Mallam Saidu Amori V. Yakubu Iyanda (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the decision of the High Court in its appellate jurisdiction delivered on the 19th of October, 2004 by Hon, Justice Oyeyipo CJ, Hon, Justice J, F. Gbadeyan and Hon. Justice M. O. Adewara learned Judges of the High Court of Kwara State wherein the court dismissed the Appellant’s appeal and upheld the decision of the Upper Area Court No. 1 Ilorin. The facts leading to this appeal are as follows:
In a Motion on Notice dated the 1st day of December, 2000, brought pursuant to the provisions of Order 5 Rule 1, Order 17 Rules 1, 2 and 3 of the Area Court (Civil Procedure) Rules 1971 and under Section 287 (1) of the 1999 Constitution, the Respondent prayed the Upper Area Court No.1, Ilorin Suit No. UAC/CVF/78/93: YAKUBU IYANDA VS. MALLAM SAIDU AMORI & ORS for the following reliefs, to wit:
“(a) AN ORDER of this Honourable Court granting the Plaintiff/Applicant’s leave to enforce and/or execute the judgment of the High Court of Justice, IIorin in Suit No. KWS/38A/84 dated 24/5/85 affirmed by the Court of Appeal Kaduna in Suit No. CA/K/71/87 dated 19/4/1993 which said judgments were delivered in favour of the Plaintiff/Applicant.
(b) PURSUANT TO paragraph a (Supra) an order of this Honourable Court evicting or ejecting all the privies, personal representatives, children, dependants or any person or persons HOWSOEVER from the Plaintiff’s land situate, lying and being at Oloje, Ilorin Kwara State forthwith.
(c) AN ORDER of this Honourable Court directing the Defendants their servants, agents, privies, dependents, person representatives or any person or persons HOWSOEVER to remove all their corporeal items, structures, building or kiosks or any property of whatever description from the Plaintiffs land situate, lying and being at Oloje, Ilorin Kwara State based on the judgment of the High Court of Justice, Ilorin in its appellate session in Suit No. KWS/38A/84 dated 24th May, 1985 and affirmed by the Court of Appeal Kaduna, in Suit No. CA/K/71/87 dated the 19th day of
April, 1993.
(d) AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.”
The Upper Area Court on 24th July, 2001 granted all the reliefs sought by the Respondent.
The court held inter alia
“since the main Defendant whose tenants the rest defendants are has conceded the title to the subject matter of the dispute to the plaintiff, we enter judgment of the plaintiff…”
The Appellant as plaintiff before the Upper Area Court 1 Ilorin thereafter filed a Civil Summons against the defendant now respondent claiming the following:
“1. A Decleration that the consent judgment dated 24th July, 2001 and given by this Honourable Court in Suit No.CVF/78/93: Yakubu Iyanda v. Mallam Saidu Amori & 10 others, was given under a mistake of facts and misrepresentation, and is therefore a nullity.
- A consequential order setting aside the consent judgment dated the 24th day of July, 2001.”
The matter was tried, the Appellant testified and called three witnesses. The Upper Area Court concluded the trial and gave judgment on 5/9/03 refusing to set aside its earlier judgment of 24/7/01. dissatisfied with the judgment of 5/9/03 delivered by the Upper Area Court, the Appellant appealed to the High Court of Justice Ilorin. The notice of appeal contained three grounds of appeal. The Respondent filed a notice of preliminary objection to ground 1 of the Appellant’s ground of appeal at the High Court.
In a considered judgment, the High Court in its appellate jurisdiction held as follows:
“(i) That ground 1 of,the grounds of appeal was incompetent as the Notice of Appeal was filed out of time with no leave of the High Court first sought nor obtained, Seepage 64 of the record, second paragraph and 65 second and fourth paragraph (sic)
(ii) That the judgment of the trial Court was not given under a mistake of fact or misrepresentation.
(iii) That the trial Upper Area Court was right in concluding there was no reason to disturb its earlier decision of 24th July, 2001.
(iv) That the case of Vulcan Gases Ltd vs. Gesellschaft (2001) 5 SC (pt.1) 1 at 20 – 25 or (2001) 5 SCNJ 55 at 81 – 82 was not relevant or applicable to the case now on appeal.
(v) That the appeal failed and was accordingly dismissed”
The Appellant also dissatisfied with the judgment of the Kwara State High Court appealed to this court. Two original grounds and two additional grounds of appeal were filed with leave of this court.
“1. The four grounds of appeal shorn of their particulars are stated below:
“1. The Learned Judges of the High Court erred in law when they held thus: “Clearly in our view ground No. 1 of the appellant’s grounds of appeal is incompetent as it was filed outside the 30 days period allowed by law…’. In consequence, we hold that Ground 1 of the appellant’s grounds of appeal is incompetent and it is accordingly struck out.”
