Polaris Bank Limited & Anor V. Raphael Igoh Uwonu (2000)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This appeal was lodged against the decision of the High Court of Benue State, sitting in Makurdi, delivered on September 30, 2009, by J. S. Ikyegh, J. (as he then was) in Suit No. MHC/98/2006.
The facts leading to the appeal, in summary, are as follows: Sometime in 2005, the 1st Appellant observed that there had been unauthorized withdrawals from sundry accounts of customers of 1st Appellant’s Gboko Branch. It was alleged that there were anomalies and irregularities in the way and manner in which Respondent, who was a cashier with 1st Appellant’s Gboko Branch, was handling his teller transactions and operations. As a result, the 1st Appellant issued the Respondent with two queries. The Respondent did not respond but rather wrote a letter resigning his appointment with 1st Appellant. The Appellants lodged a complaint to the B Division Police Station, at Gboko, Benue State. In the course of the investigation, the Respondent made a written undertaking to refund the monies involved to 1st Appellant. However, without refunding the said monies, the Respondent as plaintiff,
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instituted action at the lower Court against the Appellants as defendants seeking reliefs set out in a Further Amended Statement of Claim. The Appellants in their Amended Statement of Defence denied the Respondents claims and also filed a Counterclaim against Respondent. Hearing commenced on 29/7/2009 with the Respondent testifying as PW1. The Appellants Counsel at the lower Court, R.S.M. Adebayo, Esq., commenced cross-examination of PW1 and the matter was adjourned for continuation of proceedings. On the next date, 30/9/2009, Mr. Adebayo did not continue with the cross examination of PW1 but rather informed the lower Court that, pages 257 -258 of the Record of Appeal:
In view of my answer to question 9 on the PTC sheet we concede salaries as pleaded in paragraph 27 (a) (i) – (v) but we do not concede gratuity because Plaintiff is still in the employment of the Defendant bank and false imprisonment, defamation and general damages for torture and mental anguish as the criminal case is still pending.”
Based on this concession, the learned trial Judge entered judgment in favour of the Respondent. Aggrieved by the said judgment, the
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Appellants lodged the instant appeal by Notice of Appeal filed on 7/5/2014 which was amended twice. The Further Amended Notice of Appeal, which was filed on 14/11/2018 but deemed properly filed and served on 14/5/2019, was on two grounds of appeal.
In line with the Rules of this Court, parties filed Briefs of Argument. The Appellants filed a Further Amended Brief on 14/11/2018 but deemed properly filed and served on 14/5/2019. The Respondents Brief, in which a Preliminary Objection was argued, was filed on 1/3/2019 but deemed properly filed and served on 14/5/2019. The Appellants Amended Reply Brief was filed on 14/11/2018. At the hearing of the appeal on 14/5/2019, the Briefs were respectively adopted by F.M. Ebofuame-Nezan, (Mrs.) with Chima Chibuzo, Esq. for the Appellants, and, by B.I. Shehu, Esq. for the Respondent. As is customary, the Preliminary Objection shall first be considered.
Preliminary Objection
The Respondent contended that the Grounds of Appeal raised by the Appellants were incompetent and ought to be struck out as they did not emanate from the judgment of the lower Court appealed against. It was submitted
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that the Grounds of Appeal were predicated on the issue of a consent judgment which had nothing to do with the judgment of the lower Court. It was argued that the judgment of the lower Court was not a consent judgment but a judgment based on the admission and concession by the Appellants through their counsel. On what constitutes a consent judgment, learned Counsel relied on Adedeji v. Oloso (2007) 5 NWLR (PT. 1026) 133 at 189; J.I.C. Ltd v. R.L. Import-Export (1988) 7 SCNJ P. 104-105. Counsel to the Appellants had admitted the claims of the Respondent in Paragraph 27 (a) (i)-(v) of the Further Amended Statement of Claim and denied other claims of the Respondent while Counsel to the Respondent asked for judgment based on the admission of the Appellants. The lower Court thereupon entered judgment. It was submitted that claims admitted require no further proof and that the trial Court had the power to give judgment based on such admission, relying on Chukwu v Akpelu (2014)13 NWLR (PT. 1424) 359 at 387. In this circumstance, the Court is not required to ask parties to file any terms of settlement. The decision in S. & D Const: Co. Ltd. v Ayoku (2011) 13
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NWLR (PT. 1265) 487 at 505 was cited and relied on.
It was submitted that where grounds of appeal do not relate and stem from the judgment appealed against, the said grounds of appeal are incompetent and liable to be struck out or dismissed. Reliance was placed on Apapa v I.N.E.C. (2012) 8 NWLR (PT. 1303) 409 at 425; Popoola v. Babatunde (2012) 7 NWLR (PT 1299) 302 at 330; M.B.N. Plc v Nwobodo (2005) NWLR (PT. 945) 388.
It was further submitted, assuming but not conceding, that the judgment of the lower Court was a consent judgment, the Appellants were required to seek leave of this Court to appeal against same, which they failed to do. They only sought for leave to appeal out of time. It was argued that by this failure to seek for and obtain leave, the appeal filed by the Appellants was rendered incompetent and liable to be struck out or dismissed, citing the case of Egemole v Oguekwe (2008) 12 NWLR (PT. 1101) 531 at 542. The Court was urged to strike out the Appellants’ grounds of appeal same being incompetent and dismiss the appeal.
