By Legalpedia
ALHAJA ADUKE YUSSUF v. PERSONAL TRUST SAVING & LOANS LIMITED & ANOR
Suit no: CA/L/109/2015
Legalpedia Electronic Citation: (2021) Legalpedia (CA) 81966
Areas Of Law:
Appeal, Court, Interpretation Of Statute, Judgment And Order, Land Law, Practice And Procedure, Words And Phrases.
SUMMARY OF FACTS:
Before the High Court of Lagos State, Lagos Judicial Division, the Appellant and the second Respondent were the Respondents while the first Respondent was the Applicant.
In 2003 and 2004, the first Respondent, at the behest of the second Respondent, granted overdraft facilities to the second Respondent for the sum of N7, 800,000 for 99 days and N900,000 for 270 days respectively.
The overdraft loans were guaranteed by Otunba Lateef Tolani Alade, Alhaja Faidat Bimpe Alade and an irrevocable power of attorney over the property at No. 4 Hunmoni Street, Aiyetoro Aguda, Surulere, Lagos State.
After the expiration of the maturity dates of the overdraft loans, the second Respondent failed to repay the loan sums, including accumulated interests thereon, despite repeated demands made by the first Respondent.
Sequel to that, the first Respondent, via a writ of summons filed on 13th January, 2009, beseeched the lower court for the payment of the sum of N10, 166,642.74, arising from the overdraft facilities, and accrued interests thereon.
Subsequently, the first and second Respondents settled and executed Terms of Settlement in the matter. The lower court entered consent judgment for the parties as per the Terms of Settlement.
The second Respondent failed to comply with the consent judgment. As a result, the first Respondent, filed an application seeking to levy execution against the immovable property of the judgment debtor (second Respondent) situated and known as No. 4 Hunmoni Street, off Aiyetoro Street, Aguda, Surulere, Lagos (the property).
The Appellant, on becoming aware of the first Respondent’s application, filed an application, for leave to be heard as an interested party. The lower court granted the Appellant’s application.
The application was duly heard by the lower court and in a considered ruling; the lower court granted the first Respondent’s application.
The Appellant was dissatisfied with the decision hence this appeal.
HELD:
Appeal Allowed ISSUES FOR DETERMINATION
Ø Whether the learned trial Judge had the jurisdiction to levy execution on the Appellant’s property at 4 Hunmani Street, off Aiyetoro Street, Aguda Surulere, Lagos and Registered as No. 36 at page 36 in Volume 200IE of the Lagos State of Nigeria Lands Registry Office Ikeja in satisfaction of the Consent Judgment of 28th October, 2009 between 1st and 2nd Respondents.
RATIONES
CONSENT JUDGMENT – MEANING OF CONSENT JUDGMENT
“As a necessary preclude, the import of consent judgment was, vividly, captured in the case of Woluchem v. Wokoma (1974) 3 SC 153/(1974) 1 SC 115 at 128 (REPRINT) /(1974) 9 NSCC 181 at 189 wherein Ibekwe, JSC, incisively, declared:
“The rule is that actions may be settled by consent during trial. Usually such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between parties may be described as a contract whereby new rights are created between them in substitution for, an in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”
“It follows that a consent judgment, which is also agreed judgment, is a judgment based on the agreement of parties to an action and given a stamp of legality and efficacy by the court. In practice, the parties negotiate settlement out of the bowel of the court, reduce their terms of agreement into writing, sign and file same in court and request the court to make it judgment for the parties. Hence, consent or agreed judgment is predicated on the consensus ad idem of parties. It is binding on the parties much the same way as a judgment obtained after a full-scale trial of an action. It is only appealable with the leave of the court that handed it down to the parties pursuant to section 241(2)(c) of the Constitution, as amended. It is liable to be set aside in the presence of deserving circumstances such as fraud, mistake, misrepresentation et cetera. It is a final decision of a court that issued it. It cannot be rewritten by a court. For a valid consent judgment, the parties must be consensual on the vital issues in the agreement, their consent must be free and voluntary, the terms of settlement must be executed and filed in court which must enter it as judgment for the parties, see Woluchem v. Wokoma (supra); Talabi v. Adeseye (1972) 1 All NLR (Pt. 2) 25/(1972 8 – 9 SC 20; Babajide v. Adisa (1966) All NLR 249; Abey v. Alex (1999) 14 NWLR (Pt. 637) 148; Vulcan Gases Ltd. v. G. F. Ind. A. G. (2001) 9 NWLR (Pt. 719) 610; Ogunkunle v. Registered Trustees of C & S (2001) FWLR (Pt. 62) 1866; Afegbai v. A. – G., Edo State (2001) SCNJ 438/(2001) 14 NWLR (Pt. 733) 425; R.A.S.C. Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333; S.P.M. Ltd. v. Adetunji (2009) 13 NWLR (Pt. 1159) 647; D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Arije v. Arije (2018) 16 NWLR (Pt. 1644) 67; Sunday v. FRN (2019) 4 NWLR (Pt. 1662) 211.” PER O.F. OGBUINYA, J.C.A
CONSTRUCTION OF DOCUMENTS – DUTY OF COURTS IN CONSTRUING A DOCUMENT
“Nota bene, the law grants to the courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apubo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168.”PER O.F. OGBUINYA, J.C.A
PARTY – WHO IS A PARTY?
