Whether A Consent Judgment Operates By Way Of Estoppel To A Non-Party

By Legalpedia

ALHAJA ADUKE YUSSUF v. PERSONAL TRUST SAVING & LOANS
LIMITED & ANOR

Suit no: CA/L/109/2015

Legalpedia Electronic
Citation: (2021) Legalpedia (CA)
81966

Areas Of Law:  

Appeal, Court, Interpretation Of Statute, Judgment And Order,
Land Law, Practice And Procedure, Words And Phrases.

Summary Of Facts:

Before the High Court of Lagos State, Lagos Judicial Division,
the Appellant and the second Respondent were the Respondents while
the first Respondent was the Applicant.

In 2003 and 2004, the first Respondent, at the behest of the
second Respondent, granted overdraft facilities to the second
Respondent for the sum of N7, 800,000 for 99 days and N900,000 for
270 days respectively.

The overdraft loans were guaranteed by Otunba Lateef Tolani
Alade, Alhaja Faidat Bimpe Alade and an irrevocable power of
attorney over the property at No. 4 Hunmoni Street, Aiyetoro Aguda,
Surulere, Lagos State.

After the expiration of the maturity dates of the overdraft
loans, the second Respondent failed to repay the loan sums,
including accumulated interests thereon, despite repeated demands
made by the first Respondent.

Sequel to that, the first Respondent, via a writ of summons
filed on 13th January, 2009, beseeched the lower court for the
payment of the sum of N10, 166,642.74, arising from the overdraft
facilities, and accrued interests thereon.

Subsequently, the first and second Respondents settled and
executed Terms of Settlement in the matter. The lower court entered
consent judgment for the parties as per the Terms of
Settlement.

The second Respondent failed to comply with the consent
judgment. As a result, the first Respondent, filed an application
seeking to levy execution against the immovable property of the
judgment debtor (second Respondent) situated and known as No. 4
Hunmoni Street, off Aiyetoro Street, Aguda, Surulere, Lagos (the
property).

The Appellant, on becoming aware of the first Respondent’s
application, filed an application, for leave to be heard as an
interested party. The lower court granted the Appellant’s
application.

The application was duly heard by the lower court and in a
considered ruling; the lower court granted the first Respondent’s
application.

The Appellant was dissatisfied with the decision hence this
appeal.

HELD:

Appeal Allowed
ISSUES FOR DETERMINATION

Ø  Whether the learned trial Judge had the
jurisdiction to levy execution on the Appellant’s property at 4
Hunmani Street, off Aiyetoro Street, Aguda Surulere, Lagos and
Registered as No. 36 at page 36 in Volume 200IE of the Lagos State
of Nigeria Lands Registry Office Ikeja in satisfaction of the
Consent Judgment of 28th October, 2009 between 1st and 2nd
Respondents.

RATIONES

CONSENT JUDGMENT – MEANING OF CONSENT
JUDGMENT

“As a necessary preclude, the import of consent judgment was,
vividly, captured in the case of Woluchem v.
Wokoma (1974) 3 SC 153/(1974) 1 SC 115 at 128 (REPRINT) /(1974) 9
NSCC 181 at 189 wherein Ibekwe, JSC, incisively,
declared:

“The rule is that actions may be settled by consent during
trial. Usually such settlement is a compromise and in order to have
a binding effect on the parties, it is imperative that it should
have the blessing of the court. Settlement between parties may
be described as a contract whereby new rights are created between
them in substitution for, an in consideration of, the abandonment
of the claim or claims pending before the court.  When
the court moves and takes action as agreed upon by the parties, it
becomes a consent judgment.”

