Emeka Ariguzo & Anor V. Mrs. Felicia Osobu & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
The Appellant in this matter filed a Notice of Appeal dated 4th August, 2015 and transmitted the records of appeal against Ruling of FEMI-ADENIYI J., of the High Court of Lagos delivered on 23rd July, 2015 wherein the lower Court upheld the Preliminary Objection of the 4th, and 5th Respondent and dismissed the Appellant’s motion on notice dated 19th July, 2015.
The reliefs sought in the motion resulting in the ruling were for:
i. “AN ORDER adding the Applicants as 4th & 5th Defendants to the counterclaim of the counter-claimants.
ii. AN ORDER setting aside the execution levied by the Counter Claimants against the Applicants on the 16th day of June, 2015.
iii. AN ORDER restoring the 1st Applicant back into possession of the property known as 8A Adebisi Close, Idiroko Village, Maryland, Lagos pending the determination of the substantive suit.
iv. AN ORDER restoring the 2nd Applicant back into possession of the property known as 8B Adebisi Close, Idiroko Village, Maryland, Lagos pending the determination of the substantive suit.
1
v. AN ORDER restraining the Defendants/Counter Claimants from further interfering with the Applicants’ possession of the property known as 8A and 8B Adebisi Close, Idiroko Village, Maryland, Lagos pending the determination of the substantive suit.”
Meanwhile, parties commenced amicable settlement and had mediation sessions, part of which was presided by Hon. Justice S. O. Ilori (Rtd). During the course of the mediation, the Respondents agreed to follow the written instruction of Chief Moses Ademola Osobu (deceased) on the mode of sharing his properties among his wives and children.
The parties and their solicitors thereafter entered into terms of settlement and executed same. It is these terms of settlement filed on 25th May, 2016 that they seek to enter as the judgment of this Court.
Uthman, Esq. counsel for the Appellant informed the Court of amicable settlement and that they desired that terms of settlement be recorded/ratified with the blessing of the Court. He further submitted that the Court of Appeal has the power to enter the terms of settlement as consent judgment of the Court and relied on the Supreme Court case of SPM LTD
2
v. ADETUNJI [2009] 13 NWLR (Pt. 1159) 647 to 661, paras F – G.
A. Ajose – Adeogun, 1st to 3rd Respondents’ counsel aligned himself with the submission of Appellant’s counsel and submitted that the requirements of valid consent judgment are present herein.
Osagwina, Esq., counsel for 4th and 5th Respondents referred to Order 16 Rule 3 of Court of Appeal Rules, 2011 to submit that the provision allows the Court of Appeal adopt the terms of settlement as its judgment.
In this application, which was made orally upon filling terms of settlement, the main issue to be determined is:
“Whether the Court of Appeal can adopt parties terms of settlement (entered into by parties to the appeal herein) as the judgment of the Court?
In CHIEF ADEFOYE ADEDEJI v. J. O. OROSO & ANOR (2007) LPELR-86, TOBI, JSC (of blessed memory) in his dissenting opinion at page 57 held that:
“A consent judgment means when the parties unequivocally agree to terms of settlement which they mutually refer to the Court as basis for the Court’s judgment. By the mutual agreement to settle the matter they have given the consent to the end of the
3
litigation. That makes it a consent judgment. See R. LAUVERS IMPORT EXPORT v. JOZEBSON IND. CO. LTD. (1998) 3 NWLR (Pt. 83) 429: WOLUCHEM v. WOKOMA (1976) 3 SC 153: NWRD v. JAIYESIMI (1963) 1 ALL NLR 215, (1963) 2 SCNLR 37.”
In VULCAN GASES LTD v. G. FUR IND. G. A. G. [2001] 9 NWLR (Pt. 719) 610 at 645, paras H, IGUH, JSC said:
“In order to have a consent judgment therefrom, the parties must reach a complete and final agreement on the vital issues in their terms of settlement. They must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary. The consent judgment emerges the moment the Court on the application of the application of the parties enters such compromise agreement as the judgment of the Court …”
Now, Order 16 of the Court of Appeal Rules, 2011 contains provision relating to the Court of Appeal Mediation programme. It reads:
1. (1) At any time before an appeal is set down for hearing, the Court may in appropriate circumstances upon the request of any of the parties refer the appeal to the Court of Appeal Mediation Programme (CAMP); provided that such appeal is
4
purely civil nature and relates to liquidated money demand, matrimonial causes, child custody or such other matter as may be mutually agreed by the parties.
