CITEC INTERNATIONAL ESTATES LTD v.MINISTER OF FCT & ORS

CITATION: (2018) LPELR-45955(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON TUESDAY, 8TH MAY, 2018Suit No: CA/A/616/2012

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealTINUADE AKOMOLAFE-WILSON Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of Appeal

BetweenCITEC INTERNATIONAL ESTATES LIMITED - Appellant(s)

And1. THE MINISTER OF THE FEDERAL CAPITALTERRITORY2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY3. DIPLOMAT PROPERTY COMPANY LIMITED

- Respondent(s)

RATIO DECIDENDI

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1. COURT - DUTY OF COURT: Duty of Court toallow parties settle their case out of Court"Where a matter has been filed in Court, theparties are not precluded from exploringavenues for an amicable settlement of theirdispute out of Court. It is the duty of Courts toencourage parties to peacefully settle theirdisagreements out of Court. It is not thebusiness of a Court to insist or compel theparties to complete their case before it, moreso, where there is room for amicablesettlement. See the cases of; CROWN FLOURMILLS VS OWODUNNI (2005) ALL FWLRPT.255 PG 1553.OBAYIUWANA VS EDE (1998)1 NWLR PT.535 PG 670." Per ABOKI, J.C.A. (P.26, Paras. C-E) - read in context

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2. JUDGMENT AND ORDER - CONSENTJUDGMENT: Whether parties are bound bythe terms of settlement; duty of Court whereparties agreed on some aspect and have notagreed on others" In law, a consent by i ts nature is acontractual agreement between the parties.No Court is allowed to re-write the contractentered into by parties thereto. When partiesenter into an agreement or written terms ofagreement, since they are bound by itsterms, one cannot legally read into the saidagreement or settlement terms on whichparties have not agreed. See R.A.S.C LTD VSAKIB (SUPRA) AT 309-360.Where parties agreed on some aspect andhave not agreed on others, they should bepermitted to reach agreement on the latter orresolved the points of disagreement byevidence. In the instant case, there wasagreement between the Appellant and the 1stand 2nd Respondent. Therefore, it is my viewthat in the circumstances, the lower Courtinstead of str ik ing out the terms ofsettlement, the parties should have beenafforded the opportunity of adducing oralevidence on the 3rd defendants counterclaim. See the case of MENAKAYA VSMENKAYA (2001) 16 NWLR PT.738 PG 203."Per ABOKI, J.C.A. (P. 25, Paras. A-E) - read incontext

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3. JUDGMENT AND ORDER - CONSENTJUDGMENT: Remedy available to a partywho was not a signatory to the terms ofsettlement for a consent judgment"Where a party in a suit in which the matterin controversy is sought to be resolved by aconsent judgment following terms ofsettlement to which that party was not asignatory, and, is or will be affected by theconsent judgment the remedy available tohim is to appeal against the consentjudgment if entered with the leave of Court,or alternatively by a fresh action, the partycan have the judgment set aside. See thecases of;EDUM VS ODAN COMMUNITY (1980) 8-11 SC103.WOLUCHEM VS WOKOMA (1974) 3 SC 153.ALPHA PROP. INT'L LTD VS NDIC (2006) 1NWLR PT.962 AT 641." Per ABOKI, J.C.A. (Pp.25-26, Paras. F-B) - read in context

4. PRACTICE AND PROCEDURE - ABUSE OFCOURT/JUDICIAL PROCESS(ES): Whatconstitutes abuse of Court process"Furthermore, it is pertinent to note that, aCourt process could only be said to be abusedwhere it is premised or founded on frivolity orrecklessness." Per ABOKI, J.C.A. (P. 27, Paras.A-B) - read in context

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A B D U A B O K I , J . C . A .

(Delivering the Leading Judgment): This appeal is

against the ruling of the High Court of the Federal Capital

Territory; Abuja delivered on 31st July, 2012 by F.A. OJO J.

The Appellant was the plaintiff at the lower Court while the

Respondents were the 1st, 2nd and 3rd defendant

respectively.

The Appellant, as plaintiff filed an action at the High Court

of the Federal Capital Territory, Abuja against

defendants/Respondent seeking for the following:

(i) "A declaration that the plaintiff is the lawful allottee and

developer of all that parcel of land measuring 225.335

hectares at Mbora District more particularly described in

the survey plan attached to the Development Agreement

dated 2nd May, 2002.