For the Appellants, it was submitted in reply that the Preliminary Objection was misconceived. That although the
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issues as formulated for the determination of the Preliminary Objection and the sole issue for determining the substantive appeal by the Respondent appear to be different, a close perusal of Respondent’s arguments in support of the Preliminary Objection, would disclose that the only argument proffered to validate the Preliminary Objection was that the judgment of the lower Court was not a consent judgment, but one based on the admission or concession of Appellants through their Counsel. This was the same argument in support of the issue raised in the substantive appeal. It was submitted that to the extent that the arguments rendered in support of both the Preliminary Objection and the lone issue formulated by the Respondent for the determination of the Appeal are the same, the Preliminary Objection cannot properly be regarded as a Preliminary Objection. In consequence of this fact, the Preliminary Objection ought to be struck out.
It was further submitted that the Respondent failed to justify the contention that Appellant’s grounds of appeal do not arise from the judgment of the lower Court. A close perusal of the Appellant’s grounds of appeal would
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reveal that they emanated from the decision of the lower Court and constituted a valid challenge to the correctness of the decision thereof. On the further contention of the Respondent that, assuming without conceding that the judgment of the lower Court was a consent judgment, the Appellants were required to seek leave to validate their appeal against same, it was submitted that this argument was beyond the boundaries of the Preliminary Objection as delineated in the Notice of the said Objection. It was therefore submitted that the Respondent’s arguments thereon as well as the authority of Egemole v. Oguekwe (supra) were of no legal moment. The Court was urged to discountenance the Respondents arguments thereon for being incompetent. It was submitted however that the Appellants in their application for enlargement of time to seek leave to appeal also brought the application pursuant to the provisions of Section 241 (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The arguments of the Respondent on this issue were therefore not borne out by the records of this Court. The Court was urged to dismiss the Respondent’s Preliminary
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Objection.
Resolution
There is no doubt that a ground of appeal must of necessity arise from and be based on the judgment on appeal, which is the matter in controversy between the parties. For a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal;Ikweki v Ebele (2005) 7 MJSC 125; Saraki & Anor v. Kotoye (1992) LPELR-3016(SC); Ajaokuta Steel Company Limited v. Greenbay Investment & Securities Limited & Ors (2019) LPELR-46929(SC). In the case of Mercantile Bank of Nig Plc & Anor v. Nwobodo (2005) LPELR-1860(SC) at page 8, the Supreme Court, per Pats-Acholonu, J.S.C., was very clear in stating that:
It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to
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complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.
Therefore, the ground of appeal should disclose the precise complaint against the judgment on appeal in unambiguous terms, thereby giving the respondent sufficient notice and information of the precise nature of the appellant’s complaint; and, consequently, of the issues that are likely to arise on the appeal; Aderounmu v. Olowu (2000) 2 SCNJ 180; (2000) 4 NWLR (Pt. 652) 253, (2000) LPELR-141(SC); Hambe v. Hueze (2001) 2 SC 26 at 34; (2002) 4 NWLR (Pt. 703) 372; Omisore & Anor v. Aregbesola & Ors (2015) LPELR-24803(SC); Monguno v Bluewhales & Co (2011) 2 NWLR (PT 1231) 275.
The Appellants in the Further Amended Notice of Appeal raised two grounds of appeal as follows:
A. The Trial Court erred in law when it entered a consent Judgment which is stated to have been “based on the admission of paragraph 27 a (I) to (v) of the last Amended Claim by the Defendant Bank, and the mutual agreement of the parties thereto.”when no such agreement had actually been authorized by the
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Appellants.
PARTICULARS OF ERROR
a. The Amended Statement of Defence filed by Appellants Counsel upon Appellants instructions on the 24th day of July, 2009, was an outright denial of liability to Respondent’s claims.
b. Consent Judgment is to be based on Terms of Settlement authorised by the Parties signed by them and accordingly filed in Court.
c. Appellants were totally unaware of any moves at settlement and did not authorise Counsel to enter into any Settlement with Respondent.
d. Appellant had filed a Counter Claim against Respondent in the sum of Nl, 600, 000.00 (One Million Six Hundred Thousand Naira Only).
B. The Lower Court erred in law when it entered consent Judgment in the matter without requiring the parties to file terms of settlement spelling out the agreed terms having regard the fact that the Amended Statement of Defence was an outright denial of Respondent’s claims.
The core complaint of the Appellants, as demonstrated in the grounds of appeal, border on the nature of the judgment that was entered by the lower Court, against the Appellants, and its prerequisites. The Appellants have termed the nature of the
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judgment on appeal to be a consent judgment, which would have entailed that terms of settlement were filed and adopted by the Court in order for it to crystallize into a consent judgment. Their complainant is that no terms of settlements were filed before the lower Court entered judgment. It is for this Court to determine if indeed the Appellants are justified in their complaint. The fact that the Appellants have chosen to term the judgment a consent judgment does not affect the competence of the ground of appeal. Neither the Respondent nor the Court was misled by this christening of the judgment as a consent judgment. The complaint of the Appellants therefore arose from the judgment of the lower Court.
I agree with the Appellants Counsel that the further contention of the Respondent that, assuming without conceding that the judgment of the lower Court was a consent judgment, the Appellants were required to seek leave to validate their appeal against same, amounted to an attempt to extend the boundaries of the Preliminary Objection and ought to be discountenanced. Notwithstanding, the Respondents argument cannot be made upon the conjecture
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that the Court would determine that the lower Court gave a consent judgment.
The Preliminary Objection is without merit and is hereby dismissed.
Substantive Appeal
The Appellants distilled a sole issue for the determination of this appeal as follows:
Whether it was proper for the Lower Court to have entered a consent judgment in favor of the Respondent, upon the admission/concession by Counsel of paragraph 27 (A) (i) – (v) of the Amended Statement of Claim, without requiring the parties to file agreed terms of settlement, and if not, what is the legal consequence of Appellants not authorising the admission/concession by Counsel, on the validity of the said Judgment?