“First and foremost, it is apropros to appreciate the connotation of a party in litigation. A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, see Green v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; BelIo v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. In law, parties encompass privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. — G., Oyo State (1987) 4 NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v. Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ 115; Abubakar v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82.” PER O.F. OGBUINYA, J.C.A
CONSENT JUDGMENT- WHETHER A CONSENT JUDGMENT OPERATES BY WAY OF ESTOPPEL TO A NON -PARTY
“In the glaring absence of the appellant as a party thereto, she never consented to the Terms of Settlement which sired the consent judgment. The elementary position of the law is that consent judgment operates for or against parties to it. It has no effect, either by way of estoppel or otherwise, against a person who is not a particeps in its proceeding. A consent judgment is similitude of a contract as it gives birth to new rights and obligations. It is a notorious principle of law that a stranger to a contract is not bound by it even if it is made for his benefit. The appellant was an alien to the consent judgment and, de jure, it had/has no binding force on her howsoever. By parity of reasoning, the property, which was not factored into the agreement in the consent judgment, enjoys the same fortune. In the face of this current and inelastic position of the law, the lower court, with due reverence, fractured the law when it gave its imprimatur to the first respondent to levy execution on the property.
In a bid to amputate the long arm of the law, lack of effect of consent judgment on a non-party, the first respondent invented the defences that the appellant donated the property to it, as collateral for the loan, and, ipso facto, a privy to the transaction. In Abey v. Alex (supra) at 159, Uwaifo, JSC, eloquently and incisively, proclaimed:
“…the parties are entitled to settle or compromise all or any of the questions or dispute between them on any term and condition on which they agree even without the approval or sanction of the court, or prior reference to the court. Such an agreement or out of court settlement between the parties supersedes the original cause of action altogether and the court has not further jurisdiction in respect of the original cause of action which has been so superceded. If the terms of such new agreement or out of court settlement are breached or not complied with, the injured or aggrieved party must seek his remedy based on the agreement or out of court settlement. In other words, this cause of action is founded on that agreement or out-of-court settlement.”
– PER O.F. OGBUINYA, J.C.A
CONSENT JUDGMENT – EFFECT OF A CONSENT JUDGMENT
“It is discernible from this magisterial pronouncement, in the ex-cathedra authority, that the birth of a consent judgment heralds the abortion/extinction of an original cause of action. A consent judgment drowns the original cause of action that occasioned the claim in court which, in turn, midwifed the consent judgment. It divests the court of its requisite jurisdiction to entertain any grievances germinating from the original cause of action. Thus, the original cause of action stands extinguished/banished in the presence of consent judgment“. PER O.F. OGBUINYA, J.C.A
EXERCISE OF DISCRETION – MEANING OF EXERCISE OF DISCRETION
“My noble Lords, for the sake of completeness, the application, the outcome of which transfigured into the appeal, was an invitation to the lower court to exercise its discretion: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560.” PER O.F. OGBUINYA, J.C.A
EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
“An exercise of discretion does not grant the court the unbridled liberty to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina George Ind. Ltd. (supra). To act judicially denotes
“. . . discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”,
see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously…is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A Ltd. (supra), at 164, Per Ogbuagu, JSC.”
It cannot be gainsaid that the lower court, on the footing of the above juridical survey on consent judgment, with due respect, did not act judicially. This is because, it desecrated the sacred principles of law on the application of consent judgment. An appellate is, usually, loath to interfere with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nuclus Venture (2019) 16 NWLR (pt. 1699) 533.” PER O.F. OGBUINYA, J.C.A
Statutes Referred To:
Evidence Act 2011 Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria