3PLR – ABDULKARIM V. INCAR
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ABDULKARIM
V.
IN THE SUPREME COURT OF NIGERIA
SC.183/1989
3PLR/1992/2 (SC)
OTHER CITATIONS
NWLR (Pt. 251) 1
BEFORE THEIR LORDSHIPS
MUHAMMADU LAWAL UWAIS, J.S.C. (Presided and Read the Leading Judgment)
EMANUEL OBIOMA OGWUEGBU, J.S.C.
BETWEEN
ALHAJI SHUAIBU ABDULKARIM
AND
REPRESENTATION
Mallam Mahmoud Gafar – for the Appellant
A.O. Okulaja – for the Respondent
MAIN ISSUES
ADMINISTRATIVE LAW – Judicial review – Duty of Supreme Court thereunder.
ADMINISTRATIVE LAW – Judicial review – What it entails.
PRACTICE AND PROCEDURE – APPEAL – Leave to appeal -Order made with consent of parties – What amounts to “consent” – Section 220(2)(c), 1979 Constitution considered.
CONSTITUTIONAL LAW – Constitutional interpretation – Proper approach thereto.
CONSTITUTIONAL LAW – “Decision” under section 277(1) of 1979 Constitution – Whether “Ruling” amounts to a decision thereunder.
CONSTITUTIONAL LAW -Right of appeal -Leave to appeal – Section 220(2)(c) 1979 Constitution-Scope of.
PRACTICE AND PROCEDURE – COURT-Supreme Court-Power to overrule previous decisions-When exercisable.
INTERPRETATION OF STATUTES – 1979 Constitution – Section 220(2)(c) – “With the consent of parties” – Interpretation of – Technical or broader sense – Which is to be preferred.
INTERPRETATION OF STATUTES -1979 Constitution of the Federal Republic of Nigeria – Interpretation of – Need for liberal approach.
CONSTITUTIONAL LAW – JUDICIAL PRECEDENT – Supreme Court – Power of to overrule its previous decisions – Lauwers Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pt.83) 429 overruled.
PRACTICE AND PROCEDURE – JURISPRUDENCE – The Grundnorm – The Constitution – Interpretation of – Proper approach.
WORDS AND PHRASES – “Consent” – Meaning of – Technical and broad sense distinguished.
WORDS AND PHRASES – “Ruling” – Meaning of under section 277(!) of 1979 Constitution.
MAIN JUDGEMENT
UWAIS, J.S.C. (Delivering the Leading Judgment):
In his writ of summons, the appellant, as plaintiff, claimed against the respondent, as defendant, in the High Court of Kano State as follows:
(1) Delivery up of the said two lorry vehicles numbers KNF 3652 and KNF 4741 or the total sum of N400,000 (their current market value).
(2) Damages for their wrongful detention at the rate of N9,000.00 per month, from October, 1984 (the date of the Supreme Court judgment) till delivery is made or cost of vehicle paid to the plaintiff.
(3) Other consequential relief as the Court may deem fit to make.” The writ of summons was taken out on the 14th day of July, 1987. Before a Statement of Claim was filed by the plaintiff, the defendant brought an application on the 21st day of August, 1987 praying thus:
“(a) An Order that the Writ of Summons herein dated 21st day of July, 1987 (sic) be struck out on the grounds that:
(i) it discloses no reasonable cause of action, and
(ii) it is an abuse of the process of the Court and,
(iii) if there is a cause of action, the same is statute barred.
(b) An Order that the action be dismissed.
FURTHER TAKE NOTICE that at the hearing of this application, Counsel will use and rely on the contents of the affidavit of Pius Okoko attached to this Motion.
This application is made under Order 2 Rule 2 of the Rules of the Supreme Court 1976 England and/or Order 10 Rule 20 of the Kano State High Court (Civil Procedure) Rules 1976.”
The affidavit in support of the application reads in part as follows:
“2. That on the 23rd day of October, 1978, the Plaintiff instituted action against the defendant in Suit No. K/190178 in the Kano High Court claimed inter alia as per his writ.
‘Release and possession of the said vehicles Registration Nos. (amended) KNF 3652 and KNF4741 now in custody of the defendants or in the alternative for the value of the said vehicles.’
The Statement of Claim of the Plaintiff and the Defence of the Defendants as filed in the said action have been produced as shown to me and the same are attached to this action as ‘Exhibits POI and Exhibits P02.’
- The action is Suit K.190/78 was strenuously prosecuted in respect of the vehicles now being claimed in this suit and after an equally strenuous defence, the trial Judge Jones, C.J. held inter alia: ‘Plaintiff asks for a ruling that the seizure and retention of two of these vehicles terminates the hire purchase agreements in respect of them. I have already held that those hire agreements had already been rescinded and replaced by a new single contract. I find that 1 believe the evidence for defence that in fact they now have only one of these vehicles KNF 3652 in their possession and only because it is in need of repairs and not because they have any claim to it. Nevertheless, Plaintiff would be entitled to damages for the admitted wrongful seizure. I would award damages if any had been claimed. But none was claimed, and none proved. So I regret I am unable to award any.’
