University of Ilorin & Ors. V. Professor Tunde Oduleye (2006)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of the Federal High Court sitting at Ilorin. Corum Olayiwola, J. delivered on 4/3/2005 wherein judgment was entered in favour of the Plaintiff, Professor Tunde Oduleye. In his amended Originating Summons claimed against the Defendants as follows –
“1. A DECLARATION that the Defendants’ letter dated the 26th day of October, 1999 suspending the payment of the salary of the Plaintiff with effect from October, 1999 on the ground of alleged failure to submit a valid legal title of property in support of the Housing Loan of N200,000 granted him in 1998 is ultra-vires the Defendants, illegal, null and void.
2. AN ORDER compelling the Defendants to pay the arrears of salaries and emoluments due and accruing to him from October 4 1999 till date with immediate effect.
3. A (sic) ORDER of perpetual injunction restraining the Defendants whether by themselves, their agents, privies and or servants from further acting on or implementing the contents of the aforesaid letter in any manner whatsoever and however.
4. AN ORDER directing the Respondents jointly and severally to pay the sum of Five Million Naira (N5m) to the Plaintiff as damages for the arbitrary suspension of the payment of his salaries since October 1999.”
While this matter was pending, exactly on 5/1/2001 a team made up of
(1) Mr. Kolapo Alphonso;
(2) Dr. Abdulrahim Alao;
(3) Alhaji M. K. Aiyelabegan; and
(4) Professor J. A. Akinyanju
met the parties to this case and they agreed to settle this matter amicably. As a result, the parties and their counsel signed an agreement: “TERMS OF SETTLEMENT.” These documents contained amongst others, the following clauses: “TERMS OF SETTLEMENT
WHEREAS
1. ……….
2. The parties hereto are desirous of settling the suit herein out of court on the basis of the Terms of Settlement herein.
3. The parties accordingly desire that the said terms be adopted by this Honourable Court as its awards in this suit.
THEREFORE, it is hereby agreed as follows:
1. The Defendants shall pay immediately to the Plaintiff the arrears of his salaries and allowances due to him before October 24, 1999 (if any) and the arrears of his salaries and allowances due and accruing to him from the said date till date.
2. The Plaintiff shall continue to observe the terms of the Staff Housing Loan Agreement and Staff Housing Loan Mortgage between him and the 1st Defendant.
3. The Plaintiff and the Defendants shall bear his/their costs of this action.
DATED this 27th day of November, 2000.
Signed and Confirmed by:
PLAINTIFF SGD PROF. TUNDE ODULEYE
FOR THE DEFENDANTS: SGD JITI OGUNYE CHAMBER
Pursuant to this agreement, the sum of N1,375,067.18k was paid to the Plaintiff vide a Trade Bank PLC cheque dated 10/1/2001. It was after this agreement has been reached that Plaintiff applied to amend his Originating Summons by including a claim for N5m as damages thus:
“AN ORDER directing the Respondents jointly and severally to pay the sum of Five Million Naira (N5m) to the Plaintiff as damages for the arbitrary suspension of the payment of salaries since October, 1999.”
This application for amendment was granted on the 4/3/2005. Thereafter, the learned trial judge heard the parties and gave his judgment on 13/7/2005. On the issue of settlement the trial lower court held as follows on pages 200.
“…….I would not hesitate to believe the Defendants that there was an understanding between the Plaintiff and the Defendants which led to the payment of arrears of salaries and consequent payment of the salaries as at when due. However, my belief would stop there, there was nothing on the record that the understanding crystallized into a settlement of the issues as the parties did not adopt the terms of settlement proposed as judgment of court and the case was not withdrawn from court ….”
On the issue of damages, the trial court held thus:
“It is well to note that the arrears of salary had been paid to the Plaintiff since 2001 and since then he is not alluding to further pain or distress. In the light of this situation and the fact that Plaintiff is still a staff of the University and the distress redeemable in damages would be for the period September 1999 and January 2001, in my opinion a sum of N50,000.00 would be adequate compensation for the injuries suffered by the Plaintiff for the period. The Defendants are therefore ordered to pay the sum of N50,000.00 for the distress suffered by the Plaintiff between 1999 and 2001.”
It is against this decision that the Defendants appealed to this court, while the Plaintiff cross-appealed for the review of the damages awarded by the lower court. The Appellants filed a Notice of Appeal containing six grounds of appeal, they are reproduced hereunder without their particulars as follows:
“GROUND ONE
The judgment is unreasonable and cannot be supported having regard to the weight of the plethora of Affidavit evidence in this matter.