( i i ) A d e c l a r a t i o n t h a t t h e 2 0 h e c t a r e s o f

unilateral/purported reduction of the plaintiff's land

holding/interest from 225.335 hectares as shown in the

survey plan attached to the Development Lease Agreement

dated 2nd May, 2002 to 70 hectares contrary to the terms

of the lease Agreement is unreasonable, illegal,

unconstitutional, null and void.

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( i i i ) A declarat ion that the a l locat ion and/or

purported allocation of about 20 hectares of land at Mbora

District and from the plaintiff's land holding of 225.335

hectares to the 3rd defendant under the lease agreement is

illegal, null, void and amounts to breach of contract.

(iv) An order of mandatory injunction directing and/or

perfect all title documents relating to the 225.335 hectares

of land covered by the Development Lease Agreement

dated 2nd May, 2002 on the plaintiff within three (3)

months from the date judgment is delivered.

ALTERNATIVELY

An order of mandatory injunction directing the 1st and 2nd

defendants jointly and severally to issue, to the plaintiff a

Certificate of Occupancy in respect of all that 225.335

hectares of land lying and situate at Mbora District covered

by the survey plan dated 18th April, 2002 annexed to the

Development Lease Agreement of 2nd May, 2002.

v) An order of perpetual injunction restraining the 1st, 2nd

and 3rd defendants, jointly and severally whether by

themselves, their agent, servants and/or privies howsoever

called from trespassing and/or continuing to trespass on

the said land covered by a survey plan dated 18th April,

2002

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annexed to the Development Lease Agreement of 2nd May,

2002.

vi) General damages in the sum of N2, 000,000,000 (Two

Billion Naira) only for trespass into the plaintiff's land and

wanton destruction of the plaintiff's property by the

defendants.

Upon being served with the originating processes, the 3rd

defendant/Respondent as well as the 1st and 2nd

defendants/Respondents entered appearances on 29th

June, 2008 and 4th August, 2008 respectively. In addition

to filing of statement of defence, the 3rd Respondent also

filed a counterclaim against Appellant.

At the proceedings of 5th February, 2009, the Appellant's

counsel intimated the trial Court of a move to achieve an

amicable settlement of the dispute out of Court in response

to which the Court allowed an adjournment for that

purpose in accordance with Section 18 of the High Court

Act Cap 510, 2007.

Following series of negotiations, the dispute between the

Appellant and the 1st and 2nd Respondents only were

effectively and finally resolved as between them inter se

and Terms of Settlement dated 31st May, 2011 was filed at

the trial Court on 8th January, 2011 in that regard.

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At the proceedings of 11th October, 2011, the Appellant's

counsel invited the attention of the Court to the process

filed and applied that the Court adopt the Terms of

Settlement as judgment between the Appellant and the 1st

and 2nd Respondents in the original action. The Court

would then be left with resolving the residue of the dispute

between the Appellant and the 3rd Respondent upon which

issues had been joined in the 3rd Respondent's

counterclaim as well as in the original action. The issues

left to be agitated in the original suit were between the

Appellant and the 3rd Respondent, and were exactly the

same as those in the 3rd Respondent's counter claim

against the Appellant. The Appellant consequently sought

to discontinue the original suit against the 3rd Respondent

so that the action can be determined upon the 3rd

Respondent's counterclaim.

On 10th October, 2011, the 3rd Respondent who was not a

party or privy to the Terms of Settlement filed a motion No:

M/549/2011 seeking the striking out of the Terms of

settlement for being an abuse of Court process upon the

following grounds:

"a. There is an application questioning the

competence of the plaintiff's suit.

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b. A term of settlement and afortiori consent

judgment cannot be predicated upon an incompetent

suit.

c. That the Terms of settlement made while

proceedings were pending divests the Applicant of its

proprietary rights thus the Terms of Settlement is

caught by the doctrine of Lis pendens."