The Judgment of Jones, C.J. as he then was, and from which the above have been quoted, has been produced and shown to me a copy thereof is attached hereto marked ‘Exhibit MY
- The Plaintiff dissatisfied with the judgment of Jones, C.J. in Suit No. K/190/78, appealed to the Federal Court of Appeal, as the Court was then known, and the Court per Ademola, J.C.A., ruled in appeal No. KCA/K/94f79 as follows:
‘I come now to the question of damages in respect of wrongful seizure of the cars. I agree with the learned trial Judge in the non-award of damages on this item for the reasons he gave that no damages were claimed and no damages were proved. It is trite law that a Court of law cannot award what was not claimed nor could I give what was not proved.’
The judgment of the Court of Appeal from where the above have been quoted has been presented and shown to me and copy thereof is attached hereto marked ‘Exhibit PO.4.’
- That the further appeal of the plaintiff to the Supreme Court in Appeal No. SC/40/1983 was dismissed with costs. The judgment of the Supreme Court has been reported in the judgments of the Supreme Court of Nigeria for October, 1984.
- That by reason of the above premises, I verily believe that the present action by the plaintiff is an attempt to relitigate between the same parties and open the same subject matter which have (sic) been brought forward, or which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case in the first instance.
- That I verily believe that the alleged wrongful seizure was alleged to have taken place more than 8 years ago.
- That the plaintiff to my knowledge is still indebted to the Defendant in the sum of N193.304.00k with the interest accruing.”
The application came up for hearing on the 14th day of September, 1987 before Tijani Abubakar J. (as he then was). Mr. Omotosho who appeared for the defendant stated as follows:-
“We have a motion brought pursuant to Order 10 Rule 20 of the Kano State High Court (Civil Procedure) Rules, 1976. We are asking for the following prayers:-
(1) That the Writ of Summons in this case be struck out because it discloses no reasonable cause of action. It is an abuse of the process of the Court. Even. if there is accuse (sic) of action, it is statute barred.
(2) That the action be discussed (sic dismissed) for the same reasons.
We have a nine (9) paragraph affidavit in support of the motion. We rely on all the said 9 paragraphs. (Taken as read) The case (sic cause) of action raised an issue of estoppel. This case is the same and the plaintiff is seeking the same relief as in Suit No. K/190f78 which has been adjudicated. We raised the defence of res judicata. (see page 53 of our annexture 3 attached to our affidavit) At page 26, the 3rd paragraph the Court of Appeal affirmed the decision of the trial Judge. The plaintiff appealed to Supreme Court and the judgment is reported in (1984) 10 S.C. page 1. The Supreme Court at 51 (read paragraph) the Supreme Court affirmed the decisions of the lower Courts. This present action is an attempt to relitigate the issue of damages which has gone up to Supreme Court. This the plaintiff cannot do in law; see Section 53 of the Evidence Act now (sic) the following cases of the Supreme Court –
(1) Standard Bank Nigeria Limited v. Chief F.M. Ikomi (1972) 1 S.C. 164 at 178.
(2) Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt.52) p.633 holding (10), (11) and (12).
I submit the present suit which in substance is for a claim for damages and/or repossession of the vehicle in question could have been raised by the plaintiff through reasonable diligence. This Court could not allow him to come again as a fresh case.
Secondly, if there is a cause of action, I submit in the alternative that this-action is statute barred. The cause of action from the writ arose sometime in 1978. If this is the case the action is statute barred. I refer to Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) I, specially holding No.8-14.Oral evidence is not necessary contrary to paragraphs 3 and 6 of the plaintiff’s counter affidavit the cause of action arose in 1978 note date of the Court’s decision. I urge the Court to strike out the action.”
In reply Mr. Eka Kanam who represented the plaintiff stated thus:
“We oppose the application and rely on our counter affidavit of 11 paragraphs. We rely on all the paragraphs in particular paragraph 3. The subject matter of the case is for delivery of two vehicles which have been detained by the defendant. This is an action in detinue. I refer to the judgment of the Supreme Court at page 49, above the Court ruled on the plaintiff’s declaration.”
Then Mr. Eka Kanam was recorded to have said:-
“I concede (sic) to the application of my learned.(sic) I agree this is an issue of execution of judgment and shall come accordingly.” The summary ruling of Tijam Abubakar J. was very brief. It simply reads: “Court: The case is hereby dismissed as the matter was litigated upon up to (sic) Supreme Court.
Court: N50.00 cost (sic) for the Defendant.”
Aggrieved by the ruling, the plaintiff being represented by the present counsel appealed against it to the Court of Appeal, raising the following issues for determination –
“(1) Whether the trial Court was right in entertaining the application culminating in the dismissal of the appellant’s case at the stage at which it did.
(2) Whether the previous suit has (sic) been proved to operate as estoppel against the appellant in the new suit.”
It is to be observed that the second issue did not arise since the ruling was given on the plaintiff conceding to the defendant’s application. Be that as it may, the Court of Appeal (Ogundare, Achike and Akpabio, A.C.A.) in dismissing the appeal remarked as follows, per Akpabio, J.C.A. –
“I should also note the fact that the learned trial Judge did not rely on his own findings alone at the lower Court when he dismissed the plaintiff’s claim. He relied also on a concession made by one Mr. Eka Kanam, who was the learned counsel for the plaintiff, who said:
“I concede to the application of my learned friend. I agree this is an issue of execution of judgment and shall come accordingly.”