- The Learned Judges of the Lower Court, misdirected themselves in law when they held:
“In the instant case, we do not find any evidence of either mistake of facts or misrepresentation as it was clearly manifest in the Vulcan Gases Ltd’s Case (Supra).
We hold therefore that the case is not apposite and as such the rules laid therein can not and does (sic) not apply in this case.”
- The Learned Judges of the High Court (Appellate session) erred in law in striking ‘out ground No. 1 of the Appellant’s grounds of Appeal when the said ground was competent and suffered no vice thereby occasioning a grave miscarriage of Justice on the Appellant’
- The Learned judges of the High Court (Appellate session) erred in law in affirming the decision of the trial court when from the materials before them, the trial court was without jurisdiction to grant the reliefs she granted thereby coming to an erroneous conclusion.”
The Appellant’s brief was filed on 28/7/2006 while the Respondent’s brief dated 26/2/2007 was filed on 28/2/2007 and deemed filed on 19/3/2007.
The Appellant’s Counsel identified/two issues for determination: They are stated below:
“1. Whether the High Court was right in striking out the ground contained in the Notice of Appeal filed on October, 2003 on the ground of its competence.
- Whether the High Court was right in affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment despite the vices afflicting same and in failing to follow the decision of the Supreme Court ‘in’ the case of Vulcan Gases Ltd vs. Geselschaft (2001)5 (Pt. 1) at 20 – 21.”
The 1st. issue “identified “by the Appellant is the same as the Respondent’s 1st issue. However, the Appellant’s 2nd issue as couched differs from that of the Respondent’s 2nd issue. For the purpose of this appeal, I will consider the issues as adumbrated by the Appellant’s counsel but in considering the 2nd issue I will encompass the perspective put on it by the Respondents Counsel.
The 2nd issue identified by the Respondent’s counsel is stated thus in the brief:
“(ii) Whether having regard to the evidence of PW3 (Goke Akande, Esq.) who was counsel to the Appellant in Suit No. CVF/78/93, the lower court was right in affirming the decision of the trial, court that the consent judgment of 24/7/2001, was not given under mistake of fact and misrepresentation;
On issue one, which is based on the competence or otherwise of ground 1 of the Appellant’s ground of appeal before the Lower Court, learned Appellant’s Counsel argued that the focus of that ground was the refusal of the trial Upper Area Court to set aside its judgment of 24/7/01.
The objection; of the Respondent to the said ground was premised on the fact that ground 1 was filed out of time because the complaint against it relates to the judgment of the Upper Area Court delivered on 24/7/01. The High Court sustained the objection because in their view ground 1 of the Appellant’s grounds of appeal is incompetent because the notice of appeal was filed out of time and leave of the High Court was not sought or obtained before it was filed. Learned Appellants Counsel submitted that the Appellant’s case at the Upper Area Court was to set aside the decision of the Upper Area Court delivered on 24/7/01. The judgment of the Upper Area Court refusing to do this was delivered on 5/9/2003 and an appeal was filed against that judgment on 3/10/2003 less than the mandatory time within which to appeal. He further argued that the decision of the High Court to strike out that ground of appeal is perverse and led to a miscarriage of justice since the High Court thereafter shut its eyes to the totality of the complaint in that ground. He cited Obikoya v. Wema Bank Ltd (1989) 1 NWLR Pt. 96 Pg. 157 at 179; Mohammed v. C. O. P, (1999) 12 NWLR Pt. 630 Pg. 331 at 340; Nnorodim v. Ezeani (1995) 2 NWLR Pt. 378 Pg. 448 at 467; Baridam v. The State ‘(1994) 1 NWLR pt. 320 -Pg. 250 at 260. He urged this court to consider the complaint under ground 1 and resolve same since parties had extensively canvassed arguments on the said ground in their oral address before the Lower Court. He urged this court to invoke S.16 of the Court of Appeal Act. By invoking 5.16 of the Court of Appeal Act, this Court can consider the complaint in Ground 1 before the court below and find in favour of the Appellant. He cited Orji v. Zaria Industries Ltd (1992) 1 NWLR Pt. 216 Pg. 124 at 141; 7UP Bottling Co. Ltd v. Abiola (1995) 4 NWLR Pt.1389 Pg. 287 at 300.
Learned Respondent’s Counsel on the other hand, argued that the ground of appeal with its’ particulars of error attacked the judgment of the Upper Area Court delivered on 24/7/01 when there was no appeal against the said consent judgment? No extension of time was applied for or granted to appeal out of time against the judgment of 24/7/01 while the Appellant’s appeal dated 3rd Oct., 2003 was in respect of the judgment delivered on 24/7/2001.
Learned ‘Respondent’s Counsel further submitted that S.16 of the Court of Appeal Act cannot be used by the Appellant to undo what he did not do when he failed to file an appeal against the judgment of 24/7/01 within time.
To my mind, this issue appears to turn on the phraseology of the said ground of appeal. The said grounds with its particulars are stated below as contained on pg.70 of the records.