In response, the Appellant on 18th October, 2011 filed a

counter affidavit deposed to by one Miss Morayo Fadipe

together with written address in support. The

3rd Respondent consequently filed a further affidavit

deposed to by one Ndubuisi Augustine on 24th October,

2011. The motion was argued on 30th May, 2012 following

which the trial Court delivered its ruling allowing Motion

No. M/549/2011 and struck out the Terms of Settlement for

being an abuse of Court process.

The Appellant being dissatisfied with the ruling of the trial

Court filed this appeal containing three (3) grounds which

shorn of their particulars are reproduced hereunder:

GROUND ONE:

The learned trial judge erred in law and thereby occasioned

a miscarriage of justice to the Appellant when the lower

Court struck out the Terms of Settlement dated 31st May,

2011

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but filed on the 8th June, 2011 on the ground that the

Appellant on the one hand and 1st and 2nd Respondents on

the other cannot effectively settle or compromise issues of

dispute between them in Suit No: FCT/HC/CV/1176/2008 to

the exclusion of the 3rd Respondent.

GROUND TWO

The learned trial judge erred in law and acted without

jurisdiction and thereby occasioned a miscarriage of justice

to the Appellant when the lower Court struck out the Terms

of Settlement dated 31st May 2011 but filed on 8th June,

2011 made between the Appellant, the 1st and 2nd

Respondents in Suit No: FCT/HC/CV/1176/2008 by Motion

No. M/549/2011 of 10th October, 2011 filed by the 3rd

Respondent when the 3rd Respondent was not privy to the

Terms of Settlement.

GROUND THREE

The learned trial judge erred in law and thereby occasioned

a miscarriage of justice to the Appellant when the lower

Court struck out the Terms of Settlement dated 31st May,

2011 but f i l ed on 8 th June , 2011 in Su i t No :

FCT/HC/CV/1176/2008 and made between the Appellant,

the 1st and 2nd Respondents only on the ground that it

amounted to an application for a consent judgment in the

whole suit to bind the 3rd Respondent.

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In accordance with the Rules of this Court, the Appellant

and the 3rd Respondent filed their briefs of argument.

The Appellant in his brief of argument dated 8/4/2013 and

filed on 11/4/2013 by Olumide Ofeni Esq. formulated a lone

issue for determination which was adopted by Obinna

Ojuku Esq. for the 3rd Respondent which is:

Whether the lower Court was incorrect in all the

circumstances before it, when it allowed Motion No:

M/549/2011 and struck out the Terms of Settlement

between the Appellant on the one hand the 1st and 2nd

Respondents on the other dated 31st May, 2011 but filed

on 6th June, 2011.

The 3rd Respondent in its brief of argument settled by

Obinna Ajoku Esq., filed on 2/7/14 adopted the Appellant's

issue as formulated.

It is on record that 1st and 2nd Respondents were duly

served on 2/2/18, but failed to file any brief of argument.

On 29/9/14, the Court granted the prayer that appeal be

heard on Appellant's brief and 3rd Respondent's brief only.

Having regard to the grounds of appeal as contained in the

notice of appeal I also adopt the sole issue raised by the

Appellant as the real issue for consideration in this appeal.

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Learned counsel for the Appellant submitted that the trial

Court was incorrect in striking out the Terms of Settlement

on the ground that the Appellant and the 1st and 2nd

Respondents cannot effectively settle or compromise issues

of dispute between them in the suit before it. The trial

Court is enjoined as a matter of statutory obligation to

recognize and encourage such settlement when entered by

some or all of parties before it. He referred to Section 18

of the High Court Act Cap 510 LFCT, 2007 and Order

17 of the High Court of the Federal Capital Territory

(Civil Procedure) Rules 2004.

Learned counsel contended that it is not the duty of a

plaintiff to go cap in hand at all costs, begging a defendant

who he has brought to Court to settle with it where that

defendant intends to continue with the litigation of the

dispute. He submitted that one of several defendants

cannot insist that, just because he has been made a

defendant in a suit, the action must continue against other

defendants who have availed themselves the opportunity

afforded by the law to achieve a compromise with the

plaintiff on the plaintiff's claims against them therein.