For the Respondent, a sole issue for determination was formulated in this manner:
Whether or not the lower Court was right when it entered judgment for the Respondent based on the admission and concession of the Appellants without calling the parties to file terms of settlement. (Distilled from Grounds A and B).
The issues, although differently framed, seek similar determination. I shall be guided by the issue as framed by the Appellants in the determination of
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this appeal.
The Appellants main complaint in this appeal, as put forward by their Counsel, Mrs. Ebofuame-Nezan, is that the Appellants never authorized their Counsel at the lower Court, R. S. M. Adebayo Esq., to concede to or admit any of Respondent’s claims, so as to warrant the entry of the consent judgment against them. The Appellants had denied the claims of the Respondent in the Amended Statement of Defence and had also filed a Counterclaim against the Respondent. It was submitted that in this circumstances, it was not proper for the lower Court to have entered judgment in favor of the Respondent, upon the admission or concession by Counsel of paragraph 27 (A) (i) – (v), of the Amended Statement of Claim, without first requiring the parties to file agreed terms of settlement, conveying due authorization of the parties to the settlement process. At the pre-trial proceedings, in response to the question on how the Court could assist the parties to resolve their dispute without the need for a full trial, Counsel for the Appellants answered as follows, page 96 of the Record of Appeal:
“Yes. Allowing parties to discuss the possibility of
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settling the dispute end report back to the Court especially allowing or enabling the 1st Defendant time to cross check and verify some of the claims of the Plaintiff with a view to conceding such claims found to be true and correct.”
It was argued that from the above answer, Counsel at the lower Court appreciated the need for the parties to be an integral part of the discussion to settle the dispute. But, there was no report before the lower Court to show that there was any settlement before it entered judgment in favour of the Respondent. It was further argued that the lower Court ought to have required the involvement of the parties in the settlement process, moreso in view of the outright denial of liability to Respondent’s claims in the Appellants pleadings and Counter Claim against Respondent. It was argued that the judgment of the lower Court was a consent judgment, citing Vulcan Gases Ltd v. G. F. I. G. (2001) FWLR (Pt. 53) 1 at 37. But, the conditions for entering a consent judgment were not met. There were no terms of settlement duly signed by the parties. The Appellants were totally unaware of any moves at settlement, and did not
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authorize their Counsel to enter into any settlement with Respondent. For this reason, the consent judgment was invalid. It was also submitted that counsel to parties must be seen to be acting within the express authority of their respective parties. Where it is shown that the counsel was on a frolic of his own and judgment was entered in contradiction of the express instructions of his client, the client cannot be bound. It was submitted that the lower Court ought to have insisted on the settlement process satisfying the requirement of drawing up terms of settlement, in the absence of which there could not be said to be a consent judgment.
It was also contended that the consent judgment entered by the lower Court exceeded the boundaries of the concession or admission of the Appellants Counsel. The learned trial Judge had ordered:
“Based on the admission of paragraph 27 (a) (i) – (v) and C of the last Amended Statement of Claim by the Defendant Bank and the mutual Agreement of the parties thereto for the admission to be in full satisfaction of the claim, I enter Judgment for the Plaintiff against the Defendant bank for the reliefs sought
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in paragraph 27 (a) (i) – (v) and C of the said Statement of Claim.”
It was contended that paragraph C of the last Amended Statement of Claim, was not part of what was conceded by Appellants’ Counsel. By the judgment order including the said paragraph C, the lower Court extended the boundaries of the concession or admission of the Appellants Counsel, thereby vitiating the said judgment.
Mrs. Ebofuame-Nezan argued that the consequence of the failure by Appellants’ Counsel at the lower Court to produce any written instruction authorizing the consent Judgment, and verifying such authorization by way of terms of settlement, duly signed by the 1st Appellant, was that the consent judgment was not authorized by the 1st Appellant and was therefore invalid. Reliance was placed on Adewunmi v. Plastex Nig. (Ltd) (1986) 3 NWLR (Pt. 32) 767; Vulcan Gases Ltd v. G. F. I. G. (Supra). She submitted that in the circumstances, it would occasion grave injustice to the Appellants to allow the consent judgment for the sum of over N9 Million on the Respondents unverified and unsubstantiated claims, as demonstrated by the pleadings and evidence, to stand. The
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Court was urged to hold that the legal consequence of the failure of the consent judgment herein to satisfy the conditions precedent to the entry of a valid consent Judgment, was to render it a nullity, citing the case of Madukolu v Nkemdilim (1962) ALL NLR (Pt II) 587.
In response, learned Counsel for the Respondent called attention of the Court to the fact that the Appellants herein had briefed and retained the services of R.S.M. Adebayo Esq. to represent them before the lower Court and the said Mr. Adebayo represented the Appellants at the lower Court from the commencement of the case until judgment was delivered. The Appellants did not do anything to show that Mr. Adebayo has no authority to represent them before the lower Court. The said Mr. Adebayo had conceded or admitted part of the Appellants claims before the lower Court, based on which admission the lower Court, upon the application of the Respondents Counsel, entered judgment for the Respondent on the claims conceded by the Appellants. It was submitted for the Respondent that where a defendant admits the claim of the plaintiff, the Court is left with no option other than to enter
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judgment for the plaintiff based on that admission. It was further argued that the lower Court was not required to order parties in such circumstance to file any terms of settlement, relying on U.B.A Plc v Ibachem Ltd (2014) 6 NWLR (1402) 125 at 152. The lower Court was therefore right when it entered judgment for the Respondent based on the admission of the Appellants, without calling on the parties to file terms of settlement. Reliance was also placed on S. & D Const. Co. Ltd. v Ayoku (supra) at 505. The admission and concession to the claim of the Respondent in paragraph 27 (a) (i)-(v) of the Further Amended Statement of Claim made by the Appellants through their Counsel bind the Appellants and they cannot be allowed to renege there from on appeal. The case of Amori v Iyanda (2008) 3 NWLR (PT. 1074) 250 at 278 was cited and relied upon. The Appellants cannot approbate and reprobate; relying on NAFDAC v Onwuka (2014) 4 NWLR (PT.1398) 593 at 618. It was posited that the Appellants duly authorized their counsel to concede and admit the claims of the Respondent in paragraph 27 (a) (i)-(v) of the Further Amended Statement of Claim and deny the other claims.