“It follows that a consent judgment, which is also agreed
judgment, is a judgment based on the agreement of parties to an
action and given a stamp of legality and efficacy by the
court.  In practice, the parties negotiate settlement out
of the bowel of the court, reduce their terms of agreement into
writing, sign and file same in court and request the court to make
it judgment for the parties. Hence, consent or agreed judgment
is predicated on the consensus ad idem of parties.  It is
binding on the parties much the same way as a judgment obtained
after a full-scale trial of an action.  It is only
appealable with the leave of the court that handed it down to the
parties pursuant to section 241(2)(c) of the Constitution, as
amended.   It is liable to be set aside in the
presence of deserving circumstances such as fraud, mistake,
misrepresentation et cetera.  It is a final decision of a
court that issued it.  It cannot be rewritten by a
court.  For a valid consent judgment, the parties must be
consensual on the vital issues in the agreement, their consent must
be free and voluntary, the terms of settlement must be executed and
filed in court which must enter it as judgment for the parties,
see Woluchem v. Wokoma (supra); Talabi v. Adeseye
(1972) 1 All NLR (Pt. 2) 25/(1972 8 – 9 SC 20; Babajide v. Adisa
(1966) All NLR 249; Abey v. Alex (1999) 14 NWLR (Pt. 637) 148;
Vulcan Gases Ltd. v. G. F. Ind. A. G. (2001) 9 NWLR (Pt. 719) 610;
Ogunkunle v. Registered Trustees of C & S (2001) FWLR (Pt. 62)
1866; Afegbai v. A. – G., Edo State (2001) SCNJ 438/(2001) 14 NWLR
(Pt. 733) 425; R.A.S.C. Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333;
S.P.M. Ltd. v. Adetunji (2009) 13 NWLR (Pt. 1159) 647; D.T.T. Ent.
(Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; CBN v.
Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Arije v. Arije
(2018) 16 NWLR (Pt. 1644) 67; Sunday v. FRN (2019) 4 NWLR (Pt.
1662) 211.” PER O.F. OGBUINYA,
J.C.A

CONSTRUCTION OF DOCUMENTS – DUTY OF COURTS IN CONSTRUING
A DOCUMENT

“Nota bene, the law grants to the courts the unbridled licence
to read a document holistically so as to reach and garner
harmonious results of its content, see Ojokolobo
v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev.
Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apubo
(2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991)
400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573;
Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v.
Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18
NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd.
(2019) 5 NWLR (Pt. 1665) 219. In addition, in
construing a document, the court is enjoined by law to apply the
literal rule as a canon of interpretation, id est, to accord the
words employed therein their ordinary grammatical meaning without
any embellishments, see UBN v. Ozigi (1994) 3 NWLR
(Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361)
150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703)
168.”PER O.F. OGBUINYA, J.C.A

PARTY – WHO IS A PARTY?

“First and foremost, it is apropros to appreciate the
connotation of a party in litigation. A party is a person by or
against whom a legal action is sought and whose name is designated
on the record as plaintiff or defendant, see Green
v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989)
2 NWLR (Pt. 105) 494; BelIo v. INEC (2010) 8 NWLR (Pt.1196) 342;
Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476)
229. In law, parties encompass privies which are
classified into three: (1) Privies in blood (as ancestor and heir)
(2) Privies in law (as testator and executor; intestate and
administrator) and (3) Privies in estate (as vendor and purchaser,
lessor and lessee), see Coker v. Sanyaolu (1976)
9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ
115.  In the mind of the law, parties to an
action embrace privies in estate, see Coker v.
Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. — G., Oyo State (1987) 4
NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v.
Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ
115; Abubakar  v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt.
1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd.
(2013) 7 NWLR (Pt. 1352) 82.” PER O.F.
OGBUINYA, J.C.A

CONSENT JUDGMENT- WHETHER A CONSENT JUDGMENT OPERATES BY
WAY OF ESTOPPEL TO A NON -PARTY

“In the glaring absence of the appellant as a party thereto, she
never consented to the Terms of Settlement which sired the consent
judgment.  The elementary position of the law is
that consent judgment operates for or against
parties to it.  It has no effect, either by way of
estoppel or otherwise, against a person who is not a particeps in
its proceeding.  A consent judgment is similitude of a
contract as it gives birth to new rights and
obligations.  It is a notorious principle of law that a
stranger to a contract is not bound by it even if it is made for
his benefit.  The appellant was an alien to the consent
judgment and, de jure, it had/has no binding force on her
howsoever.  By parity of reasoning, the property, which
was not factored into the agreement in the consent judgment, enjoys
the same fortune.  In the face of this current and
inelastic position of the law, the lower court, with due reverence,
fractured the law when it gave its imprimatur to the first
respondent to levy execution on the property.