We are of the view that Mr. Eka Kanam correctly appreciated the issues involved and was right in making the concession he made. It is our view that the plaintiff/appellant should now take appropriate steps in executing the declaration made by the Supreme Court in his favour. He could realise the fruits of that judgment by doing one or two things or both namely:
(a) Apply for the issue of a Warrant of “Possession” against the defendant/respondent for recovery of the vehicles, or
(b) Apply to the Supreme Court for the defendant/respondent to be committed to prison for contempt of the Supreme Court.
These are what plaintiff/appellant should do and not start the whole action afresh.
In effect therefore, this appeal fails and is hereby dismissed with N300.00 costs in favour of defendant/respondent.”
The plaintiff still not satisfied appealed further to this Court. When the appeal came up before us ~n the 1st day of June, 1992 (Uwais, Kawu, Nnaemeka-Agu, Ogwuegbu and Mohammed JJS.C.) we raised the issue suo motu whether leave to appeal from the ruling of the High Court to the Court of Appeal had been obtained in accordance with the provisions of section 220 subsection (2)(c) of the Constitution of the Federal Republic of Nigeria, 1979. Mallam Mahmoud Gafar submitted that the ruling of the High Court was not based on the consent of the plaintiff’s counsel and then asked for adjournment to address the Court fully on the constitutional point. This was granted to the 4th day of June, 1992. Hence the necessity to empanel a full Court.
In his address Mallam Mahmoud Gafar argued that the ruling of Tijani Abubakar J. was not a consent judgment as contemplated by section 220 subsection (2)(c) of the 1979 Constitution. To support this argument he cited the following case-R. Lauwers Import-Exporty. Joebson lndustries Ltd., (1988) 3 N W LR (Pt.83) 429 at pp.444-446 and 454; Woluchem v. Wokonia (1974) 3 S.C. 153 at pp. 166 and 168 line 16 and National Water Resources Development Ltd. v. Jaiyesimi (1963) 2 SCNLR 37 at 39, paragraph C, (1963) 1 All NLR 215 at 217 paragraph 2. He argued further that by dismissing the plaintiff’s action the High Court did not carry out what the parties agreed upon; which was that the action should be struck out as prayed by the defendant. Learned counsel canvassed that the phrase “decision by consent of parties” in section 220 subsection (2)(c) of the Constitution does not mean consent to judgment. He finally submitted that there is no distinction between consent to judgment and submission to judgment.
Mr. Okulaja, learned counsel for the defendant argued that the present case is distinguishable from the case of R. Lauwers Import-Export (supra). He also contended that there is a distinction between “consent judgment” which is a technical term or term of art and the phrase “decision made with the consent of the parties” in section 220 subsection (2)(c) of the Constitution which is wider in meaning than consent judgement. He referred to the case of R. Lauwers Import-Export (supra) at p.445C and said that Agbaje, J.S.C. restricted himself to consent judgment which is technical. Learned counsel pointed out that the provisions of section 220 subsection (2)(c) do not contain the expression “consent judgment”. He submitted that the ordinary dictionary meaning of “consent” should be given to the word “consent” in section 220 subsection (2)(c) of the Constitution. Furthermore the word “consent” as employed in the section is not restrictive; it therefore embraces both consent judgment and submission to judgment and much more.
With reference to the distinction between striking out a case and dismissal as argued by the plaintiff’s counsel, Mr. Okulaja submitted that the distinction is irrelevant to the case. In any case, he said, where a plea of res judicata succeeds in an action, the action is to be dismissed. In determining the meaning of the word “decision’ in section 220 subsection (2)(c) of the Constitution, he submitted that the word embraces both the striking out and the dismissal of an action. He drew attention to prayer (b) in the motion before the High Court which urged that the action be dismissed and submitted that by dismissing the plaintiff’s action, the trial Judge acceded to the prayer. Reference was then made to paragraph 527 of Halsbury’s Laws of England, 4th Edition, Volume 26 at page 257.
Finally, Mr. Okulaja urged us not to follow the restrictive meaning given to section 220(2)(c) by Agbaje J.S.C. in R. Lauwers Import-Export case (supra). In reply, Mallam Mahmoud Gafar drew attention to section 110 subsection 2(iii) of the 1963 Constitution in respect of the decision in the case of National Water Resources Development Ltd. v. Jaiyesimi (supra) and submitted that the provisions therein are in pari materia with those of section 220 subsection (2)(c) of the 1979 Constitution. Now section 220 subsection (2)(c) contains the following provisions: “(2) Nothing in this section shall confer any right of appeal-
(c) without the leave of the High Court or of the Court of Appeal, from a decision of the High Court made with the consent of the parties or as to costs only.”
The word “decision” in these provisions has the meaning given to it by section 277 subsection (1) of the 1979 Constitution which provides –
“277 (1) In this Constitution, unless it is otherwise expressly provided or the context otherwise required –
‘decision’ means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
In the light of the foregoing there can be no doubt that the ruling given by Tijani Abubakar J. in the present case is indeed a decision from which a party can appeal. This is not in dispute as far as the parties herein are concerned. What is contentious is whether there was right of appeal from the ruling to the Court of Appeal without the leave of the High Court or the Court of Appeal as envisaged by section 220 subsection (2)(c). In interpreting the section in R. Lauwers Import-Export v. Jozebson Industries Ltd. (supra) this Court (Nnamani, Uwais, Kawu, Belgore and Agbaje JJ.S.C.) observed at p.446 thereof as follows per Agbaje, J.S.C. –
“The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgment is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect the defendant submitted to judgment in the sum just stated. Having regard to the authorities as I have stated them above the judgment in question will not in my judgment amount to a consent judgment in the technical sense of that expression.
