All posts by Stephen Azubuike

Out-of-Court Settlement is binding even without the approval or sanction of the Court.

Abey v. Alex [1999] 14 NWLR (Pt. 637) 148 at 159, paras. E-G, per Uwaifo, JSC:

“It has been held – and I think it is in consonance with the right of parties to settle civil actions out of court and the established practice is that this should be encouraged by the courts whenever there is such a move – that at any stage of pending civil proceedings, save in specified cases or circumstances in which public interest or policy element is involved, the parties are entitled to settle or compromise all or any of the questions or disputes between them on any terms and conditions 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altogether and the court has no further jurisdiction in respect of the original cause of action which has been so superseded. 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.”

Blogger’s Note:

Uwaifo, JSC (as he then was) aptly stated the above principle and in simple language too.  He relied on the opinion expressed by Lord Denning M.R. in McCallum v. Country Residences Ltd. (1965) 1 W.L.R. 657 at 660 and the statement of the law in Halsbury’s Laws of England, 4th edn, vol. 37, paras. 383 and 391.  The case further strengthens the right of parties to amicable settlement which we had earlier discussed here. In the case, there was a land/boundary dispute which was subject of litigation and Judgment delivered even on appeals. Thereafter the Appellants instituted another suit which was later resolved by a settlement agreement. Subsequently, the Respondents instituted yet another suit whereupon the Settlement Agreement was admitted in evidence. However, in spite of the Agreement, the trial Judge found for the Respondents relying on the previous Judgment (and disregarding the contents of the Settlement Agreement). Appellants’ appeal to the Court of Appeal was dismissed. On further appeal to the Supreme Court, the apex Court unanimously allowed the appeal, upholding the terms of the Settlement Agreement. The Court held that the effects of such an Agreement are that: it puts an end to the proceedings which are thereby spent and exhausted; it precludes the parties from taking any further steps in the action, except when they have provided for liberty to apply to enforce the agreed terms; and it supersedes the original cause of action.

The above case is also an authority for the principle that the power or right to settle or compromise at any stage of pending proceedings extends even to that of compromising judgments in certain situations. See page 160, para. C of the report. Continue reading Out-of-Court Settlement is binding even without the approval or sanction of the Court.

Compensation for unlawful arrest and detention is AUTOMATIC!

Jim-Jaja v. C.O.P., Rivers State [2013] 6 NWLR (Pt. 1350) 225 at 256, paras. B-C, per M.D. Muhammad, JSC:

“Appellant’s unlawful detention by the respondents constitute a breach of his right to personal liberty as guaranteed under section 35(1) of the Constitution. The same Constitution has provided under section 35(6) thus: “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.” (Italics supplied for emphasis). From the foregoing, the appellant does not have to ask for compensation once he has established the fact of his being unlawfully detained, a fact which the court below itself held he has. The compensation is automatic by the operation of the law.”

Blogger’s Note:

The decision of the Supreme Court above is much welcome. It was sad that the Court of Appeal in the case having held that the Appellant was unlawfully detained and his fundamental right to liberty consequently breached, however refused to award compensation on the ground that none was claimed. More pathetic is the fact that the Supreme Court observed and demonstrated that the Appellant actually claimed N2 Million damages. Ngwuta, JSC, in delivering the lead Judgment, criticized the Court of Appeal for “relegating the Appellant to the status of a panhandler approaching the Court for a handout.” (See page 245, para. C) The apex Court further held that “fundamental rights matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved.” (See page 244, para. H). In this wise, “the common law principles on the award of damages do not apply.” (See page 254, paras. E-F).

Continue reading Compensation for unlawful arrest and detention is AUTOMATIC!

Fundamental right to freedom from discrimination is only enforceable against the State and not against individuals.

Lafia Local Govt. v. Gov., Nasarawa State [2012] 17 NWLR (Pt. 1328) 94 at 127-128, paras. F-G, per Rhodes-Vivour, JSC:

Section 42 of the Constitution guarantees to every citizen of Nigeria freedom from discrimination on the basis of belonging to a particular community, ethnic group, place of origin, sex, religion or political opinion. The discrimination complained about must emanate from a law in force in  Nigeria, or any executive or administrative action of the Government. This includes laws made by the Legislative Houses and Legislation made by Local Governments, and this includes policy statements. The rights are enforceable against the State, and not against individuals.”

