment. I spoke to the manager of the Bank concerned – the UBA – about the possibility of raising this loan and he did not give me any indication of any unfavourable reply from their headquarters in Lagos.
COURT:
In view of the above I shall adjourn again this matter, bearing in mind the statement of the Counsel for the Plaintiff that if the present hope held out to get the loan fails then the two sides will talk over the details again.
Adjourned to 4/12/72 for the parties to announce what settlement has been arrived at.
(Sgd.) S. A. Wai-Ogosu,
JUDGE,
8/11/72.
RESUMED MONDAY THE 4TH DAY OF DECEMBER, 1972.
Plaintiff present.
Defendant not in Court.
Mr. M.V.O. Allagoa for the plaintiff.
Chief Idamiebi-Brown for the defendant absent.
Chief Idamiebi-Brown reports late and apologised for his lateness.
Mr. Allagoa states:-
With the greatness reluctance I would like to say that we would like to have our 8,000(pounds) as quickly as possible. At this stage Mr. Allagoa is asked to suspend whatever observations he is to make until counsel for the defendant makes a statement on the state of the matter.
Chief Idamiebi – Brown:-
I would say that “the whole issue have come back to the melting pot.
In the 1st place it is not impossible for us to get the amount concerned from the Bank. No reasonable bank will give us that money on the mortgage of the property in which Government has shown an interest.
2ndly, the Rivers State Government has acquired the property the subject matter of the dispute.
In view of this the whole situation has assumed a new complex altogether. It is time that we did announce to your Lordship that we agreed to pay to the plaintiff 8,000 (pounds); but this was on the condition that the plaintiff renounced all his interests in the land for the benefits of the defendant.
There is nowhere on record where the plaintiff, prior to the acquisition by the State Government, has renounced his interest in the said land. The plaintiff can only renounce his interests in the land by deed duly executed and registered in court just as he did acquire the land by deed. Refers court to the recent court decision in the case of Dr. Green v. I.T.O. Jaja.
Another condition of our acceptance was made subject to the satisfactory working out of details. Those details had not been satisfactorily worked out before there was a novus actus interveniens viz. Govt. acquisition of the land
Third and last condition ‘ We had made the offer of 8,000(pounds) with the full hope that the plaintiff was going to give us legal as well as equitable interest in the land, which interests he at that time possessed. Now with the intervention of the Government the plaintiff can no longer give us the legal estate in the land, so that the relative legal positions of the parties have since drastically changed. In view of the above we cannot now stand on our original offer of 8,000(pounds) and we therefore wish that the case will “go the whole hog.”
There has been no judgment as far as this case is concerned. At every adjournment it has been so for the purpose of the parties coming to announce final settlement. A mere declaration of intention to settle cannot be a final settlement.
Mr. M. V. O. Allagoa:-
I have very little to say, except that this Court on 12/9/72 entered a consent judgment for the plaintiff in the sum of 8,000(pounds). That is the judgment simpliciter.
There was no condition attached to that judgment as the records of the court can show. In fact if there was any condition there was an implicit one in the sense that apart from this question of payment of 8,000(pounds) there was a contempt action against this defendant. Defendant was to have been imprisoned to purge himself of his contempt of this Court. As a result of the consent judgment it was decided not to pursue with the contempt action.
In view of the fact that we have a judgment of the Court on this matter what my learned friend now turns round to do amounts to an attempt to reopen a judgment which has already been entered. This judgment was entered on the 12th of September, 1972; because of the “benevolence” of the plaintiff and the Court it was agreed to adjourn to 29th September, 1972 to enable defendant inform the court how he intended to liquidate this judgment debt.
On 29/9/72 the defendant came in and announced his inability to pay the money at the time, but promised he was still finding a way to come to agreement with some Bank on granting the loan.
There was a further adjournment to 7th November, 1972, supposed to be for the last time. There was a holiday on the 7th of November, necessitating an automatic adjournment to 8th November, 1972. On 8th November, 1972 the defendant and his Solicitor started to wave about the acquisition notice of the area in a Government gazette dated 2nd November, 1972.
In effect what the defendant and his counsel now attempt to do amounts to “throwing dusts in the eyes of the court, and it also amounts to a lot of bad faith.” They cannot with one hand ask for our benevolence and on another seek subtle means with which to avoid the consent judgment of this court.
I am asking therefore that we be granted our judgment and be allowed to fall back on our remedies on the failure of the plaintiff to abide by this judgment.
Adjourned to December 15, 1972 at 9.00 a.m. for ruling.
(Sgd.) S. A. Wai-Ogosu,
JUDGE.
4/12/72.
