3PLR – BESSOY LIMITED V. HONEY LEGON (NIG) LIMITED & ANOR.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BESSOY LIMITED

V.

HONEY LEGON (NIG) LIMITED & ANOR.

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 13TH DAY OF JUNE, 2008

CA/L/299/2000

3PLR/2008/15 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, JCA

RAPHAEL CHIKWE AGBO, JCA

ADZIRA DANA MSHELIA, JCA

 

BETWEEN

BESSOY LIMITED – Appellant(s)

 

AND

1. HONEY LEGON (NID) LIMITED
2. THE CHIEF REGISTRAR LAGOS STATE HIGH COURT – Respondent(s)

 

REPRESENTATION

• For Appellant

 

AND

Olatunde Adejuyigbu for the 1st Respondent – For Respondent

 

MAIN ISSUES

 

1. WORDS AND PHRASES – “FRAUD”: Meaning of “FRAUD”

“Black’s Law Dictionary Abridged 5th Edition defines FRAUD as “An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal fight. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceive another so that he can act upon it to his legal injury. Any kind of artifice employed by one person to deceive another.” Per AGBO, J. C. A. (Pp. 26-27, paras. D-A)

 

2. ACTION – CAUSE OF ACTION: What is a reasonable cause of action

“A cause of action is made up of an aggregation of facts recognized by law as giving the plaintiff a substantive right to the claim or relief sought. A reasonable cause of action is a cause of action with some chance of success when only allegations m the plaintiffs statement of claim are considered. Where, upon examination, it is found that the alleged cause of action is bound to fail, the statement of claim ought to be s truck out.” Per AGBO, J. C. A. (P. 27, paras. B-D)

 

3. JURISDICTION – CAUSE OF ACTION JURISDICTION OR ADJUDICATORY JURISDICTION: Whether a defendant is entitled to raise issues pertaining to jurisdiction at any stage in the proceedings

” It is trite law that a defendant is entitled to raise issues pertaining to jurisdiction whether it is cause of action jurisdiction or adjudicatory jurisdiction at any stage of the proceedings whether before or after the exchange of pleadings. It is immaterial that the rules of court require such a defence to be embedded in the statement of defence. I refer to Popoola Elabanjo & Anor vs Chief Mrs. Ganiat Dawodu (2006) 15 NWLR (pt. 1001) 76SC.” Per AGBO, J. C. A. (Pp. 14-15, paras. G-B)

 

4. ACTION – CAUSE OF ACTION OF FRAUD: Elements of cause of action of fraud

“Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.” Per AGBO, J. C. A. (Pp. 26-27, paras. D-A)

 

5. JUDGMENT AND ORDER – CONSENT JUDGMENT: Methods by which an aggrieved litigant can challenge a consent judgment which he claims was obtained by fraud

“An aggrieved litigant has two methods of challenging a consent judgment which he claims was obtained by fraud or mistakenly entered by the judge on the basis of a fraudulent misrepresentation. He can either appeal against the judgment or file a fresh suit asking the court to vacate the consent judgment. I refer to Vulcan Gases Ltd vs. G.F. Ind. A. G. (2001) 9 NWLR (pt 719) 610 SC. Superior courts of record have the inherent powers to set aside their judgments in the following circumstances: (a) If the judgment is obtained by fraud or deceit. (b) If the judgment is a nullity such as when the court itself is not competent (c) If the court was misled into giving the judgment under a mistaken Belief that the parties had consented to it. (d) If the judgment was given in the absence of jurisdiction. (e) If the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See A.T. Ltd vs. A.D.H. Ltd (2007) 15 NWLR (pt.1056) 119 SC. In the instant case the plaintiff alleged that consent judgment was obtained from the court below by fraudulent misrepresentation to the court by counsel to both sides and the 1strespondent that the plaintiff consented to the judgment when infact it did not. For a matter to go into full hearing as being urged by the appellant, the case made out by the plaintiffs pleadings must not only ex facia exhibit the court’s adjudicatory jurisdiction but its cause of action jurisdiction” Per AGBO, J. C. A. (Pp. 17-18, paras. B-C)

 