Having held as I have just done that the judgment in question is not a consent judgment, it follows that there is no basis for holding that the judgment is caught by the provisions of section 220 sub-section 2(c) of the Constitution of the Federal Republic of Nigeria 1979 already copied above. Accordingly, I reject the contention of counsel for the plaintiff that the defendant required leave to appeal against the judgment.”
The implication of this decision is that the phrase “with the consent of the parties” in section 220 subsection (2)(c) of the 1979 Constitution is held to mean consent judgment and that it is only with regard to consent judgment that leave is required before there can be an appeal from the decision of the High Court to the Court of Appeal. With respect, I think that is too narrow a meaning to be given to the words. It is settled that in the interpretation of any provision of the Constitution, our Courts should be liberal so that the intendment of the Constitution can be met. I cannot put this better than bad been done by Sir Udo Udoma in Nafiu Rabin v. The State (1981) 2 N.C.L.R. 293 at p.326 where he said:
“And where the question is whether the Constitution has used an expression in the wider or narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something,, in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the object and purpose of the Constitution.”
This Court in R. Lauwers Import-Export case (supra) purportedly relied on the decision in National Water Resources Development v. Jaiyesimi (supra) to hold that the expression “with the consent of the parties” meant consent judgment. With utmost respect, the decision in the latter case, if carefully read, could not have given rise to the decision which was reached. The summary judgment of the High Court, which stated the facts of the case also, is contained on p.216 thereof(see (1963) 2 SCNLR 37 at p.38) and it reads:
“NOTE BY COURT: Both counsel agree that the plaintiff be awarded £850 as rent for one year plus £425 being six months rent in lieu of notice. Judgment entered for Plaintiff for f 1,275. Costs assessed at 100 guineas.”
These facts are similar to the facts in R. Lauwers Import-Export case, (supra) where Agbaje, J.S.C. stated as follows:
“The judgment in question in this appeal is not on its fact expressed to be a consent judgment. The highest one can say about the judgment is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect the defendant submitted to judgment in the sum just stated.”
The Federal Supreme Court in considering whether there could be an appeal against the judgment in National Water Resources Development case (supra) without leave being obtained in terms of section 110 subsection (2)(a)(iii) and subsection (4) of the 1963 Constitution, which provided thus –
“(2) An appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court as of right in the following cases – (a) Final decisions in any civil proceedings before the High Court sitting at first instance:
Provided that nothing in paragraph (a) of this subsection is shall confer any right of appeal –
(iii) from any order made with the Consent of the parties;
(4) Subject to the provisions of subsections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court with the leave of the High Court or the Federal Supreme Court in the following cases –
(b)………. .
any case in which,. but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Federal Supreme Court by virtue of paragraph (a) of that subsection;
held thus per Ademola, C.J.F. at p..217.(1963).2 SCNLR p.39 paragraph C)-… “in the instant case, the trial Judge did not adjudicate on any issue in the action; nor did he decide how the action shall be determined: he merely entered judgment for the amount agreed upon. It cannot be said that he took any responsibility whatever for the action being determined in the way it was determined. Although the words ‘by consent’ were not written after the word ‘judgment’, it was abundantly clear that the decision determining the action was brought about by consent of the parties.”
It is clear from the foregoing that the words “with the consent of the parties” in section 110 subsection (2)(a)(iii) were not given a narrow meaning as assumed in R. Lauw,ers Impart-Export case, per Agbaje, J.S.C. and as contended by learned counsel for the plaintiff in the present case.
The significance of the provisions in section 220 subsection (2)(c) of the 1979 Constitution is to limit litigation where some modicum of agreement has been reached between the parties. The agreement can take any form. It could be in the form of consent judgment in its technical sense, or submission to judgment or admission of claim or conceding to a claim – as in the application to strike out or dismiss the claim in the present case to which the plaintiff’s counsel conceded. The circumstances under which a decision could be reached “with the consent of the parties” will, indeed, always depend on the peculiar facts of each case.
I have no doubt, therefore, that the decision in R. Lauwers Import-Export case which limited the application of the provisions of section 220 subsection (2)(c) to consent judgment is, for the above reasons, wrong and should not be followed in the present case.
Ordinarily, the aforesaid should have disposed of this appeal, but there is one other point raised by learned counsel for the plaintiff in the course of his argument. The point being that the prayer in the defendant’s application before the High Court was for the plaintiff’s writ of summons to be struck out and not the case to be dismissed as was done by the learned Judge. This contention is misconceived and, therefore, is bereft of merit because prayer (b) in the motion brought by the defendant stated – as follows –
“(b) An Order that the action be dismissed.”
while prayer (a) asked that the writ of summons be struck out. See above. Furthermore, the same prayers were repeated orally by counsel for the plaintiff when moving the motion. See above.
In any event, the point can only be apposite had there been a valid appeal in the Court of Appeal. As already given, there was no competent appeal before that Court and a fortiori before this Court.