In a bid to amputate the long arm of the law, lack of effect of
consent judgment on a non-party, the first respondent invented the
defences that the appellant donated the property to it, as
collateral for the loan, and, ipso facto, a privy to the
transaction.  In Abey v.
Alex (supra) at 159, Uwaifo, JSC, eloquently and
incisively, proclaimed:

“…the parties are entitled to settle or compromise all or any of
the questions or dispute between them on any term and condition on
which they agree even without the approval or sanction of the
court, or prior reference to the court.  Such an
agreement or out of court settlement between the parties supersedes
the original cause of action altogether and the court has not
further jurisdiction in respect of the original cause of action
which has been so superceded.  If the terms of such new
agreement or out of court settlement are breached or not complied
with, the injured or aggrieved party must seek his remedy based on
the agreement or out of court settlement.  In other
words, this cause of action is founded on that agreement or
out-of-court settlement.”

–         PER
O.F. OGBUINYA, J.C.A

CONSENT JUDGMENT – EFFECT OF A CONSENT
JUDGMENT

“It is discernible from this magisterial
pronouncement, in the ex-cathedra authority, that the birth of a
consent judgment heralds the abortion/extinction of an original
cause of action. A consent judgment drowns the original cause of
action that occasioned the claim in court which, in turn, midwifed
the consent judgment.  It divests the court of its
requisite jurisdiction to entertain any grievances germinating from
the original cause of action.  Thus, the original cause
of action stands extinguished/banished in the presence of consent
judgment“.  PER O.F. OGBUINYA, J.C.A

EXERCISE OF DISCRETION – MEANING OF EXERCISE OF
DISCRETION

“My noble Lords, for the sake of completeness, the application,
the outcome of which transfigured into the appeal, was an
invitation to the lower court to exercise its discretion: the right
or power of a Judex to act according to the dictates of his
personal judgment and conscience uninfluenced by the judgment or
conscience of other persons, see Suleiman v.
C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v.
S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang
(2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR
(Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR
(Pt. 1699) 560.” PER O.F. OGBUINYA, J.C.A

EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE
COURT WOULD INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL
COURT

“An exercise of discretion does not grant the court the
unbridled liberty to act arbitrarily or capriciously. Contrariwise,
it gives it the latitude to act judicially and judiciously,
see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642)
195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina
George Ind. Ltd. (supra). To act judicially
denotes

“. . . discretion bounded by the rules and principles of law,
and not arbitrary, capricious, or unrestrained. It is not the
indulgence of a judicial whim, but the exercise of judicial
judgment, based on facts and guided by law, or the equitable
decision of what is just and proper under the circumstances”,

see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13
NWLR (Pt. 1050) 113, at 149 and 150, Per
Muhammad, JSC. On the other hand, “Acting judiciously…is said to
import the consideration of the interest of both sides and weighing
them in order to arrive at a just or fair decision”,
see Babatunde v. P.A.S & T.A Ltd. (supra), at 164,
Per Ogbuagu, JSC.”

It cannot be gainsaid that the lower court, on the footing of
the above juridical survey on consent judgment, with due respect,
did not act judicially.  This is because, it desecrated
the sacred principles of law on the application of consent
judgment.  An appellate is, usually, loath to interfere
with an exercise of discretion save where it is: wrongly exercised;
tainted with irregularity, irrelevant or extraneous matters or
defilement of the law, or in the interest of justice,
see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind.
Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and
Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7
NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN
(Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nuclus
Venture (2019) 16 NWLR (pt. 1699)
533.” PER O.F. OGBUINYA,
J.C.A

Statutes Referred To:

Evidence Act 2011
Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of
the Federation of Nigeria

By Legalpedia

ALHAJA ADUKE YUSSUF v. PERSONAL TRUST SAVING & LOANS
LIMITED & ANOR

Suit no: CA/L/109/2015

Legalpedia Electronic
Citation: (2021) Legalpedia (CA)
81966

Areas Of Law:  

Appeal, Court, Interpretation Of Statute, Judgment And Order,
Land Law, Practice And Procedure, Words And Phrases.

