Minaj Holdings Ltd V. Comptroller-general, Ncs & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

By a letter dated 11 June 2008 the Appellant was given Presidential approval to import 500,000 metric tones of bagged cement into Nigeria. The importation was to commence in June, 2008 and conclude in December, 2008.

Based on the letter of approval the Appellant applied for and obtained Letters of Credit from Union Bank of Nigeria for US $41,000,000.00 (Forty One Million Dollars) and US $8,280,000.00 (Eight Million Two Hundred and Eighty Million Dollars) 80,000 metric tonnes of bagged cement arrived in Nigeria in four shipments. Three of the ships were allowed to berth. The 3rd Respondent issued instructions to the 1st Respondent to stop the importation of cement into Nigeria. The directive of the 3rd Respondent also prevented other ships with the remaining bagged cement from berthing. The 1st Respondent accepted customs duties for the bagged cement that were allowed into the country. Entreaties to the third Respondent to lift the embargo were turned down. The third Respondent even turned down an appeal by the second Respondent to allow the ships to berth.

Frustrated the Appellant filed an action in the Federal High Court, it sued the Respondents and got a Court order on 18 December, 2009 against the Respondents. That Court ordered that the ships with the bagged cement should be allowed to berth and their cargo discharged. The Respondents did not obey the Court Order, despite a directive from the Acting President, Mr. G.E. Jonathan in March, 2010. The cargo was badly damaged and became toxic products. As a result of the actions of the Respondents, the Appellant became heavily indebted to his Bankers. To recoup his losses he instituted Suit No. FHC/L/CS/1443/2009, against the present Respondents.

By a further Amended Originating Summons the Appellant as Applicant claim is as follows:

1. An Order of Mandamus compelling the 2nd Respondent to wit:

(a) To issue an exemption certificate for the 500,000 metric tons of cement imported or to be imported by the Applicant for which Presidential approval was granted to the Appellant and covered by the 4th Respondent from the purported ban by the President in October 2009.

(b) To instruct all the relevant agencies under the Ministry of Finance including the 1st Respondent to allow the discharge and clearance of the Cargo imported or to be imported under the approval granted by the 4th Respondent in any or all Nigeria Ports.

2. An Order of this Honourable Court directing the 1st and 2nd Respondents to pay the following damages to the Applicant:

(a) Special Damages:

(i) Amount due to Union Bank of Nigeria PLC… N6,798,935,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand, Thirty Three Kobo).

(ii) Amount due to GT Bank PLC N864,889,000.00 (Eight Hundred and Sixty Four Million, Eight Hundred and Eight-Nine Thousand Naira).

(iii) Amount due on demurrage $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars).

(b) General Damages for loss of business. Reputation and other costs… N1,500,000,000.00 (One Billion, Five hundred Million Naira).

TOTAL AMOUNT DUE… N9,165,824,457.55 (Nine Billion, One Hundred and Sixty Three Million, Eight Hundred and Twenty Four Thousand, Four Hundred and Thirty Seven Naira, Thirty Three Kobo). $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars).

A PERPETUAL ORDER of injunction restraining the 1st and 2nd Respondents from stopping the Applicants ship from berthing and discharging their cargo and any other ship that will bring in the cargo which will be imported under the approval granted by the 4th Respondent.

A DECLARATION that based on the 2 Letters of Credit issued by Union Bank of Nigeria PLC and the 2 Form M approved by the Central Bank of Nigeria all within the validity period of the Approval Letter in 2008 issued by the 4th Respondent were conclusive that the Applicant had performed all duties required of the company in the importation of the cement.

Grounds upon which the Reliefs were sought were spelt out. The Originating process was supported by affidavits and the Respondents filed counter affidavits. Exhibits were also filed.

I refrained from giving details of the above because they are not relevant in this Appeal.

​In a considered opinion delivered on 8 January, 2013 judgment was entered for the Appellant.

