OBA J.A. AWOLOLA, THE EDEDA OF EDA-ONIYO EKITI VS THE GOVERNOR OF EKITI STATE & 2 ORS
April 9, 2025TAJUDEEN ADISA V THE STATE
April 9, 2025Legalpedia Citation: (2018-12) Legalpedia (SC) 54391
In the Supreme Court of Nigeria
Fri Dec 14, 2018
Suit Number: SC. 184/2009
CORAM
KUMAI BAYANG AKAAHS JUSTICE SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNRO KEKERE-EKUN JUSTICE SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
NIKI TOBI) JUSTICE, SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
EJEMBI EKO JUSTICE, SUPREME COURT
EJEMBI EKO JUSTICE, SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNRO KEKERE-EKUN JUSTICE SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
NIKI TOBI) JUSTICE, SUPREME COURT
KUMAI BAYANG AKAAHS JUSTICE SUPREME COURT
NIKI TOBI) JUSTICE, SUPREME COURT
KUMAI BAYANG AKAAHS JUSTICE SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNRO KEKERE-EKUN JUSTICE SUPREME COURT
CHIMA CENTUS NWEZE JUSTICE SUPREME COURT
EJEMBI EKO JUSTICE, SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNRO KEKERE-EKUN JUSTICE SUPREME COURT
EJEMBI EKO JUSTICE, SUPREME COURT
PARTIES
OIL & GAS EXPORT FREE ZONE AUTHORITY
DR T.C. OSANAKPO
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal is a fallout of the leadership tussle among members of the Independent Petroleum Marketers Association of Nigeria (IPMAN). The Federal High Court, Port Harcourt Division in Suit No: PHC/PH/CS/12/2014, delivered its judgment in favour of the Plaintiffs and granted some reliefs amongst which were that the appointment and recognition of the 2nd-7th Defendants as Trustees of the 1st Defendant, be set aside, also that the amendment of the Constitution of the 1st Defendant wrongfully carried out by the 1st -8th Defendants and registered by the 10th Defendant is hereby set aside. The Appellant herein was the 6th Plaintiff at the Federal High Court and was authorised by virtue of the judgment to organize elections to elect members of the National Executive Committee of the 1st Defendant in accordance with its Constitution. The Defendants filed an appeal against the judgement of the trial court. They also filed an application for injunction and stay of execution and an Originating Summons before the High Court of the Federal Capital Territory, wherein they raised some questions for determination and sought several reliefs. It was their contention that having appealed against the judgment declaring the Appellant the National President of IPMAN amongst other reliefs, the matter ought to remain status quo ante bellum and therefore they as the leaders of the Association elected on 10/5/2014 were entitled to conduct elections to fill the vacant positions in the Association. They sought among other reliefs, an order of perpetual injunction restraining the Appellant herein from carrying out or supervising any national election of the Association. The Appellant filed along with the Originating Summons, a motion ex parte notice for interim injunction and a motion on notice for interlocutory injunction. The court heard the preliminary objection and the Originating Summons together and consequently entered judgment in favour of the Plaintiffs (now Respondents) against the Appellant. The court held, inter alia, that the assumption of office as National President by the Appellant pursuant to the judgment of the Federal High Court, Port Harcourt Division, in spite of a pending appeal against the judgment and despite having notice of a motion for stay of execution/injunction, was in violation of the law. Consequently he was restrained from organizing or conducting any election into any National Executive office in IPMAN. Aggrieved by this decision, the Appellant unsuccessfully appeal to the court below. Further aggrieved, the Appellant has appealed to this court seeking an order setting aside the judgment of the lower court and dismissing the Respondents’ suit at the High Court of FCT. The Respondents filed a motion on notice asking this court to strike out the notice of appeal on the ground that it has become academic since the Appellant’s tenure as IPMAN National President has lapsed by effluxion of time and there is therefore no existing right to protect. The Appellant, in opposing the application contends that having been served with the notice of appeal against the judgment of the High Court of the FCT and motion on notice for stay of execution pending appeal, he has not taken any steps towards executing the judgment of the Federal High Court and has not taken any benefit from same.
HELD
Appeal Struck Out
ISSUES
None.
RATIONES DECIDENDI
TERMS OF SETTLEMENT – MEANING OF TERMS OF SETTLEMENT
“In the spirit of the role of the judex, which is to encourage amicable settlement of dispute out of Court, terms of settlement are a major pillar in modern adjudication. Terms of Settlement are amicable settlement by parties out of Court of their dispute without going to the merits of the matter or appeal. Terms of Settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are created in substitution for and in consideration of the abandonment of the claim or claims pending the Court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd v. Adetunji (2009) 13 N.W.LR. (Pt. 1159) 647 (SC), “is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings in a matter heard on its merits.” It is not, however, a judgment on the merits of the case, though it creates an enforceable right”.
NOTICE OF PRELIMINARY OBJECTION – WHAT IS A NOTICE OF PRELIMINARY OBJECTION?
“In Kalagbor v. INEC & Ors (2008) LP.E.LR. – 4387 (CA) Ibiyeye, JCA, relying on this Court’s definition of what a Notice of Preliminary is, states that a motion on notice seeking to terminate the life of a suit is a Notice of Preliminary Objection. Persuaded by this apt definition of what Notice of Preliminary Objection is, I hereby adopt it. He says: It is instructive – to say that a motion by which a Respondent challenges the competence of a suit (or appeal) and thus the jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the Respondent contests the competence of a suit (or appeal) and the jurisdiction of Court, and if upheld has the effect of terminating the life of the suit (or appeal) by its being struck-out. See Galadima v. Tamba (2006) 6 S.C.N.J. (Part 1) 196 at 206.
NOTICE OF PRELIMINARY OBJECTION – DUTY OF A PARTY RELYING ON A NOTICE OF PRELIMINARY OBJECTION
“That is why it is provided in Order 2 Rule 9(1) of the extant Supreme Court Rules that: A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and file such notice together with ten copies thereof with the Registrar within the same time
ACADEMIC EXERCISE – WHEN DOES AN APPEAL BECOME AN ACADEMIC EXERCISE?
“An appeal becomes academic when, even if allowed, it has no utilitarian purpose or value. As a settled principle, engaging in an appeal that has become decrepit, an empty shell, with no practical utilitarian value to the Appellant, even if the judgment were given in his favour, is merely an academic and/or a hypothetical exercise: A.G, Plateau State V. A.G, Federation (2006) ALL F.W.LR. (Pt. 305) 590 at 646 – 637”
TERMS OF SETTLEMENT – DUTY ON A PARTY RELYING ON TERMS OF SETTLEMENT
“Terms of settlement, being a compromise agreement by the parties in litigation; the party relying on it must show, (and Sections 131 and 132 of the Evidence Act, 2011 very clear on this, brook of no ambiguity), that there was consensus ad idem that the out of court settlement be reached before the Terms of Settlement was duly filed. It is incumbent on the party asserting a fact to prove his assertion in order to succeed. One party in litigation cannot unilaterally foist on the other party, his adversary, in litigation Terms of Settlement as a compromise agreement”
CASES CITED
STATUTES REFERRED TO