6. LEGAL PRACTITIONER – DUTY OF COUNSEL: Duty of counsel in exercising his authority in representing his client

“In exercising this authority, a counsel is to do everything which in the exercise of his discretion he thinks best for the general interest of his client. No limitation can be imposed by the client on the implied authority of counsel to compromise proceedings unless this limitation of authority has been brought to the attention of the opposite side. Once however, a client has retained counsel, he is bound by that counsel’s agreement however, much he may disapprove.” Per MSHELIA, J. C. A. (Pp. 28-29, paras. G-A)

 

7. JUDGMENT AND ORDER – SETTING ASIDE OF JUDGMENT: Whether a court requires a strong case to be established before it will set aside a judgment

“The court requires a strong case to be established before it will set aside a judgment on the ground of fraud and the action will be stayed or dismissed as vexatious unless the fraud alleged raises a reasonable prospect of success. See Anatogu vs. Iweka II (1995) 8 NWLR (pt 415) 547, Olufunmise vs. Falana (1990) 3 NWLR (pt. 136) 3.” Per AGBO, J. C. A. (P. 27, paras. E-G)

 

MAIN JUDGMENT

R.C. AGBO, J. C. A. (Delivering the Leading Judgment):

The appellant was plaintiff in Suit No. ID567M/96 in which the 1st respondent was a defendant. Appellant’s counsel, purportedly without the consent of the appellant negotiated a comprise with the defendant and the written compromise was entered as judgment of the Lagos State High Court. Not satisfied with the terms of the consent judgment the appellant filed against the 1st respondent and the Chief Registrar of the High Court of Lagos State Suit No. 1D/1948/99 and claimed of the defendant as follows:

“1.     A DECLARATION that the consent judgment of the Ikeja High Court in suit 10/567/M/96 between BESSOY LIMITED v. HONEY LEGON (NIG) LTD dated the 28th day of July 1998 is not enforceable in line with the purported “Terms of Settlement” filed and dated the 24′ day of July 1998.

2. A DECLARATION that the plaintiff did not consent to nor executed the said terms of settlement neither was it informed as to its contents nor did the plaintiff instruct any counsel to execute same on its behalf.
3. A DECLARATION that the unilateral decision by the plaintiffs counsel (then) in the said suit to enter into terns of settlement and subsequently consent judgment outside the plaintiffs express instructions and without authorization of the plaintiff so to do, does not amount to the consent of the plaintiff and therefore does not bind the plaintiff.
4. A DECLARATION that the said judgment dated the 28th day of July 1998 was delivered without jurisdiction and or was obtained by fraud and collusion.
5. A DECLARATION that the plaintiff rather than the defendant is the one entitled to all that parcel of land situated at Ojota Ogudu Phase II know and referred to as Petrol Filling Station Ojota Ogudu Phase II Scheme in Somolu Area of Lagos State containing an area of approximately 3027.093 square meters more particularly delineated and verged “PINK” on survey Plan No. AT/LN1743 and covered by an irrevocable power of attorney dated 28th day of April 1999 from the Registered Trustees of Apostolic Church to the Plaintiff and further reinforced vide the judgment of Hon. Justice A.C. Adeyinka in SUIT. ID/567M/96 delivered on the 16th day of January, 1997 giving the plaintiff powers to recover the said land.
6. A DECLARATION that the purported Registration of the same land as part of the land registered as No. 98 at page 98 in volume 1999 AH of the Lagos State of Nigeria Land Registry Office, lkeja, Lagos despite the subsisting interest of the plaintiff thereto is null and void and of no effect.
7. AN ORDER setting aside the afore stated terms of settlement dated the 24th day of July 1998 and the said consent judgment dated the 28th day of July 1998.
8. AN ORDER of perpetual injunction restraining the defendants, their agents, servants, subordinates, officers and privies from disturbing the possession, title and or other proprietary rights of the plaintiff either by way of execution or other enforcement of the said IKEJA HIGH COURT Judgment dated the 28th day of July 1998 or by other entry by the defendants, their agents, servants, subordinates, officers and privies of the said land aforementioned.”

