⦿ CASE SUMMARY OF:
Chief Obasi Lawson v. Elder Chinedu Okoronkwo & Ors (2018) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Terms of settlement.
– Motion on notice.
1. Chief Obasi Lawson
1. Elder Chinedu Okoronkwo
2. Alha Ji Abubakar Maigani Shettima
3. Alha Ji Danladi Pasali
4. Bola Adeleke
5. Dr. Leo Nkameme
6. Alh. Yakubu Ali Dimka
7. Chief J.d. Ubini
8. Alh. Dr. Hammed Adekunle Fashola
9. Alha Ji Umar Baba Kano
10. Chief Ezekwesili Maduaguwuna
11. Alha Ji Yakubu Sulieman
⦿ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
* FOR THE APPELLANT
– Joe Agi, SAN.
* FOR THE RESPONDENT
– Dr. Onyechi lkpeazu, SAN.
⦿ FACT (as relating to the issues)
The said Motion on Notice (filed by the Respondent) prays for – “An Order striking out the Notice of Appeal No. SC.15/2018 dated 19th day of February, 2018 and filed on 20th February, 2018 by the Appellant in this appeal and/or dismissing the appeal for being incompetent and a mere academic exercise. The motion was predicated on the following grounds:
a. The purported tenure of the Appellant as the National President of IPMAN commenced on the 20th day of March, 2014 by virtue of the judgment of the Federal High Court, Port-Harcourt in (the) suit No. FHC/PH/CS/12/2014 AUSCO OIL LIMITED & 17 ORS v. REGISTERED TRUSTEES OF IPMAN & 9 ORS delivered on the 20th March, 2014.
b. The purported appointment of the Appellant by the Federal High Court, Port- Harcourt in the aforementioned judgment in suit No. FHC/PH/CS/12/2014 was made pursuant to the purported IPMAN 1997 Constitution which in its Article XI(viii) provides for a Tenure of 3 years for the office of the National President.
c. That as at 20th day of February, 2018 when this appeal was filed, the Appellant no longer has any enforceable rights and obligations being that the said Appellant’s three (3) years tenure of the purported office of IPMAN National President had expired on the 20th day of March, 2014.
d. The Respondents shall rely on the Notice of Appeal filed on the 20th day of February, 2018 by the Appellant, the Appellant’s Brief of Argument filed in the Appeal on the 28th day of July, 2018, the motion for Stay of Execution filed on (the) 27th day of July, 2018 and all other processes with documents attached as exhibits therein.
On 14th September, 2018 the Appellant, as the Respondent in the motion filed on 6th September, 2018 challenging the competence of his appeal, filed a counter-affidavit wherein it is averred inter alia that “all the parties” to suit No. FHC/PH/CS/12/2014, who were “all parties before the Court of Appeal Port-Harcourt, on 17th May, 2016 filed Terms of Settlement before the Court, – wherein they unanimously agreed amongst other things,” that – “Chief Obasi Lawson (the Appellant herein) shall be, and remain, the National President of IPMAN in line with the Constitution of Independent Petroleum Marketers Association of Nigeria (IPMAN) 2009 (As Amended) with a tenure of office of Five (5) years. His tenure shall begin to run from the date this Terms of Settlement is filed at the Court (of Appeal) and/or adopted and entered by the Court as Consent Judgment in accordance with the said Constitution. It is hereby affirmed that the Constitution of Independent Petroleum Marketers Association of Nigeria 2009 (As Amended) guarantees a tenure of Five (5) years for its officers at all levels of leadership of the association from the National to the Zonal and Unit Level.”
1. That the appeal is incompetent being that as at 20th day of February, 2018 when this appeal was filed, the Appellant no longer has any enforceable rights and obligations being that the said Appellant’s three (3) years tenure of the purported office of IPMAN National President had expired on the 20th day of March, 2014.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: STRUCK OUT, WITH N2,000,000 COST AGAINST THE APPELLANT]
THE PRELIMINARY OBJECTION OF THE RESPONDENT WAS UPHELD.
i. The Respondents/Applicants filed a Further and Better Affidavit on 13th September, 2018 in response to the Counter-Affidavit filed at the instance of the Appellant. In the Further and Better Affidavit the Respondents denied their being party to the alleged Terms of Settlement filed on 17th June, 2016 at the Court of Appeal in the Appeal No. CA/PH/275/2014. On this, the Appellant failed to join issues. The law is trite and clear: facts not disputed or challenged are deemed to have been accepted and/or admitted by the party against whom they are averred.