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The Appellants neither denied, at any time, the action of their counsel nor demonstrated any factor to suggest that their Counsel had made the concessions and admission of the part of the Respondent’s claim and denial of the other parts without their consent and authority. The case of MFA v Inongha (2014) 4 NWLR (PT. 1397) 343 at 369 was cited and relied upon. A judgment entered by a Court on the admission of the Appellants through their counsel can only be set aside where the Appellants show that the judgment was obtained by fraud, duress, or without proper authority, misrepresentation of fact or non disclosure of a material fact or where it was concluded under mutual mistake of fact, relying on Amori v Iyanda (supra) at 284. In the instant case, the Appellants had failed to show and establish any of the above factors as basis for their appeal. It was submitted that the lower Court was right when it allowed Counsel to the Appellants to abandon cross examination of the Respondent and admit the claims of the Respondent on which basis the lower Court entered its judgment. Cross examination is the right of the Appellants as defendants. If they
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chose to abandon same and to admit the claims of the Respondent, the lower Court cannot compel Counsel to continue with cross examination. Where a claim is for a definite sum alleged and the defendant admits part thereof, the Court is entitled to enter judgment for the sum admitted, citing the case of Nwuke v. U.B.N. PLC (2009) NWLR (PT. 1148) 1 at 28. A party to a suit has the right to defend himself in person or through a legal practitioner of his choice and all actions of that counsel in the suit is deemed to be the action of the party. The Court was urged to dismiss this Appeal and affirm the judgment of the lower Court.
In the Reply Brief, the Appellants argued that there is no discernible difference between a consent judgment and a judgment based on a concession/admission. Relying on Vulcan Gases Ltd v. G. F. I. G. (2001) FWLR (Pt. 53) 1 at 37, it was submitted that there are essentially two types of Judgments: one delivered by the Court after the action has been fully contested and fought out to the end, and, one delivered by the Court upon the mutual consent of the parties, “whose blessing it must receive, namely a Consent Judgment”. It was
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submitted further that the circumstances leading up to the entry of the judgment on appeal by the lower Court, exposed the fact that the said judgment was a consent judgment rather than one passed by the Court after the action had been contested and fought out to the end. On the contention that the lower Court was entitled to enter judgment based on Appellants’ Counsel’s admission, since admissions require no further proof, and that Appellants cannot now be allowed to deny what they have willingly admitted before the lower Court, it was submitted that the admission by Appellants’ Counsel at the lower Court is in the genre of informal admissions. Learned Counsel made submissions on what constitutes a formal and an informal admission, relying on Nwankwo v Nwankwo (1995) 5 NWLR (Pt 394) 153 at 171 – 172. She contended that the admission by Appellants’ Counsel, should have been carefully considered by the lower Court in order to determine the circumstances under which it was made, with a view to determining the conclusiveness or otherwise thereof. Further submissions made in the Reply Brief largely rehashed arguments already made in the Appellants Brief.<br< p=””>
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It is quite settled, as restated in Saraki v FRN (2016) LPELR-40013(SC), that a reply brief should only address new issues raised in a respondent’s brief which were earlier not canvassed or argue or to clarifying some grey areas raised in the respondent’s brief but not to emphasis, add, fine-tune or repeat what had earlier been argued in the appellant’s brief. See also Ikine & Ors v. Edjerode & Ors (2001) LPELR-1479(SC); Matthew v. The State (2019) LPELR-46930(SC). New or rehashed arguments therefore need not be countenanced.
Resolution
The Pre-trial Conference Report, page 254 of the Record of Appeal, stated as follows:
Upon exhausting all the preliminary matters the P.T.C. came to a close with resolution that the dispute that should go to trial is the quantum of damages and parties shall tender documents at the Bar in the event there is no settlement of the quantum of damages and the matter goes to trial 20/7/09 for hearing.
Hearing commenced on 29/7/2009. At the end of evidence of the Respondent as PW1, cross examination commenced. The lower Court adjourned for continuation of cross examination. On the next date,
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the Respondents application to further amend his statement of claim was granted by the trial Court. Thereafter, R. S. M. Adebayo Esq., who appeared for the Appellants informed the trial Court as follows, pages 257 258 of the Record of Appeal:
In view of my answer to question 9 on the PTC sheet we concede salaries as pleaded in paragraph 27 (a) (i) – (v) but we do not concede gratuity because Plaintiff is still in the employment of the Defendant bank and false imprisonment, defamation and general damages for torture and mental anguish as the criminal case is still pending.”
The Respondents Counsel thereupon sought judgment based on the admission and, again, Mr. Adebayo for the Appellants, did not object. The learned trial Judge then entered judgment as follows, page 258 of Record of Appeal:
Based on the admission of paragraph 27 (a) (i) – (v) and C of the last amended statement of claim by the defendant bank and the mutual agreement of the parties thereto for the admission to be in full satisfaction of the claim, I enter judgment for the Plaintiff against the Defendant bank for the reliefs sought in paragraph
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27 (a) (i) – (v) and C of the said Statement of Claim.”