(The underlining is ours).
At this stage, we shall proceed to consider the defects manifest on the face of the proceedings. As far as we can discern from the record of appeal, the parties never reached a complete and final agreement on the issue of settlement. No terms of settlement were ever filed in court; consequently, no consent order was made or entered by the court. Nevertheless, counsel for the plaintiff in his address asserted that the court had entered a consent judgment, but which obviously was not so. Indeed, counsel for the plaintiff seemed to have deluded himself into believing that the court had delivered a judgment in the cause; strangely enough, counsel for the defendant did not seriously challenge these erroneous assertions on the part of counsel for the plaintiff, although in his own address he had given valid reasons why his client (the defendant) could no longer go on with the negotiations towards a final settlement.
Unfortunately, the learned trial Judge himself made the same wrong assumption in his ruling delivered on December 15th 1972. In one breath the trial Judge observed as follows;-
I agree with counsel for the defence that there is yet no final agreement between the parties showing details, which has been entered in our records as consent judgment of this court. At the same time we have got on principle the basis of a consent judgment between the parties, leaving only details to be worked out.”
In another breath, the learned trial Judge also stated thus;-
“I am satisfied that the agreement or arrangement was entered into by the parties with their eyes open and senses complete. I do not see any fraud as leading to the agreement. I therefore find that I see no reason as at now for discharging or cancelling the arrangement entered into by the two parties.”
Concluding his ruling, the learned trial Judge recorded the following observation:-
“If the defendant can satisfy me as to any fraud leading him into entering into the agreement, I will discharge the arrangement.
The arrangement therefore remains and failing this the substantive action will be resuscitated on terms as seem just to the court.”
It is from this rather nebulous decision that the defendant has now appealed to this Court on the following two grounds:-
- “The learned trial Judge erred in law in giving judgment in favour of the plaintiff when there was no agreement (or in the alternative no voluntary agreement) between the parties to the above action.
- The learned trial Judge erred in law in holding that the proceedings in this action prior to the 15th of December, 1972 amounted to “a consent judgment …………. leaving only the details to be worked out” when in fact there have been negotiations between the parties.”
We have no hesitation in agreeing with Mr. A. Obi-Okoye, counsel for the appellant, that there is no consent judgment in this case. We would even go further and state that the learned trial Judge reached no definite decision on the issue before the court, and that no order was made by him. We have carefully gone through the proceedings in this case, the relevant portions of which have been reproduced above at length. On the whole, we are satisfied that the ruling of the learned trial Judge on 15th December, 1972 is by no means a judgment by consent. In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in court. when the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the court.
Our view of this matter seems to have been vindicated by subsequent events which took place in the court below after the alleged consent judgment of 15th December, 1972. On 10th January, 1973, counsel for the defendant brought an application for an order for instalmental payment. In his ruling on the application, delivered on Thursday the 8th February, 1973, the learned trial Judge stated, inter alia, as follows:-
“2ndly, the defendant/applicant now admits as per paragraph 5 of his affidavit that the arrangement by both parties for the applicant to pay respondent the sum of Eight Thousand Pounds (or Sixteen Thousand Naira) in waiver of plaintiff’s rights over the land in dispute is now acceptable to him, and this arrangement is now entered in our records as consent judgment of the court.”
From the above-quoted passage of the ruling given by the court, it is abundantly clear that the learned trial Judge himself was aware of the fact that, before that date, the court had not entered a consent judgment in the matter. It was only in his ruling of 8th February, 1973 dealing with the curious application for instalmental payment of what, in our view, is a non-existent judgment debt, that the learned trial Judge for the first time purported to give what he termed a consent judgment. According to the learned trial Judge, the defendant had, at last, admitted the arrangement reached between the parties, under paragraph 5 of his affidavit in support of the application. It is common knowledge that an order for instalmental payment pre-supposes the existence of a valid judgment of the court which has finally disposed of the original issue or claim between the parties. We think that the passage culled from the aforesaid ruling of the learned trial Judge has put it beyond all doubt that the ruling of 15th December, 1972 was not a consent judgment.
Be that as it may, we think that it is relevant to observe here that counsel for the parties in the court below had not been of much help either to their clients or to the court. Of course, it is possible that they were mistaken as to what constitutes a consent judgment. Because of its importance in practice, we think we should give some guiding principles.
The rule is that actions may be settled by consent during the 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 the 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. In such a situation, the court may give judgment, or make an order of discontinuance or may order a stay, in so far as the circumstances of the case may permit. To give one or two illustrations:
(i) Where the settlement is that the parties shall do certain things which they have respectively agreed to do by the terms of settlement, there should be a decision making the agreed terms an order of the court which shall be carried out. If either party fails to carry out the court’s order, then on an application by the aggrieved party, the court will enforce it.