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He noted that the 3rd Respondent chose not to settle with

the Appellant because the record of the Court clearly

demonstrates that deliberations leading to the Terms of

February, 2009 at the latest, which is a period of over two

(2) years before 31st May, 2011 when it was concluded. It

is also clear from the record that the 3rd Respondent made

no effort whatsoever to be involved in the settlement

process nor did it initiate any one of its own as between it

and Appellant rather, the 3rd Respondent filed a

counterclaim against the Appellant in reaction to the

settlement moves between the Appellant and the 1st and

2nd Respondent.

It is submitted that there is no feature whatsoever in the

Terms of Settlement that makes the document unlawful, or

precludes the Court from giving effect to it. He contended

that there is no rule of law precluding some of the parties

to a civil action from settling issues of dispute between

them to the exclusion of other parties contrary to the trial

Court’s finding at Page 540 of the record of proceedings. It

is trite that parties to a dispute are entitled to determine

the dispute on agreed terms.

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Such determination is therefore a contractual agreement

between the parties affected inter se and upon an

application to a Court such agreement is entered as the

judgment of the Court but only in respect of the parties

who consent to the terms by which the dispute was

determined. He referred to the case of Attorney General

Lagos State V. Osuoka (2010) 14 NWLR (Pt.1183) 68

at 76, Paras D-F.

He noted that contractual agreement or contractual

determination of the dispute is one between parties to a

dispute inter se and not necessarily one between the

parties to a suit as suggested by the holding of the trial

Court. He contended that this is consistent with the general

principles of freedom of parties to contract at will and the

duty of the law to recognize the sanctity of such contract.

This therefore means that it is improper to persist or insist

in litigating an already resolved dispute, leaving no actual

matter in controversy as between the resolving parties

since that will no doubt amount to deciding a moot point as

between them. He cited the case of Attorney General

Federation V. All Nigeria People Party & 2 Ors. (2003)

18 NWLR (pt.851)182 at 215 B-G.

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Learned counsel for the Appellant further submitted that

the Terms of Settlement which the trial Court struck out

upon the basis of Motion No: M/549/2011 was not entered

into by the parties thereto in order to compromise or

otherwise affect the case of the 3rd Respondent which was

completely presented in its counterclaim, but entered into

for the purpose of putting an end to all disputes between

the Appellant and the 1st and 2nd Respondents upon the

consent of the Appellant who initiated the suit against all

the Respondents. He noted that the Appellant applied that

the original action be discontinued as against the 3rd

Respondent whose counterclaim effectively addressed all

issues which would otherwise have been in contention

between it and the Appellant in the suit. In other words, the

Terms of settlement did not, and was not intended to settle

all issues between all the parties in the suit nor was it filed

for that purpose. The decision of the trial Court, he

submitted, striking out the Terms of settlement to which

the 3rd Respondent was not a party is in effect erroneously

extending the impact of the Terms of Settlement to the

counterclaim of of the 3rd Respondent.

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It is trite that although the issues in a main claim may be

the same as those in a counterclaim in a suit, both claims

are independent of each other and ought not to be treated

as one and the same. He placed reliance on the case of

Jeric Nigeria Limited V. Union Bank of Nigeria Plc

(2000)15 NWLR (Pt.691) 447 at 463. Para F.

Learned counsel for the Appellant submitted that the

motion filed by the 3rd Respondent at the trial Court was

clearly an unnecessary process employed to impede the

ends of justice in the suit. The motion he submitted was

brought in utmost bad faith to overreach the Appellant and

frustrate the determination of disputes between the

Appellant and the 1st and 2nd Respondents in the entire

circumstances. He contended that it constituted a gross

abuse of the process of Court and ought to have been

dismissed. He cited the case of Ntuks & 9 Ors v. Nigeria

Ports Authority (2007) 13 NWLR (Pt.1051) 392 at

419- 420, Paras H-C and others to support his position.

Learned counsel noted that the trial Court took the view

that the terms of settlement was sought to be made

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"a consent judgment" to bind all the parties in the suit

including the "3rd defendant who is a necessary party

to this suit" but "is not a party to the Terms of

Settlement sought to be made the judgment of the

Court. He emphasized that the record of the trial Court

clearly demonstrates that the Appellant's counsel

specifically prayed that Court to enter the "Terms of

settlement as judgment between the plaintiff and the

1st and 2nd defendants" in the original action. He

referred to Pages 431-438 of the records.