The question 9 of the PTC sheet and answer were as follows, page 96 of the Record of Appeal:
Is there any way in which the Court can assist the parties to resolve their dispute or particular issues in it without the need for a trial or full trial.
The Appellants Counsel responded thus:
Yes allowing parties to discuss the possibility of settling the dispute end report back to the Court especially allowing and or enabling the 1st defendant time to cross-check and verify some of the claims of the plaintiff with a view to conceding such claims found to be true and correct.
The contention of the Appellants is that the admission or concession made by their Counsel was unauthorized and that the trial Judge ought not to have entered judgment based on the admission or concession by their Counsel without first requiring the parties to file agreed terms of settlement, conveying due authorization of the parties to the settlement process. To my mind, whether or not the judgment on appeal amounted to a consent judgment must first be resolved.
There is no
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doubt that contending parties to an action may decide to settle their disagreement out of Court. Such settlement would typically involve levels of compromise of the legal claim. The parties, who must be ad idem on the terms of the compromise of the legal claim, would usually reduce their agreement into writing, file the terms of settlement in Court, and then apply to the Court to make the said terms of settlement its judgment in the matter. The terms of settlement crystallize into a consent judgment as soon as the Court adopts same as its judgment in the matter; Star Paper Mill Ltd & Anor v. Adetunji & Ors (2009) LPELR-3113(SC). Simply therefore, a consent judgment is a judgment entered by a Court to give effect to the compromise of a legal claim by the parties. Blacks Law Dictionary Ninth Edition, page 918 defines an agreed judgment, also termed consent judgment, as follows:
A settlement that becomes a Court judgment when the Court sanctions it.
In Afegbai v. A. G Edo State & Anor (2001) LPELR-193 (SC) at page 36, Karibi-Whyte, J.S.C. described a consent judgment as follows:
There is a consent judgment where parties to
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an action in Court have fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties –
See N.W.R.D. v. Jaiyesimi (1963) 1 All NLR 215; (1963) 2 SCNLR 37. – See also Woluchem v. Wokoma (1974) 3 SC. 135; (1974) 1 All NLR 605 at p. 617.
Restating the established description of a consent judgment, the Supreme Court in Race Auto Supply Co. Ltd & Ors v. Akib (2006) LPELR-2937(SC) at pages 22 24, said:
The term “consent judgment” in law is a technical term.
It comes into being as the case of Woluchem v. Wokoma (1974) 3 SC 153 tells us at pages 166 and 168 as follows:
P.166 – “In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in Court. When the Court makes an order based upon such
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terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the Court.”
P.168 – “The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as contract whereby new rights are created between them in substitution for, and in consideration of: the abandonment of the claim or claims pending before the Court. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”
In line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are therein settled
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as any other judgment or order arrived at after the matters are fully fought out to the end in a full trial.
A consent judgment is therefore binding on the parties thereto and their privies as soon as it is adopted and pronounced upon by the Court; Ras Palgazi Construction Company Ltd v. FCDA (2001) LPELR-2941(SC) at page 17. It is effective and binding in respect of the matters settled therein in the same manner as any judgment given thereafter in respect of matters fully fought out to the end;Vulcan Gases Ltd v. Gesellschaft Fur Ind. Gasverwertung A.G (supra) also reported in (2001) LPELR-3465 (SC); Arije v. Arije & Ors (2018) LPELR-44193 (SC); Star Paper Mill Ltd & Anor v. Adetunji & Ors (supra). A consent judgment may however be set aside on certain grounds which include fraud, common mistake, fraudulent misrepresentation or misconception; Vulcan Gases Ltd v. Gesellschaft Fur Ind. Gasverwertung A.G (supra); Afegbai v. A. G. Edo State & Anor (supra). In Vulcan Gases Ltd v. Gesellschaft Fur Ind. Gasverwertung A.G (supra) at pages 35 37 of the E-report, the Supreme Court, per Iguh, JSC
It is long settled that a
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consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception. See Attorney General v. Tomline (1877) 7 Ch. D. 388, Huddersfield Banking Company Ltd. v. Henry Lister and Son Ltd . (1895-99) All E.R. 868 (C.A.)…
It is thus clear that apart from fraud which, if established in any judgment or order, necessarily invalidates the same, a consent judgment or order may be set aside for cogent and sufficient reason which in law would constitute a ground for setting aside the agreement on which such consent judgment or order was based. As Lindley, LJ. put it in Huddersfield – Banking Company Ltd. v. Henry Lister and Son Ltd . (supra) at Page 871:-
“A consent order, I agree, is an Order, and so long as it stands, it must be treated as such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on
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that point. But that a consent order can be impeached not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in more formal way than usual. I also have not the slightest doubt.”
Considering grounds that may vitiate a consent judgment, the Noble Lord further said, pages 39-40 of the E-Report:
Where, however, purported consent judgment is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. The result, in such a case is that the so called consent judgment can be set aside but by a fresh action. See Talabi v. Adeseye (1972) 8-9 SC 20.
The Court, therefore, 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 and made an Order of Court.
The above judicial pronouncements well articulate features of a consent judgment. For emphasis, a consent judgment would emerge when parties
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freely and voluntarily reach a complete and final agreement on an issue or the issues in controversy between them and articulate same in terms of settlement, which upon their application to the Court is made the judgment of the Court in the matter. The question now is whether the circumstances leading to the present appeal could be classified as a consent judgment.