Relevant extracts from that judgment reads:

“…The Respondents have no defence whatsoever to the Applicant’s claim. The Court therefore orders and declares as follows:

1. That the 1st and 2nd Respondents issue an exemption certificate for the 500,000 metric tonnes of cement imported or to be imported by the Applicant based on the Presidential Approval granted to the Applicant and conveyed by the 4th Respondent from the purported ban on cement by the President in October 2009.
2. That the relevant agencies under the Ministry of Finance including the 1st Respondent allow the discharge and clearance of the cargo imported or to be imported under the approval granted by the 4th Respondent in any or all Nigeria Ports.
3. That the 1st and 2nd Respondents pay Special Damages as follows:

(i) Amount due to Union Bank PLC… N6,798,935,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand and Thirty Three Kobo).

(ii) Amount due to GT Bank PLC N864,889,000.00 (Eight Hundred and Sixty Four Million, Eight Hundred and Eight-Nine Thousand Naira).

(iii) Amount due on demurrage $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars).

4. That the 1st and 2nd Respondents are restrained from stopping the Applicant’s ships from berthing and discharging their cargo and any other ship that will bring in the cargo which will be imported under the approval granted by the 4th Respondent.
5. That based on the 2 Letters of Credit issued by Union Bank of Nigeria PLC and the 2 Form M approved by the Central Bank of Nigeria all within the validity period of the Approval letter in 2008 issued by the 4th Respondent were conclusive that the Applicant had performed all duties required of it in the importation of the cement.

​Dissatisfied with the judgment of the trial Court, the Respondents filed a Notice of Appeal on 4 April, 2013. The Appeal was fixed for hearing on 25 April, 2017 before the Court of Appeal (Lagos Division) but before that date, the Federal Government of Nigeria decided to pursue an amicable settlement. An Inter-Ministerial Committee was set up by the Federal Government consisting of representatives from the Federal Ministry of Finance, Office of the Attorney-General of Nigeria, the Nigeria Customs Services and the Chief of Staff to the President of Nigeria. A series of meetings were held and on 7 May, 2015 it was agreed and recommended that the Appellant be paid N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and $8,746,650.00 (Eight Million Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars), in full and final settlement.

On 23 June, 2015 the above was copied to the Appellant after it was signed by the Permanent Secretary of the Federal Ministry of Finance. Again on 6 July, 2015 a letter was written by the Minister of Finance informing the Appellant of the approval for the payment of the stated sums of money. The Respondents failed to pay the Appellant.

On 21 December, 2016, before the hearing of the Appeal on 25, April, 2017 the 2nd Respondent on behalf of the Federal Government of Nigeria paid N15m (Fifteen Million Naira) to the Appellant. The said sum was part payment of the judgment sum. The sum was duly acknowledged by the Appellant.

On 6 April, 2017 the Appellant filed an affidavit titled AFFIDAVIT ATTESTING TO PART PAYMENT/SETTLEMENT OF JUDGMENT DEBT at the Registry of the Court of Appeal.

The terms of part-payment settlement and acknowledgment of receipt of payment were annexed to the Affidavit. This document informed the Court of Appeal that the appeal as it stood had been compromised. A Director in the Federal Ministry of Justice deposed to a counter-affidavit behalf of all the Respondents that the payment of N15m as part payment of the judgment debt was made in error and that the Appellant concealed the pendency of the appeal at the Court of Appeal from the Respondents (It was the Respondents who appealed to the Court of Appeal and not the Appellant).

At the hearing of the appeal on 25 April, 2017 the Appellant informed the Court of the compromise agreement. The Court went ahead and set aside the judgment of the trial Court. This is what the Court of Appeal said in the final paragraph of its judgment.

“…In the final result, with the resolution of Issue two (2) in favour or the Appellants, I find merit in this appeal and allow it.

Consequently, the judgment delivered by the Federal High Court on 8 January, 2013 in the Suit NO: FHC/L/CS/1443/2009 is hereby set aside.

Parties shall bear their costs of prosecuting the appeal.”

This appeal is against that judgment. Briefs were filed and exchanged by counsel. Learned counsel for the Appellant, Chief Wole Olanipekun, SAN filed an Appellant’s brief, and an Appellant’s Reply brief on 1 February, 2018 and 30 April, 2018.