GROUND TWO
The learned trial judge erred in law and thereby reached a wrong decision when he held thus:-
“I have also perused the plethora of Affidavit evidence in this matter:
GROUND THREE
The learned trial judge misdirected himself when he held thus:
“However my belief would stop there. There was nothing on record that the understanding crystallized into a settlement of the issues as the parties did not adopt the terms of settlement proposed as judgment of court and the case was not withdrawn from court. ”
GROUND FOUR
The learned trial judge erred in law when he held thus:
“I agree with the defendants that the arrears of salary of the Plaintiff had been paid since 2001, but as I have held supra there is nothing before me to hold that the Plaintiff had forgiven the defendants of the injuries he suffered between September 1999 and January 2001.”
GROUND FIVE
The learned trial judge erred in law when he that held:
“The defendant did not contest the fact of the injury but rather relied on estoppel which I have dismissed above. ”
GROUND SIX
The learned trial judge erred in law when he held that the Appellants should pay for injuries of the Respondent without first of all finding out that the Appellant was liable for suspending the Respondent’s salary.”
Both parties filed and exchanged their respective briefs of argument in compliance with the Rules of this Court. The Appellants in their Brief of argument dated 9/5/2006 formulated four (4) issues for the determination of the appeal as follows:
“1. Whether failure on the part of parties to a settlement to adopt same as judgment of court make such items invalid – Ground 3.
2. Whether an amicable settlement between parties to an action does not constitute estoppel- Ground 5.
3. Whether sufficient probative value was given to the defendants counter-affidavit and further counter-affidavit of 20/3/2000 and 24/7/2000 respectively by the trial court – Ground 2.
4. Whether the suspension of the plaintiff’s salary by the Defendants/Appellants were wrongful so as to warrant payment of damages for injury that might have been suffered – Grounds 4 & 6.
While the Respondent in his brief of argument dated 26/6/2006 and filed on the same date formulated three (3) issues for determination as follows –
“1. Whether the learned trial judge was not right to have proceeded to hear this case and deliver judgment in respect thereof on the claims submitted by the Respondent for adjudication – Grounds 3 and 4 of main appeal.
2. Whether the learned trial judge was not right to have awarded damages against the Appellants – Grounds 1, 2, 5 and 6 of main appeal.
3. Whether this is not a proper case to interfere with and review upward the damages awarded by the court below – Sole Ground of the Cross-Appeal.
The Appellants in support of the issues formulated submitted that the failure of the parties to have adopted the terms of agreement as the judgment of the court does not make it of less value; particularly when it forms part of the court’s records, He submitted that it is not the law that for the terms of settlement to bind the parties to it, it must be made judgment of a court, He referred to the minutes of the reconciliatory meeting where both parties voluntarily submitted themselves to arbitration, the decision of which is binding, He cited in support the case of IHEANACHO V. OBIGERE (2004) All FWLR (Pt. 226) 204 at 220.
On the 2nd issue, he submitted that an amicable settlement which culminated in terms of settlement between parties to an action constitutes estoppel whether facilitated by parties themselves or outsider. He referred to Section 157 of the Evidence Act and the case of ADONE V. IKEBUDU (2001) FWLR (Pt. 72) 1893 at 1910 and submitted that the Respondent is bound by the terms of the settlement and could not therefore set up a different case from what has been admitted, particularly when the Respondent has benefited from the agreement. He cited the case of UKPURUWU V. UKPOKAM (1988) 4 FWLR (Pt. 90) 554 at 573 paras C-E. He then urged this court to resolve it in their favour.
On issue No.3, he submitted that the lower court did not place probative value on the Defendants’ counter-affidavit of 20/3/2000, which showed that the Respondent breached the Staff Housing Loan Agreement, and as a result, the Appellants was justified in withholding his salaries and allowances.
On the fourth issue, he submitted that the suspension of the Respondent’s salaries and allowances was not wrongful and the Appellants should not have been found liable to pay damages for injury, The Appellants’ counsel therefore urged us to allow the appeal.
The Respondent’s counsel in his brief submitted that there was no amicable resolution of this case which culminated in terms of settlement and constituted estoppel to the hearing and determination of this case. The learned counsel referred this court to the ruling of the lower court on its application to amend the Originating Summons, and contended that the issue of settlement was over-ruled. He then submitted that since the parties did not adopt any terms of settlement as the judgment of the court in this case, there was nothing to prevent the lower court from hearing the case and giving judgment on the basis of the claims submitted by the Plaintiff for adjudication as the lower court did. He cites the cases of:
(a) WOLUCHEM V. WOKOMA (1974) 3 S.C. (Reprint) 115 at 128-130
(b) RASPAL GAZI CONSTRUCTION COY. LTD V. FCDA (2001) FWLR (Pt. 58) 1013 at 1026 Paras D-H.