“The trial court erred in law by refusing to grant the Claims/Reliefs of the Plaintiff/Appellant having being shown that it has no Jurisdiction or power to make the decision of 24/7/2001 owing to the existence of Exhibits ”P1′ and ”P2” which were not brought to the notice or attention of the trial court before the judgment/decision of 24/7/2001 was made.”
PARTICULARS OF ERROR
(a) Exhibits ”P1″, the Judgment of the High Court Omu-Aran dated 1/2/96 showed clearly that the High Court of Justice, Ilorin (in its appellate session) in Suit No. KWS/38A/84 and the Court of Appeal Kaduna in Suit No. CA/K/71/78 did not adjudge the Respondent as the rightful owner of the land in dispute.
(b) Exhibit “P2′; the judgment of the trial court itself, delivered on 9/5/96 also refused the Respondent’s action for enforcement of the two judgment in Suit No. KWS/38A/84 and Suit No. CA/K/71/78 on the ground that the judgments’ did not award the ownership of the disputed land to the Respondent and, as such, there was nothing to enforce.
(c) Exhibits ”P1” and “P1” have shown that the trial court has-no power or jurisdiction to make an enforceriient order as claimed by the Plaintiff (Respondent herein) in Suit No. CVF/78/93 and in Exhibit ‘P3’.
(d) The trial court in its judgment on 24/7/2001 granted the reliefs asked for by the Respondent in his Motion on Notice filed on 1/12/2000/ that is, Exhibit “P3” which said reliefs had been earlier refused in Exhibits “PW1 and “PW2″ when it has no jurisdiction or power to do so.”
(Underlining mine)
The learned appellate judges of the High Court held while sustaining the objection of the competence of that ground as follows:
“We are not unmindful of the submission of Mr. Femi Makinde that Ground 1 of the grounds of appeal emanates from issues that were raised and canvassed before the trial court and that the appellant needed not seek and obtain leave to appeal. We are however of the view that since Ground 1 is in the main complaining about the decision given by the lower court on 24/7/2001 and the appellant has failed to appeal within the period of time stipulated he must, to have a competent ground of appeal obtain leave to file Ground 1 of his appeal out of time. See OKON v. EKANEM (2003) FWLR (Pt.136) page 981 at 983.
Having failed to seek and obtain leave of court to file Ground 1 of the Grounds of Appeal therefore, we hold that the objection of the Respondent has merit. We hereby sustain it. In consequence, we hold that Ground 1 of the appellant’s grounds of appeal is incompetent and it is accordingly struck out.”
A look at the ground of appeal as couched by the Appellant’s counsel and already setout supra; shows clearly in my opinion a complaint against the judgment of the trial. Upper Area Court delivered on 24/7/01 rather than the one delivered; on 5th September: 2003. In fact the particulars of error show complaints against the lack of jurisdiction of the court in respect of suit CUF/78/93 rather than Suit No CUF/94/2001. An examination of the wordings of the ground of appeal and particulars thereof lead one to no other conclusion that the complaint is against the consent judgment delivered on 24/7/01 rather than the refusal to set it aside delivered on 5/9/03.
The essence of a ground of appeal is to apprise the opposite party of the nature of the Appellant’s complaint clearly and unambiguously. See Chief Okotie-Eboh v. Chief Ebiowo Manager (2004) 12 SCNJ 139. Also, grounds of appeal must be based on correct factual premises by relating to what really occurred in the lower court. See Nathan Onwuka v. Ben Maduka (2002) 9 SCNJ 113. The ground to my mind was couched in ambiguous terms and the particulars which were meant to provide clarity only compounded the issue by its several references to the defects in judgment of 24/7/01 rather than the judgment appealed against which was delivered on 5/9/2003.
The over all impression after reading the ground of appeal is that it is a complaint against the judgment delivered 24/7/01. In such a case the Appellant was out of time and having not sought leave to appeal out of time the ground was properly struck out. Of course an appeal against the decision of 5/9/03 was not out of time as properly argued by Appellant’s Counsel, however, the couching of that ground of appeal made it impossible to tell at once that it was a complaint against the judgment of 5/9/03. Secondly, the purpose of a ground of appeal is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. It must be fixed and Circumscribed within a particular issue in controversy. If otherwise then it is incompetent. The ground and particulars are supposed to show the faulty rationale which led to the judgment of the lower court. Where a ground of appeal is couched in such away that it does not appear to complain against the decision appealed against as in this case, it is ,incompetent and should be struck out. See Akibu v. Oduntan (2000) 7 SCNJ 189; Balogun v. Adejobi (1995) 1 SCNJ 242; Onamade v. ACB (1997) 1 SCNJ 65; Oshevire Ltd v. Tripoli Motors (1997) 4 SCNJ 246.