He submitted that it is apparent that the trial Court’s

misconception of the Appellant's case on the Terms of

Settlement led the Court to make out a case different from

that which the Appellant presented before it and reached a

decision based on that misconception. It is trite that Court

is bound to by the terms of an application before it as well

as the issues presented to it for determination. He

contended that any decision reached in violation of the

foregoing principles is liable to be set aside for being

perverse just like one reached upon a misconception of a

party's case by the Court. He referred to the case of

Ogunsakin & Anor V. Ajidara & 3 Ors. (2008) 6 NWLR

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(Pt.1082)1 at 22, Paras. F-G, R. Benkay Nigeria

Limited V. Cadbury Nigeria Plc (2006) 6 NWLR

(Pt.976) 338 at 380, Para A and Federal Ministry of

Health & Anor V. Comet Shipping Agencies Limited

(2009)9 NWLR (Pt.1145) 193 at 220, Paras G-H.

Learned counsel submitted that the Terms of Settlement is

not and ought not to be interpreted as a consent judgment

as held by the trial Court when those terms are intended to

bind all the parties to the suit, which is not the case here.

He relied on the case of Abdulkarim V. Incar (Nigeria)

Limited (1992) 7 NWLR (Pt.251) 1 at 16, Paras E-G,

19-20, Paras. H-A, Ojomo V. The Governor of Ondo

State & 3 Ors Re Ogunmowola & 3 Ors. ((1996) 2

NWLR (Pt.428) 90 at 102, Paras O-E and Sogunle &

Anor. V. Asabiyi & Ors (1974) 6 SC 1 at 15.

In conclusion, learned counsel for the Appellant submitted

that the Appellant has suffered a grave miscarriage of

justice and urged the honourable Court to allow the appeal

in its entirety by setting aside the ruling of the trial Court

and allowing all the reliefs sought in the Appellant's notice

of appeal.

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In his response, learned counsel for the 3rd Respondent

referred to Paragraphs 14 (iii), 15, 18 and 21 of the

Appellant's statement of claim and submitted that by the

claims of the Appellant, the 3rd Respondent is a necessary

party to the suit as its presence is necessary to effectively

and effectually settle all questions of ownership of the land

the subject of this appeal.

Learned counsel submitted that by the Appellant's

statement of claim and the 3rd Respondent's counter claim

issues have been joined on who as between the Appellant

and 3rd Respondent is the owner of plot 1809 measuring

20 hectares situate at Mbora District. He submitted that

the trial Court has no jurisdiction to determine the issue of

ownership of plot 1809 without giving all parties involved a

fair hearing and or all parties involved consenting to

amicable resolution of the dispute. Learned counsel for the

3rd Respondent relied on Section 36 (1) of the Constitution

of the Federal Republic of Nigeria 1999 (As Amended).

He further submitted that the Appellant and the 3rd

Respondent having joined issues on who among them is the

rightful owner of the land in dispute, the trial Court cannot

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enter the Terms of Settlement as consent judgment as that

will be tantamount to delivering judgment against the 3rd

Respondent without it being heard as the 3rd Respondent

is not signatory to the Terms of settlement. He referred to

the case of AGWARANGBO V. NAKANDE (2000) 9

NWLR (PT.672) 357-318. He contended that the

Appellant conceded that the 3rd Respondent was not a

party, nor signatory to the Terms of Settlement that

intended to divest it of its interest over the land in dispute,

so the necessary parties are not ad idem as far as the

agreement is concerned. Learned counsel further cited the

case of SPM LTD. v ADETUNJI (2009) 12 NWLR

(PT.1159) AT 668.

Learned counsel for the 3rd Respondent referred to the

argument of Appellant’s counsel in Paragraph 3.02 of the

Appellant's brief that the 3rd Respondent resolved not to

settle with the Appellant at the trial Court, 3rd

Respondent’s counsel urged the honourable Court to

discountenance this submission as it is contrary to the

finding of the learned trial judge. He referred to Page 535

of the record of appeal.

It is the submission of learned counsel for the 3rd

Respondent that the general principle of law that

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parties can settle disputes to the exclusion of others is not

applicable to the facts of this appeal. He argued that the

Appellant's counsel’s submission that the 3rd Respondent is

not privy to the Terms of Settlement and cannot seek any

relief thereon is at variance with the facts of this appeal.