There were no terms of settlement presented to the lower Court to indicate that there was an agreement to settle the dispute between the parties and that the parties were ad idem on its terms. Rather, the trial Judge clearly held that his judgment was:
Based on the admission of paragraph 27 (a) (i) – (v) and C of the last amended statement of claim by the defendant bank and the mutual agreement of the parties thereto for the admission to be in full satisfaction of the claim
A close study of the proceedings as transcribed in the Record of Appeal, pages 257 258 thereof, would reveal that the admission referred to in the judgment of the lower Court was the admission of Mr. Adebayo acting for the Appellants. The mutual agreement of the parties referred to
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therein was the agreement of Mr. Adebayo with the application of the Respondents Counsel that his admission be made the judgment of the lower Court. The Blacks Law Dictionary, Ninth Edition at page 326, defines compromise as:
An agreement between two or more persons to settle matters in dispute between them; an agreement for the settlement of a real or supposed claim in which each party surrenders something in concession to the other.
Close scrutiny of the judgment of the lower Court would reveal that was not based on any compromise or settlement but rather it was based on the unambiguous admission of the Appellants Counsel of part of the Respondents claim.
The Appellants contend they did not authorize Mr. Adebayo to make any such admission and that the lower Court ought to have insisted on proof of such authorization upon terms of settlement being filed. With respect, this argument is misconceived. In the first place, a legal practitioner conducting the prosecution or defence of a client in a matter has apparent authority to act as his clients agent or mouthpiece in the proceedings; Okonkwo & Ors v. Kpajie & Ors
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(1992) LPELR-2483(SC); Cappa & D’ Alberto Ltd v. Akintilo (2003) LPELR-829(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC). In Swifen v. Lord Chelmsford (1860) 5 H & N 890, cited with approval in Adewunmi v. Plastex Nigeria Limited (supra), (1986) LPELR-164(SC), it was held that counsel’s authority extends, when it is not expressly limited, to the action and all matters incidental to it, and to the conduct of the trial. In other words, once a counsel is briefed and retained by a client, he exercises mastery over the conduct of the case, except his authority is expressly limited by the client. In exercising his professional duties, counsel conducting a case owes his client a duty to act with professional competence and in good faith. Where his authority is not expressly limited, the sky is his limit, literally. He may undertake any course that in his opinion is in the best interest of his client. Thus, he may decide to call or refuse to call a particular witness, he decides the sequence in which his witnesses are called; he may decide whether or not to cross-examine a witness of the adverse party;
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Adewunmi v. Plastex Nigeria Limited (supra); Elike v. Nwakwoala & Ors (1984) LPELR-1118(SC); Cappa & D’ Alberto Ltd v. Akintilo (supra). In this light, the decision made by Mr. Adebayo for the Appellants not to conclude the cross examination of PW1 before he made the concession, was his prerogative.
The scope and amplitude of the authority of a legal practitioner in the course of performing his professional duties on behalf of his client, has been well articulated in a number of judicial pronouncements. I shall mention but a few. In the case of Attorney General of the Federation v. A.I.C. Limited & Ors (1995) LPELR-629(SC), Ogundare, JSC at page 23, said:
There is no dispute about this that a counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented, unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which a counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion
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he may think best in the interest of his client in the conduct of the case if within the limits of this apparent authority he enters into, an agreement with the opposite as to the case on every principle, this agreement should be held binding on his client. But this general authority of counsel is predicated on the existence of a counsel/client relationship. Where there is no such relationship, an act done by a legal practitioner on behalf of a party to a case cannot be said to be binding on that party.
Restating this established position, Afegbai v. A. G Edo State & Anor (supra) at page 40 of E-Report, Karibi-Whyte, JSC said:
The scope and the amplitude of the authority of counsel acting on behalf of his client is stated in paragraph 1181 Halsbury’s Laws of England 4th Edition; to include –
” …..the action and all matters incidental to it and to the conduct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a compromise, or a
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verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consenting to a reduction of damages. The client’s consent is not needed for a matter which is within the ordinary authority of counsel thus if in Court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.”
In the same vein, I.T. Muhammad, JSC (as he then was) in Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC) said:
a counsel representing his client in a civil cause or matter has got enormous powers of making admissions or concessions on behalf of his client which bind the client. I will only cite few decisions of this Court on the issue and I will be contented;
Firstly in the case of Okesuji v. Lawal (1991) 1 NWLR (Pt 170) 661, this Court held as follows:
A counsel can, while functioning as such, make admissions of fact which could be binding on his client particularly where such admission was made for the purpose of dispensing with proof
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at the trial and when the client failed to retract the admission before judgment.
Secondly in Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) at 633 Nnaemeka – Agu, JSC (Rtd) had this to say:
I must note that a counsel who is representing his client in a civil cause or matter in litigation has got very wide powers of making admissions on his clients behalf. He is the agent and mouth piece of his client in the litigation. So, he has implied authority to make admissions on behalf of his client during the progress of the litigation, either for purpose of dispensing with proof at the trial, when they are regarded as conclusive, or incidentally as to any of the facts in the case, when they are prima facie evidence only. See on thisLangley v. Oxford 5. L.J. Ex. 166, also Holt v. Square RY & M . 282. See also Phipson on Evidence (11th Ed.) pp. 332-334, para 738-740 It was also held in Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt. 824) 49 at P. 70 that:
Counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission.
It must also be
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understood that in the exercise of his duties, the legal practitioner cannot be directed or guided by the Court. Such action by the lower Court would immediately be viewed as descending into the arena of conflict, which the Court, as an impartial umpire, cannot be seen to engage in. Graphically presenting the image of a Judge who engages as a combatant in the arena of conflict, the Supreme Court, per Aniagolu, JSC, in Elike v. Nwakwoala & Ors (supra), at pages 12 and 13, said:
The trial judge is rarely to interfere except for holding a legitimate balance between the parties and seeing that the conduct of the case of each side is done in accordance with the rules and standards laid down by the law. A judge who takes over from counsel the conduct of the case of either party to the conflict, is no more an impartial judge, but a combatant in the fray, unworthy of his appointed seat.