Upon service on the 1st respondent the appellant’s statement of claim and without filing its statement of defence 1st Respondent filed a motion on notice on 15th October 1999 dated the same date pursuant to Order 23 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules and the inherent jurisdiction of the court praying the court for an order dismissing the suit or alternatively an order striking out the suit. The grounds set in the motion paper were “(1) the suit is an abuse of process (2) the statement of claim discloses no reasonable cause of action and the plaintiff’s action is frivolous and vexatious (3) this court lacks jurisdiction to entertain the suit.” Affidavits were filed and exchanged. The motion was argued and in a ruling dated 3rd day of May 2006 but delivered on 20th June 2006 the trial judge adjudged as follows:

“I accordingly hold that the plaintiff has not proved any fraud by either his erstwhile counsel or the defendant or its counsel in this case to warrant setting aside the consent judgment entered into by Hon Justice A. F. Adeyinka on 16/11/97 in Suit No. ID/567M/96. I according uphold the preliminary objection of the defendant and dismiss the action of the plaintiff.”

Dissatisfied with this ruling the appellant filed this appeal challenging the said ruling on 5 grounds of appeal set out in its notice of appeal to wit:

“GROUND ONE
The judgment is against the weight of evidence

GROUND TWO
The learned trial judge misdirected himself in law in holding that “the respondent/plaintiff (now appellant) filed no counter affidavit to the affidavit of the 1st defendant/applicant and by reason thereof further held that the said defendant/applicant’s affidavit and “its averments stand unchallenged and uncontradicted” – which formed the major basis of the lower Court’s Ruling against the appellant presently being complained of in this appeal.

GROUND THREE
The learned trial judge of the lower court erred in law when he held that “I accordingly hold that the plaintiff has not proved and fraud by either his erstwhile counselor the defendant or its counsel in the case to warrant setting aside the consent judgment.”

GROUND FOUR
The learned trial court erred in law by holding that “once a client has retained counsel he is bound by the counsel’s agreement however much he may disapprove and that it has no jurisdiction to set aside the consent judgment being complained of.

GROUND FIVE
The learned trial judge misdirected himself in law when he dismissed the respondent/plaintiffs (now appellant’s) suit by an application by way of a Preliminary Objection brought under Order 23 Rule 4 of the Lagos State High Court Civil Procedure Rules and under the Inherent Jurisdiction of the Court.”
The appellant prayed this court to (i) set aside the decision of the lower court.
(ii) Invoke its powers under S.16 of the Court of Appeal Act by rehearing the matter. (iii) In the alternative order a retrial.

From the grounds of appeal set out above, the appellant distilled three issues for determination to wit:

“a.     Whether the appellant as plaintiff in the court below had duly taken the appropriate legal steps required of a party aggrieved and/or protesting his non-consent to a purported consent judgment obtained by fraud, collusion, misrepresentation and non-consent?

If the answer is in the affirmative, is the statement of claim not the relevant reference point for the court to ascertain the disclosure of his cause of action and further more is the court not entitled to hear the action on its merit so as to enable him prove the cause(s) of his complaint by facts and evidence in a proper trial.

1. Whether the court below was right in ignoring the counter affidavit and the further affidavit to the said counter affidavit both of which were duly filed on behalf of plaintiff while determining the 1st respondent’s application dated the 15th October 1999 consequent upon the lower court dismissed the plaintiff/appellant’s suit? If the answer is in the negative, does same not amount to the breach of fair hearing – i.e. the principle of AUDI ALTERAM PARTEM?
2. Whether the 1st respondent as the 1st defendant in the court below, without filing any statement of defence, is entitled to raise by way of an application under ORDER 23 RULE 4 of the High Court of Lagos State Civil Procedure Rules, Cap 61 of 1994 and under the inherent jurisdiction of the court, a preliminary objection to the jurisdictional competence of court and on the basis that the statement of claim discloses no reasonable cause of action, particularly since ORDER 23 RULE has abolished DEMURRER and substituted therefore ORDER 23 RULES 2, 3 and 4 under which a preliminary point of law can be raised after both statement of claim and statement of defence have been filed without any need to reviving the extinct plea of demurrer which has been buried.”

From the same grounds of appeal the respondent has distilled two issues for determination to wit:

“1.     Whether a defendant can competently file an application seeking to dismiss a plaintiffs suit on the grounds of being an abuse of the process of the court and that the court lacked Jurisdiction to entertain it without first filing a statement of defence?