Summary Of Facts:

Before the High Court of Lagos State, Lagos Judicial Division,
the Appellant and the second Respondent were the Respondents while
the first Respondent was the Applicant.

In 2003 and 2004, the first Respondent, at the behest of the
second Respondent, granted overdraft facilities to the second
Respondent for the sum of N7, 800,000 for 99 days and N900,000 for
270 days respectively.

The overdraft loans were guaranteed by Otunba Lateef Tolani
Alade, Alhaja Faidat Bimpe Alade and an irrevocable power of
attorney over the property at No. 4 Hunmoni Street, Aiyetoro Aguda,
Surulere, Lagos State.

After the expiration of the maturity dates of the overdraft
loans, the second Respondent failed to repay the loan sums,
including accumulated interests thereon, despite repeated demands
made by the first Respondent.

Sequel to that, the first Respondent, via a writ of summons
filed on 13th January, 2009, beseeched the lower court for the
payment of the sum of N10, 166,642.74, arising from the overdraft
facilities, and accrued interests thereon.

Subsequently, the first and second Respondents settled and
executed Terms of Settlement in the matter. The lower court entered
consent judgment for the parties as per the Terms of
Settlement.

The second Respondent failed to comply with the consent
judgment. As a result, the first Respondent, filed an application
seeking to levy execution against the immovable property of the
judgment debtor (second Respondent) situated and known as No. 4
Hunmoni Street, off Aiyetoro Street, Aguda, Surulere, Lagos (the
property).

The Appellant, on becoming aware of the first Respondent’s
application, filed an application, for leave to be heard as an
interested party. The lower court granted the Appellant’s
application.

The application was duly heard by the lower court and in a
considered ruling; the lower court granted the first Respondent’s
application.

The Appellant was dissatisfied with the decision hence this
appeal.

HELD:

Appeal Allowed
ISSUES FOR DETERMINATION

Ø  Whether the learned trial Judge had the
jurisdiction to levy execution on the Appellant’s property at 4
Hunmani Street, off Aiyetoro Street, Aguda Surulere, Lagos and
Registered as No. 36 at page 36 in Volume 200IE of the Lagos State
of Nigeria Lands Registry Office Ikeja in satisfaction of the
Consent Judgment of 28th October, 2009 between 1st and 2nd
Respondents.

RATIONES

CONSENT JUDGMENT – MEANING OF CONSENT
JUDGMENT

“As a necessary preclude, the import of consent judgment was,
vividly, captured in the case of Woluchem v.
Wokoma (1974) 3 SC 153/(1974) 1 SC 115 at 128 (REPRINT) /(1974) 9
NSCC 181 at 189 wherein Ibekwe, JSC, incisively,
declared:

“The rule is that actions may be settled by consent during
trial. Usually such settlement is a compromise and in order to have
a binding effect on the parties, it is imperative that it should
have the blessing of the court. Settlement between parties may
be described as a contract whereby new rights are created between
them in substitution for, an in consideration of, the abandonment
of the claim or claims pending before the court.  When
the court moves and takes action as agreed upon by the parties, it
becomes a consent judgment.”