Learned Appellant’s Counsel also urged that we should invoke our wide powers under S. 16 of the Court of Appeal Act. With respect, I do not think the circumstances of this case warrant the exercise of such powers. The scope of the full powers of jurisdiction given to the Court of Appeal under S. 16 of the Act does not include what the trial court or in this case the lower court could not have done. In conjunction with Or. 1 r. 20 (4) of the Court of Appeal Rules, S. 16 of the Court of Appeal Act, the amplitude of the powers of the Court of Appeal extends only to the correction of errors of lower courts, in re-assessing or re-evaluating evidence and in such process utilizing evidence on record that was not utilized by the lower court and rejecting inadmissible evidence utilized by the lower court. See, Att. Gen. Anambra v. Ephraim Okeke (2002)5 SCNJ 318; Cappa &. D’alberto v. Deji Akintilo (2003) 4 SCNJ 328. Be that as it may, the issue raised being resolved against the Appellant as reasoned above, there is no justification for the invocation of the courts inherent jurisdiction under S.16 of the Court of Appeal Act and Or. 20 of the Court of Appeal Rules: The 1st issue is resolved against the Appellant.
The 2nd issue of determination is whether the High Court was right in affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment.
affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment. In other words whether the consent judgment of 24/7/01 was not given under any mistake of fact or misrepresentation. Learned Appellant’s Counsel argued that the Upper Area Court which gave the decision of 24/7/01 lacked the requisite jurisdiction to entertain and grant the reliefs it awarded the Respondent as the owner of the piece of land in respect of which consent judgment was granted in his favour for eviction of persons and possession of the structures on the land.
He argued that the incurable vice in the proceedings led to a house built on nothing which cannot stand. He cited Madukolu v. Nkemdilim (1962) NSCC 374 at 379-38 Mcfoy v. UAC (1961) ALL ER 1159 at 1172. He submitted that the claim of the Plaintiff determines the jurisdiction of the court. He cited Dangida v. Mobil Producing (2002) 7 NWLR, Pt.766 Pg. 482 at 500 – 501; OHMB v. Garba (2002) 14 NWLR Pt. 788 Pg. 538 at 563 – 564; Wema Bank v. Olatunji (2002) 13 NWLR Pt.781 Pg. 259 at 318. He submitted that the trial court before whom a motion for possession was brought gave the consent judgment on a wrong premise based on the prayers adumbrated therein. He argued that in fact the motion Exh. P3 was to enforce the judgments contained in Exh. X4 and Exh X5. In fact Exh P1 & P2 showed that the Respondent had failed in the past to get the reliefs granted by the court on 24/7/01 because there was no judgment in his favour by which an enforcement order could be made. He argued that these exhibits showed the inherent mistake in the consent judgment which the trial court find the court below refused to set aside. He argued that the relevant thing is whether based on the relief sought by the Respondent the court could grant any relief in his favour and not whether the appellant herein voluntarily surrendered to judgment. He argued that once there was no legal or valid basis for the reliefs sought and granted the court acted without jurisdiction and the consent of the parties will not confer jurisdiction on the court. He cited Okoro v. N. A.C.(2000) 3 NWLR Pt. 647 Pg. 77 at 90 – 92; Okulate v. Awosanya (2000) NWLR Pt. 646 Pg. 530 at 555; Sobodu v. Denloyei (1998) 12 NWLR Pt.578 Pg.341 at 356. He submitted that where there is no jurisdiction the proceedings were futile. He cited Adesola v. Abidoye (1999) 14 NWLR pt. 637 Pg. 28 at 51 & 57; Wema Bank v. Christrock Lab (2002) 8 NWLR pt. 770 Pg. 618 at 628. He argued that the Respondents claimed reliefs to; enforce :Exhibits X4 and X5 and submitted that none of Exhibits :X4 and’ X5 adjudged’ the Respondent the owner of the land in dispute.
He also submitted that a consent judgment may be set aside on the ground of non disclosure. He cited Lamurde v. Adamawa JSC (1999) 12 NWLR Pt.629 Pg. 86 at pg. 99 – 100.
He argued that the Upper Area Court and the High Court in the past as evidenced by Exhibits P1 and P2 had refused to grant the reliefs granted in the consent judgment because there was no judgment in the Appellant’s favour in respect of which such an enforcement order can be made.
He urged this court to set aside the consent judgment delivered on 24/7/01 because the court lacked the jurisdiction to make it. He cited Obayiuwana v. Ede. (1998) 1 NWLR Pt. 535 Pg. 670 at 679 – 80. He submitted that the trial court and the lower court were in manifest error in concluding that the case of Vulcan Gases Ltd v. Gesellshaft Ltd (2001) 5 SC Pg. 1 at 20 (2001 9 NWLR Pt. 719 Pg. 610 is not applicable. He also cited Atolagbe v. Awumi (1997) 9 NWLR Pt.522 Pg. 536. He argued that the failure of the courts below to follow the decision in Vulcan v. Gesellshaft Ltd has led to a miscarriage of justice and that the judgments should be set aside. He cited Larmie v. D.P.M.S. Ltd (2005)18 NWLR Pt.958 Pg. 438 at 463.
