ALHAJI SANUSI USMAN V MBS MERCHANTS LIMITED & ANOR

Legalpedia Citation: (2023-05) Legalpedia 06971 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Fri May 26, 2023

Suit Number: CA/K/571/2019

CORAM

AMINA AUDI WAMBAI JSC

MOHAMMED BABA IDRIS JSC

MUSLIM SULE HASSAN JSC

PARTIES

ALHAJI SANUSI USMAN

APPELLANTS

MBS MERCHANTS LIMITED
ALH. MUSBAU BELLO SANI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CONTRACT, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Sometime in September, 2015, Musaiyaf Nigeria Limited in which the Appellant is a Managing Director and the 1st and 2nd Respondents entered into an agreement for the supply of 100 trucks of fertilizer to the 1st Respondent at an agreed sum of N276, 000,000.00 (Two Hundred and Seventy-Six Million Naira) only by the said Musaiyaf Nigeria Limited. The Appellant further claims that in line with the agreement, a deposit N70, 000, 000 (Seventy Million Naira) only was paid as part payment with the understanding that the balance of N206, 000,000.00 (Two Hundred and Six Million Naira) only would be paid prior to the supply of goods to the Respondent in bulk.

The 1st Respondent called the Appellant through the 2nd Respondent to inform him that they could not raise the balance of the sums due on the fertilizer and thus requested a refund of the deposit paid or a value for the sum in goods commensurate thereto. The Appellant claimed that he agreed to this but that there was a delay in meeting the commitment as a result of hitches but all parties kept attempting to resolve the issue amicably. To the surprise of the Appellant, the Respondents sent a letter threatening to engage the services of the Economic and Financial Crimes Commission in the recovery of the debt and despite the Appellant’s plea to settle the matter amicably, the Respondents went ahead to engage the Economic and Financial Crimes Commission who in turn invited the Appellant on a suggestion that they are investigating a criminal matter involving him as reported by the Respondents hence the filing of the application at the lower court.

The parties filed terms of settlement dated the 10th day of November, 2016 which was entered as the judgment of the court on the 1st day of December, 2016.

The Appellant later in 2018, brought a motion dated the 5th day of October, 2018 praying for the court to set aside the judgment of the court in the matter for failure of the Judgment Creditor to pay the requisite filing fees or, any fees at all in respect of the sum of N162, 000,000.00 being the judgment sum in the matter.

The lower court presided over by Honourable Justice M. L. Bello, gave its ruling on the 23rd day of July, 2019 dismissing the application. Aggrieved by the decision, the Appellant made the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø On whether leave of this Court or that of the lower court is required to file the present appeal?

Ø Whether this appeal is against an interlocutory decision?

Ø Whether the issues for determination raised by the Appellant are competent?

Ø Whether the failure to pay any fees at all in respect of the judgment of N162, 000, 000 entered against the Appellant does not render the judgment a nullity?

Ø Whether the failure of the trial judge to address the issue of jurisdiction raised by the appellant respecting the question whether the orders made in this action were orders that were capable of being made in an action brought under the Fundamental Rights Enforcement Procedure Rules occasioned a miscarriage of justice?

Ø Whether the trial judge was right in holding that the Appellant failed to show any of the elements required to warrant the setting aside of the consent judgment entered by the trial judge in this matter?

Ø Whether the trial judge was right in holding that by paying a portion of the judgment sum, the Appellant had lost his right to approach the Court and seek to have the judgment of the court set aside for want of jurisdiction?

Ø Whether by failing to afford parties the right to address him on the question bothering on the implication of the failure of the Appellant to file the application seeking to set aside the consent judgment timeously the trial judge had occasioned a miscarriage of justice?

Ø Whether the trial judge was right in holding that the failure of the Appellant to bring his application seeking to set aside the consent judgment timeously was fatal to the said application?

RATIONES DECIDENDI

INTERLOCUTORY APPEAL – MEANING OF INTERLOCUTORY APPEAL

An interlocutory appeal is an application by a party or parties to the Court of Appeal challenging an order or a decision of a lower court in a suit that is still pending before the lower court. It means that a final order has not been issued but one of the parties appeals on some issues ruled upon by the lower court to test the genuineness at the Appellate Court.