“It follows that a consent judgment, which is also agreed
judgment, is a judgment based on the agreement of parties to an
action and given a stamp of legality and efficacy by the
court.  In practice, the parties negotiate settlement out
of the bowel of the court, reduce their terms of agreement into
writing, sign and file same in court and request the court to make
it judgment for the parties. Hence, consent or agreed judgment
is predicated on the consensus ad idem of parties.  It is
binding on the parties much the same way as a judgment obtained
after a full-scale trial of an action.  It is only
appealable with the leave of the court that handed it down to the
parties pursuant to section 241(2)(c) of the Constitution, as
amended.   It is liable to be set aside in the
presence of deserving circumstances such as fraud, mistake,
misrepresentation et cetera.  It is a final decision of a
court that issued it.  It cannot be rewritten by a
court.  For a valid consent judgment, the parties must be
consensual on the vital issues in the agreement, their consent must
be free and voluntary, the terms of settlement must be executed and
filed in court which must enter it as judgment for the parties,
see Woluchem v. Wokoma (supra); Talabi v. Adeseye
(1972) 1 All NLR (Pt. 2) 25/(1972 8 – 9 SC 20; Babajide v. Adisa
(1966) All NLR 249; Abey v. Alex (1999) 14 NWLR (Pt. 637) 148;
Vulcan Gases Ltd. v. G. F. Ind. A. G. (2001) 9 NWLR (Pt. 719) 610;
Ogunkunle v. Registered Trustees of C & S (2001) FWLR (Pt. 62)
1866; Afegbai v. A. – G., Edo State (2001) SCNJ 438/(2001) 14 NWLR
(Pt. 733) 425; R.A.S.C. Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333;
S.P.M. Ltd. v. Adetunji (2009) 13 NWLR (Pt. 1159) 647; D.T.T. Ent.
(Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; CBN v.
Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Arije v. Arije
(2018) 16 NWLR (Pt. 1644) 67; Sunday v. FRN (2019) 4 NWLR (Pt.
1662) 211.” PER O.F. OGBUINYA,
J.C.A

CONSTRUCTION OF DOCUMENTS – DUTY OF COURTS IN CONSTRUING
A DOCUMENT

“Nota bene, the law grants to the courts the unbridled licence
to read a document holistically so as to reach and garner
harmonious results of its content, see Ojokolobo
v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev.
Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apubo
(2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991)
400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573;
Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v.
Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18
NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd.
(2019) 5 NWLR (Pt. 1665) 219. In addition, in
construing a document, the court is enjoined by law to apply the
literal rule as a canon of interpretation, id est, to accord the
words employed therein their ordinary grammatical meaning without
any embellishments, see UBN v. Ozigi (1994) 3 NWLR
(Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361)
150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703)
168.”PER O.F. OGBUINYA, J.C.A

PARTY – WHO IS A PARTY?

“First and foremost, it is apropros to appreciate the
connotation of a party in litigation. A party is a person by or
against whom a legal action is sought and whose name is designated
on the record as plaintiff or defendant, see Green
v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989)
2 NWLR (Pt. 105) 494; BelIo v. INEC (2010) 8 NWLR (Pt.1196) 342;
Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476)
229. In law, parties encompass privies which are
classified into three: (1) Privies in blood (as ancestor and heir)
(2) Privies in law (as testator and executor; intestate and
administrator) and (3) Privies in estate (as vendor and purchaser,
lessor and lessee), see Coker v. Sanyaolu (1976)
9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ
115.  In the mind of the law, parties to an
action embrace privies in estate, see Coker v.
Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. — G., Oyo State (1987) 4
NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v.
Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ
115; Abubakar  v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt.
1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd.
(2013) 7 NWLR (Pt. 1352) 82.” PER O.F.
OGBUINYA, J.C.A

CONSENT JUDGMENT- WHETHER A CONSENT JUDGMENT OPERATES BY
WAY OF ESTOPPEL TO A NON -PARTY

“In the glaring absence of the appellant as a party thereto, she
never consented to the Terms of Settlement which sired the consent
judgment.  The elementary position of the law is
that consent judgment operates for or against
parties to it.  It has no effect, either by way of
estoppel or otherwise, against a person who is not a particeps in
its proceeding.  A consent judgment is similitude of a
contract as it gives birth to new rights and
obligations.  It is a notorious principle of law that a
stranger to a contract is not bound by it even if it is made for
his benefit.  The appellant was an alien to the consent
judgment and, de jure, it had/has no binding force on her
howsoever.  By parity of reasoning, the property, which
was not factored into the agreement in the consent judgment, enjoys
the same fortune.  In the face of this current and
inelastic position of the law, the lower court, with due reverence,
fractured the law when it gave its imprimatur to the first
respondent to levy execution on the property.