Learned Respondent’s Counsel in reply argued that the Appellant did not prove at the trial court that the judgment of 24/7/01 was given under a mistake of fact or misrepresentation. He argued that the Respondent filed a motion on 4/18/2000 for possession of the property in dispute and ejection of trespassers. No counter-affidavit was filed by the Appellant at the trial court to debunk or controvert the averments therein. The Appellant was represented by counsel – one Goke Akande Esq. who wrote to concede the claim and also came to court concede the claim the presence of the Appellant. This led to the consent judgment in favour of the Respondent on 24/7/01. He submitted that the Appellant’s counsel who held the brief acted under orders from this client and there was no mistake as to what was conceded. The Appellant’s counsel had full control of the case, he cited Akanbi v. Alao (1989) 3 NWLR Pt.108 pg.118 at 142.
To my mind this issue turns on whether or not the consent judgment delivered on 24/7/01 was based on fraud, mistake of facts or misrepresentation. From the evidence on record, when the Appellant gave evidence in his claim to set aside the default judgment, it is clear that he understood at the time he gave his consent the contents of the judgments in Exh. X3 – the judgment of the High Court in which the Respondent’s appeal was allowed, Exh. X4 the judgment of the Court of Appeal in which, the Appellant’s father’s appeal was dismissed, and Exh. X5, the enrolled order of the Court of Appeal. His evidence as contained on Pg. 18 – 19 of the records is as follows:
“The cause of action in that case is that the defendant herein sued my father claiming the land giving to him by my father the case was adjudicated upon at Area Court Omu Aran Area and the land was awarded to my father but the defendant herein appealed against the judgment to the High Court of justice appellate Division Ilorin, but it was the defendant herein that won, that means the decision of Upper Area Court Omu-Aran was set aside.
However, my father was not satisfied with the decision of High Court Ilorin he then appealed the Court of Appeal Kaduna. During the pending of the, appeal my father Sliberu Ajape died. Then Kamaldeen Jimoh took over the appeal. The out come of that appeal is that the Court of Appeal Kaduna confirmed the judgment of High Court Ilorin and dismissed my father’s appeal.
In retracting is consent he stated at Pg.20 of the Records that:
”I did not hear what was happening before the court that very day was alleged to have said that I agreed that the land belong to the defendant herein and before I said so and I did not know what I was saying on that day. It was after considering the 3 exhibit tendered today before this Hon. Court I came to a conclusion that what I did was wrong what I want the court to do is that the court should allow me to testify in the real substantive suit filed by the defendant in 1993 and want the court to set aside the consent judgment”
Under cross-examination, he conceded as follows on Pg. 21 – 22 of the Records.
“The man sitting in open court his name is Mohamadu Raji Abondo, my self and Muhammadu Raji Abondo, Myself Kamaldeen Jimoh and Suberu Ajapeare from the same family. The land upon which the consent judgment was given on 24/7/2001 is at ile Abondo Oloje Ilorin. It was this same land that Suberu Ajape lost the appeal at High Court of Justice Ilorin and I agree on it. I also agree that the, land upon which consent judgment was given by this court on 24/7/2001 that Kamal Deen Jimoh lost on appeal at Court of Appeal Kaduna, Court of Appeal, Kaduna dismissed the appeal filed by Kamal Deen when the appeal filed by Kamal Deen at Court of Appeal Kaduna Kamal Deen did not appeal to Supreme Court.”
He went further to say on page 23 of the Records that:
“Before this court delivered the consent judgment on 24/7/2001. We did not tell this court nor write the court to inform the court that we did not authorize Counsel Akande to inform the Court or wrote the consent Judgment before the Judgment was given myself, Mohamadu and our Lawyer Goke Akande was always present in Court.”
The Lower Court in its judgment on pg.65-66 of the Records held on this issue as follows:
”It is ‘manifest from’ the record of appeal particularly at its page thereof that the appellant herein voluntarily gave instruction to his counsel – Goke Akande Esq. to concede title of the disputed land to the respondent.”
While being cross-examined by Mr. Otaru, the PW3, Goke Akande who was the Appellant’s counsel when he conceded title to the Respondent had this to say:
“It was after I had appealed that I still concede (sic) title to the claims of the defendant as instructed by my client. ………………. I still insist that all I did for my client in that case was done in good faith. I did not misrepresent any fact to this Honourable Court by conceding title to the defendant as instructed by client, the Plaintiff herein.
Also at page 22 of the transcript record of appeal, the appellant herein as plaintiff in the Lower Court admitted that he did not tell the court or write to inform the court that Goke Akande was not authorized to represent him in Court on the day the consent judgment was given. He also agreed that he was always present in Court with his Lawyer for the period that the case lasted.