2. Whether on the facts of this case as contained on the printed record the court below was right in law in dismissing the plaintiff’s action.”

I consider the issues distilled by the appellant as more detailed and Apposite. I shall therefore take this appeal on those issues but I shall take them from the rear i.e. to say I shall first consider issue (c) then issue (b) and finally issue (a).
ISSUE (C) “Whether the 1st respondent as the 1st defendant in the court below, without filing any statement of defence, is entitled to raise by way of an application under ORDER 23 RULE 4 of the High Court of Lagos State Civil Procedure Rules, Cap 61 of 1994 and under the inherent jurisdiction of the court, a preliminary objection to the jurisdictional competence of court and on the basis that the statement of claim discloses no reasonable cause of action, particularly since ORDER 23 RULE I has abolished DEMURRER and substituted therefore ORDER 23 RULES 2, 3 and 4 under which a preliminary point of law can be raised after both statement of claim and statement of defence have been filed without any need to reviving the extinct plea of demurrer which has been buried.”

On this issue the appellant has strenuously argued that the application determined by the court below was indeed a demurrer proceeding which had been abolished in Lagos State by Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1994 in that the application sought a determination of the suit in which a statement of claim had been filed without the applicant filing a statement of defence. He argued that what was open to the applicant pursuant to Order 23 Rules 2, 3 and 4 of the High Court (Civil Procedure) Rules of Lagos State 1994 was the procedure in lieu of demurrer provided therein which requires the defendant to file a statement of defence and setting out therein legal defences which the defendant may thereafter seek to argue before evidence is led. For ease of appreciation Order 23 Rules 1, 2, 3 and 4 of the Lagos State High Court (Civil Procedure) Rules 1994 are set out hereunder:-
“Order 23 Rule 1. No demurrer shall be allowed.

2. Any party shall be entitled to raise by his pleading any point of law and, unless the court or a judge in chambers otherwise orders, any point so raised shall be disposed of by the judge who tries the cause at or after the trial.
3. If, in the opinion of the court or a judge in chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter -claim, or reply therein, the court or judge may thereupon dismiss the action or make such other Order therein as may be just.
4. The court or a judge in chambers may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or judge in chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

 

It is clear from Rule 1 of Order 23 that the procedure known as demurrer has been abolished in the Lagos State High Court. Rules 2 and 3 of Order 23 provide for a procedure in lieu of demurrer. This new procedure however is watered down by Rule 4 which provides that the court has the right to strike out any PLEADING which does not disclose a reasonable cause of action. An application to strike out a pleading pursuant to Order 23 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1994 because the pleading does not disclose a reasonable cause of action does not require the applicant to have filed the defendant’s statement of defence before so applying. I refer to Bolaji vs Bamgbose (1986) 4 NWLR (pt 37) 632. This is particularly so because when a party asks that a pleading be struck out for not disclosing a reasonable course of action, he is in fact saying that there is a want of cause of action jurisdiction in the suit. It is trite law that a defendant is entitled to raise issues pertaining to jurisdiction whether it is cause of action jurisdiction or adjudicatory jurisdiction at any stage of the proceedings whether before or after the exchange of pleadings. It is immaterial that the rules of court require such a defence to be embedded in the statement of defence. I refer to Popoola Elabanjo & Anor vs Chief Mrs. Ganiat Dawodu (2006) 15 NWLR (pt. 1001) 76SC. The application giving rise to the ruling being challenged is founded on three legs – want of reasonable cause of action, want of Jurisdiction and Abuse of process.
In none of these grounds is the respondent required to file a statement of defence before filing its application. This issue is resolved in favour of the respondent.