On the 2nd issue, learned counsel for the Respondent, submitted that there was no hindrance in the lower court to prevent it from hearing and deciding the claims of the Respondent at the court below. The award of N50,000.00 made by the lower court was not disputed by the Appellants as issues were not joined by them, as a result the Appellants are estopped from quarrelling with the decision of the lower court on the award. He then submitted that the stoppage of the salaries and allowances of the Respondent was wrongful as it was not in anywhere agreed in “the Loan Agreement” that the Appellants could stop the salaries and allowances if the Respondent fails to deliver title documents. Parties to an agreement are bound by the terms therein and all rights and liabilities must be construed on those terms. He again cites the case of ARJAY LTD & ORS. V. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (Pt. 156) 943 at 990 S. C. On the third issue learned counsel submitted that the lower court did not properly proceed in the award of damages. He said that the period of seventeen months over which the salaries of the Plaintiffs/Cross-Appellants were suspended was sufficiently long enough to render the damages awarded against the Appellants grossly insignificant and ridiculous. He therefore urged this court to intervene by reviewing the amount upward. The cases of KOPEK CONSTRUCTION LIMITED V. EKISOLA (2003) FWLR (Pt. 139) 1481/1506; UBA PLAC V. SAMBA PETROLEUM CO. LTD (2003) FWLR (Pt. 137) 1199 at 1228 Paragraph F, were cited in support. He then urged us to dismiss the appeal and allow their cross-appeal.
The Appellants’ counsel on the reply brief dated 12/9/006, reinstated his earlier submission on the validity of the agreement signed between the parties. He further submitted that an appellate court will not ordinarily interfere with the award of damages except if it is established by the complainant that the award was too excessive or too low or that such award was made in keeping with the law or pleading by the claimant in violation of a principle of law. In the instant case, the Cross-Appellants have not satisfied these conditions. He therefore referred to the cases of AVON CROWN CAPS AND CONTAINERS NIG. LTD. VS. S.O. BAMIGBOYE (2004) All FWLR (Pt. 210) 11323; NEW NIGERIAN BANK VS. DEMLAG LTD (2004) All FWLR (Pt. 228) P.606; and urged this court to dismiss the cross-appeal of the Respondent.
In the instant case, it is my humble view that the following facts are not in dispute.
(i) This action was commenced on 30/12/99 when the Originating Summons was filed,
(ii) On 27/11/2000, both parties and their counsel signed an agreement headed.
“Terms of Settlement”, wherein all the outstanding salaries and allowances were agreed to be paid to the Respondent, and that each party shall bear the cost of the action.
(iii) Pursuant to this agreement, a Trade Bank Ltd’s Cheque for the sum of N1,375, 067. 18k representing the said salaries and allowances of the Respondent was paid to him.
(iv) This agreement though signed by all the parties and their respective counsel was not entered as the Judgment of the court’, but produced before the court.
The Respondent’s counsel has argued forcefully that since this agreement was not made the judgment of the court it is not binding. He referred the court to the case of RAS GAZI CONSTRUCTION LTD. VS. FCDA (supra) at 1026 where it was held thus-
“A consent judgment is arrived at in this way. The parties in an action before the court asked for leave of court. They held meetings in this connection more often than not, assisted by counsel representing them. Where there is an agreement, the terms of settlement are drawn up and signed by the parties. I must state here that at this stage, the terms of settlement cannot and do not operate as a final and conclusive judgment ….. I must point out here that unless and until the court makes the terms of the settlement a judgment of the court, it is not binding and cannot therefore be enforced …. per Katsina-Alu, JSC at page 1026.”
This without doubt, with respect, is a sound and correct exposition of the law. This court as a penultimate court must be bound by it.
However, I must say, that the non-entry of a term of settlement as a judgment of the court, does not, in law, render it less valid, particularly where a party has benefited under the agreement.
The Appellants in this case did not contend that there was “a consent judgment”, but that there was an agreement between the parties, in respect of which the Respondent had taken benefit, which renders this action unmaintainable. That is the Respondent was estopped from making any further claim.