A Respondents’ joint brief was settled by Mr. Ishola Alagbala on 4 April, 2018.

Learned counsel for the Appellant formulated four issues for determination of this appeal from the eleven grounds of appeal. They are:

1. Having regard to the Compromise Agreement duly entered between the parties on 21 December, 2016, whereby the Federal Government of Nigeria made part payment of the judgment debt awarded to the Appellant and the Appellant agreed to accept the part-payment, thus partly discharging the Respondents from the judgment debt awarded by the trial High Court, whether the lower Court did not fall into serious error by disregarding the said Compromise Agreement, assuming jurisdiction on the appeal before it, and setting aside the judgment of the trial High Court.
2. Considering the fact that the Respondents Notice of Appeal before the lower Court was not signed by any identifiable legal practitioner, whether the lower Court did not fall into grave error and also breach Appellant’s right to fair hearing by countenancing the said Notice of Appeal.
3. Having regard to various letters and documents which were exchanged between the Appellant and the Respondents’, and also attached as exhibits to the proceedings before the trial Court, whether the lower Court was not wrong in the way and manner it applied, interpreted and jettisoned the said exhibits, thus leading to its reversal of the judgment of the High Court.
4. Considering the processes filed by parties before the trial Court and transmitted to the lower Court, whether the lower Court was not altogether wrong by setting aside the judgment and award given in favour of the Appellant by the trial Court.

Learned counsel for the Respondents also formulated four issues for determination:

1. Whether considering the circumstances of this appeal, the Respondents’ right of appeal was extinguished and the lower Court was consequently robbed of jurisdiction to entertain the Respondents’ appeal by reason or an alleged compromise agreement and the part payment of the judgment sum by the 2nd Respondent.
2. Whether considering the record of this appeal, the lower Court was right when it held that, the name and signature of the counsel who signed the Notice of Appeal, was very clearly written and that Notice of Appeal was signed by an identified individual legal practitioner as required by law.
3. Whether the lower Court properly evaluated the exhibits/documents in the record in arriving at its final decision reversing the judgment of the trial Court.
4. Whether the lower Court was right in holding that the evidence adduced by the Appellant in support of its claim for special damages even if not challenged and not strictly proved, the entitlement of the Appellant to the award made by the trial Court?

I have examined the issues presented by both sides and I am satisfied that the issues formulated by the Appellant, would, if considered, determine the real grievance of the Appellant in this Appeal. Indeed the Appellants issue 1 is so profound that the answer to it may determine this Appeal.

​At the hearing of the Appeal on 20 October 2020 learned counsel for the Appellant, Chief Wole Olanipekun SAN adopted the Appellant’s brief, Reply brief, filed on 1 February, 2018 and 30 April 2018 respectively, and urged the Court to allow the Appeal. In amplification of his brief he observed that in our tradition, parties are encouraged to settle and in line with this the Attorney General of the Federation (the 2nd Respondent) offered the Appellant a smaller sum of money in full and final settlement which was accepted. He submitted that on issue one alone the appeal should be allowed. Reference was made to BFI Group Corp v BPE (2012) 18 NWLR (Pt. 1332) p.209.

Tanimu v Rabiu (2018) 4 NWLR (Pt. 1610) P.505.

Learned counsel for the Respondents Mr. D. D. Dodo SAN adopted the Respondents’ joint brief filed on 4 April, 2018 and urged the Court to dismiss the Appeal.

He observed that the parties were not ad idem, and there was no compromise agreement.

Finally, he observed that there is no controversy on who signed the Notice of Appeal.

I shall now consider the Appellant’s issue No. 1. It reads:

Having regard to the Compromise Agreement duly entered between the parties on 21 December, 2016, whereby the Federal Government of Nigeria made part-payment of the judgment debt awarded to the Appellant and the Appellant agreed to accept the part-payment, thus partly discharging the Respondents from the judgment debt awarded by the trial High Court, whether the lower Court did not fall into serious error by disregarding the said compromise Agreement, assuming jurisdiction on the appeal before it, and setting aside the judgment of the trial High Court.