(2) ….
2. When the Court refers an appeal to the Court of Appeal Mediation Programme, the appeal shall be adjourned to a definite date for the outcome of the mediation between the parties.
3. Without prejudice to the provisions of the foregoing, the parties shall ?
(a) be at liberty, at any time during the course of the hearing of an appeal to explore mediation or any other Alternative Dispute Resolution Mechanism as considered appropriate in the circumstance towards the resolution of their dispute….
4. Where any of the Alternative Dispute Resolution Mechanism adopted is successful, the Court shall adopt the agreement reached by the parties as the judgment of the Court, but when such alternative Dispute Resolution mechanism fails, the appeal shall be set down for hearing.” (Underlining mine)
Therefore, it is obvious from the above provisions, that the Court of Appeal, under it Rules of Court recognizes alternative settlement of dispute and encourages same. The
5
Court may refer an appeal upon request of parties to the Court of Appeal Mediation Programme (CAMP), provided that such appeal relates to civil matters or such other matters as may be mutually agreed by the parties. It will seem that referral of an appeal to the Court of Appeal Mediation Programme (CAMP) is activated on the request of the parties to an appeal. The Court of Appeal is yet to inaugurate its CAMP. Therefore, this procedure is not available to parties as of now.
On the other hand, Order 16 Rule (3) provides that parties to an appeal are at liberty to settle their dispute at anytime during the appeal proceedings, through mediation or any other Alternative Dispute Resolution mechanisms.
To this extent, I firmly believe that, without the framework of Court of Appeal Mediation Programme (CAMP), parties can take advantage of the above Rule to settle their dispute amicably out of the Court and this Court shall undoubtedly give recognition and force of the power of the Court to it, by adopting same as its judgment.
The parties herein stated in their terms of settlement filed on 28th May, 2016 that they had mediation sessions, part
6
of which was presided by Hon. Justice S. O. Ilori (Rtd.). In the interest of justice, the settlement of the dispute reflected in the terms of settlement ought to be given backing of this Court.
Although, the terms of settlement as executed by the parties at this appellate stage does not flow with the Ruling delivered by the lower Court, I am of the firm view that a refusal to accede to their request as per their settlement would result in compelling them to accept the lower Court’s Ruling or mandating them, contrary to their will, and further to proceed with the appeal and abide by the resultant judgment of this Court. Indeed, this will run contrary to their intention to put an end to the litigation between them.
This position received judicial approval of Supreme Court in S.P.M. LTD. v. ADETUNJI [2009] 19 NWLR (Pt. 1159) 647, where, MUNTAKA-COOMASSIE, JSC held at page 659 to 660, paras F-A thus:
“It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By so doing, the otherwise hostile relationship between the parties would be amicably
7
resolved and cemented. It is this amicable resolution of disputes by the parties that is called settlement. When the terms of such settlement are reduced into writing, ‘it is now called terms of settlement’, when the terms of settlement are filed they are called and made the judgment of the Court. It is then crystallized into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal, except with the leave of Court. Hence, consent judgment is a judgment between the parties whereby rights are created between them in substitution for order of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as such a judgment which results from the decision of the Court…”
It is therefore clear that the Court of Appeal can adopt the terms of settlement between the parties as its judgment in so far as the terms are ascertainable and capable of being enforced with the acquired or abandoned rights of the respective parties clearly spelt out therein. ADEKEYE, JSC, further held at page 667, paras E ? G opined that:
“It is the role of a judex
8
in adjudication to encourage amicable settlement in a suit where it can adequately meet and satisfy the end of the justice. The Court has a discretion or jurisdiction to examine the entire circumstance of a case in order to determine whether the alleged terms of settlement, which to all intents and purposes are compromise agreement, entered into by the parties to a suit should be scrutinized and made an order of Court ….”
