Alhaji Sadisu Ibrahim & Ors V. Unity Bank Plc (2016)

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OBANDE FESTUS OGBUINYA, J.C.A. 

By a motion on notice dated 27th April, 2015 and filed on 26th June, 2015, the applicants prayed this Court:
1. AN ORDER enlarging time within which the appellant/applicant (sic) may file its (sic) notice of appeal against the judgment of the High Court of Justice of Nasarawa State, New Karu per Hon. Justice R. G. Soji in suit No: NSD/MG/162/14 delivered on 21st day of November, 2014.
4. And for any other/further order(s) that the honourable Court may deem fit to make in the interest of justice.

The application was predicated on the following grounds:
i. That the appellants/applicants instructed the law firm of Messrs I. J. Mbatsavdue & Co. Bima Chambers whose address is Messrs I. J. Mbatsavdue & Co. Bima Chambers, Suite 309, 3rd floor, NCWS Building, Area 11, Garki, Abuja on the 24th day April, 2015 to conduct an appeal against the judgment of Hon. Justice R. G. Soji delivered on the 21st day of November, 2014.
ii. That at the trial Court, the counsel to the plaintiff/respondent informed the appellants/applicants that there was no need

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for them to engage a counsel and when judgment was delivered, he kept assuring them that there will be no problem.
iii. That it was after an inquiry from the registrar of the trial Court as to the consequence of the judgment that the appellants/applicants were advised to appeal against it.
iv. That by the time the appellants/applicants became aware of the necessity to appeal against the judgment. The time limited for appeal had elapsed.
v. That by the rules of this Court, an appeal against the judgment ought to be filed within ninety (90) days from the date of delivery of the judgment.
iv. That from the date of delivery of judgment i.e. 21/11/2014 to the date our firm was briefed to prosecute the appeal i.e. 24/04/2015 is well over ninety days.
vii. That an application for enlargement of time within which to appeal is a sine qua non for the validity of the appeal.
viii. That clean copies of the Notice and Grounds of Appeal thereof have already been filed and served filing fees having been paid.
ix. That the judgment is monetary in nature and therefore executor.
x. That the judgment was granted on the undefended list

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procedure.
xi. That the claims/reliefs of the respondent were outside liquidated money demand.
xii. That the trial Court lacks the requisite jurisdiction to grant the judgment under the undefended list procedure as the claims/reliefs of the respondent were uncertain.

The application was supported by a 24-paragraph affidavit, sworn to by T. C. Adaga, Esq., with five documents, Exhibits A-E, annexed to it. In opposing reaction to it, the respondent filed a 8-paragraph counter-affidavit on 25th January, 2016, with one document, Exhibit UB1, attached to it. Before the hearing of the motion, the applicant, qua counsel applied to withdraw prayers 2 and 3 in the motion paper and same were struck out. In view of the stiff position to the application, the Court ordered parties to file written addresses. The facts of the case which gave birth to the application are submissive to brevity and easy appreciation. The respondent gave a loan facility to the applicants in the sum of N1.6M. The applicants defaulted in payment. As a result, the respondent beseeched the High Court of Nasarawa State sitting in New Karu (hereinafter called “the lower Court”),

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under the undefended list procedure and claimed the sum of N8,439,217.03M from the applicants. At the hearing, the applicants did not file any notice of intention to defend but rather admitted the claim. The lower Court on 21st November, 2014, granted the respondent’s claims. It is that judgment that the applicants want to appeal against to this Court.

The application was heard on 6th May, 2016. During its hearing, learned counsel for the applicants, Barnabas Tsafa, Esq., adopted the applicant’s written address filed on 19th November, 2015, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the respondents, Akpama Ekwe, Esq., adopted the respondent’s written address filed on 25th January, 2016, as forming his reactions against the application. He urged the Court to dismiss it.

Arguments of the parties
In arguing the application, learned counsel for the applicants submitted that the judgment of the lower Court was not a consent judgment to warrant leave of Court before appealing against it. He referred to Order 37 Rules (6) and (7) of the Nasarawa State High Court (Civil

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Procedure) Rules, 2010 (the Rules, for short); A. F. Afolayan and P. C. Okorie, Modern Civil Procedure (Lagos: Dee Sage Nigeria Ltd., 2007) 268; Kamba v. Bawa (2005) 4 NWLR (Pt. 914) Ras Pal Gazi Const. Co. Ltd. v. FCDA (2001) FWLR (Pt. 58) 1018; Woluchem v. Wokoma (1974) 3 C 153 in support of the submission. He posited that admission made by a defendant could not be taken to be a consent judgment to grant judgment by a Court. He relied on Steel Bell Nig. Ltd v. N.D.I.C. (2015) 1 NWLR (Pt. 1414) 531; Nwankwo v. Nwankwo (1995) 5 SCN 555; Kamba v. Bawa (supra) for the point.