Therefore, to contend as Appellants Counsel has done, that the Court ought to have insisted on parties filing terms of settlement in the light of a clear unambiguous admission of part of the claim by the Appellants Counsel, is flawed
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argument.
Further, the Appellants Counsel had argued in paragraph 3.04 of the Appellants Further Amended Brief that one would have expected Appellants Counsel to have concluded the cross examination of the Respondent which he commenced on the 29/7/2009 before he made the concession or admission upon which the lower Court entered judgment. Again, the decision not to conclude cross examination of PW1 was that of the Appellants Counsel therein, Mr. Adebayo, to make, and, the Appellants are bound by that decision. Restating this position and what options may be available to a dissatisfied client, the Supreme Court in Ngere & Anor v. Okuruket ‘XIV’ & Ors (2014) LPELR-22883(SC) per Rhodes-Vivour, J.S.C. said, page 25 of the E-Report:
The well laid down position of the law is that when counsel is briefed to handle a case and he accepts the brief, he has authority to decide, within his own knowledge of the law, how to conduct the case and the client is bound by how the counsel conducts the case. The remedy open to the client if he is not satisfied with counsel is to withdraw the brief or sue for professional
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negligence if that appears to be the case.
See also Ngwu & Ors v. Onuigbo & Ors (1999) LPELR-1992(SC) in which the earlier case of Mosheshe General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) 2 NWLR (Pt. 55) 110 at 119, (1987) 1 NSCC 502 at 508, was cited with approval. In the case of Vulcan Gases Ltd v. G. F. I. G. (Supra), which was heavily relied on by Mrs. Ebofuame-Nezan for the Appellants, the Supreme Court, per Iguh, JSC, also considered the right of a party to repudiate the action of his solicitor in this light, pages 40 42 of the E-Report:
The general principle of the law is that at the trial of an action the authority of Counsel extends, when it is not expressly limited, to the whole of the Court action and all matters incidental to it and to the conduct of the trial. See Sourendra Nath Mitra v. Srimati Tarubala Dasi (1930) 46 T.L.R. 191 PC. This general principle, however, does not and has not fettered the discretion of the Court where it deems it fit so to exercise the same. See Adewunmi v. Plastex Ltd (1986) 3 NWLR (Pt. 32) 767 at 785.
In this regard, it cannot be disputed that where Counsel by
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the authority of his client and with full knowledge of the facts consents to an Order, there being no mistake or surprise in the case, the client cannot arbitrarily withdraw such consent, and the Court may proceed to perfect the order but without prejudice to any application which the other side might make to the Court to be relieved from his consent all the ground of fraud, mistake, misrepresentation or surprise or for other cogent and sufficient reason. See Harvey v. Croydon Union Rural Sanitary Authority (1884) 26 ChD. 249, CA, Holt v. Jesse (1876) 3 Ch. D. 177. But if it is established that Counsel agreed to the consent order being made under some misapprehension, the Court will not hold him or his client to the agreement. See Shepherd v. Robinson (1919) 1 K.B. 474, C. A.
Where the authority of Counsel has been expressly limited by the client and Counsel has in defiance consented to an Order or judgment contrary to his client’s clear instructions, various considerations would appear to arise. If the limitation of authority is known or communicated to the other side, consent of Counsel outside the limits of his authority and in breach of the express
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instruction of his client will be inconsequential and of no effect. See Strauss v. Francis (1866) L.R. 1 Q. B. 379 at 382.
Mrs. Ebofuame-Nezan had argued in paragraph 3.17 of the Further Amended Appellants Brief that the instructions given by the Appellants to Mr. Adebayo acting for the Appellants in the lower Court were limited as was expressed in the Amended Statement of Defence and Counterclaim. On the contrary however, the instructions of Counsel on decisions to take in the conduct of his clients case cannot be limited only by the pleadings. Judicial pronouncements on the scope of authority and amplitude of a legal practitioner have been well articulated above. Counsel has the right to conduct the matter as he deems fit, in accordance with his professional competence and in good faith. Thus, he may decide to compromise the claim or make admissions that would be binding on the party he represents. He had the authority to conduct the case in a manner which, in his professional opinion, was best for the Appellants. The pleadings therefore cannot be an indication of limitations set on the authority of Counsel.
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In the Case of Neale v Gordon Lennox (1902) A.C. 465, H. L. or (1900-3) All P R. 622, cited with approval in Vulcan Gases Ltd v. G. F. I. G. (Supra), and relied on by Mrs. Ebofuame-Nezan for the Appellants, the plaintiff therein an action for libel had authorized her Counsel to compromise on condition that all imputations on her character were publicly disclaimed in Court. Her Counsel, who did not make this limitation of his authority known to the defendant’s Counsel, omitted in that compromise to extract the withdrawal of imputations on the plaintiff’s character as instructed. The House of Lords (England) in reversing the judgment of the Court of Appeal unanimously set aside the order as having been made in excess of authority and depriving the plaintiff of the opportunity of vindicating her character in public and the case was restored to the cause list for hearing. Thus, in situations where a counsel disregards some limitation set by the party he represents and enters into an agreement or compromises the matter against the express limitations set, the Supreme Court in Vulcan Gases Ltd v. G. F. I. G. (Supra), at pages 44 45, had this to say:
It may thus be said
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that where Counsel has authority from his client to agree to a reference upon certain conditions and he disregards such limitations and agrees to an Order of reference unconditionally, the Court has a discretion not to enforce such order against the wishes of the client although the limit put by the client on his Counsel’s authority is not made known to the other side when the reference is agreed upon.