He noted that the 3rd Respondent was made a part by the

Appellant to the Terms of Settlement without its consent.

He referred to paragraph 2 of the Terms of settlement

(Page 458 of the record of appeal). The Terms of

Settlement is unenforceable as the Appellant made the 3rd

Respondent a party and settled on terms that are

prejudicial to the interest of the 3rd Respondent without its

consent. It is trite that Courts only enforce contracts where

the parties to it are ad idem and that is not the case in the

instant appeal.

It is the contention of learned counsel that the 1st and 2nd

Respondents have no proprietary interest over the plots of

land in dispute until it has validly revoked it or the 3rd

allocation set aside by a Court of law. Therefore, the 1st

and 2nd Respondents have no right to enter into Terms of

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settlement that will divest the 3rd Respondent of its

interest over the land in dispute without the 3rd

Respondent's consent. He relied on GRACE MADU v. DR.

BETRAM MADU (2008) 6 NWLR (PT.1083)296 AT 319

to support his argument.

It is the submission of learned counsel for the 3rd

Respondent that he disagree with the Appellant's counsel

argument that since the 3rd Respondent filed a counter-

claim, its grievance with the Appellant can be ventilated

irrespective of the Terms of Settlement it executed with the

1st and 2nd Respondent. He argued that this submission is

contrary to public policy for a Court of law to give two

conflicting decisions in respect of the same facts and

parties. He contended that what will be the situation if the

trial Court had entered the Terms of Settlement that

divested the 3rd Respondent of its land and after hearing

its counter-claim, it holds that the 3rd Respondent had

proved its counter claim, will it not be contrary to public

policy. He noted that, that is why Courts join all necessary

parties to a suit so that they will ventilate the entire

grievance at once to forestall the likelihood of it giving

conflicting decisions in suits with the same facts.

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He cited the case of RE-YAR'ADUA (2011) 17 NWLR

(PT.1277)568 AT 599.

He submitted that unlike contracts simpliciter, Courts are

not duty bound to enter Terms of Settlement filed in Court

as consent judgment. He referred to SPM LTD V.

ADETUNJI (2009) 12 NWLR (PT.1159)647 AT 661.

Courts are duty bound to scrutinize the Terms of

Settlement filed in Court to ensure that it is not illegal or

contrary to public policy before entering them as consent

judgment. He cited the case of ALHAJI SHUAIBU

ABDULKARIM V. INCAR NIG. LTD. (1992) 7 NWLR

(PT.251)1 AT 19-20, Paras. H-A. He submitted that the

Terms of Settlement filed by the Appellant at the trial Court

is illegal and contrary to public policy because it intends to

divest the 3rd Respondent of its property without fair

hearing. It will lead to the possibility of the trial Court

reaching two conflicting decisions in respect of the same

parties and subject matter and that the 1st and 2nd

Respondents will exercise acts of ownership of the land in

dispute contrary to the provisions of the Land Use Act.

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Learned counsel further submitted that the argument of the

Appellant's counsel in paragraph 3.18 of its brief supports

the trial Court's findings that Terms of settlement intends

to bind all parties who consent to it. He noted that the

learned trial judge demonstrated in her ruling that

paragraph 9 of the Terms of Settlement will bind the 3rd

Respondent. In the case of ABDULKARIM V. INCAR NIG.

LTD. (SUPRA) AT 19-20 the case clearly demonstrated

that a party must give consent in respect of the claim

against him before the Terms of Settlement can be entered

as consent judgment, but that is not the case in the instant

appeal as the 3rd Respondent did not give consent that its

land the subject of dispute be transferred to the Appellant.

Learned counsel for the Respondent submitted that the

case of RE-OGUNMO WOLA & 3 ORS (1996) 2 NWLR

(PT.428) 90 AT 102 cited by the Appellant's counsel is not

in all fours with the facts of this case. The Applicants in the

above case were not parties at the trial Court and the

consent judgment sought to be appealed against did not

affect their interest. Learned counsel finally urged the

honourable Court to dismiss this appeal dated and filed on

4/7/14.

