Consent Judgment

Before Our Lordships

Muhammed Lawal Shuaibu - Justice of the Court of Appeal

Balkisu Bello Aliyu - Justice of the Court of Appeal

Ademola Samuel Bola - Justice of the Court of Appeal

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Between

1. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STAR

2. LEADER OLUMBAR OLUMBA OBU - APPELANTS

And

1. GOVERNMENT OF CROSS RIVER STATE

2. ATTORNEY-GENERAL, CROSS RIVER STATE

3. CROSS RIVER GARMENT & TEXTILE FACTORY LTD - RESPONDENTS

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MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Cross River State delivered by Hon. Justice F. Nnang Isoni on 2nd July, 2018 upholding the 1st and 2nd defendants' preliminary objection and striking out the suit for want of jurisdiction.

The appellants as claimants before the lower Court took out a writ of summons and statement of claim led on 26th May, 2017 and claimed jointly and severally against the respondents herein as follows:-

"1. As against 1st defendant, a declaration that 1st defendant's entitlement to the property situate at No. 1 Big Quo Street, Calabar (also known as Plots 67 and 68 Old Ikang Layout, Calabar) with certificate of occupancy no CA/560/80 variously registered as No. 35 at Page 35 in Volume 186 and No. 55 at Page 55 in Volume 31 in the Lands Registry, Calabar ("the property") is derived not under powers of acquisition conferred on 1st defendant by any enactment but upon 1st defendant's fulfillment of her obligations in the consent judgment in Suit No: HC/97/2014 founded on terms of settlement between parties therein.

2. As against 1st and 2nd defendants, a declaration that the property situate at Goodluck Ebele Jonathan (or Airport) By-Pass in Atimbo, Calabar Municipality and more particularly described and delineated in Plan No. CR/C.1164 ("the alternative property") was by the agreement between claimants and 1st and 2nd defendants the specific and distinct alternative property and no other granted to claimants by 1st defendant and sanctioned by the consent judgment in Suit No: HC/97/2014 based upon terms of settlement executed by the parties therein.

3. As against 1st and 2nd defendants, a declaration that 1st and 2nd defendants having not honoured both or either obligations voluntarily assumed by them in the consent judgment in Suit No: HC/97/2014 made pursuant to the terms of settlement voluntarily executed by them or having bound thereby by forcefully taking over the alternative property are not entitled to take the bene t of the said consent judgment.

4. As against 1st and 2nd defendants, a declaration that 1st and 2nd defendants having not met, fulfilled or satisfied both or either conditions contained in the consent judgment in Suit No: HC/97/2014 given pursuant to the terms of settlement between the parties in that suit for the legality, constitutionality, validity, propriety and efficacy of the revocation or claimants' right of occupancy in and over the property, the said revocation remains illegal, unconstitutional, improper, ineffective, wrongful and unlawful and the property remains the bona de property of claimants and 1st and 2nd defendants are not entitled to exercise any acts of ownership in and over the property.

5. A declaration that the invasion by defendants between 28/1/2016 and 31/1/2016 of the alternative property granted to claimants by 1st defendant in exchange of the property as part of the terms of settlement in Suit No: HC/97/2014 which terms of settlement was made the consent judgment of the parties in the said suit and thereafter proceeding to erect a garment factory thereon was mala des, presumptuous, malevolent, highhanded, unconscionable, presumptuous and trespassory.

6. A declaration that the actions of defendants in invading and taking over the alternative property and proceeding to build thereon permanent structures for 3rd defendant without giving claimant any other suitable plot notwithstanding claimants letters to 1st and 2nd defendants dated 1/2/2016 and 21/06/2016 were injurious and prejudicial to claimants right to own immoveable property and their said actions amounts to acts of highhanded executive recklessness, blatant and brazen display of impunity and disdain and contempt for the property rights of claimants.

7. Special damages in the sum of N733,000 being monies expended by claimants for purposes connected with the alternative property including but not limited to fees for perimeter survey of the alternative property, uprooting palm trees therefrom and clearing same of shrubs and trees, etc.