“ISSUE (B) Whether the court below was right in ignoring the counter affidavit and the further affidavit to the said counter affidavit both of which were duly filed on behalf of plaintiff while determining the 1st respondent’s application dated the 15th October 1999 consequent upon the lower court dismissed the plaintiff/appellant’s suit? If the answer is in the negative, does same not amount to the breach affair hearing – i.e. the principle of AUDI ALTERAM PARTEM?”
On Issue “B” the appellant argues that in response to the affidavit in support of the respondent’s application, it had filed a counter affidavit and a further counter affidavit joining issues with the 1st respondent. Both affidavits were ignored by the trial court in determining the application. The applicant is right. The two affidavits referred to by the appellant are clearly disclosed in the case file which also show they were filed before the motion was argued. But in his ruling the trial judge stated specifically that the plaintiff filed no counter affidavit. This is clearly not true. This omission is fundamental. It affects all conclusions of the trial judge requiring affidavit evidence to establish. The application was founded on three legs – want of reasonable cause of action, want of jurisdiction and abuse of courts process. While want of reasonable cause of action and want of jurisdiction don at need affidavit evidence to establish, and can be determined only on the plaintiffs statement of claim, abuse of process cannot be so determined without affidavit evidence presenting the facts that constitute the abuse. This omission affects the fundamental right of the appellant to be heard and all conclusions by the trial judge on the affidavit in support of the motion are hereby vacated. Because abuse of process cannot be determined without reference to the affidavit in support of the application, no finding relating to abuse of process by the trial judge can stand and all such findings are hereby vacated.

“ISSUE (A) Whether the appellant as plaintiff m the court below had duly taken the appropriate legal steps required of a party aggrieved and/or protesting his non-consent to a purported consent judgment obtained by fraud, collusion, misrepresentation and non-consent?

If the answer is in the affirmative, is the statement of claim not the relevant reference point for the court to ascertain the disclosure or his cause of action and further more is the court not entitled to hear the action on its merit so as to enable him prove the cause(s) of his complaint by facts and evidence in a proper trial”

On this issue the appellant has argued most persuasively that the appellant in filing his suit seeking to avoid the consent judgment met with all the technical requirements of the law and was entitled to have his case heard on the merit. An aggrieved litigant has two methods of challenging a consent judgment which he claims was obtained by fraud or mistakenly entered by the judge on the basis of a fraudulent misrepresentation. He can either appeal against the judgment or file a fresh suit asking the court to vacate the consent judgment. I refer to Vulcan Gases Ltd vs. G.F. Ind. A. G. (2001) 9 NWLR (pt 719) 610 SC. Superior courts of record have the inherent powers to set aside their judgments in the following circumstances:

(a)     If the judgment is obtained by fraud or deceit.

(b)     If the judgment is a nullity such as when the court itself is not competent

(c)     If the court was misled into giving the judgment under a mistaken Belief that the parties had consented to it.

(d)     If the judgment was given in the absence of jurisdiction.

(e)     If the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See A.T. Ltd vs. A.D.H. Ltd (2007) 15 NWLR (pt.l056) 119 SC

In the instant case the plaintiff alleged that consent judgment was obtained from the court below by fraudulent misrepresentation to the court by counsel to both sides and the 1strespondent that the plaintiff consented to the judgment when infact it did not. For a matter to go into full hearing as being urged by the appellant, the case made out by the plaintiffs pleadings must not only ex facia exhibit the court’s adjudicatory jurisdiction but its cause of action jurisdiction.
In the instant case the adjudicatory cause of action is not really in issue. What is in issue is the cause of action jurisdiction. The plaintiff claimed fraudulent misrepresentation to the trial judge of a consent it never gave. To establish cause of action jurisdiction therefore, the plaintiffs pleadings must prima facie disclose want of consent recognizable by law and fraudulent misrepresentation by its counsel and the defendant. Did the appellant’s pleadings meet these requirements? The relevant portions of the statement of claim are re-produced here under:

“18    That the plaintiff shall contend at the trial that it never assigned the said property to the 1st defendant and neither did it authorize any negotiation, compromise or authorize any counsel to enter or execute any terms of settlement on the said land with the 1st defendant.