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In his reply brief, learned counsel for the Appellant

in response to the 3rd Respondent's brief to the effect that

the Terms of Settlement dated 31st May, 2011 and filed on

8th June, 2011 does not in any way constitute a valid

contract. He submitted that the position of the law is that it

does indeed constitute a valid contract since each of the

present Appellant as well as 1st and 2nd Respondents (who

are parties thereto) are ad idem on the terms established

by the execution thereof by signature and delivery and as

evident therein. He contended that contractual relationship

between consenting parties have never been held to be

acceptable to anybody else or of anybody else’s concern.

He referred to the case of ABBA v. SHELL PETROLEUM

DEVELOPMENT CO. OF NIG. LTD. (2013) 11 NWLR

(PT.1364) 86 AT 115, where the Supreme Court held

that:

“... There are some contracts where it is difficult to identify

offer, acceptance, consideration, e.g. multipartite

contracts, and settlement contracts. In such a situation a

valid contract exists when the parties are ad idem on a// the

terms of their agreement, and this is established by all

sides to the agreement appending their signatures to the

contract document".

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Learned counsel for the Appellant urged the honourable

Court to discountenance the position put forward by the

3rd Respondent in its entirety.

I have earlier in this judgment reproduced the grounds of

the 3rd defendant/Applicant's motion No. M/549/2011 upon

which it is seeking the striking out of the terms of

settlement dated 31st May, 2011.

In the said motion on notice, the Applicant 3rd Respondent

herein seeks the following reliefs;

"An order of Court striking out the terms of settlement

dated the 31st day of May, 2011 and filed on 6th day of

August, 2011 for being an abuse of Court process...."

The trial Court in its ruling held inter alia as follows;

".....In the instant case the 3rd defendant who is a

necessary party to this suit is not a party to the terms of

settlement sought to be made the judgment of this Court.

He did not sign and thus has not consented to same. In the

circumstances the terms of settlement filed by the plaintiff

cannot be made a consent judgment. The terms of

settlement dated 31st of May 2011 and filed in this Court is

an improper use of a process of Court. It constitutes an

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abuse of Court process and it is hereby accordingly struck

out”

Now, it appears to me that the real issue raised in this

appeal is whether having regards to the facts of this case

the trial Court was right to have struck out the terms of

settlement reached by the Appellant, 1st and 2nd

Respondent for being an abuse of Court process?

The Appellant's counsel contention is that the Appellant

and the 1st and 2nd Respondents can effectively settle or

compromise issues of dispute between them in the suit

before the trial Court, because there is no rule of law

precluding them from settling issues of dispute between

them to the exclusion of other parties in the suit.

It is possible to agree on certain basic facts same having

manifested themselves in the record as being beyond

dispute.

Firstly, the 3rd defendant was a party in the suit ab initio

and on every date the plaintiff/Appellant informed the

Cour t abou t the se t t l emen t moves , t he 3 rd

defendant/Applicant's counsel has always objected to it.

Secondly, it is evidently clear from the claim of the

plaintiff/Appellant that the plaintiff is challenging the

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allocation of a portion of the land in dispute to the 3rd

defendant by the 1st and 2nd defendant, and the 3rd

defendant had filed a counter-claim at the lower Court to

that effect.

Thirdly, the parties to the settlement agreement are only

the plaintiff/Appellant, 1st and 2nd defendant/Respondent.

Fourthly, the Appellant's counsel specifically prayed that

Court to enter the "Terms of settlement as judgment

between the plaintiff, the 1st and 2nd defendants'' in

the original action.

It is clear from the record of appeal that the Terms of

Settlement which the trial Court struck out upon the basis

of the 3rd Respondent's Motion No: M/549/2011 was not

entered into by the parties as consent judgment thereto in

order to affect the case of the 3rd Respondent. It is my view

that the terms of settlement in the instant case ought not to

be interpreted by the lower Court as a consent judgment.

The case of FEDERAL MORTGAGE BANK OF NIGERIA

VS CRYSTAL BANK OF AFRICA LTD & ORS. (2000) 20

WRN 180 re l ied upon by the t r ia l judge and

AGWARANGBO VS NAKANDE (SUPRA) relied upon by

the 3rd Respondent are not on all fours with the instant

case.