The foregoing approach was adopted by this Court in Appeal No. CA/A/237/2008 between VIMEH NIGERIA CO. LTD v. OWEN NWOKOLO & ORS delivered on 10th, November 2011 wherein BULKACHUWA, JCA (now PCA) adopted the terms of settlement of the parties therein as the judgment of the Court.
Coming back to the instant appeal, I have carefully examined the terms of settlement dated and filed on 25th May, 2016 as executed by the parties and their Solicitors, I must say that the terms contained therein are not only ascertainable, but are also capable of being enforced with the rights and obligations of the respective parties clearly spelt out. It is evident from pages, 3 and 4 of the terms of settlement, specifically paragraphs 2 and 3
9
thereof, that the subject matter is with respect to the properties situate and known as “No. 8A & B, Adebisi close, Idiroko village, Maryland, Lagos” with parties agreeing inter alia that the 1st Appellant shall pay the 4th and 5th Respondents the sum of N60,000,000.00 (Sixty Million Naira Only) in full and final satisfaction of their claims to the property as per their Counter-claim.
I am therefore satisfied that the terms of settlement as agreed by the parties are enforceable as they are not vague or ambiguous. I have no hesitation in giving heed to the parties request to give it a binding force.
In the result, the terms of settlement dated 25th May, 2016 as executed by the respective parties to this appeal is hereby adopted as the judgment of this Court in this appeal. It is hereby ordered that:
1 (a) The 1st Appellant shall pay the 4th and 5th Respondents the sum of N60,000,000.00 (Sixty Million Naira only) in full and final satisfaction of their claims to the property known as 8A, Adebisi close, Idiroko Village, Maryland, Lagos, and in full and final settlement of the 4th and 5th Respondent’s counter-claim in SUIT No:
10
ID/452/M/2009: MRS. FELICIA OSOBU & 2 ORS v. MRS. ADEBOYE OSOBU & ANOR.
(b) The period for the repayment of the sum of money shall be two months (60 days) from the date of the execution of the Terms of Settlement.
(c) The payment of the said N60,000,000.00 (Sixty Million Naira only) shall be made in two installments to wit, first installment of N30,000,000.00 (Thirty Million Naira only) shall be due on 30th June, 2016 while the second installment of N30,000,000.00 (Thirty Million Naira only) shall be due on 31st July, 2016.
(d) The 1st Appellant may however make one bullet payment of N60,000,000.00 (Sixty Million Naira only) to the 4th and 5th Respondents on or before the 31st July, 2016 in full and final settlement of the 4th and 5th Respondent’s counter-claim in SUIT No: ID/452M/2009: MRS. FELICIA OSOBU & 2 ORS v. MRS. ADEBOYE OSOBU & ANOR.
(e) The 1st Appellant would be entitled to move back into his property known as 8A, Adebisi Close, Idiroko Village, Maryland, Lagos upon completion of payment of the said sum of N60,000,000.00 (Sixty Million Naira Only).
(f) The 2nd Appellant would be entitled to move back into
11
property known as 8B, Adebisi Close, Idiroko Village, Maryland, Lagos upon completion of the sum referred to in paragraph (e) above.
(g) The foregoing shall be binding on the parties and their successors-in-title, privies and assigns and the 4th and 5th Respondent shall file an affidavit which shall compromise the suit at the High Court of Lagos State, Lagos Judicial Division with SUIT No: ID/452M/2009: MRS. FELICIA OSOBU & 2 ORS. v. MRS. ADEBOYE OSOBU & ANOR.
(h) The 1st, 2nd, 3rd, 4th and 5th Respondents shall cease to have any form of rights, interests, privileges, or entitlements in respect of the properties known as 8A & B, Adebisi Close, Idiroko Village, Maryland, Lagos.
(i) All rights, interests, privileges and entitlements shall belong solely to the 1st Appellant in respect of the property known as 8A, Adebisi Close, Idiroko Village, Maryland, Lagos.
(j) All rights, interests, privileges and entitlements shall belong solely to the 1st Appellant in respect of the property known as 8B, Adebisi Close, Idiroko Village, Maryland, Lagos.
Other Citations: (2016)LCN/8925(CA)