(ii) The settlement may consist of an agreement by the defendant to pay a liquidated sum of money by specified instalments. In such a case, the practice is for the court to give judgment for the total amount agreed to be paid coupled with an order for a stay of execution so long as the instalments are paid in accordance with the terms agreed upon between the parties. The implication of this kind of settlement is that if there is a failure to comply with the terms of instalmental payment, the party who suffers may proceed to levy execution.
(iii) The settlement may simply be in the form of an order of the court made by consent staying all further proceedings on the matter upon the terms agreed upon by the parties. The stay may be qualified or unqualified as the case may be.
We wish to draw attention to the fact that it is the backing of the court that gives the terms of settlement the force and validity of a judgment or order which must be complied with by the parties. We say so because we are mindful of the fact that where the court had made no order of any kind whatsoever (as was the case here) it would be impossible for the injured party to invoke the power of the court so as to compel the defaulting party to carry out the bargain struck by the parties. The aggrieved party can only seek his remedy upon the new agreement which has been reached between the parties. But that is another matter; such arrangement between the parties that has not been incorporated in a judgment of the court is not, and should never be regarded as, a consent judgment.
There is another disturbing feature of this case, which calls for comment. It will be recalled, as was pointed out earlier on in this judgment that, the contempt action had been struck out by the learned trial Judge on the 12th of September, 1972. Yet, in his ruling on the 15th of December, 1972, after indicating, quite rightly in our view, that, if the parties failed to reach an agreement to settle, the original suit would be prosecuted to finality, the learned trial Judge, for reasons beyond our comprehension, proceeded to state as follows:-
“I must here and now state that prosecuting the substantive suit to finality must mean also reviving the contempt application against the defendant.”
We see no justification for the veiled threat issued by the learned trial Judge on the defendant in this case. At the time the court delivered its ruling the contempt action was no longer before it, in that it had been struck out. In any case, there was no application by the plaintiff to re-list the action. We simply draw attention to the well-known rule of practice that the court is without power to revive any matter which had been struck out save on the application of either party. We also take the view that, as a rule, the court ought not to do anything which is likely to generate fear in the minds of litigants. In the particular circumstances of this case, it would appear that throughout the trial the contempt action hung like the “sword of damacles” over the head of the defendant. This, in our view, is highly undesirable. That the defendant was thus put in fear, was clearly borne out by paragraphs 4 and 5 of the affidavit deposed to by him in support of the application for instalmental payment which read as follows:-
“4. That I do not want the contempt charge to be revived.”
“5. That I therefore accept the courts ruling that the arrangement to pay plaintiff 8,000 (Eight thousand Pounds) remains, and hereby asks for time to pay by instalments.”
It is sufficient to point out that this kind of approach adopted by the learned trial Judge in the present case is most likely to defeat the ends of justice. Intimidation, it is said, tends at least, to diminish the quality of justice.
One other embarrassing aspect of this case is the fact that, ever before the learned trial Judge made his ruling of 15th December, 1972, the defendant’s counsel had informed the court that the Rivers State Government had acquired the land in dispute. In the circumstances, even if the defendant had been able to pay to the plaintiff the sum of 8,000 said to have been agreed upon, it would still have been impossible for the plaintiff to perform his own side of the bargain, as he was clearly no longer in a position to convey the land to the defendant. On the principle of reciprocity, therefore, the plaintiff would be estopped from taking advantage of the arrangement reached between the parties, because the agreement on his own side has totally become unenforceable in law. It is not disputed that, as at that time, the plaintiff could not then, or at any other time, have been able to transfer title to the defendant since title to the land in dispute has, by the operation of law, passed to the Rivers State Government. Indeed, the court also was no longer in a position to give effect to the so called “terms of settlement”, assuming that there had been a settlement, for its implementation would normally involve ordering the Rivers State Government to relinquish its rights over the land in dispute. In our view, the learned trial Judge lacks jurisdiction to make such an order. It had been held that the court of law will not issue an order which is unenforceable. See Ukejianya v. Uchendu 12 WACA 45.
There is still so much to say concerning the way and manner the trial of this case was conducted in the court below, but we think that we have said enough to justify the fact that there is merit in this appeal.
For the reasons we have given the appeal succeeds and it is allowed. The proceedings in Suit No. P.H.C./96/1972 are a nullity, and the judgment is hereby set aside. This shall be the judgment of the court.
The respondent shall pay to the appellant costs assessed at N94.00.
Other Citation: (1974) LCN/1801(SC)