8. The sum of N250,000,000 general damages for trespass into the alternative property including the several inconveniences suffered, energy and time expended and unrecorded and unaccountable monies spent in pursuing matters related to the said alternative property.

9. The sum of N500,000,000 exemplary or aggravated damages for the highhanded, presumptuous, vindictive, malevolent, malicious, capricious, oppressive, arbitrary and unconstitutional actions of defendants and or their servants or agents.

10. An order of perpetual injunction restraining defendants whether by themselves, servants, agents or privies from entering into No. 1 Big Quo Street, Calabar also known as Plots 67 and 68 Old Ikang Layout, Calabar with certificate of occupancy No. CA/560/80 variously registered as 35/35/186 and 55/55/31 in the Lands Registry, Calabar for any purpose whatsoever, or erecting any structures or carrying out any manner of improvements, works or activities thereon or acting in any manner in relation to the property inconsistent with claimants' possession and ownership thereof or in any way interfering with claimants interest in and over the said property.

Upon being served with the originating processes, the 1st and 2nd defendants (now respondents) led a preliminary objection urging the lower Court to strike out the suit on the following grounds:-

1. This suit constitutes an abuse of the process of this Honourable Court.

2. There are features in the case which prevent this Court from exercising its jurisdiction over this matter.3. This Court is invited to sit as an appellate Court over its own judgment (consent judgment) in Suit No. HC/97/14, and the reliefs sought by the claimants herein are tied to the said consent judgment.

Argument was taken on the said preliminary objection based on written addresses of the respective counsel and in a considered ruling delivered on 2nd July, 2017, learned trial held on pages 156-157 of the record thus:-

"In the light of the foregoing, I hold that proceeding to hear this suit is clearly at invitation to this Court to sit as an appellate Court over its own judgment as the reliefs sought by the claimants are tied to the consent judgment one way or another. This issue is accordingly resolved in favour of the 1st and 2nd defendants. From the resolution of issue 3, it is clear that this Honourable Court lacks the requisite jurisdiction to entertain this matter. It would therefore amount to academic exercise for the Court to continue further to resolve issues 1 and 2.

In the final analysis, for reason set out above, the preliminary objection of the 1st and 2nd defendants is hereby upheld and this suit is accordingly struck out for want of jurisdiction."

Dissatisfied, appellants approached this Court through a notice of appeal led on 18/7/2018. The notice of appeal contains four (4) grounds of appeal at pages 158 - 160 of the record. From the said notice of appeal, appellants distilled three issues for the determination of this appeal as follows:-

1. Whether the adjudication and determination of the claims in suit no. HC/213/2017 i.e. the present suit required the trial Court to review or sit on appeal over its consent judgment in suit no. HC/97/2014 or to interpret the said consent judgment so as to render the present action incompetent and unmaintainable?

2. Whether having regards to the terms of the said consent judgment and the entire circumstances of this case, appellants' remedy was limited or confined to setting aside the consent judgment by a fresh suit and/or enforcing some of the terms thereof and not initiating the present suit based in part on the said consent judgment thereby divesting the trial Court of jurisdiction to entertain this present suit? 3. Whether the form in which the claims relating to the invasion of the alternative laid given to appellants by 1st respondent (in replacement of that belonging to appellants conditionally given to 1st respondent) were couched or expressed were such as rendered them unmaintainable so that the trial Court was thereby incapacitated to adjudicate and determine them?

The respondents on their part also formulated three issues for the determination of this appeal.

These are:-

1. Whether the trial Court was correct when it held that granting the reliefs sought by the claimants (appellants) will amount to sitting on appeal over the consent judgment as the reliefs sought in the instant case (HC/213/2017) are tied to the consent judgment in suit no. HC/97/2014 one way or another.

2. Whether the trial Court was correct when it stated that it would have been different if the claimant were seeking for setting aside of the consent judgment for any of reasons as listed in the case of AMORI V IYANDA (supra) in that, a fresh action like the instant one would have been the appropriate thing to do.