ii. I therefore accept, as denied by the Respondents, that they were not party or privy to the Terms of Settlement allegedly filed at the Court of Appeal in the appeal No. CA/PH/275/2014. It is clear to me also, and I so hold that the Court of Appeal has not adopted the Terms of Settlement as the judgment of the Court in the appeal No. CA/PH/275/2014. Exhibit B in the Supporting Affidavit in the motion filed on 6th September, 2018 is the 1997 Constitution of IPMAN.
iii. I entertain no doubt whatsoever, from the available evidential materials, that when the Federal High Court, Port-Harcourt (per Akanbi, J) made the order No. 4 in the suit No. FHC/PH/CS/12/2014 on 20th March, 2014; that the Appellant herein, as Chief Obasi Lawson “shall forthwith be the National President of IPMAN pursuant to” the 1997 IPMAN Constitution, it had in mind a three year tenure for the Appellant beginning from the date of the order. The Terms of Settlement, flaunted by the Appellant and vehemently denied by the Respondents, is not only an attempt at tenure elongation but also an ingenious effort being made to alter the order made by the Federal High Court in suit No.FHC/PH/CS/12/2014 which is a subject of the subsisting appeal No. CA/PH/275 2014.
iv. 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. Paragraph 9 (f) & (g) of the Better and Further Affidavit establish a unilateral declaration [of the] Terms of Settlement without consensus ad idem of what the Appellant filed on 17th June, 2016 stands for. Even if I agree with Joe Agi, SAN, for the Appellant that Order No. 4 made on 20th March, 2014 by the Federal High Court in the suit No. FHC/PH/CS/12/2014 has not been validly set aside by a Court superior to the Federal High Court, the fact still remains that by the said Order the three (3) year period the Appellant would hold the office commenced in March, 2014 and ended in March, 2017. That Order has not been compromised by any valid Terms of Settlement. The purported Terms of Settlement (Annexture 1 or Exhibit B) filed at the Registry of the Court of Appeal, Port Harcourt on 17th June, 2016 remains, in my firm view, a strong corroboration of the shenaniganism of the Appellant and his determination to remain the National President of IPMAN beyond the term of 3 years commencing on 20th March, 2014 vide the Order of the Federal High Court, Port Harcourt in the suit No. HC/PH/CS/12/2014. The instant appeal, in view of the lapse of that tenure by effluxion of time, would now serve or confer no practical utilitarian value on the Appellant. The appeal is now academic. The preliminary objection is hereby sustained.
⦿ SOME PROVISION(S)
Article XI(viii) of the IPMAN Constitution 1997, as averred by the Respondents provides – “Each Officer shall hold office for a term of three years only or less, as the case may be that is to say beginning from the month of his election to the end of the current term for all other officer. However, the 3-year term is applicable to National Officers only.”
⦿ RELEVANT CASE(S)
In KALAGBOR v. INEC & ORS (2008) LPELR 4387 (CA) lbiyeye, 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.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Finding no difference between a motion on notice, which challenges the competence of an appeal and which also seeks to terminate the life of the appeal for the said incompetence, and a Notice of Preliminary Objection, except may be mere semantics; I hereby dismiss outrightly the contention of the learned Senior Counsel for the Appellant. The Respondents’ motion on Notice filed on 6th September, 2018 is, in both intent and substance, a Notice of Preliminary within the context of Order 2 Rule 9 (1) of the Rules of this Court. It shall be treated as such. – Ejembi Eko, JSC. Obasi v. Okoronkwo (2018)
The law is trite and clear: facts not disputed or challenged are deemed to have been accepted and/or admitted by the party against whom they are averred. – Ejembi Eko, JSC. Obasi v. Okoronkwo (2018)
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.L.R. (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. – Ejembi Eko, JSC. Obasi v. Okoronkwo (2018)
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. – Ejembi Eko, JSC. Obasi v. Okoronkwo (2018)
I agree entirely with my learned brother that the appeal has become academic. The duty of the Court is to determine live issues. It has no business delving into academic or hypothetical issues. Judicial time is too precious for such an exercise. – Kekere-Ekun, JSC. Obasi v. Okoronkwo (2018)