In the result, there is no competent appeal before us, and it is hereby struck out. The decision of the Court of Appeal, even though affirming that of the High Court, is hereby set aside since it was given without jurisdiction and is a nullity. Costs assessed at N1,000.00 are hereby awarded against the plaintiff in favour of the defendant.
KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Uwais, J.S.C. which has just been delivered. I agree with him entirely that there is no competent appeal before us and the purported appeal is accordingly struck out. The decision of the Court of Appeal affirming that of the High Court is set aside. Costs assessed at N 1,000.00 are awarded to the defendant.
NNAEMEKA-AGU, J.S.C.: The sole issue that has arisen in this appeal is to be resolved by a construction of the words
“a decision of the High Court made with the consent of the parties .
in section 220(2)(c) of the Constitution of the Federal Republic, 1979. My learned brother, Uwais, J.S.C. has stated in detail how the issue arose.
Now, it is recognised that the word “consent” has at least two shades of meanings. It could be used in the narrow technical sense with reference to a consent judgment or order in which the parties, irrespective of their claims and contentions in a case, agree to strike a compromise embodied in an agreement signed by the parties and subsequently made an order of Court. See: Nigeria Water Resources Development Ltd. v. Jaiyesimi (1963) 1 All NLR 215 (1963) 2 SCNLR 37. This type of judgment or order is not based on any findings of Court or the merit of the party’s case on issues in litigation in the case. It is based solely on what the parties themselves have agreed. There is also the broad sense in which the word “consent” is used to qualify a judgment or other decision to which a party submits mainly because he cannot resist it: he has nothing to offer against it but he may not necessarily have agreed to it. Both types of judgments or orders are consent judgment/orders all the same Thesiger L.J. recognized this duality of the meaning of the word “consent” when he stated in Bewley v. Atkinson (1879) 13 Ch.D. 283, at pp.298-299 thus:-
“I think it could hardly be disputed that although in the strict technical etymology the word ‘consent’ as well as ‘agreement’ implies two parties, yet’ consent’ used in the ordinary way in which that term is used, is satisfied when it is found that one person has given what is popularly known as consent.”
Lord Greene, M.R., made much the same point in Chandless – Chandless v. Nicholson (1942) 2 K.B. 321, C.A. at p.324. Sexual offences which require the ingredient of consent illustrate the difference very clearly. A woman may readily consent to the act, willingly. Or she may be hesitant, reluctant or grudging: but once she consciously permits it, there is “consent” – see Holman v. The Queen (1970) W.L.R.2. Both of them are consent all the same -in the broad sense. But there maybe occasions when a woman who does not consent to the act may submit to the act only to save her bin neck from a violent rapist even though she does not consent to it. See R. v. Day 9 C & P.724. There is no consent when the act has been forced on her by threat or intimidation. The theoretical difference between the two types of consents is that the technical sense involves an act of reason accompanied with deliberation and weighing of the pros and cons on either side and then a voluntary agreement which is made an order of Court whereas, in the broad sense it only happens that although it was not the result of the deliberation and voluntary agreement of the parties, either party has submitted to it. Hence, consent of the first type involves a submission; but not every submission of the second type amounts to consent. I think the line of division between the two is that submission in the latter class to qualify as a consent shall have been given without a contest. Where there has been a contest and the Court gives its decision, there is no consent.
The question raised by this appeal is, therefore, whether the words –
“a decision of the High Court made with the consent of the parties.” in section 220(2)(c) of the 1979 Constitution intended the word “consent” in the narrow technical sense, as was held by this Court in R. Lauwers Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pt.83) 429, at pp. 444-446, or whether it intends “consent” in the broad sense.
It appears to me that it has been firmly established in many cases decided since 1979 that our proper approach to the interpretation of the Constitution is that of liberalism. This implies not only that words of the Constitution shall be given their broad meanings. It also means that in keeping with the maxim: ut res magis valeat quam pereat; where alternative constructions are equally open, we should prefer a broader construction which would bring about an effective result and is consistent with the intention of the legislature. See on this: Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130; (1981) 2 NCLR 293, A.G. Kaduna State v. Hassan (1985) I NWLR (Pt.8) 483, Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280; Savannah Bank (Nig) Ltd. v. Pan Atlantic (1987) 1 NWLR (Pt.49) 212.
Applying this principle to the present case, it appears to me that a decision of the High Court made with the consent of the parties means more than such a decision made after a formal agreement by the parties which has been made an order of Court. It includes those decisions to which a party submits without a contest, the whole idea being that the law will not allow such a party to blow hot and cold at will. It excludes those decisions which the Court deliberately reaches in exercise of its adjudicative functions after considering the cases of the parties, the evidence in support thereof and the submissions, if any, by counsel.