3. Whether the trial Court was correct when it stated that a separate suit on the alternative plot of land granted the claimants can also be instituted against the defendants but not in the form in which the claims herein are couched and led and that it cannot even be called upon to interpret a consent judgment.

In addition, the respondents relied on the notice of preliminary objection to contend that all the grounds of appeal contained in the notice of appeal are grounds of mixed law and facts wherein prior leave of Court must be sought and obtained. Furthermore, grounds 2, 3, and 4 of the notice of appeal according to the learned counsel for the respondents are not against the ratio but against the obiter of the trial Court.

Upon careful perusal of the record vis-a-viz the respective formulations, the appeal in my view can conveniently be determined on the appellants' issue no.1 which is also similar to the respondents' issue no. 1. I shall in the circumstance determine this appeal on the bases of the appellants' issue no.1.

Proffering argument on issue no.1, learned counsel for the appellants, Dafe Diegbe, Esq., referred copiously to the first four reliefs sought in Suit No. HC/213/2017 and the terms of settlement in the consent judgment in suit no. HC/97/2014 to contend that it is only where the grant of the first four reliefs in suit no. HC/213/2017 or any of them by the trial Court would reverse, annul or derogate from the terms of the consent judgment, can it then be said that their grant would amount to sitting on appeal over consent judgment. He submitted that rather than reverse or nullify any of the terms of consent judgment, the first relief would simply place the consent judgment as far as the acquisition of No. 1 Big Quo Street, Calabar by the 1st and 2nd respondents on a higher pedestal because the first relief was merely seeking for Court's alternative declaration in terms of the consent judgment that the 1st respondent's power to take over the property at No. 1 Big Quo Street, Calabar was circumscribed by the consent judgment alone.

On the second relief, counsel submitted that the grant of a declaration that the alternative plot given to the appellants and forming part of the consent judgment would merely affirm the fact as contained in the consent judgment and not to contradict it. And on the third and fourth reliefs, counsel argued that since the appellants under the consent judgment have accepted the takeover by the 1st respondent of their property at No.1 Big Quo Street, Calabar or the revocation of their right of occupancy of the 1st and 2nd respondents fulfilled the two conditions in the consent judgment, the grant of these reliefs would simply be a judicial re-affirmation of the said conditions as contained in the consent judgment. In aid, counsel referred to DANTATA & ORS V MOHAMMED (2000) FWLR (prt. 21) 889 at 925 and EMEZIE & ORS V LINUS & ANOR (2016) LPELR - 40514 to the effect that none of the reliefs sought would derogate from the terms of settlement and that all the declaratory reliefs sought were intended to declare existing state of affairs or facts as contemplated by the consent judgment.

Learned Attorney-General and commissioner for justice, Mr. Tanko Ashang also relied on both the reliefs sought by the appellants at the lower Court and the consent judgment in contending that there was no way the trial Court could grant the said reliefs without reviewing the content of the consent judgment. He thus submitted that although the trial Court has the inherent jurisdiction to set aside its earlier judgment on grounds of fraud, misrepresentation and or mistake but such features are absent in the earlier consent judgment. He referred to the cases of AMORI V IYANDA also reported in (2008) ALL FWLR (prt. 416) 1864 at 1893, DANA IMPEX LTD V ADEROTOYE (2006)3 NWLR (prt. 966) 78 at 93 - 74 and TALABI V ADESEYE (1972) 8-9 SC 2020 to the effect that consent judgment cannot be unilaterally rescinded or repudiated. Counsel submitted further that a consent judgment cannot be dislodged by implication and that it can only be set aside by fresh action specifically for that purpose.

It is pertinent at this juncture to restate the facts of the case leading to this appeal, albeit brie y. The property known as No.1 Big Quo Street, Calabar was previously owned by Uwa Printers (Nig) Ltd who later assigned its interest to Leader Olumba Olumba Obu in 1995. He in turn leased same to Zenith International Bank. In January, 2002, the Cross River State Government revoked the right of occupancy over the said land. The said revocation was however challenged in Suit No. HC/97/2014 and subsequent of which, parties settled the matter amicably wherein the terms of settlement formed the basis of the consent judgment.