It has been held that a consent judgment can be set aside for mutual mistake, but not for unilateral mistake unless the unilateral mistake was induced by fraud or misrepresentation. See SOWOLE VS. ONI AND SONS LTD (Unreported) SC 486/66 of 8th May, 1969; AKINWUMI VS. IDEWUMI (1969) 1 ALL NLR 319.
It seems to us from our careful perusal of the transcript record of appeal that the judgment that was delivered by the Lower Court on 24/7/2001 was not based or given under a mistake of fact or misrepresentation.”
On the applicability and relevance of the case of Vulcan Gas v. Gesellshalf the learned judges of the Lower Court held thus at Pg. 68 of the Record after a lengthy review of the facts of the Vulcan case:
”In the instant case, we do not find any evidence of either mistake of facts or misrepresentation as it was clearly manifest in the Vulcan Gases Ltd’s case (supra).
We hold therefore that the case is not (sic) opposite and as such the rules laid therein cannot and does not apply in this case.”
Let us ask ourselves the question; can one say from the record of proceedings reproduced above that the Lower Court came to the correct conclusion that the Upper, Area Court before it delivered the consent judgment was not induced to arrive at its conclusion based on misrepresentation of counsel, mutual mistake or fraud? PW.3 at the trial court in this case the Appellant’s Counsel in Suit No.CVF/78/93 Mr. Goke Akande maintained during the trial to set aside the consent judgment that he obeyed his client instructions in good faith. There is nothing in the evidence of the Appellant during the trial to indicate that Mr. Akande had betrayed their trust or acted contrary to the instructions given to him to concede the Respondent’s claim of possession to the land he had won by virtue of the judgments he wanted the court to give effect to. There is no evidence that the Appellant’s Counsel misrepresented this position. Counsel to a party has implied general authority to compromise proceedings on behalf of his client provided counsel acts bonafide and not contrary to express instruction. See Obayiuwana v. Ede (1998) NWLR Pt.535 pg.670 at 678
The Appellant from his evidence was well aware of all the facts in issue and voluntarily conceded the Respondent’s claims through his counsel. The Appellant’s counsel has made heavy weather of the fact that the Respondent did not tender Exh. P1 & P2 at the time he filed his motion to give effect to Exh X3 and Exh. X4 and thus the Respondent was not aware of the two suits.
This was an inter family dispute which had spanned several years in which members of the family as a whole were involved. He swore that when his father died, one Kamaldeen was substituted for his father. He did not say on oath that he was unaware of Exh. P1 & P2 but that it was after considering the exhibits’ that he realized that what he did by conceding was wrong and prayed the court to set it aside. Also the Supreme Court held in Akanbi v. Alao at Pg. 140 of Pt. 108 NWLR supra that where a party makes a choice which the law requires him to make and that choice was acted on by both parties in the suit and by the court, the party who made the choice cannot turn around afterwards and claim that he had made a mistake. Such a mistake will not excuse the party and allow him to resile from his previous position” per Craig, JSC.
I am in agreement with the trial court and the learned judges of the High Court that the facts of Vulcan’s case are quite different from the facts of this case. In the Vulcan’s case, the ‘Respondent’s Counsel exceeded or misunderstood his instruction in the first instance and had conceded terms at variance with his instructions. When made aware of this by his principal (the client) the counsel brought this mistake to the knowledge of the other party’s counsel who however insisted on giving effect to a concession made in error by the other legal counsel and filing the disputed terms of settlement as the judgment of the court. Of court course the Supreme Court held that the disputed terms of settlement could not be allowed to stand and set aside the disputed terms of settlement. A decision is only authority for the facts and law on which it was decided. Where the facts can be distinguished the lower Court need not willy nilly apply decision law which does not support the facts before it. There is no doubt that in this case at the time the consent judgment was given, parties were ad idem as to the terms of their compromise and the concession was free and voluntary. It was later that the Appellant changed his mind. There must be an end to litigation. Parties cannot be allowed to approbate and reprobate, the courts cannot allow cases to be fought at the whims and caprices of litigants. The Appellant gave his counsel authority, to concede and the counsel obeyed his instructions and did not exceed it. In such an event, the client cannot be allowed to resile from the instructions given to counsel and given effect by the court. See Akanbi v. Alao (1989) 3 NWLR Pt. 108 Pg. 118 at 142 & 153; Moshashe General Merchant v. Nig. Steel Products Ltd (1987) 2 NWLR Pt.55 Pg. 110; Albert Afegbai v. Att. Gen. Edo State (2001) 7 SCNJ 438; Adewunmi v. Plaster Ltd. (1986) 3 NWLR Pt.32 Pg.767 at 795.