On behalf of the respondent, learned counsel contended, per contra, that the said judgment of the lower Court was a consent judgment which required leave of Court before appealing against it. He relied on Abdulkarim v. Incar (Nig.) Ltd. (1992) 7 NWLR (Pt. 251) 1; Section 241 (2) (c) of the Constitution, as amended.

Resolution of the Application
The kernel of the respondent’s objection, though a knotty one, falls within a narrow compass. Its heart is that the decision, comprised in the judgment, delivered by the lower Court, per R. G. Soji, J., on 21st November, 2014, in

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favour of the respondent was a consent judgment which the appellants needed leave of Court before appealing against it as ordained by Section 241 (2) (c) of the Constitution as amended. By way of necessary prefatory remarks a consent judgment which bears another appellation as agreed judgment is “a judgment entered pursuant to an agreement between the parties,” see R.A.S.C. Ltd v. Akib (2006) 13 NWLR (Pt. 997) 333 at 359, per Ogbuagu, JSC. In S.P.M. Ltd v. Adetunji (2009) 13 NWLR (Pt. 1159) 647 at 667, Adekeye, JSC, described consent judgment thus:
A settlement that becomes a Court judgment when the judge sanctions it. In effect, an agreed judgment is thereby a contract acknowledged in open Court and ordered to be recorded but it binds the parties as fully as other judgment.
In Woluchem v. Wokoma (1974) 3 SC 153/(1974) NSCC, Vol. 191 at 188, Ibekwe, JSC, weaved the nature of consent judgment in these illuminating words:
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

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order based upon such terms of settlement, there emerges a consent judgment from which the parties could appeal only by leave of the Court.
From this ex cathedra authority, three constituents/elements of consent judgment have been deduced: the parties must reach a final agreement on the vital issues in their terms of settlement, they must be ad idem in their terms of compromise agreement and their consent must be free and voluntary, see Oshoboja v. Amudo. (supra); S.P.M. Ltd v. Adetunji (supra). In Abdulkarim v. Incar (Nig.) Ltd (supra), at 15, the Apex Court expanded the horizon/frontiers of consent judgment to include “submission to judgment or admission of claim or conceding to a claim,” Per Uwais, JSC, as he then was. In Abdulkarim case, the Supreme Court rightly took the view that the expression “with the consent of the parties” deployed in Sections 110 (2) (a) (iii) and 220 (2) (c) of the defunct 1963 and 1979 Constitutions respectively now Section 241 (2) (c) of the 1999 Constitution as amended is not coterminous with consent judgment. A consent judgment can be entered at any stage of the proceedings, see D.T.T. Ent. (Nig.) Co. Ltd v.

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Busari (2011) 8 NWLR (Pt. 1249) 387.

Now, the gravamen of the respondent’s objection is that the applicants admitted its claims so that the decision of the lower Court qualified as a consent judgment on the authority of Abdulkarim v. Incar (Nig.) Ltd. (supra). I have read the 3-page judgment of the lower Court contained in Exhibit A, with a fine tooth comb. It is comprehension friendly. At page 2 of it the lower Court stated:
It is noted that the defendants never filed any notice of intention to defend the suit even though served. They rather came to Court and orally admitted the claim but asked for time to settle the indebtedness. They asked for February, 2015 to settle same. (Italics mine for emphasis)

This excerpt, particularly the italicized portion is a concrete evidence that the applicants admitted the respondents claim. Interestingly, the applicants conceded this much in their written address. In Abdulkarim v. Incar (Nig.) Ltd. (supra), at 17, Nnaemeka-Agu, JSC (of the blessed memory) intoned:
?… It appears to me that a decision of the High Court made with the consent of the parties means more than such a decision made after

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a formal agreement by the parties which has been made on order of Court. It includes those decisions to which a party submits without a contest, the whole idea being that the law will not allow such a party to blow hot and cold at will.
This magisterial pronouncement with respect exposes the poverty of the applicants’ alluring submission that the decision of the lower Court was not a consent judgment. The applicants’ undiluted admission of the claim in the bowel of the lower Court, brought the decision within the perimeter of consent judgment.

It flows that the appellants required the leave of Court to appeal against the decision of the lower Court delivered on 21st November, 2014, as decreed by the inviolable provision of Section 241 (2) (c) of the Constitution, as amended. It is decipherable from the application that the applicants did not pray for leave of this Court to appeal against the said consent judgment. In effect, the application is infested with incompetence. The respondent’s objection to the application has merit. I uphold it. Consequently, I strike out the application for being incompetent. The parties shall bear their

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respective costs.

Other Citations: (2016)LCN/8960(CA)