19. The Apostolic Church had no power to assign the said land to the 1st defendant as at the time it did or at any time whatsoever in view of the existence of the Power of Attorney dated the 28th day of February 1989 which it executed in favour of the plaintiff.
20. That the plaintiff shall also contend that it never instructed any counsel to enter into any negotiation, compromise execution of any terms of settlement not was the plaintiff aware of any such moves until the 10th day of February 1999. (i.e. after seven calendar months upon which it had been arranged at the back of the plaintiff).
21. The plaintiff did not consent to any such arrangement and did not appoint any counsel as its agent in all the actions culminating in the terms or settlement dated the 24th day of July 1998 and the consent judgment dated the 28th day of July 1998 in the same Suit No. ID/567M/96.
22. That the plaintiffs express instruction to all the counsels that had acted on its behalf in the said land Viz: Johnson Odionu Esq. and Messrs. Adenugba Adesina & Co. were limited to litigation and recovering of the said land from the TRESPASSERS and exacting damages for same no more and no less.
23. Messrs. Adenugba Adesina & Co., of “Adebanpe House” No. 231 Ikoradu Road, Lagos who were prior to the 20th day of January 1997 the legal counsel to the plaintiff till the said 28th day of July 1998 when the said consent judgment was given but were never mandated to enter into any terms of settlement dated the 24th day of July 1998 and were never instructed to sign and execute same on the plaintiffs behalf and upon which the said judgment was based and as such are not agents of the plaintiff for the said illegal transaction.
24. Messrs. Tayo Oyetibo and Co. of 152 Ikorodu Road, next to “Adebowale House”, Onipan, Lagos were legal counsel to the 1st defendant.
25. The whole transaction yielding to the terms of settlement dated 24th day of July 1998 and culminating into the consent judgment given on the 28th July 1998 are predicated on fraudulent misrepresentation, conspiracy, unprofessionalism, a collusion and apparent fraud.
26. The particulars of FRAUD are as follows:

(a)     The plaintiff never instructed its counsel either verbally or by writing to negotiate with the 1st defendant (the instruction was limited to check the trespass as well as claim damages for the trespass from the 1st defendant).

(b)     The decision by the plaintiff’s counsel to negotiate with the 1st defendant was unilateral and a personal decision since the plaintiff’s counsel never at any time consulted the plaintiff nor intimated him of the said terms of settlement dated the 24th day of July 1998 nor the existence of the said consent judgment given on the 28th day of July, 1998; seven calendar months after same was given.

(c)     The plaintiff’s counsel compromised the interest of the plaintiff by arriving at the paltry sum of N2.5 million naira in total settlement when he knew since 1996 that the value of the said land was far more than the said sum

(d)     That even if N2.5 million is to be taken as full and final settlements it does not lie on the power of the plaintiffs counsel (without express instruction) to determine the value unilateral1y and accept same in full and final settlement on the plaintiffs behalf.

(e)     That the plaintiff being in Petrol business cannot give away to another competitor a strategically acquired property for the same purpose except on the plaintiffs own terms and not on the said Lawyer’s terms.

(f)      The plaintiffs counsel without authority signed the said terms of settlement in the signature COLUMN meant for the plaintiff.

(g)     That the said signature on top of BESSOY Ltd., (in the said Signature column) in the said terms of Settlement dated the 24th day of July 1998 was never at anytime signed and executed by the plaintiff and was never authorized by the plaintiff to sign same on its behalf by anybody (the said lawyer inclusive).

(h)     The plaintiff being a Limited Liability company can only sign and execute such documents either by two of its appointed Directors or b y a Director and the company Secretary – An uninstructed attorney or Legal Counselor the counsel’s agent cannot suffice or become empowered to play that role more so when counsel to the plaintiff was aware of the existence of a ruling of the court dated the 16th January 1997 in Suit No. ID567M/96 which reverted the recovery of the said property and title of ownership to the plaintiff.

(i)      The general action and intendment of the plaintiffs counsel, the 1st defendant and its counsel and the Apostolic Church, through conspiracy, fraud and unprofessionalism is to apply the instrument of justice in perpetrating an illegality as follows:

(i)      at the time the Apostolic Church purportedly assigned to the 1st defendant resulting to the Registration as No. 98 at page 98 in Volume 1996 AH at the Lagos State of Nigeria Land Registry Office, lkeja, Lagos, the said Apostolic Church was quite aware that its interest in the said land of the plaintiff had expired and become extinct vide the irrevocable Power of Attorney it gave to the plaintiff dated the 29th day of February 1989 and to proceed to assign despite this legal disability amounts to fraudulent misrepresentation and the assignment to the 1st defendant became illegal.