To my mind in the circumstances wherein the consent judgment was given 24/7/01 there is no evidence of fraud, mistake, misrepresentation or any vice which would afford a ground for setting it aside. There is no doubt that an order which is a nullity is something which the person affected thereby is entitled to have set aside ex debito justitiae. The court has discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned. The argument of learned Appellant’s counsel is that the jurisdiction of the court should be invoked in favour of the Appellant in this case. A consent judgment may be set aside as set out by I. T. Mohammed JCA (as he then was) in Lamurde v. Adamawa State JSC supra
a) Where it was obtained by fraud
b) Where it was obtained by misrepresentation or non disclosure of a material fact which there was an obligation to disclose.
c) It was obtained by duress.
d) It was concluded under a mutual mistake of fact.
e) Where consent judgment was obtained without proper authority. The issue of fraud has not been claimed by the Appellant in this case. The issue of misrepresentation by counsel to my mind has been debunked at the trial court. The issue of non-disclosure of material facts that is Exh. P1 & P2 cannot stand as argued by Appellant’s counsel since these were decisions of court cases in Which each party was represented by a family member. The Appellant in his evidence did not claim ignorance of the proceedings culminating in Exh. P1 & P2 even though he might not have understood their legal meaning. Therefore the issue of non-disclosure of material facts does not arise.
It is not the Appellants case that the consent was obtained under duress or was obtained without proper authority. The last criterion is whether the judgment was obtained under a mutual mistake of fact in other words whether there was no factual or legal basis for the consent given by the Appellant to the effect that by the results of the two judgments relied upon, the Respondent was not entitle to the grant of the reliefs claimed in the motion which led to the consent judgment.
Let us examine the justice of this case with a view to determining if indeed the judgments sought to be given effect and which were given effect by the consent judgment were non-existent and did not convey any right or title or the Respondent. A review of the historical journey of this dispute has to be made to get a better understanding and to determine the question of whether the claim of the Respondent was based on wrong premise and mutual mistake of fact, and the consent judgment was thus a nullity due to the lack of jurisdiction of the trial court. The argument of Appellants counsel is that there is no legal or factual basis for the title claimed by the Respondent which led him to file a motion to assert rights which were conceded by the Appellant. In such an event, the rights being baseless, the concession of the parties not withstanding, the court lacked jurisdiction and the consent judgment should be set aside.
From the exhibits tendered and the records, the following facts are not in dispute.
In 1983, the Respopndent instituted an action in a representative capacity against one Yakubu Ajape (father of the present Appellant) in Suit No. UACO/CVF.21/83 at the Upper Area Court Omuaran wherein he claimed title to a piece of land situate at Oloje, Ilorin (the same land in dispute). He claimed through inheritance from his father. The Upper Area Court dismissed his claim and he subsequently appealed to the appellate session of the High Court Ilorin in Suit No.KWS/38A/84. The High Court Coram T.A. Oyeyipo CJ, J. F. Gbadeyan, J. and J. A Ibiwoye, J. (as he then was) on 24/5/85 allowed the appeal. The High Court held that the Plaintiff/Appellant had locus standi and that the finding of the Upper Area Court was perverse and allowed the ‘appeal’, Pg: 4 of Exh. X3 the judgment of the High Court reads:
“We agree with Mr. Olanipekim that a lot of the findings of the trial court are perverse. For the reasons which we have given the appeal succeeds and it is allowed. The finding of the Upper Area Court is hereby set aside.”
The Respondent at the High Court appealed to the Court of Appeal Kaduna in suit No. CA/K/71/87. Before the appeal was heard the Appellant at the Court of Appeal, Suberu Ajape died and Alh. Kamaldeen Jimoh was substituted for him: On 19/4/93 the Court of Appeal coram Uthman Mohammed OFR; Okay Achike and Simeon Adebayo Oduwole JCA dismissed the appeal and affirmed the judgment of the Kwara State High Court in its Appellate jurisdiction.
The judgment is Exh X4. In Exh X4, pg. 15 thereof, the learned justice of the Court of Appeal held thus:
“After considering the respective submission of both counsel in this appeal it is plain, from the evidence before the trial upper Area Court that the Respondent had proved his claim and that the trial court was wrong to dismiss it. It is evidently clear that the assertion that the appellant’s great grandfather was the first settler in the disputed land has been dented by the evidence of the appellant himself, that the disputed land was given to his grand father by Abudu. In one breath he claims through first settlement and in another he says that his grandfather was granted the land by Abudu. Also the evidence of D.W.2 Mogaji Popo is in contradiction of the assertion of first settlement. Mogaji Popo contradicted the Appellant’s testimony in the following way “my family is the first settler at Oloje area. The following year Abdu brought the Defendant’s family Abondo to settle with us.”
In view of the foregoing, it is clear that this appeal is lacking in merit and I have been left with no alternative to dismiss it. The respondent is entitled to the cost of this appeal which I assess at N500.00″
(Underlining mine).