Going further, also in distinguishing between an interlocutory and a final order, the Apex Court in the case of IGUNBOR VS. AFOLABI (2001) NWLR (PT. 723) 148, held inter alia that:

“A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all the parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action….” – Per M. B. Idris, JCA

GROUNDS OF APPEAL – IT IS DESIRABLE PRACTICE TO RELATE ISSUES TO THE GROUNDS OF APPEAL

It is trite that it is a desirable practice to relate issues to the grounds of appeal in the body of the argument because it helps the Appellate Court to understand the nature of the grounds and the issues thereon and to know when an issue has been determined and what ground of appeal is affected. – Per M. B. Idris, JCA

FEES – WHEN FAILURE TO PAY ANY FEES DOES NOT RENDER THE JUDGMENT A NULLITY

Also looking at the provisions of Appendix 1 of the High Court (Civil Procedure) Rules 2007 which clearly states that where a case is commenced in any matter aside from matrimonial cases and legitimacy cases, fees must be paid on the claim, it is clear without any ambiguity that what is being referred to here is the initiation of a suit…

The purpose of this analyses is to draw out the point of interpretation of the provision of Appendix 1 to mean that fees would be paid if the matter was one by writ wherein the claim of N162, 000,000 was made. It follows therefore that the argument of the Appellant cannot hold water in this regard. Thus, the fees paid for the filing of the terms of settlement is adequate in the circumstance and the authorities cited by the Appellant in this regard are irrelevant, and I so hold. Therefore, the failure to pay any fees at all in respect of the judgment of N162, 000, 000 entered against the Appellant does not render the judgment a nullity. – Per M. B. Idris, JCA

JUDGMENT – WHEN A COURT CAN SET ASIDE ITS OWN JUDGMENT AND CIRCUMSTANCES FOR SETTING ASIDE A CONSENT JUDGMENT

Again, another set of questions that should be asked are: when can a court set aside its own judgment? How may consent judgment be set aside? And, what procedure can be used to set the judgment aside? The law is settled that any court has the inherent jurisdiction to set aside its own judgment delivered in any proceeding in which there must have been a fundamental defect such as one which goes to the issue of jurisdiction and competence of the court. See the cases of OLABANJI VS. ODOFIN (1996) 3 NWLR (PT. 435) 126 and EZEOKAFOR VS. EZEKO (1999) 9 NWLR (PT. 619) 513. In the case of EGEMOLE VS. OGUEKE (2010) ALL FWLR (PT. 513) 1424 AT 1434, the Court held inter alia on consent judgment, that:

“A judgment, the provisions of and terms of which are settled and agreed to by the parties to the action and that due effect be given to it by the court. It is final judgment and being final, it cannot even be set aside by the court that granted the judgment.”

There are however exceptional cases where a consent judgment will be set aside by the court that gave it and this include where the consent judgment was obtained by fraud, duress, misrepresentation or without legal capacity. See the case of RACE AUTO SUPPLY CO. LTD & ORS VS. AKIB (2006) LPELER 2937 (SC). In the case of LAMURDE VS. ADAMAWA STATE J. S. C. (1999) 12 NWLR (PT. 629) AT 86, the Court highlighted the circumstances for setting aside a consent judgment to include:

Where the consent was obtained by fraud

Where it was obtained by misrepresentation or non-disclosure of a material fact for which there was an obligation to disclose.

Where it was obtained under duress.

Where it was concluded under a mutual mistake of fact

Where the judgment was obtained without proper authority

Where a consent judgment is to be set aside on grounds of fraud or mistake, the procedure is to file a substantive action that is, by filing an originating process in the same court of original jurisdiction and not by an interlocutory Motion on Notice. See the cases of BABAJIDE VS. AISA (1996) 1 ALL NLR 254 and DANA IMPLEX LTD VS. AWUKAM (2006) 3 NWLR (PT. 968) 544 AT 556.

It is also trite law that a consent judgment could only be set aside by a fresh action or by an appeal with the leave of court and not by a Motion on Notice as was been done by the Appellant in the instant case. See the case of EDUN VS. ODAN COMMUNITY & ORS (1980) LPELR – 1022 SC, where his lordship, Aniagolu, JSC stated the law that the proper procedure to challenge consent judgment is to have a substantive action instituted in a court of competent original jurisdiction.