It follows, therefore, that the case of R. Lauwers Import-Export v. Jozebson Industries Ltd. (supra) was wrongly decided. In this country which has a written presidential Constitution, judicial review entails three different processes, namely, the Courts, particularly the Supreme Court, ensuring that every arm of government plays its role in the true spirit of the principle of separation of powers as provided for in the Constitution; that every public functionary performs his functions according to law, including the Constitution, and – for the Supreme Court – that it reviews Court decisions including its own when the need arises in order to ensure that the country does not suffer under the regime of obsolete or wrong decisions. It is the last type of review that is relevant in this case. Although the Supreme Court will respect its previous decisions, as a Court of last resort which is not bound by precedent, it will not hesitate to overrule any previous decision of its own which it is satisfied was reached on wrong principles. It had done so in many cases. See – for examples: Johnson v. Lawanson (1971) 1 NMLR 380; Mrs. Bucknor-Maclean & Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1. This is the only way to keep the stream of justice pure. I agree that we should do so in this case, having been satisfied that the interpretation of the constitutional provision in the previous case was carried out on too narrow a principle. The case of R. Lauwers Impart-Export (supra) is over-ruled and ought not to be followed.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Uwais, J.S.C., which I adopt as my own, I agree that what was previously entered between the parties in this case was a consent judgment within the contemplation of section 220(2)(c) of the Constitution. As no leave has been obtained to appeal therefrom, there is no competent appeal before this Court. The purported appeal is, therefore, hereby struck out with N 1,000.00 costs against the plaintiff/appellant.
WALI, J.S.C.: I have had the privilege of reading before now the lead judgment of my learned brother, Uwais, J.S.C., with which I entirely agree.
For the same reasons ably stated in the lead judgment and which I hereby adopt as mine, l shall also strike out the appeal and it is accordingly struck out. The appeal, as instituted is incompetent and the judgment of the Court of Appeal is declared null and void since it was given without jurisdiction.
The plaintiff shall pay N 1,000.00 costs to the defendant.
OLATAWURA, J.S.C.: I had the advantage of reading in draft the judgment of my learned brother Uwais, J.S.C. just delivered, I agree with his reasoning and conclusions.
No doubt this appeal raises one issue of significant importance in the interpretation of section 220(2)(c) of the Constitution of the Federal Republic of Nigeria 1979 concerning the rights of appeal conferred on parties to a dispute after the decision of the High Court. It is this section 220(2)(c) that is being called into question in this appeal. Whilst section 220(1) of the 1979 Constitution gives the right of appeal without any condition, section 220(2)(c) limits the right in its provision:
“Nothing in this section shall confer any right of appeal –
(c) without the leave of a High Court or of the Court of Appeal from a decision of the High Court made with the consent of the parties or as to costs only.”
Decision has been defined under s.279 of the 1979 Constitution. This definition has already been stated in the judgment of my learned brother Uwais, J.S.C. Suffice it to say that it is only when there is a decision that there can be either an appeal as of right or with leave. The facts culminating in the decisions of the lower Courts have been stated by Uwais, J.S.C. The judgment of the High Court by Abubakar J. states:
“This case is hereby dismissed as the matter was litigated upon up to the Supreme Court.”
Earlier on there had been a concession made by Mr. Eka Kanam whereby he agreed that the objection raised by Mr. Omotosho was valid. Mr. Omotosho urged the Court to strike out the action. It was under that circumstance that the Court acting on the concession of the learned counsel dismissed the action. The requirement of s.220(2)(c) of 1979 Constitution in this case is to obtain leave of the High Court or the lower Court once it is a consent judgment before there can be a valid appeal. It is now the contention of the appellant that that judgment on page 4 of the record is not a consent judgment. Mr. Mahmoud ‘Gafar relied on authorities already cited in the lead judgment, but the latest is Lauwers Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pt.83) 429. Learned counsel further submitted that once a Judge is entering a consent judgment he is bound to carry out the agreement reached by the parties and submitted further that there is no difference between consent judgment and “a decision made with. the consent of the parties”
Mr. Odulaja the learned counsel for the respondent tried to distinguish the decision in Lauwers Import-Export (supra) and the case now before us. Learned counsel regards consent judgment a technical term but that the consent envisaged within s.220(2)(c) of the 1979 Constitution covers a wider ambit than a consent judgment. Learned counsel then urged us not to follow our decision in Lauwers Import-Export (supra) as the decision of Agbaje J.S.C. in that case appears to be too much restricted in its interpretation of a consent judgment and besides, that decision was not based on the provision of the 1979 Constitution. Mr. ‘Gafar in reply did not see any difference between the decision in Nigeria Water Resources Development Ltd. v. Jaiyesimi (1963) 2 SCNLR 37; (1963) 3 N.S.C.C. 174. In Lauwers Import-Export (supra) Agbaje, J.S.C. on page 446 said:
“The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgment is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect the defendant submitted to judgment on the sum just stated. Having regard to the authorities as I have stated them above the judgment in question will not in my judgment amount to a consent judgment in the technical sense of that expression.”
I will mention that Agbaje, J.S.C. referred to and relied on N.W.R.D. v. Jaiyesimi (supra).
It appears to me that when a man gives his consent in respect of a claim against him as to the amount due from him, whether a part or the whole claim, and where it is a part and the plaintiff agrees to the amount admitted, the judgment of that Court even for the lesser amount is a consent judgment. The approach to the interpretation of the Constitution should be one of Liberalism: Nafiu Rabiu v. The State (1980) 8-11 S.C. 130; (1981) 2 NCLR 293. Consent judgment can be given before trial or before the conclusion of a trial thereby preventing the Court from reaching a decision on the evidence before it. It is an agreement reached by the parties in respect of the claim before the Court. Once it is not illegal or against public policy the Court will give effect to it.