It is clear from the above excepts from Exh. X4 that the Court of Appeal made a finding that the Respondent herein whose family was the Respondent in that appeal had proved his claim to title which he made in his suit No.UACO/CVF/21/83. It should be noted that the Court of Appeal need not use words like “I hold” for there to be certainty as to their finding of fact see State v. Ajie (2000) 7 SCNJ 1. There was no appeal against the judgment of the Court of Appeal.
Consequent on the decision of the Court of Appeal contained in Exh. X4, the Respondent filed, suit. No. KW5/242/93 asking for a declaration that he became by virtue of the judgments of the High Court and Court of Appeal the owner of the structures on the said land based on the principle of Quid Quid Plantateur Solo, Solo Cedit. He also sought for account of the rents collected on the shops, built on the land and perpetual injunction restraining the Appellant’s family from trespassing on the land. The High Court on 1/2/96 dismissed the action for want of jurisdiction.
The Claim was refused on the basis that the High Court cannot make a consequential order which the High Court in its appellate jurisdiction and the Court of Appeal had refused to make. That judgment is Exh P1. The respondent persisted.He filed another action at the Upper Area Court CVF/23/96 for an order to enforce the judgments of the High Court and the Court of Appeal. The Upper Area Court on 17/10/96 delivered its judgment and held that since the Court of Appeal merely dismissed the Defendant (Appellant herein) appeal and the High Court did not reverse the judgment of the Upper Area Court and nothing more, there was nothing to enforce and promptly dismissed the Respondent’s claim. That is Exh. P2. Exhibits P1 and P2 are the flags being waved by Appellant’s counsel to stress that the Respondent was not entitled to the claim having been refused by the Upper Area Court and the High Court respectively. However; we cannot forget the implication of the judgments of the High Court and Court of Appeal in Exhibits X3 and X4. I am bound to consider them since the Appellant’s counsel made their lack of significance to the rights of the Respondent the basis of his arguments.
In the light of the above history given, the fact that the Court of Appeal categorically found that the Respondent herein had proved his claim to title at the Upper Area Court ab initio, can we then say, that there is no legal basis for the claim for the enforcement of the judgments of the High Court and Court of Appeal to which the Appellant herein consented which led to the judgment of 24/7/01? It is the law that a mere declaration of the right of the Respondent in the title to the land in dispute cannot be enforced until subsequent proceedings are taken following violation or threatened violation of it. See Okoya v. Santilli (1990) 3 SCNJ 83; (1990) 2 NWLR Pt. 131 Pg. 172 and Adedoyin v. Sonuga (1999) 13 NLWR Pt. 635 Pg. 356. It is also trite that an injunction can be granted to protect the proved right of a party. See Mrs. Lydia Omoware Thompson & Anr. v. Alh. J, Arowolo (2003) 4 SCNJ 20. The law is that claims for possession and trespass must be granted to a party, who has proved title to land. See Dr. E. A. Adebo v. Saki Estates Ltd. (1999) 5 SCNJ 156. That was the remedy the Respondent had tried in vain to claim in previous attempts as evidenced by Exh. P1 and P2 – that is to reap the consequence of his victory in the Court of Appeal since 1993.
This is one of the instances when the system can make nonsense of the judicial process. The courts of the land have been unwilling and/or unable to give effect to a judgment granting the claim of the Respondent since 1993 and the Respondent has been going from one court to another in vain attempts to reap the fruits of a successful litigation. It is the bounden duty of the courts to give effect to court judgments and orders, to ensure speedy resolution and closure of disputes.
It is evidently clear, at least to me, that there exists by virtue of Exhibits X3 and X4 both a factual and legal basis for the consent judgment. The Respondent sought to enforce the judgment of the High Court and Court of Appeal the later of which categorically stated that he had proved this claim to title in the land. The Appellant consented to the enforcement of the claim. There is no basis for allowing the Appellant to resile from the consent freely given in the circumstances of this case. It is with respect an erroneous argument that the judgment of the High Court and Court of Appeal did not vest title to the land in the Respondent. He claimed title, his claim was dismissed, he appealed and his appeal was allowed. The Defendant now Appellant appealed and the defendant lost in the Court of Appeal where specific findings were made as regards the facts in issue and the original Plaintiff now Respondent was adjudged to have proved his claim. His claim to possession of the land and eviction of the occupants which was granted by the Upper Area Court in its judgment of 24/7/01 to which the Appellant consented had a legal and factual basis. In sum the Respondent having been adjudged by the Court of Appeal to have successfully laid claim to title to the land in dispute is entitled to possession of the said land and the consent judgment was rightly given in his favour.
For all the reasons given above, I am of the firm view that the trial court and the Lower Court in this case were right to have refused to set aside the consent judgment delivered on 24/7/01. In the circumstances, the appeal lacks merit and it is hereby dismissed.
I award N10,000,00 costs to the Respondent against the Appellant.
Other Citations: (2007)LCN/2441(CA)