Issue 1 is best addressed by dividing it into two;

(a) Whether the parties entered into a Compromise Agreement, and

(b) If they did was the Court of Appeal right to disregard it.

Learned Counsel for the Appellant, Chief Wole Olanipekun SAN observed that after the judgment of the trial Court and during the pendency of an appeal at the lower Court, the Respondents decided to pursue an amicable settlement with the Appellant. He observed that an Inter-Ministerial Committee was set up which was made up of top representatives of the Respondents and they had series of meetings with the Appellant, and after deliberations on 7 May 2015 they agreed that the Appellant should be paid N6,131,059,549.86 (Six Billion One Hundred and Thirty-One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six kobo) and $8,746,650.00 (Eight Million Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty US Dollars) in full and final settlement. Reference was made to documents dated 23 June, 2015, 6 July 2015 and 21 December 2016.

Learned counsel submitted that the Compromise Agreement was duly entered between the parties on 21, December 2016.

Learned counsel observed that the Appellant’s counsel drew the Court of Appeal’s attention to the existence of the Compromise Agreement, but the Court discountenanced it, assumed jurisdiction and went ahead to set aside the judgment of the trial Court. He submitted that Ewulu v Nwankpu (1987) 2 NWLR (Pt.954) p.93 relied on by the Court of Appeal to justify assuming jurisdiction and hearing the appeal was wrong as there was no agreement ad idem between the parties in that case and the case was all about settlement of damages and costs by a party who lost in the trial Court.

He submitted that the Court of Appeal failed to appreciate that with the Compromise reached by the parties the new cause of action before the Court was the Compromise Agreement, contending that misapprehension of the clear issue before the Court led to a perverse decision.He urged the Court to resolve this issue in favour of the Appellant.

Learned counsel for the Respondents contended that there was never a compromise agreement willingly made by the parties. Reference was made to Oshoboja v Amuda (1992) LPELR- 2804 p.19, Star Paper Mill Ltd & Anor v Adetunji & Ors (2009) LPELR-3113 p.27-28.

Contending that the Appellant failed to demonstrate that parties have in fact settled their dispute by reaching a complete and final agreement on vital issues in the form of terms of settlements, and that the parties are ad idem on the terms of their compromise agreement and that their consent was free and voluntary.

He submitted that since these conditions were not satisfied there was no Compromise Agreement reached between the parties.

​Learned counsel for the Respondents observed that the Appellant ought to have filed a Notice of Preliminary Objection to the hearing of the Appeal on the grounds that the Court’s jurisdiction was extinguished by the alleged compromise said to have been made of the judgment of the trial Court by the Respondents. Reliance was placed on Order 10 Rule 1 of the Court of Appeal Rules.

He submitted that the Respondents’ counsel raised the issue of failure of the Appellant to serve the Respondents with a Notice challenging the competence of the Appeal.

He urged the Court to resolve this issue against the Appellant in view of this submission.

This Court is to decide whether in fact and in law there was a compromise agreement duly made between parties.

The very well settled position of the law is that litigants can settle their disputes before, during and after judgment of the trial Court, Court of Appeal or Supreme Court. Rules of Court always encourage settlement.

On 8 January 2013, judgment was entered inter alia for the Appellant against the Respondents for the sums of N6,798,933,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand, Thirty Three Kobo), N864,889,000.00 (Eight Hundred and Sixty-Four Million, Eight Hundred and Eighty Nine Thousand Naira), $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars),

To find out if the parties compromised the judgment of the trial Court, a diligent examination of all the documents that passed through the parties must be examined to see what the intentions of the parties were, and if they were ad idem on an agreement.

After the judgment of the trial Court, the Respondents’ decided to pursue an amicable settlement with the Appellant, so by a letter dated 30 April 2015 the Appellant was invited for a meeting. The letter was signed by the Director Home Finance for the Permanent Secretary Ministry of Finance and it is addressed to the Appellant (see page 835 of the Record of Appeal, Vol. III). The letter reads:

RE: COMMITTEE ON THE COURT CASE BETWEEN NIGERIAN CUSTOMS SERVICES (NCS) AND MESSRS MINAJ HOLDINGS LTD ON THE IMPORTATION OF CEMENT IN 2008.