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In law, a consent by its nature is a contractual agreement

between the parties. No Court is allowed to re-write the

contract entered into by parties thereto. When parties

enter into an agreement or written terms of agreement,

since they are bound by its terms, one cannot legally read

into the said agreement or settlement terms on which

parties have not agreed. See R.A.S.C LTD VS AKIB

(SUPRA) AT 309-360.

Where parties agreed on some aspect and have not agreed

on others, they should be permitted to reach agreement on

the latter or resolved the points of disagreement by

evidence. In the instant case, there was agreement

between the Appellant and the 1st and 2nd Respondent.

Therefore, it is my view that in the circumstances, the

lower Court instead of striking out the terms of settlement,

the parties should have been afforded the opportunity of

adducing oral evidence on the 3rd defendants counter

claim. See the case of MENAKAYA VS MENAKAYA

(2001) 16 NWLR PT.738 PG 203.

Where a party in a suit in which the matter in controversy

is sought to be resolved by a consent judgment following

terms of settlement to which that party was not a

signatory, and,

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is or will be affected by the consent judgment the remedy

available to him is to appeal against the consent judgment

if entered with the leave of Court, or alternatively by a

fresh action the party can have the judgment set aside. See

the cases of;

EDUM VS ODAN COMMUNITY (1980) 8-11 SC 103.

WOLUCHEM VS WOKOMA (1974) 3 SC 153.

ALPHA PROP. INT'L LTD VS NDIC (2006) 1 NWLR

PT.962 AT 641.

Where a matter has been filed in Court, the parties are not

precluded from exploring avenues for an amicable

settlement of their dispute out of Court. It is the duty of

Courts to encourage parties to peacefully settle their

disagreements out of Court. It is not the business of a Court

to insist or compel the parties to complete their case before

it, more so, where there is room for amicable settlement.

See the cases o f ; CROWN FLOUR MILLS VS

OWODUNNI (2005) ALL FWLR PT.255 PG

1553.OBAYIUWANA VS EDE (1998) 1 NWLR PT.535

PG 670.

The 3rd Respondent's submission that the trial Court

cannot enter the terms of settlement as consent judgment

as that will be tantamount to delivering judgment against it

without it being heard is grossly misconceived.

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I have earlier in this judgment said that the trial Court was

yet to enter terms of settlement reached by the Appellant,

1st and 2nd Respondent as a consent judgment.

Furthermore, it is pertinent to note that, a Court process

could only be said to be abused where it is premised or

founded on frivolity or recklessness. In the instant case the

lower Court was incorrect to strike out the terms of

settlement dated 31st of May, 2011 and filed on 8th June,

2011, for reason of being an abuse of Court process, more

so, as the 3rd Respondent/Applicant has not shown in its

affidavit in support of the motion that, there is an element

of malafide on the part of the Appellant, 1st and 2nd

Respondent, or that the terms of settlement is initiated with

malice or organized vendetta aimed at frustrating either

the quick disposal of the suit or abatement of the suit for no

good cause.

In view of all the above, this issue is resolved in favour of

the Appellant.

There is merit in this appeal and it is hereby allowed.

The trial Court ruling delivered on 31st Ju|y, 2012 is here

by set aside. Appellant's relief two (ii) seeking for an order

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adopting the terms of settlement filed dated 31st May,

2011 and filed on 8th June, 2011 and to enter judgment in

respect of all matters of depute in terms thereof between

the Appellant, the 1st and 2nd Respondent is refused.

The case is remitted back to the Chief Judge of the High

Court of the Federal capital Territory, Abuja for re-

assignment to another Judge of the Court, other than

Justice F.A. OJO for hearing of all the pending motions and

the 3rd defendant's counter claims.

₦100, 000.00 (One Hundred Thousand Naira) cost is also

awarded against the 3rd Respondent in favour of the

Appellant.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of

the judgment just delivered by my Learned brother, ABDU

ABOKI, JCA, I agree with the reasoning, conclusions and

orders therein.

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Appearances:

Emeka E. Okoroafor with him, O.D.Edieya ForAppellant(s)

Obinna Ajoku with him, Daubry Ebizimoh for the3rd Respondent

1st and 2nd absent and unrepresented ForRespondent(s)

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