Star Paper Mill Ltd & Anor V. Bashiru Adetunji & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

This appeal involves the determination of whether the court of appeal, hereinafter called the lower court, was right in striking out an appeal, when the parties have amicably resolved the dispute between them and filed terms of settlement before the court.

The plaintiffs who are the respondents before this court claimed before the High Court of Justice, Lagos among others, declaration that the lease granted in favour of Late Chief Ole Kanu Oko by Alhaji Bismyu Lawal dated 14/8/1995 and registered as No 73 at page 73 in volume 1576 of the Land Registry, Lagos over a parcel of land situate, lying and being at 210 Ogungbesan Street Coker Village Iganmu and measuring one acre has been determined by reason of forfeiture.

Both parties filed and exchanged pleadings and called witnesses in support of their case. The trial Judge, after listening to both parties delivered his judgment in favour of the plaintiffs, and granted all the claims. The trial High Court held thus:-

“In the totality of evidence adduced by the plaintiffs and Defendants, this court finds as a fact that it has to declare that the lease granted in favour of Late Chief Ole Kalu Oko, by Alhaji Bisiriyu Lawal in respect of the said land had been, determined by reason of forfeiture for failure to pay rent which law require no statutory Notice before taking action for forfeiture in accordance with conveyance Act 1881 which is still applicable in Nigeria. Consequently, all the rights, interest and title in the said property has accordingly reverted back to the plaintiff’s family who are entitled to possession of the same.

With respect to counter-claim filed by the Defendants, there is no iota of evidence adduced to sustain the averments on the counter-claim, there is clear evidence of breach of the lease Agreement dated 14th of August, 1976 and of which, forfeiture of the lease was firmly supported by this court. Copies of statutory notices were served on the Defendant, even though not necessary, but they failed to find remedy to the breach within the period of 30 days given by the plaintiffs.

A declaration that the purported sublease in favour of the 1st defendant company is null and void as there was no document tendered to show any sublease to Defendants by anybody, whereas interest on land in law has to be in writing, if there is any at all, this could have been tendered, it is therefore resumed, if the document showing interest of the Defendants were tendered, this would be against the Defendants. Section 14 Evidence law refers).

As there was no document tendered by the Defendants for their holding of the said land in dispute, the Defendants could be rightly adjudged a trespasser ab initio.

The Defendants are in fact adjudged as trespassers on the land m dispute.

Therefore, it would be justified to order a perpetual injunction against the Defendants jointly and severally, their servants, agents and or privies from committing, any further acts of trespass on, the said land.

The counter-claimed filed by the Defendants is frivolous, and it is therefore dismissed”. See pp 126- 127 of the Record.

Being dissatisfied with trial court’s judgment, as stated above, the Defendants, appealed to the lower court. At the lower court the appellants filed their brief of argument. Before the respondents could file the respondents brief of argument, the parties have agreed to resolve the matter amicably, as a result of which a terms of settlement was filed before the lower court. The terms of settlement are reproduced hereunder:

TERMS OF SETTLEMENT

“The parties herein have mutually agreed to settle the dispute herein as follows:-

“That the appellants appeal herein be allowed as being meritorious.

That parties shall bear their respective costs.

That these terms of settlement be made the judgment of this Honourable Court.

Dated at Lagos the 17th day of July, 2001”.

At the hearing of the appeal on the 6/5/2002, the following happened:

“Okupe – makes settled terms filed on 3/10/01, wants them to be made the judgment of this court.

Court of Appeal struck out”.

It is against the Order of Striking Out the appeal simpliciter that the appellants have appealed to this Court.

The appellants filed their brief of argument while the respondents failed to file any brief. Since there is proof that the respondents were duly served with the hearing Notices the appeal was deemed ripe for hearing exparte, under Order 2 Rule 11 (3) of the SCR 1999.

The learned counsel to the appellants submitted in his brief that every Superior Court of record has the inherent power to enter consent judgment. He referred to the case of Woluchen vs. Wokoma (1974) 3 SC. P 153 at 163; and Idakwo and Anor vs. Iloka (1998) 3 NWLR cited section 16 of the Court of Appeal Act Cap 75 LFN 1990 and submitted that the lower court has the jurisdiction to make the terms of judgment the judgment of the Court.

It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called settlement. When the terms of such settlements are reduced into writing, it is now called ‘terms of settlement’, when the terms of settlement are filed they are called, and made the judgment of the court. It is then crystalised into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal, except with the leave, of court. Hence, consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the court.

In the recent decision of this court in Race Auto Supply Company Limited & Ors vs Akibu (2006) 6 SCNJ 98 or (2006) 6 S.C p1 His Lordship Ogbuagu, JSC, at p17, defined what a consent judgment is as follows:-

“It is a judgment entered, pursuant to an agreement between the parties. See Woluchen vs Wokoma (1974) 3 SC 153 at 166. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the court and it is only appealable with the leave of the court. See Otunba Ojora vs Agip Oil Plc & Anor. (2005) 4 NWLR (Pt. 916) p.515.

Mohammed, JSC, in Race Supply Company Ltd vs Akibu (supra) stated the position beyond any doubt thus: –

“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 a 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 herein settled as any other judgment or order arrived at after the matters are fully fought out, to the end in a full trial. As Lord Herschel L.C. explained in the case of IN RE SOUTH AMERICA AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND (1885) 1 CH. 37 at 50. “The truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is judgment which result from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved’ to the action to be fought over again in a subsequent action”.

With due respect, I wish to add that terms of settlement does not on its own crystalise into consent judgment until the court enters it as its judgment. To my mind, the court has a discretion to enter terms of settlements as its judgment or not, particularly where terms of settlement are not ascertainable or the rights acquired or abandoned not clearly spelt out. This is particularly important in view of the fact that a term of settlement entered as a consent judgment has the force or sanction of a final judgment of the court. In the instant case, the terms of settlement are so vague, ambiguous and un-ascertainable to warrant a court to enter such terms as its judgment. For example, the first term – “that the appellants appeal herein be allowed as being meritorious” is not only vague but a violent challenge of the jurisdiction of the lower court.Parties cannot agree to hold that an appeal is meritorious or not, it is within the exclusive jurisdiction of the Court of Appeal. See Section 240 of the 1999 Constitution of the Federal Republic of Nigeria. The purported terms of settlement did not state out clearly the rights created or abandoned as it affects the subject matter. In fact no reference is made at all to the respondent which is the subject of dispute before the court. It is therefore my view that the terms of settlement in the case at hand are vague, nebulous, ambiguous and not capable of enforcement as it is a final judgment of a court; therefore the lower court was right in not accepting to enter it as its judgment.

However, since parties have shown their intention to resolve this matter amicably and in order to put an end to litigation I hereby order that this matter be sent back to the Court of Appeal, Lagos Division (court below) for hearing, and the parties shall put before that court terms of settlement that are capable of being enforced, with the acquired and abandoned rights clearly set out. Consequently, I set aside the court below order which struck out the appeal before it and in its place order that the appeal be retried before another panel of the lower court. Costs shall be in the cause.

SC.292/2002