I directed am to refer to the State House letter Ref. No. PRES/97/HAGF/847/87/MF/-2/595 dated 14 April, 2015 on the above subject and the approval granted from the Presidency for the constitution of an Inter-Ministerial Committee comprising the Federal Ministry of Finance, Office of the Attorney-General of the Federation, Office of the Chief of Staff to the President and Nigerian Customs Service to deliberate on the issue contained therein.

2. The first meeting of the above Committee has been slated for Thursday 7 May, 2015 by 3.00 p.m. at the Permanent Secretary’s Conference Room, 5th Floor, Federal Ministry of Finance after which you will be invited to the subsequent meeting.
3. Please accept the assurances of the Permanent Secretary, Finance.

​On 23 June, 2015 a letter was written by the Permanent Secretary Ministry of Finance to the Comptroller-General, Nigeria Customs Service. The letter was copied to the Appellant. (See pages 837-838 of the Record of Appeal, Vol. 3). The letter reads:

RE: JUDGMENT IN SUIT NO: FHC/L/CS/1445/2009 BETWEEN MINAJ HOLDINGS LIMITED V COMPTROLLER GENERAL NIGERIA CUSTOMS SERVICE AND OTHERS

RE: REQUEST FOR MR PRESIDENT’S APPROVAL TO PAY MESSRS MINAJ HOLDINGS LIMITED’S OUTSTANDING JUDGMENT DEBT ON THE IMPORTATION OF CEMENT IN 2008

I write to inform you of Mr. President’s approval of the Committee s recommendation for the payment to Minaj Holdings Limited, of the sum of N6,131,059,549.86 (Six Billion, One Hundred Thirty One Million Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty U.S. Dollars). The payments were to enable the Company to inter-alia, satisfy its indebtedness to third parties such as Banks, the Shipping Company and other overseas parties involved in the transaction culminating in the suit.

You are therefore requested to note action taken and terminate further legal actions on the case…

Then on 6 July, 2015 the Minister of Finance informed the Appellant that the amount recommended as compromise judgment on 23 June, 2015 had been approved and ratified. (See pages 859 of the Record of Appeal). The letter states:

RE: REQUEST FOR FEDERAL GOVERNMENT OF NIGERIA’S APPROVAL TO PAY MESSRS MINAJ HOLDING LIMITED JUDGMENT DEBT IN SUIT NO: FHC/L/CS/1445/2009 BETWEEN MINAJ HOLDINGS LIMITED V COMPTROLLER-GENERAL, NIGERIA CUSTOMS SERVICE AND OTHERS.

I am directed to refer to the above subject matter and to the recent negotiation between your Company and the Federal Government of Nigeria and to covey approval that the negotiated sum of N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million and Fifty Nine Thousand, Five Hundred and Forty-Nine Naira, Eighty Six Kobo only) and USD 8,746,650.00 (Eighty Million, Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty Dollars only) be paid to your Company in full and final settlement.

2. I am to say that the sum will be paid installmentally as revenue permits.
3. Please accept the Permanent Secretary’s best regards.

Finally on 21 December, 2016 before the hearing of the Appeal the 2nd Respondent (i.e. the Attorney-General of the Federation) and the judgment Creditor Appellant signed a compromise agreement (See page 979 of the Record of Appeal, Vol. 3). The letter reads:

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO. FHC/L/C/1443/2009

and CA/L/365/2013

BETWEEN

MINAJ HOLDINGS LIMITED

VS

COMPTROLLER GENERAL NIGERIA CUSTOMS SERVICE

WHEREAS the Judgment Creditor Minaj Holdings Limited obtained judgment against the Defendant on the 8th January 2013.

AND WHEREAS the Judgment Creditor and the Federal Government of Nigeria have agreed as follows:

1. The Federal Government of Nigeria shall pay the sum of N15 Million as part payment of the Judgment debt to the Judgment Creditor or through his Solicitors.
2. The Judgment Creditor having now been paid the sum of N15 Million as part payment of the Judgment by the Federal Government of Nigeria, the receipt whereas the Judgment Creditor hereby acknowledges.