(ii)     The 1st defendant and its solicitors being the initiators and prime beneficiaries of the absurd terms of settlement never at anytime attempted to ascertain whether the plaintiff agreed to the said terms of settlement dated the 24th day of July 1998 culminating into the consent judgment dated the 28th day of July 1998 but were rather contended with the misrepresentations of the plaintiffs counsel and by reason thereof aided and abetted the illegality.

(iii)    The 1st defendant and its solicitors were in constant receipt of documents emanating from the then plaintiffs counsel while Suit NO. ID/567/96 was subsisting and could therefrom deduce that the executing signatures rather placed on the top “BESSOY LTD.” at the signature column was not those of the plaintiff but those of the plaintiffs counsel (acting so without authority).

(iv)    By fronting the said signatures as being those of the plaintiff, the then plaintiffs counsel’s misrepresentation in the said terms of settlement dated the 24th day of July 1998 and culminating into the consent judgment dated the 28th day of July 1998 became apparent as (there was no mark or notation showing/indicating that he was not the proper party to execute same).

(j)      The plaintiff never asked for an alternative land and the promise of an alternative land of equal size, location and dimensions from the Apostolic Church (who illegally and without the plaintiff’s consent, assigned the plaintiff’s land to the 1st defendant) and without making this promise as being part of the said terms of settlement dated the 24th day of July 1998 and culminating into the consent judgment dated the 28th day of July 1998 makes the conspiracy and fraud a tripartite arrangement between the 1st defendant, the Apostolic Church and the then plaintiff’s counsel; (the Apostolic Church not being a party In the Suit No. 1D/567/96).

(k)     The said terms of settlement dated the 24th day of July 1998 culminating into the consent judgment of 28th day of July 1998 and the promise of an alternative land was an after thought and made to defraud the plaintiff of its property if a cursory look is taken at the then plaintiffs counsel’s letter dated the 11th March 1999 asking for the sum of N50, 000.00on behalf of the Apostolic Church and that unless same is paid to the Apostolic Church, the church would not execute the instrument of an alternative land.

(l)      The above condition appears puzzling since the Apostolic Church was not a party to any suit and never made any monetary demand from the plaintiff (who completed all forms of payment on the said land since 1977 when the purchase of the said land was made as well as by the irrevocable power of attorney dated the 28th February 1989) down till 1999 throws light into the conspiracy as the tone of this letter even makes the promise of an alternative land a ruse, an inconclusive and an indefinite bait.

(m)    The haste with which the transaction was completed at the plaintiffs detriment was merely 4 days only – (purported terms of settlement was drafted and signed on the 24th day of July 1998 and the consent judgment was obtained on the 28th day of July 1998)

(n)     That from the 28th day of July 1998 till the 10th day of February 1999, a period of about seven calendar months, the then plaintiffs counsel did not deem it fit to notify the plaintiff not only of these transactions but even the existence of this consent judgment.

(o)     The plaintiff became aware of the exact contents of the said terms of settlement when its present counsel on the 1st day of June 1999 conducted a search and brought certified true copies to the consternation of the plaintiff and its management.”

In the instant case the plaintiff had pleaded want of consent to the compromise that was affected in the case on its behalf by its counsel. It pleaded limiting the authority of counsel acting on his behalf only to argue the case to judgment and that it never authorized negotiation. It is clear from the pleadings set out above that appellant’s counsel was not expressly authorized to negotiate out of court settlement with the 1st respondent. But nothing in the pleadings suggest that plaintiff’s counsel was expressly excluded from negotiating the final conclusion of this litigation. There is nothing apparent ex – facie the pleadings that counsel’s general or apparent authority to consent to a verdict was limited by the plaintiff. It is an undisputed fact that compromising his case falls within the general authority of counsel see Enikpokar vs. Baruwa (1998) 8 NWLR (pt 560) 96, Adewunmi VS. Plastex (Nig) Ltd (1986) 3 NWLR (pt 32) 767. Where a party expressly limits the authority of counsel and same is communicated to the other side, counsel’s action contrary to instructions shall be invalid. It is not suggested in plaintiffs pleadings that it ever made such communication to the 1st defendant now 1st respondent or its counsel. Where counsel, acting in apparent authority but with want of real consent makes outlandish and ridiculous concessions obviously injurious and unjust to his client, the court will interfere on behalf of his client, see Vulcan Gases Ltd. vs. G.F. Ind. A. G. supra. In the instant case the appellant attacked the sum of N2.5 million negotiated on its behalf as being too small without setting out in the pleadings what it considers a proper monetary value of its property. Moreover it was silent as to the value and suitability of the alternative plot of land offered in addition to the N2.5 million. It cannot be said ex facie the pleadings that the terms of settlement negotiated by the appellant’s counsel on its behalf did violence to its interest. It is clear that plaintiff did not plead such want of consent as can activate the jurisdiction of the trial court to hear its suit on the merit.