In a bid to amputate the long arm of the law, lack of effect of
consent judgment on a non-party, the first respondent invented the
defences that the appellant donated the property to it, as
collateral for the loan, and, ipso facto, a privy to the
transaction.  In Abey v.
Alex (supra) at 159, Uwaifo, JSC, eloquently and
incisively, proclaimed:

“…the parties are entitled to settle or compromise all or any of
the questions or dispute between them on any term and condition on
which they agree even without the approval or sanction of the
court, or prior reference to the court.  Such an
agreement or out of court settlement between the parties supersedes
the original cause of action altogether and the court has not
further jurisdiction in respect of the original cause of action
which has been so superceded.  If the terms of such new
agreement or out of court settlement are breached or not complied
with, the injured or aggrieved party must seek his remedy based on
the agreement or out of court settlement.  In other
words, this cause of action is founded on that agreement or
out-of-court settlement.”

–         PER
O.F. OGBUINYA, J.C.A

CONSENT JUDGMENT – EFFECT OF A CONSENT
JUDGMENT

“It is discernible from this magisterial
pronouncement, in the ex-cathedra authority, that the birth of a
consent judgment heralds the abortion/extinction of an original
cause of action. A consent judgment drowns the original cause of
action that occasioned the claim in court which, in turn, midwifed
the consent judgment.  It divests the court of its
requisite jurisdiction to entertain any grievances germinating from
the original cause of action.  Thus, the original cause
of action stands extinguished/banished in the presence of consent
judgment“.  PER O.F. OGBUINYA, J.C.A

EXERCISE OF DISCRETION – MEANING OF EXERCISE OF
DISCRETION

“My noble Lords, for the sake of completeness, the application,
the outcome of which transfigured into the appeal, was an
invitation to the lower court to exercise its discretion: the right
or power of a Judex to act according to the dictates of his
personal judgment and conscience uninfluenced by the judgment or
conscience of other persons, see Suleiman v.
C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v.
S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang
(2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR
(Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR
(Pt. 1699) 560.” PER O.F. OGBUINYA, J.C.A

EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE
COURT WOULD INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL
COURT

“An exercise of discretion does not grant the court the
unbridled liberty to act arbitrarily or capriciously. Contrariwise,
it gives it the latitude to act judicially and judiciously,
see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642)
195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina
George Ind. Ltd. (supra). To act judicially
denotes

“. . . discretion bounded by the rules and principles of law,
and not arbitrary, capricious, or unrestrained. It is not the
indulgence of a judicial whim, but the exercise of judicial
judgment, based on facts and guided by law, or the equitable
decision of what is just and proper under the circumstances”,

see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13
NWLR (Pt. 1050) 113, at 149 and 150, Per
Muhammad, JSC. On the other hand, “Acting judiciously…is said to
import the consideration of the interest of both sides and weighing
them in order to arrive at a just or fair decision”,
see Babatunde v. P.A.S & T.A Ltd. (supra), at 164,
Per Ogbuagu, JSC.”

It cannot be gainsaid that the lower court, on the footing of
the above juridical survey on consent judgment, with due respect,
did not act judicially.  This is because, it desecrated
the sacred principles of law on the application of consent
judgment.  An appellate is, usually, loath to interfere
with an exercise of discretion save where it is: wrongly exercised;
tainted with irregularity, irrelevant or extraneous matters or
defilement of the law, or in the interest of justice,
see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind.
Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and
Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7
NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN
(Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nuclus
Venture (2019) 16 NWLR (pt. 1699)
533.” PER O.F. OGBUINYA,
J.C.A

Statutes Referred To:

Evidence Act 2011
Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of
the Federation of Nigeria