In the case of AFEGBAI VS. ATTORNEY – GENERAL, EDO STATE & ANOR (2001) LPELR – 193 (SC) P. 37. PARAS D – E, his lordship Karibi-Whyte, JSC, reiterated that:

“When a consent judgment has been obtained, it remains binding on the parties until set aside by a fresh action, if it can be established to have been obtained by fraud. See, TALABI VS. ADESEYE (1972) 8 – 9 SC. 20; AKANBI VS. DUROSARO (1998) 12 NWLR (Pt. 577) 284; ENIGBOKAN VS. BARUWA (1998) 8 NWLR (PT. 560) 96.”

It is without any doubt that from the above decisions, there is unanimity that a consent judgment could only be set aside by a fresh action or an appeal with leave of the Court, not by Motion on Notice. See also the case of VULCAN GASES VS. GESELLOSCHAFT FUR INDUSTRIES GAOVERWERTUNG A. G. (GIV) (2001) 9 NWLR (PT. 719) 610. This means that a consent judgment cannot be set aside by way of a motion on notice. The authorities on this issue are clear and unambiguous that a party to a consent judgment or order can only approach the court to have such a judgment or order set aside by filing a fresh action to establish fraud, mistake or lack of consent or any other vice that may have rendered the consent judgment or order void. – Per M. B. Idris, JCA

CONSENT JUDGMENT – MEANING OF CONSENT JUDGMENT

In D.T.T. ENT. (NIG.) CO. LTD VS. BUSARI (2011) 8 NWLR (PT. 1249) P. 387, the Supreme Court held that consent judgments are not like the regular judgments of the courts entered after a trial is conducted by the court either summarily or upon a full trial. It is not dependent upon an exchange of pleadings or calling of evidence. In fact, there is no stage in the proceedings where the law requires a consent judgment to be entered as the same can be entered at any stage of the proceedings because it is simply based on an agreement between the parties to the litigation and which agreement the parties consider binding on them and those who claim through them. In view of the fact that consent judgment creates new rights between the parties in substitution for and in consideration of the abandonment of the extant claim(s), it does not matter whether at the stage in which it was entered, the defendant had filed a defense to the claim(s) of the claimant or the claimant had filed a defense to a counter-claim or that evidence had been called or issues resolved. What matters is the agreement of the parties.

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, and in consideration of the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.

It follows therefore, 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 a judgment for the parties. Hence, a consent or agreed judgment is predicated on the consensus ad idem of the 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 and 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 generally, the cases of WOLUCHEM VS. WOKOMA (SUPRA); TALABI VS. ADESEYE (1972) 1 ALL NLR (PT. 2) 25 (1972 8 – 9 SC 20; BABAJIDE VS. ADISA (1966) ALL NLR 249; ABEY VS. ALEX (1999) 14 NWLR (PT. 637) 148; VULCAN GASES LTD VS. G. F. IND. A. G. (2001) 9 NWLR (PT. 719) 610; OGUNKUNLE VS. REGISTERED TRUSTEES OF C & S (2001) FWLR (PT. 62) 1866; AFEGBAI VS. A. – G., EDO STATE (2001) SCNJ 438; (2001) 14 NWLR (PT. 733) 425; R.A.S.C. LTD VS. AKIB (2006) 13 NWLR (PT. 997) 333; S.P.M. LTD VS. ADETUNJI (2009) 13 NWLR (PT. 1159) 647; D.T.T. ENT. (NIG.) CO. LTD VS. BUSARI (2011) 8 NWLR (PT. 1249) 387; CBN VS. INTERSTELLA COMM. LTD (2018) 7 NWLR (PT. 1618) 294; ARIJE VS. ARIJE (2018) 16 NWLR (PT. 1644) 67 and SUNDAY VS. FRN (2019) 4 NWLR (PT. 1662) 211. – Per M. B. Idris, JCA

FILING FEES – THE ISSUE OF PAYMENT OF FILING FEES IS AN ISSUE OF JURISDICTION

However, I will like to state as against the argument of the Respondents’ Counsel, that the issue of payment of filing fees is an issue of jurisdiction. In fact, it is a pre-condition to the court’s assumption of jurisdiction and where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it which cannot be circumvented under the guise of desire to do justice. See the cases of OKOLO VS. U. B. N. (2004) 12 NRN 62 AT 74 – 75 and ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252. – Per M. B. Idris, JCA