By the consent judgment, appellants accepted as valid the revocation of their right of occupancy upon the 1st and 2nd respondents paying them the sum of N15,000,000 for their unexhausted improvements and also giving them an alternative land. Consequent to the alleged failure on the part of the 1st and 2nd respondents to honour the terms of the consent judgment that the appellants as claimants instituted suit no. HC/213/2017 seeking for declaratory and injunctive reliefs which are reproduced earlier in this judgment.

Before considering the merit of this appeal, it is prudent to first of all consider the preliminary objection raised in this appeal by the 1st and 2nd respondents. A preliminary objection is the procedure adopted where a respondent object to the hearing of an appeal. Its purpose is to terminate the appeal in limine. In the instant case, the 1st and 2nd respondents raised a preliminary objection that all the grounds of appeal are of mixed law and facts and that the prior leave of Court was not sought and obtained and that grounds 2, 3, and 4 are predicated not against the ratio of the judgment but against an obiter.

Arguing the preliminary objection, counsel for the respondents submitted that from the grounds of appeal and the issues distilled therefrom, requires critical analysis and examination of the terms contained in the consent judgment in suit no: HC/97/2014 and appellants' reliefs in suit no: HC/213/2017 which are matters of fact to be ascertained and hence, leave of Court ought to have been sought and obtained.

Continuing, counsel submitted that grounds nos. 1 and 4 as well as the lone issue couched therefrom are clear invitation for the trial Court to sit as an appellate Court over its own judgment and therefore, the leave of either the trial Court or this Court is imperative. He relied on the case ofABUBAKAR V WAZIRI (2008) 35 NSCQR 333 at 336 to submit that where grounds of appeal are of mixed law and facts alone, it is imperative that the leave of Court must first be sought and obtained otherwise the notice of appeal carrying such grounds is incompetent. Furthermore, issues raised from those incompetent grounds of appeal are equally incompetent.

Counsel finally submitted that apart from the fact that grounds nos. 2, 3 and 4 of the notice of appeal are a mixture of law and fact, they are also an attack on obiter rather than on the ratio decidendi and therefore incompetent. He placed reliance on the cases of ABACHA V FAWEHINMI (2000)6 NWLR (prt. 660) 228 at 251, ILOABACHIE V ILOABACHIE (2000)5 NWLR (prt.656) 178 and ERIVO V OBI (1993) 9 NWLR (prt 315) 60.

In response, counsel to the appellants submitted that appeals which are as of right do not require the leave of the High Court or the Court of Appeal to be competent. He referred to Section 241 (1) (a) to contend that once the appeal is a final decision of the High Court, sitting at first instance, whether the ground of appeal is of pure facts or mixed law and facts, an aggrieved party is at liberty to appeal as of right.

On the second arm of the objection, counsel submitted that the said grounds challenge the decision of the trial Court for declining jurisdiction to entertain the appellants' suits and that same constitute ratio decidendi and not an obiter dictum.

In further argument, counsel submitted that where parties joined issues on any material point and the Court resolves such point one way or the other, such resolution amounts to an appealable decision under Section 318 (1) of the Constitution. Counsel also referred to DEDUWA & ORS V OKORODUDU & ORS (1976)10 NSCC 499 at 505 and OMISORE & ANOR V AREGBESOLA & ORS (2015) ALL FWLR (prt. 813) 1673 at 1719.

RESOLUTION

A notice of appeal is the originating process in an appeal. Once it is incompetent, it remains so, and the Court no longer has jurisdiction to hear the appeal. Thus, the appeal would be struck out for being incompetent. And any process attendant to incompetent notice of appeal including the brief of argument is equally incompetent.

See ADERIBIGBE V ABIDOYE (2009) 10 NWLR (prt. 1150) 592 and ONWUZULIKE V STATE (2020)10 NWLR (prt. 1731) 91 at 104.

The first arm of the respondents' objection relates to the requirement of leave to appeal because the grounds of appeal are of mixed law and facts. The Constitution of the Federal Republic of Nigeria 1999 (as amended) however creates two rights of appeal namely. (1) the right of an aggrieved party to appeal as of right and (2) the right of appeal with leave. Section 241 (1) (a) of the aforesaid Constitution aforesaid emphatically provides that:-

"241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases -

(a) Final decisions in any civil or criminal pleadings before the Federal High Court or a High Court sitting at first instance."

From the notice of appeal, the decision appealed against finally disposed the right of the parties and hence a final decision within the contemplation of Section 241 (1) (a) of the 1999 Constitution as amended. As rightly posited by the learned counsel for the appellants that once the appeal is against a final decision to the High Court, sitting at first instance, appeal is as of right irrespective of the nature of the grounds of appeal.

As regards the second arm of the objection, the main contention is whether grounds nos. 2, 3, and 4 of the notice of appeal constitutes a challenge to the ratio of the decision. The ratio decidendi of a case is the principle or rule of law upon which a Court's decision is founded.

It is thus the reason for the decision or the reasons, principle, or ground upon which a case is decided. An obiter dicta or obiter dictum on the other hand means something said in passing a judicial comment made while delivering a judicial opinion but one that does not embody the decision of the Court. See OLEKSANDR V LONESTAR DRILLING COMPANY LTD (2015)9 NWLR (prt. 1464) 337, AWOKUNLE V NEPA (2007) LPELR - 8766 (CA) and ANYANWU v. PDP (2020) 3 NWLR (prt. 1710) 134 at 160. To ascertain whether or not grounds nos. 2, 3 and 4 of the notice of appeal constitutes a challenge to the ratio of the decision of the lower Court, the said grounds are reproduced hereunder as follows:-

GROUND 2

The learned trial judge erred in law in holding as follows:

"…It would have been different if the claimants were seeking for a setting aside of the consent judgment for any of the reasons as listed out in the case of AMORI V IYANDA (Supra). In that case, a fresh action like the instant one would have been the appropriate thing to do while the sum of N15,000,000 (Fifteen Million Naira) granted the claimants in the consent judgment can be enforced by means of all the execution processes provided for the enforcement of judgments ……

The reliefs sought by the claimant in this suit are without doubt so closely tied to the consent judgment that it will practically be impossible to enter judgment in this suit without touching the consent judgment…" thereby arriving at a wholly wrong verdict, whereas:

PARTICULARS OF ERROR:

1. Appellants' remedies in the light of the invasion of the alternative land granted to them after they had expended monies on same went beyond the reliefs provided by the consent judgment of 23/9/2014;

2. A consent judgment based on terms of settlement creates a new agreement and where the "…terms of such agreement… are breached or not complied with,the injured or aggrieved party must seek his remedy based on the agreement. In other words, his cause of action is founded on that agreement…" vide Abe y & Ors v Alex & Ors (1999) 12 SC (Pt. II) 71 at 78; Woluchem v Wokoma (1974) NSCC 151 at 189;

3. A consent judgment constitutes a fresh contract between parties and a cause of action can therefore be founded on such consent judgment in certain circumstances such as those in the instant case. See Race Auto Supply Compan y Ltd & Ors v Akib (2006) All FWLR (pt. 327) 486 at 511C.

4. Actions which can be taken on a consent judgment are not limited to merely taking steps to set aside such consent judgment (especially where no grounds to do so exist), but such actions include bringing a fresh action on the consent judgment.

5. It is settled that a party (such as 1st respondent) entitled to a conditional judgment cannot be compelled to perform the conditions, his only penalty being the loss of the bene t of the judgment. See Talbot v Blindedll (1908)2 KB 14.

6. The fact that the reliefs sought in the present suit were so closely tied to the consent judgment did not render them bad in so far as they were not re-litigating matters already dealt with by the suit leading to the consent judgment.

7. The claims in the present suit were unrelated with matters dealt with in Suit No: HC/97/2014 giving rise to the consent judgment in that suit.

GROUND 3

The learned trial judge erred in law in holding as follows:-

"…A separate suit on the alternate plot of land granted the claimants can also be instituted against the defendants but certainly not in the form in which the claims herein are couched…" thereby arriving at a wholly perverse conclusion, when:

PARTICULARS OF ERROR:

1. The learned trial judge did not point out the defect or error "… in the form in which the claims…" in the present suit were couched.

2. Order 17 Rule 14 of the High Court (Civil Procedure) Rules does not permit the objections raised by the learned trial judge against the claims of claimant.

3. Respondents did not raise any objections to the form of the said claims, and the trial Court suo motu raised same in breach of the principles of fair hearing.

4. Reliefs 5 - 9 of the particulars of claim in the present suit dealt with the takeover of the alternative land by respondents.

5. The said claims 5 - 9 were declaratory and monetary in form and capable of sustaining the suit irrespective of other claims.

6. The claims were clear and were properly commenced by writ of summons.

7. The claims raised distinct causes of actions arising from the invasion of the alternative land by 1st defendant.

8. The learned trial judge did not state how the claims as couched made them defective or the form they were led which rendered them incompetent.

9. Order 17 Rule 17 (3) of the High Court (Civil Procedure) Rules allows appellants to initiate action in which only declarations of rights are sought.

GROUND 4

The learned trial judge erred in law in holding as follows:

"…It is pertinent to state here that this honourable Court cannot even be called upon to interpret a consent judgment…" PARTICULARS OF ERROR:

1. The learned trial judge thus held in the alternative that appellants present suit called for the interpretation of the consent judgment in the previous suit.

2. Appellants did not commence the present suit by originating summons and none of appellants' claims in the present suit required the Court to interpret the consent judgment.

3. The consent judgment was clear and unambiguous, and required respondents to perform two conditions before they could validly take over appellants' land at No. 1 Big Quo Street, Calabar.

4. Where the question is the effect or legal consequences of a document including a judgment, it is a misconception to approach such question as one of interpretation. See Bi yo v Aku (1996) 1 NWLR (Pt. 422)1 at 38 E - F.

5. Respondents acknowledged the two conditions to be fulfilled by them and insist they fulfilled one but not the other.

6. The reliefs touching the consent judgment raised the question whether without fulfilling the two conditions respondents could take the bene t of the consent judgment.

7. The resolution of those questions did not require any interpretation of the consent judgment."

The above no doubt formed the nucleus of the decision being appealed against as same formed the basis upon which the lower Court upheld the preliminary objection and declined jurisdiction. It is not a mere passing comment which has no affirmity to the issue submitted for adjudication. Therefore, grounds nos. 2, 3 and 4 of the appellant' notice of appeal contains the reasons for the lower Court's decision and hence the ratio decidendi of the case.

On the whole, the respondents' preliminary objection is devoid of any merit and it is hereby overruled.

Having overruled the preliminary objection, I will proceed to determine the merit of the substantive appeal. The bone of contention relates to the consequence of granting the appellants' reliefs in suit no: HC/213/2017 on the consent judgment as embodied in suit no HC/97/2014.

I have earlier reproduced the reliefs sought by the appellants in suit no HC/213/2017 and the essence of which was to give effect to the consent judgment hitherto entered by the parties, particularly the appellants and the 1st and 2nd respondents herein. A consent judgment or order is said to have at least two broad meanings. In the first sense, it occurs when parties in litigation agree to strike a compromise which they embodied in the agreement signed by them or their counsel which they led in the registry and is subsequently made an order of Court. In the second sense is, where a party submits himself because he cannot resist it mainly due to the fact that he has nothing to offer against it. SeeFESTUS V AFRICAN ACTION CONGRESS (AAC) (2020) 4 NWLR (prt. 1714) 276 at 296 - 297.

In order to have a consent judgment therefore, the parties must reach a complete and final agreement on the vital issue in their terms of settlement. They must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary. The consent judgment emerges the moment the Court on the application of the parties enters such compromise agreement as a judgment of the Court. As Lindley, L. J. put it in HUDDERSFIELD BANKING COMPANY LTD V HENRY LISTER & SONS LTD (1895-99) ALL EXR. 868 at 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 good an estoppel as any other order. 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."