The Federal Government of Nigeria is hereby partly discharged of its debt to the Judgment Creditor under the Judgment or Terms of Settlement as agreed on.

Dated 21st Day of December 2016.

Signed

JUDGMENT CREDITOR/

JUDGMENT CREDITOR SOLICITOR

Signed

DIRECTOR OF CIVIL LITIGATION FEDERAL MINISTRY OF JUSTICE ABUJA.

I underlined part of these documents reproduced above to highlight what I am about to say. All of these documents, no doubt show very clearly that after the judgment of the trial Court delivered on 8 January, 2013 the Respondents’ acting in concert invited the Appellant for negotiations. The sole purpose of these negotiations was to compromise the judgment of the trial Court. After a series of meetings, the parties were ad idem on an agreement. It was agreed that the Respondents’ (i.e. the Federal Government of Nigeria) shall pay to the Appellants’ the sum of N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million, Fifty-Nine Thousand, Five Hundred and Forty Nine Naira Eight Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty U.S. Dollars) in full and final settlement of the judgment and that the Respondents’ shall terminate further legal actions. The agreed sum shall be paid installmentally.

The Respondents’ were in full agreement with the agreement. That explains why they paid N15 Million as part payment of the agreed sum and the Appellant accepted it. It must be noted that by letter/document dated 23 June 2015, the President of the Federal Republic of Nigeria approved the Inter-ministerial Committees recommendation that the Appellant be paid the agreed sum of money.

​The argument of the Respondents’ before this Court is that the parties were not ad idem on the agreement. I may ask what did the Respondents’ expect their signature on all the documents reproduced above to imply. There can be no doubt that the Respondents’ signature implies full agreement with everything in the documents. The Respondents’ must accept the implications and consequences of their signature on the documents. Our duty as Judges’ is not to discover the intentions of the Respondents’ and the Appellant. It is to decide what each was reasonably entitled to conclude from the attitude of the other, and the conclusion is clear. An amicable settlement in compromise of the judgment of the trial Court was achieved. The parties reached agreement. A good compromise and a balanced outcome after negotiations. It is obvious these several letters reproduced in this judgment show beyond any shadow of doubt that the parties after negotiations came to a good and balanced conclusion on settlement. This was a good compromise. It is the duty of counsel, well aware of these facts to advice his client that the judgment of the trial Court had been compromised by settlement and the parties are bound by the settlement, instead of doggedly having a relaxed relationship with the truth. I fail to see or understand how the Court below came to a different conclusion.

​After all of the above, the Respondents’ decided to go ahead with their appeal on 25 April, 2017, despite clear directives that settlement has been achieved, and that further legal actions be terminated.

In Abbey v Alex (1999) 14 NWLR (Pt. 637) p.148, Uwaifo JSC (as he then was ) said that:

“It would appear that it can he argued that the power to settle or compromise at any stage of pending proceedings extends even to that of compromising judgments in certain situations…

In S.P.M. Ltd v Adetunji (2009) 13 NWLR (Pt.1159) p.647 Oguntade JSC said that:

“A Judgment of Court often settles the issues in dispute between parties and makes a pronouncement on the rights and entitlements of the parties. There is nothing stopping parties after the judgment of a Court from changing their positions from what it was in Court in order to compromise the terms of the judgment of the High Court.

Before, during or after trial or on appeal, and even after judgment of the top Court is delivered, the parties are at liberty to compromise or settle their matter on terms agreeable to both sides. I am satisfied after examining all relevant documents that the parties entered into a compromise agreement. That agreement compromised the judgment of the trial Court. WAS THE COURT OF APPEAL RIGHT TO DISCOUNTENANCE THE COMPROMISE AGREEMENT.

On 25 April 2017, at the hearing of the appeal in the Court of Appeal, learned counsel for the Appellant, (Respondent in the Court of Appeal) Chief Wole Olanipekun SAN informed that Court that with the compromise agreement the Court of Appeal no longer has jurisdiction to entertain the appeal. He urged the Court to strike out the Appeal.