Therefore, there had to be some limitation expressly set by the Appellants on the authority of Mr. Adebayo in the conduct of their defence to enable the Appellants to repudiate any action he takes on their behalf beyond the said limit. It was not for the lower Court to confirm if the admitted claims of the Respondent had been checked and verified before the admission made by Mr. Adebayo in the discharge of his duties as Counsel for the Appellants. The lower Court could not have descended into the conflict arena to direct the actions of the Appellants Counsel.
It is trite law that in civil cases, admissions by a party are evidence of facts asserted against but not in favour of such a party although they are not estoppels or conclusive
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against the party against whom they are tendered; Nigerian Bank for Commerce and Industry v. Integrated Gas (Nigeria) Limited & Anor (2005) LPELR-2016(SC); I.B.N. v. Atlantic iles Manufacturing Co. Ltd (1996) LPELR-1518(SC). In Eboade & Anor v. Atomesin & Anor (1997) LPELR-989(SC) at page 32, Iguh, JSC said:
In a civil case, admissions by a party are evidence of the facts asserted against but not in favour of such a party although they are not estoppels or conclusive against the party against whom they are tendered. See Okai II v. Ayikai II (1946) 12 WACA 31. In the same vein, the admissions of counsel in a civil case, if made at the trial or during the actual progress of litigation, are evidence against his client in the same proceeding. See Blackstone v. Wilson (1857) 26 L.J. Ex 299. Indeed, if made for the express purpose of dispensing with proof at the trial, such admissions will generally be conclusive against the client. See Langley v. Earl of Oxford (1836) 5 L.J. Ex 166.
(Emphasis supplied).
The Appellants Counsel raised the issue of formal and informal admissions in the Reply Brief, which issue
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did not arise from the Respondents Brief. Notwithstanding, in Nwankwo v Nwankwo (supra) also reported in (1995) LPELR-2110(SC), which was relied upon by the Appellants Counsel, a formal admission was held to include an admission made by counsel in the course of the trial of a civil suit. Although in the case of a formal admission in a civil proceeding the Court has discretion to require the admitted fact to be proved by some other evidence other than by the admission itself, as provided in the proviso to Section 123 of the Evidence Act, 2011, in this case, the proviso was inapplicable. Mr. Adebayo was acting within his authority as Counsel to the Appellants when he made the concession before the lower Court. The conclusion to reach in this circumstance therefore, having regard to the state of the law, is that the admission or concession made by Mr. Adebayo was binding on the Appellants.
Mrs. Ebofuame-Nezan also argued that the judgment of the lower Court exceeded the concession or admitted liability of Mr. Adebayo for the Appellants. I believe the Record of Appeal bears out the truth of this contention. Mr. Adebayo had conceded as
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follows:
In view of my answer to question 9 on the PTC sheet we concede salaries as pleaded in paragraph 27 (a) (i) – (v) but we do not concede gratuity because Plaintiff is still in the employment of the Defendant bank and false imprisonment, defamation and general damages for torture and mental anguish as the criminal case is still pending.”
However, the learned trial Judge entered judgment as follows:
Based on the admission of paragraph 27 (a) (i) – (v) and C of the last amended statement of claim by the defendant bank and the mutual agreement of the parties thereto for the admission to be in full satisfaction of the claim, I enter judgment for the Plaintiff against the Defendant bank for the reliefs sought in paragraph 27 (a) (i) – (v) and C of the said Statement of Claim.”
(Emphasis supplied)
In paragraph 27 (a) (i) (v) of the Amended Statement of Claim, pages 178 – 183 of the Record of Appeal, the Respondent sought the following reliefs:
A. SPECIAL DAMAGES
i. Outstanding salaries and allowances from October 2005 to December 2005 at 20, 965.00 x 3 ..N62, 965.
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ii. Salaries and allowance from January 2006 to December 2006 at N20, 965. 00 12 x 12 months ..N539, 639. 48
iii. Salaries/allowance from January 2007 to December 2007..N2, 833, 058. 67
iv. Salaries/allowance from January 2008 to December 2008..N2, 833, 058. 67
v. Salaries/allowance from January 2009 to December 2009.N2, 833, 058. 67
In relief C, the Respondent claimed:
C. ORDER
i. An order of Court directing the 1st Defendant to assign duties to the Plaintiff as one of the 1st defendant’s staff or employee.
ii. An order of Court directing the 1st Defendant to treat the plaintiffs employment with them as not having being broken with all the Plaintiffs salaries, allowances and emoluments paid to the Plaintiff as at when due.
Mr. Adebayo, the Appellants Counsel at the lower Court made no express reference to Relief C in his concession. The reliefs sought in paragraph 27 (a) (i) (v) refer to specific periods. Relief C however was not tied to any specific or set
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period. The Appellants Counsel did not expressly concede to this arm of the Respondents claim. The lower Court therefore did not have the jurisdiction to extend the boundaries of the admission made by the Appellants Counsel. It is trite that an order made without jurisdiction is a nullity; Menakaya v. Menakaya (2001) LPELR-1859(SC); Mustapha v. Governor of Lagos State & Ors (1987) LPELR-1931(SC); PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563(SC). The Appellant is therefore entitled, ex debito justitiae, to have the order set aside.Okafor & Ors v. AG & Commissioner for Justice & Ors (1991) LPELR-2414(SC). The order made by the lower Court entering judgment against the Appellants on Relief C, which was made without jurisdiction, must for that reason, be set aside.
This appeal therefore succeeds in part. The judgment of the lower Court entered on 30/9/2009 is set aside in part. Judgment entered by the lower Court against the Appellants on Relief 27 (a) (i) (v) of the Respondent’s Amended Statement of Claim is hereby affirmed.
Parties shall bear their costs.
Other Citations: (2000)LCN/0881(CA)