It is instructive to stress here that the appellants were not seeking for an order to invalidate and/or impeach the consent judgment on grounds of fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was made. Indeed, they were not as well seeking to set aside the consent judgment but rather sought to affirm the facts as contained in the consent judgment. In other words, they sought to reinforce the terms of the consent judgment through the instrumentality of suit no. HC/213/2017.

Parties in the present case were ad idem as regard the terms of their compromise agreement and it cannot also be disputed that their consent was free and voluntary. The consent judgment being a judgment of Court of competent jurisdiction remains valid and binding even where the person affected by it believes that it is void until it is set aside by a Court of competent jurisdiction. The procedure for setting it aside is simple. The party affected must appeal against the judgment. SeeBABATUNDE V OLATUNJI (2000) 2 SC 9 at 16.

The pertinent question here is whether the lower Court has the jurisdiction to entertain the reliefs sought in suit no: HC/213/2017? I have critically examined the reliefs vis-a-viz the terms of the consent judgment and I am of the view that granting the said reliefs will undoubtedly have the effect of interpreting the consent judgment. The trial judges of the same Court must stand shoulder to shoulder by complementing each other in their adjudicatory duties and not to re-open or review earlier decision of their learned brothers.

Furthermore, a consent judgment being a final judgment means that a Court cannot sit as an appellate Court over its own decision. Once the Court decided a matter, it ceases to be seised of it and cannot reopen it for any purpose whatsoever, save for the correction of clerical mistake only. The appellants can only apply for setting aside the consent judgment when same is vitiated by fraud, mistake, misconception or by any other vice but not to seek for reaffirmation of it. In the instant case, the learned trial judge was right to have declined jurisdiction.

In conclusion, I find no substance in this appeal and same is hereby dismissed. I therefore affirm the decision of the lower Court delivered on 2nd July, 2018 and struck out suit no HC/213/2017 for want of jurisdiction.

Parties shall bear their respective costs.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft the judgment prepared by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with him that the preliminary objection is devoid of any merit and I dismiss it.

With respect to the main appeal, I adopt the reasoning and conclusion reached in the lead judgment to also dismiss the appeal for lack of merit.

I affirm the ruling of the High Court of Cross River State delivered on the 2nd July, 2018 in respect of suit no. HC/213/2017.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read through the draft of the judgment delivered by noble Lord, MUHAMMED LAWAL SHUAIBU, JCA. His reasons are lucid and convincing.

I adopt them as mine.

I abide by the conclusion and the consequential orders made.

Appearances:

Dafe Diegbe, Esq. - For Appellant

O. E. Asuquo, Asst. Dir. Civil Litigation, MOJ, CRS - For Respondent

Judgment

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): 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.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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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.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, Olabode Rhodes-Vivour, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I have nothing useful to add. I allow the appeal and set aside the judgment of the lower Court. I abide by the consequential orders made. Appeal allowed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Rhodes-Vivour, JSC, obliged me with the draft of the leading judgment just delivered. I am persuaded by the reasoning and conclusion. This appeal, being meritorious, deserves to be allowed. Appeal allowed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother Rhodes-Vivour, JSC, and I agree entirely with his reasoning and conclusion.

​He set out the facts and circumstances of this case and l do not wish to belabour the point. Evidently, the question in this Appeal boils down to whether the Court of Appeal was right to disregard the Compromise Agreement entered into by the Parties. The definition of “compromise” is “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”- see Black’s Law Dictionary, 9th Ed.

It is settled, as this Court per Oguntade, JSC, observed in S.P.M. Ltd. V. Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647 at 663 that “there is nothing stopping Parties after the Judgment of a Court from changing their position from what it was in Court in order to compromise the terms of the Judgment”. In that case, S.P.M. Ltd. V. Adetunji & Ors (supra), Adekeye, JSC, also said: “It is the role of the Judex in adjudication to encourage amicable settlement – where it can adequately meet and satisfy the end of justice.

The Court has a discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged terms of settlement, which to all intents and purpose are compromise agreement, entered into by the Parties- should be scrutinized and made an Order of Court.