Learned counsel for the Respondents’ (Appellants’ in the Court of Appeal) Mr. D.D. Dodo SAN submitted that the fact that parties compromise judgment does not extinguish the right of Appeal. He also informed the Court that he was not served Notice of Competence of Appeal. Reference was made to Order 10 of Court of Appeal Rules.

The Court of Appeal had this to say:

“In the present appeal, the Respondent did not file a notice of tie Preliminary Objection to the hearing of the appeal on the ground that the Court’s jurisdiction was taken away by the compromise said to have been made of the judgment of the lower Court by the Appellant in line with the provisions of Order 10 Rule 1… I agree with him, that the objection raised at the hearing of the appeal contravenes the mandatory requirement of the provisions of Order 10, Rule 1 above as the affidavit filed on 6 April, 2017 does not constitute the requisite notice.

The Court of Appeal continued:

“Apparently, the issue of part-payment of a judgment debt by a judgment debtor without more does not extinguish the right of the judgment debtor to appeal against the judgment in question to render an appeal by him incompetent…”

The issue is explained in Halsbury’s Laws of England, 4th Edition, Volume 37, pages 390-391 and in some decided cases.

The learned authors said that:

“Where the parties settle or compromise pending proceedings whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them for good consideration. Its effect are (1) to put an end to the proceedings, for they are thereby spent and exhausted; (2) to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supersede the original cause of action altogether…”

In Obayiuwana v Ede (1998) 1 NWLR (Pt.535) p.63, Musdapher JCA (as he then was) restated the well settled position of the law when parties compromise or settle their disputes. His lordship said:

“Now it is settled law that except in specified case or circumstances, the parties to the threatened, intended or pending proceedings, are entitled to compromise or settle their proceedings or any terms they agree and at any time or stage of the proceedings they choose.

This can be done without any reference or approval of the Court where the action is pending. Where the parties compromise or settle pending proceedings, where before, at or during the trial, without making provision, expressly or by necessary implication, for obtaining an order of Court to embody the agreed terms, such a compromise or settlement constitutes a new and independent agreement or bargain between the parties made for good consideration and its effect is:

1. To put an end to the proceedings which have been compromised or settled for they are thereby spent and exhausted.
2. To preclude parties from taking any further steps in the action and
3. To supersede the original cause of action.

The Court of Appeal was wrong to discountenance the compromise agreement because the Appellant did not file a Preliminary Objection against the hearing of the Appeal as provided by Order 10 Rule 1 of the Court of Appeal Rules.

Order 10 Rule 1 of the Court of Appeal Rules deals with Preliminary Objections and not the issue of Compromise of judgments.

Once the parties are agreed on a compromise agreement, or to compromise the judgment of the trial Court, all that they need to do is to inform the Court, although it may be desirable that they have their terms of agreement entered as Terms of Settlement. The Court may make no order. See Green v Rozen & Ors (1955) All England Law Reports p.797.

When a Compromise Agreement is brought to the notice of the Court, the agreement compromising the action between the parties completely supersedes the original cause of action and the Court has no further jurisdiction in respect of that action. Put in another way when judgment has been delivered by the Court but the parties are not satisfied with it, they negotiate and reach settlement agreeable to them. In law the parties have compromised the judgment. This compromise or settlement is a new independent agreement. An appeal only be brought against the new agreement and not against the judgment that was compromised.

The Court of Appeal fell into grave error when it was informed that the parties had agreed to compromise the judgment of the trial Court and still went ahead to hear the appeal, despite affidavit evidence and exhibits which showed that a compromise agreement had infact been entered by the parties. It must be made abundantly clear that once the parties compromised the judgment, the right to appeal is extinguished. With the Compromise Agreement the Court of Appeal no longer had jurisdiction to entertain the Appeal.

The Compromise Agreement as agreed by the parties as full and final settlement of their dispute must be enforced.

As agreed by the parties the Respondents’ (that is the Federal Government of Nigeria) shall pay to the Appellant:

N6,131,059,549.86 (Six Billion One Hundred and Thirty One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira Eighty Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars.

In view of my findings there is no need to consider any other issue.

Appeal allowed.

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SC.1012/2017