On the allegation of fraud, a person alleging fraud is not only required to make the allegation in his pleadings but must in the pleadings set out particulars of fact establishing the alleged fraud prima facie. Black’s Law Dictionary Abridged 5th Edition defines FRAUD as “An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal fight. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceive another so that he can act upon it to his legal injury. Any kind of artifice employed by one person to deceive another.

Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.” See also Ntuks VS. NPA (2007) 13 NWLR (pt. 1051) 392.

Using the above definition as foundation, I have not found in the particulars of fraud set out in the plaintiffs pleadings any averment or averments of fact or facts lending to establish prima facia against the 1st respondent and counsel acting on its behalf fraudulent conduct.

A cause of action is made up of an aggregation of facts recognized by law as giving the plaintiff a substantive right to the claim or relief sought. A reasonable cause of action is a cause of action with some chance of success when only allegations m the plaintiffs statement of claim are considered. Where, upon examination, it is found that tile alleged cause of action is bound to fail, the statement of claim ought to be s truck out. See Chevron (Nig) Ltd vs. L.D. (Nig.) Ltd. (2007) 16 NWLR (pt. 1059) 168 SC, Ibrahim vs. Osim (1988) 3 NWLR (pt82) 257, Esiegbe vs. Agholor (1990) 7 NWLR (pt 161) 234. The court requires a strong case to be established before it will set aside a judgment on the ground of fraud and the action will be stayed or dismissed as vexatious unless the fraud alleged raises a reasonable prospect of success. See Anatogu vs. Iweka II (1995) 8 NWLR (pt 415) 547, Olufunmise vs. Falana (1990) 3 NWLR (pt. 136) 3.
It is clear from my assessment of the particulars of fraud set out by the appellant in its statement of claim that the allegations of collusion and fraud are not only insufficiently particularized but are bound to fail. These failures constitute enough grounds to strike out the pleadings pursuant to Order 23 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1994. The pleadings left before the court below disclosing no cause of action, it was proper for the court to dismiss the suit.

I shall therefore not tamper with the verdict of dismissal by the court below which verdict I affirm. This appeal is dismissed with N50, 000.00 costs to the 1st respondent.

CLARA BATA OGUNBIYI J. C. A.:

I have read in draft the judgment just delivered by my brother Agbo JCA that the decision arrived at by the lower court is unassailable. I also dismiss the appeal in the same terms inclusive of the order made as to costs.

ADZIRA GANA MSHELIA, J. C. A.:

I have had the privilege of reading the draft of the lead judgment of my learned brother Agbo, JCA just delivered. I entirely agree with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed. It is within the general ambit of a counsel’s authority to compromise a suit on behalf of his client and to enter into terms of settlement. In exercising this authority, a counsel is to do everything which in the exercise of his discretion he thinks best for the general interest of his client. No limitation can be imposed by the client on the implied authority of counsel to compromise proceedings unless this limitation of authority has been brought to the attention of the opposite side. Once however, a client has retained counsel, he is bound by that counsel’s agreement however, much he may disapprove. See Adewumni Vs Plastex Ltd (1986) 3 NWLR (Pt 32) 767 at 784 – 785 and Obayinwana Vs Ede (1998) 1 NWLR (pt 535) 670 at 678. In the instance case appellant failed to prove fraud by his erstwhile counsel. In my humble view the learned trial Judge rightly refused to set aside the consent judgment.

For this and the fuller reasons in the lead judgment, I too must dismiss the appeal. r also affirm the decision of the lower court and abide by all consequential orders made therein the lead judgment, cost inclusive.