When terms of settlement or in other words, compromise agreement become an Order of Court – it, in legal parlance becomes a consent Judgment – A compromise settlement between Parties to a dispute may be described as a 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. A Consent Judgment or Order by nature is as effective in law in respect of all the matters, which are settled as any other Judgment or Order, arrived at after hearing a matter on merit.

The essence is to put a stop to litigation between the Parties just as much as is a judgment, which results in the normal proceedings of a Court, in a matter heard on its merit.

In this case, there is no question that the Court of Appeal fell into serious error when it disregarded the Affidavit evidence and Exhibits, which clearly showed that a compromise agreement had indeed been entered into by the Parties. Thus, I also allow this Appeal, and I abide by the Orders in the lead Judgment.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Rhodes-Vivour, JSC, just delivered and I concur that this appeal be allowed on the reasons and conclusion reached by him.

There was a presidential approval to the Appellant dated 11/6/2008, to import 500,000 metric tonnes of bagged cement into Nigeria, to commence in June 2008 and end in December, 2008. Thus, the Appellant applied 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). Consequently, 80,000 metric tonnes of bagged cement arrived Nigeria in 4 shipments and the 3 ships were allowed to berth.

Meanwhile, the 3rd Respondent at that time had issued instructions to the 1st Respondent to stop the importation of cement into Nigeria, which directive affected and prevented the 4th ship from berthing. In the interim, the 1st Respondent accepted customs duties for the bagged cement that were allowed into the country. Entreaties to the 3rd Respondent to lift the embargo were turned down, even the appeal to the 3rd Respondent by the 2nd respondent to allow the ships to berth was refused.

Frustrated, the Appellant sued the Respondents and got a Court order on 18/12/2009 against the Respondents to allow the ships with the bagged cements to berth and discharge their cargo but the Respondents disobeyed the court order despite a directive from the Acting President, Mr. G.E. Jonathan in March, 2010. Consequently, the cargo damaged and became toxic. Resultantly, the Appellant became indebted to its bankers and in order to recover its losses, it instituted vide an Originating Summons Suit RHC/L/CS/1443/2009, against the present Respondents.

​Judgment was delivered in favour of the Appellant but the Respondents appealed. At the pendency of the appeal, the Federal Government of Nigeria sought for an amicable settlement, wherein an Inter-Ministerial Committee was set up by the Federal Government. After series of meetings, it was agreed that the Appellant be paid N6,131,059,546.86 (Six Billion, One Hundred and Thirty Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and US$8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars) in full and final settlement.

However, the Respondents failed to pay the Appellant. Sometime on 21/12/2016, before the hearing of the appeal on 25/4/2017, the Appellant was paid N15,000,000.00 (Fifteen Million Naira) as part payment of the judgment sum. Nevertheless, the Respondents deposed that the payment of N15,000,000.00 was in error. At the hearing of the appeal on 25/4/2017, the Appellant informed the Court of the compromised agreement, which caused the lower Court to set aside the judgment of the trial Court, hence this appeal.

Each party formulated 4 issues for determination.

However, the agreeable and comprehensive issue for determination is the Appellant’s issue one: 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.

Once parties have compromised or vary the judgment of Court, the right to appeal is extinguished and with the compromise agreement dated 21/12/2016, the lower Court no longer had jurisdiction to entertain the case of the Respondents, who were the Appellants at the lower Court, it acted ultra vires to have set aside the judgment of the trial Court. Per FATAYI-WILLIAMS, JSC in GROVER V. INTL. TEXTILE IND. (NIG.) LTD (1976) LPELR-1342(SC) (PP. 9-10, PARAS.

E-C), settled this matter thus; There is no doubt that the maxim Eodem modo quo oritor eodem modo dissolvitur (what has been created by Agreement may be extinguished by Agreement) applies to the facts of the case in hand. The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration.

Consideration raises no difficulty if the original contract sought to be extinguished is… still executory. This is because each party, by the later Agreement, is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new Agreement in its place…

I therefore agree with my learned brother, Rhodes-Vivour, JSC, that the Respondents should pay the Appellant the said judgment debt. This appeal therefore succeeds and is allowed.