Section 151 of the Evidence Act provides as follows-
“When one person has, by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing. ”
I think this is what has been generally and popularly referred to as “estoppel by conduct” or even “standing by”. In the case of HUMPHEREY IBE VS. HARDING OSUJI (1998) 10 SCNJ 75 at 82, the Supreme Court per Ogwuagbu, JSC held thus:
“The principle of estoppel by conduct is that where one party has, by his words or conduct, make to other a promise or assurance which was intended to affect the legal relations between them and to be acted upon, accordingly, then, once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations as modified by himself even though it is not supported in point of law bv anv consideration but only by his word or conduct, ” (underlining mine for emphasis)See also the case of COMBE V. COMBE (1951) 1 All ER. 767/770.
This rule of estoppel by conduct has only one qualification, that is to say the person relying on it must be a Defendant. His Lordship, Ogwuegbu JSC in the case of IBE V. OSUJI supra at page 82/ines 20-25 has this to say:
“The only qualification to the above principle is that it can only ,be invoked by a defendant as in this case and can never stand alone as giving a cause of action in itself. It cannot, ‘ therefore, do away with the necessity of consideration when that is an essential part of a plaintiff’s cause of action. This qualification does not apply to the facts of this case.”
In the same case supra Uwais CJN, as he then was, says-
“I entirely agree that the Appellant after repudiating the agreement between him and the Respondent on the sale of the land in dispute cannot successfully, bring a claim of breach of contract against the Respondent. He cannot blow hot and cold. He is estopped from asserting that the contract subsists after it was repudiated by him. ”
Hear what Ogundare JSC of blessed memory has to say in the same case at page 83.
“Having repudiated the contract of sale of land he had with the Defendant and used the process of court to harass and intimidate the Defendant and his father in order to enforce his (Plaintiff’s) repudiation of the contract, he could not now turn round to claim that the contract was subsisting…”
See also HUGHES V. METROPOLITAN RAILWAY COMPANY (1875-77) 2 AC. 439 at 448 and TIKATORE PRESS LTD. V.ABINA (1973) All NLR 887 at 889.
As held by his Lordship Ogbuagwu, JSC in the above mentioned case, also the qualification to the rule of estoppel by conduct do not apply to the facts of this case. In the present case before us, the agreement under reference was signed by both parties and their counsel, by this, their legal rights and claims have been modified and confined to the terms of agreement and none of the parties can resile from it. Thereafter, the trial court acknowledged this fact when he held –
“I will not hesitate to believe the defendant that there was an understanding between the Plaintiff and the Defendants which led to the payment of arrears of salaries and consequent payment of the salaries as at when due…”
It is my view that this understanding as reduced into writing in the terms of settlement by the parties amounts to estoppel by conduct pursuant to Section 151 of the Evidence Act. It is therefore wrong for the trial court to turnaround and hold thus-
“However, my belief would stop there, there was nothing on the record that the understanding crystallized into a settlement of the issues as the parties did not adopt the terms of settlement proposed as judgment of court and the case was not withdrawn from the court…”
As I have stated earlier in this judgment, the agreement of the parties have redefined the rights and interests of the parties, what the lower court would have done is to construe the agreement in question and deliver its judgment based on it. Parties cannot be allowed to approbate and reprobate at the same time. See the cases of: OGUALAJI v. ATTORNEY GENERAL OF RIVERS STATE & ANOR. (1997) 5 SCNJ 240; and AGIDIGBI V. AGIDIGBI (1996) 6 SCNJ 105.
It was held in Ogualaji v. AG. Rivers State supra at page 249 per Adio, JSC that-
“In Ude’s case, this court held, inter alia that by operation of the rule of estoppel a man is not allowed to blow hot and cold. He cannot affirm at one time and deny at the other, or approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turn around to say to that person’s disadvantage that the state of affairs which he had presented does not exist at all or as represented by him.”
In this case, based on “the terms of settlement”, the Respondent has collected all his outstanding salaries and allowances and continue to enjoy his salaries as at when due. To turn around and make further claim outside the agreement amounts to approbating and reprobating which is intolerable.
In view of the above analysis, I find no basis in the lower court granting of N50,000.00 as damages for injuries, which is outside the agreement between the parties. In the final analysis, I find that the appeal is meritorious same is hereby allowed.
My Lords, the Respondent was not entitled to the award dished out to him. That being the case, the N50,000.00 (Fifty Thousand Naira) award made by the lower court is hereby set aside. Consequently, the main appeal is allowed, while the cross-appeal lacks substance same is hereby dismissed with N5,000.00 (Five Thousand Naira) costs in favour of the Appellants herein.
Other Citations: (2006)LCN/2090(CA)