The Supreme Court per Ademola, C.J.F. in Jaiyesimi’s case supra on page 176 ((1963) 2 SCNLR 37 at p.40 paras. D-E) said:
“The parties, having agreed on how their dispute should be determined, ask the court to enter judgment by consent in accordance with their terms of settlement and the Court orders with their consent that judgment be entered accordingly.”
Consequently when Mr. Eka Kanam in the trial Court said:
“I concede to the application of my learned (sic). I agree this is an issue of execution of judgment and shall come accordingly.” He in effect agreed with the earlier submission of Mr. Omotosho:
“2. That the action be discussed (it should read dismissed) for the same. reasons.”
And the Judge said:
Court: The case is hereby dismissed as the matter was litigated upon up to Supreme Court.”
This appears to me a consent judgment. Consequently leave of the High Court or the Court of Appeal is required. Since none has been obtained there is no competent appeal before the lower Court. I will agree that the interpretation given to section 220(2)(c) of the 1979 Constitution in Lauwers Import-Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt.83) 420 was not only restrictive but the case was wrongly decided and should not be followed.
Consequently in view of the absence of leave of the High Court or the Court of Appeal to appeal against the judgment of the High Court, the appeal before this Court is incompetent and should be struck out. It is hereby struck out with costs assessed at N 1,000.00 in favour of the respondent.
OGWUEGBU, J.S.C.: On the 14th of July, 1987, the plaintiff/appellant took out a writ of summons in the High Court of Kano State against the defendant/ respondent claiming as follows:-
(1) Delivery up of the said two lorry vehicles numbers KNF 3652 and’ KNF 4741 or the total sum of N400,000.00 (their current market value).
(2) Damages for their wrongful detention at the rate of N9,000.00 per month, from October, 1984 (the date of Supreme Court judgment)’ till delivery is made or cost of vehicle paid to the plaintiff.
(3) Other consequential relief as the Court may deem fit to make.” On the 21st August, 1987, the defendant filed a motion on notice praying the High Court (a) to strike out the writ of summons on the grounds that it disclosed no reasonable cause of action and also was an abuse of the process of the Court and (b) to dismiss the action because if there was a cause of action, the same was statute barred.
This motion was supported by an affidavit of nine paragraphs deposed to by one Pius Okoko, a litigation officer in the office of Mr. Majiyagbe (solicitor for the defendant).
He deposed that the plaintiff/appellant had previously instituted an action against the defendant in the Kano High Court Suit No. K/190/78 where the claim was for:
“Release and possession of the said vehicles Registration Nos. KNF 3652 and KNF 4741 now in custody of the defendants or in the alternative for the value of the said vehicles.”
Suit No. K/ 190178 was prosecuted by the present plaintiff who was also the plaintiff in the 1978 case up to the Supreme Court.
As a result of the claim and the issues determined in Suit No. K/19o/78, the defendant/respondent herein said that the plaintiff by the present action is trying to relitigate the same subject matter and between the same parties which had been previously determined by a Court of competent jurisdiction and that the cause of action was even statute barred. These are the facts relied upon by the defendant in bringing the motion on notice in the trial Court.
On 14th September, 1987, the said motion came up for hearing and the following are part of the record of Mr. Abubakar, l. sitting in the High Court of Justice, Kano Judicial Division:
“Mr. Omotosho: We have a motion brought pursuant to Order 10 Rule 20 of the Kano State High Court Civil Procedure Rules, 1976. We are asking for the following prayers:-
(1) That the writ of summons in this case be struck out because it discloses no reasonable case (sic) of action. It is an abuse of the process of the Court. Even if there is an accuse (sic) of action, it is statute barred;
(2) That the action be discussed (sic) for the same reasons ……….. The case (sic) of action raised an issue of estoppel. This case is seeking the same relief as in Suit No. K/l90/ 78 which has been adjudicated……..
Mr. EkaKanam: We oppose the application and rely on our counter affidavit of I 1 paragraphs ………….. This is an action in detinue. 1 refer to the judgment of the Supreme Court at page 49 ………… Mr. Eka Kanam: I concede (sic) to the application of my learned (sic). I agree this is an issue of execution of judgment and shall come accordingly.
Court: The case is hereby dismissed as the matter was litigated upon up to Supreme Court.
Court: N50.00 cost (sic) for the Defendant.
(Sgd.) Tijani Abubakar Judge 14/9/87.”
The plaintiff was dissatisfied with the above decision and appealed to the Court of Appeal, Kaduna Division. He framed two issues for determination by the Court of Appeal:
“(1) Whether the trial Court was right in entertaining the application culminating in the dismissal of appellant’s case at the stage at which it did.
(2) Whether the previous suit has been proved to operate as estoppel against the appellant in the new suit.”
The Court of Appeal dismissed the plaintiffs appeal and not satisfied again, he appealed to this Court.
Briefs of argument were filed and exchanged by the parties. Two main issues were formulated by the plaintiff/appellant for determination b) this Court namely:
“(1) Whether in view of Order 10, Kano High Court Civil Procedure Rules, the dismissal of the appellants (sic) claim in limine is justified pleadings not having been exchanged.
(2) Whether Suits No. K/190/78 and SCA/83 raises estoppel against the appellants (sic) claim for detention of vehicle and damages arising therefrom.”
When this appeal came up for hearing on 1/6/92, this Court raised suo motu the issue whether leave to appeal from the decision of the High Court to the Court of Appeal was obtained having regard to the provisions of Section 220(2)(c) of the 1979 Constitution of the Federal Republic of Nigeria.
As a result, the appeal was adjourned to 4/6/92 to enable both counsel address the Court fully on the issue and a full Court was considered necessary having regard to its constitutional nature.
The issue for determination therefore is quite narrow but of constitutional and procedural significance.
Section 220(2)(c) of the 1979 Constitution provides:
“(2) Nothing in this section shall confer any right of appeal-
(c) without the leave of the High Court or of the Court of Appeal, from a decision of the High Court made with the consent of the parties or as to costs only.”
(Italics mine)
The learned appellant’s counsel contended that the decision of the learned trial Judge contained at page 4 of the record is not a consent judgment as contemplated by section 220(2)(c) of the Constitution. He referred the Court to the cases of Lauwers Import-Export v. Jozebson Industries Co. Ltd. (1988) 3 NWLR (Pt.83) 429 at 444-446, Woluchem v. Wokoma (1974) 3 S.C. 153 at 166, 168-169 and Nigeria Water Resources Development Ltd. v. A.K. Jaiyesirni (1963) 1 All NLR 215 at 217; (1963) 2 SCNLR 37 at 39.
Learned counsel conceded that there is no difference between consent judgment and decision made with consent of the parties and that in the case on appeal, the plaintiff/appellant submitted to judgment. The Court was urged to apply its decision in Lauwers’ case supra in this appeal.
For his part, the learned counsel for the respondent said that consent judgment is a technical term of art. He referred us to the provisions of section 220(2)(c) of the 1979 Constitution which he said is much wider than the expression “consent judgment. ”He said that in Lauwers’ case, Agbaje, J.S.C. restricted himself to “consent judgment” in the technical sense.
We were urged to interpret the word “consent” used in section 220(2)(c) of the Constitution of the Federal Republic of Nigeria, 1979 in its ordinary meaning and that the ruling of the learned trial Judge at page 4 of the record is caught by the provision of section 220(2)(c) of the Constitution. He urged the Court to refuse to be bound by the restricted interpretation in Lauwers’ case.
Section 277(1) of the Constitution of 1979 defined “decision” to mean, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. This provision has removed any controversy as to the meanings of the words judgment, decision, order, decree etc which are frequently used as synonymous words. Now one of the expressions includes the other in relation to a Court in any determination of that Court.
In Lauwers Import-Export v. Jozebson Industries Co. Ltd. supra, Agbaje, J.S.C. at page 446 paragraph D said:
“The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgment is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect the defendant submitted to judgment in the sum just stated. Having regard to the authorities as I have stated them above the judgment in question will not in my judgment amount to a consent judgment in the technical sense of that expression.”
In Woluchem v. Wokoma supra this Court held that in order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned, their agreement must be free and voluntary and the terms of settlement must be filed in Court. This decision influenced this Court when it decided Lauwers’ case. In my view section 220(2)(c) of the Constitution should be given a broader interpretation than was given it in the case of Lauwers supra. It should not be limited to the construction given it in Woluchem v. Wokoma supra.
In the application of section 220(2)(c) of the Constitution of the Federal Republic of Nigeria. 1979 as amended, the expression “…..decision …. made with the consent of the parties” should be given the broadest meaning which it can accommodate. The operative word is “consent” which means to agree together, voluntarily to accede to or acquiesce in a proposal or request etc. See the Shorter Oxford English Dictionary, Vol. 1, 3rd Edition at page 403.
In the appeal before this Court the elements of consent and voluntariness are present. The parties were ad idem as far as the consent was concerned.
In Naf u Rabiu v. The State (1981) 2 N.C.L.R. 293 at 326 where Hon. Sir Udo Udoma, J.S.C. said:
“…it is my view that the approach of this Court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam perear. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
What amounts to consent judgment should be left to be determined by the facts of each particular case. The Courts should not be in a hurry to close the door.
They should adopt an open minded and liberal approach. The decision of this Court in Laurvers Import-Export case supra is not in accord with the words and intendment of that provision of the Constitution and should not be followed in the present appeal.
As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent. The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void. There is therefore no appeal before this Court.
For the above reasons and the fuller reasons contained in the leading judgment of my learned brother Uwais, J.S.C., the judgment of the Court of Appeal dated 30/6/88 is hereby declared a nullity. I make the same order as to costs contained in the leading judgment.
MOHAMMED, J.S.C.: I have had the privilege of reading, in draft, the judgment of my learned brother, Uwais, J.S.C., with which I am in entire agreement. The decision of this Court in R. Lauwers Import-Export v. Jozebson Industries Co. Ltd. (1988) 3 NWLR (Pt.83) 153 at pp.166 and 168 is a very narrow interpretation of the words “consent of the parties” as used in section 220(2)(c) of the 1979 Constitution and is clearly against the stand taken by this Court in Najiu Rabiu v. The State (1981) 2 NCLR 293 at p.236.
For the reasons ably outlined in the lead judgment, I allow the appeal with N 1,000.00 costs to the respondent.
Appeal struck out.