Blogger’s Note:

Highlighting the above interpretation of the Supreme Court of Section 42 of the Constitution which guarantees freedom from discrimination has become necessary in view of the popular belief and assumption in the public domain that this particular fundamental right is enforceable even against individuals and entities other than the State. No, the Constitution did not extend the enforcement of Section 42 as against individuals and the Supreme Court was right in its interpretation. Indeed, a person may experience some form of discrimination in the hands of individuals. The particular act(s) of discrimination may give rise to other causes of action (depending on the particular facts and circumstances) but certainly not a breach of fundamental right to freedom from discrimination.

Continue reading Fundamental right to freedom from discrimination is only enforceable against the State and not against individuals.

It has been judicially endorsed that litigants are free to seek adjournment in order to explore amicable settlement.

Salihu v. Ministry of Education, Gombe State [2017] 3 NWLR (Pt. 1551) 124 at 133, paras. D-F, per Husaini, JCA:

“Application by litigants seeking as it were an adjournment to explore out-of-court settlement should not be taken with levity but given due consideration that it deserves being one of the cardinal principles in our adjudicative process. Muntaka-Commasie, J.S.C. put the matter succinctly in Star Paper Mill Ltd. & Anor v. Bashiru Adetunji & Ors. (2009) 13 NWLR (Pt. 1159) 647 when he observed thus at page 659 paras. F-G that: “It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented…”

Blogger’s Note:

In the above case, the trial Court declined jurisdiction and struck out the Appellant’s suit. On appeal to the Court of Appeal, parties asked for an adjournment to enable them explore amicable settlement. Upon a successful report of settlement, the Court of Appeal unanimously entered the terms as Consent Judgment. In its Judgment, the Court of Appeal also referred to Order 16 Rules 3(a) and 4 of the Court of Appeal Rules which provides for the Court of Appeal mediation programme. See the Rules here.

Plaintiff has immediate right to judgment for any admitted sum, notwithstanding the existence of a counter-claim.

Arab Chem Ltd. v. Owoduenyi [2013] 10 NWLR (Pt. 1361) 89 at 101-102, paras. H-B, per Orji-Abadua, JCA:

“It must be observed that the fact that there is a counter-claim notwithstanding, the trial court could still enter judgment for the sum already admitted by the defendant. A counter-claim is a claim filed in opposition to another claim in a legal action. Just as a plaintiff who is pursuing a claim may apply immediately for judgment if the defendant’s statement of defence contains an admission of the facts or part of the claims as stated in the plaintiff’s statement of claim, so is the defendant, who is pursing a counter-claim under the Rules of Court entitled to apply immediately for judgment if the plaintiff’s defence or response contains an admission of the facts or part of the claims stated in the defendant’s counter-claim. Why I stated this is that it does not matter that there is a counter-claim, the moment there is an admission by the defendant of part of the plaintiff’s facts under monetary claim, the plaintiff can apply for part judgment in respect of the sum already admitted.”

Blogger’s Note:

In reaching the above decision, the Court of Appeal relied on the cases of Mosheshe General Merchants Ltd. v. Nigeria Steel Productions Ltd. [1987] 2 NWLR (Pt. 55) 110 and I.M.B. Plc v. Comrade Cycle Co. Ltd. [1998] 11 NWLR (Pt. 574) 460.

Continue reading Plaintiff has immediate right to judgment for any admitted sum, notwithstanding the existence of a counter-claim.

The words, “I’m sorry” are a balm that can heal all wounds.

Diamond Bank Ltd. v. P .I. C. Ltd. [2009] 18 NWLR (Pt. 1172) 67 at 96, paras. E-F, per Ogbuagu, JSC:

“In my respective view, where a person has acted in good faith and another is damnified by such an act, I believe that the words, “I am sorry” are a “balm” that can heal all wounds. But where one person persists in justifying such a wrongful act as has happened in the instant case leading to this appeal by the appellant, a court of justice including this court, must see and allow justice to prevail even if the heavens fall although it will not fall.”

Blogger’s Note:

The important lesson to learn from the above dictum of the learned Justice of the Supreme Court is that where and when necessary, a person must know when to seek an amicable resolution of a dispute which may easily be triggered by some expressions of apology.

Continue reading The words, “I’m sorry” are a balm that can heal all wounds.

Arbitration is mandatory even where arbitration clause states that parties “may” arbitrate their dispute.

Sino-Afric Agricultural & Ind. Co. Ltd. v. Ministry of Finance Inc. [2014] 10 NWLR (Pt. 1416) 515 at 531-532, paras. E-A, per Orji-Abadua, JCA:

“It must be observed that one question that often arises before the court is, whether arbitration is mandatory where the arbitration provision merely provides that the parties ‘may’ arbitrate their dispute. In some international jurisdictions particularly the United States, their Federal Courts uniformly answered the question in the affirmative by finding that the presence of the term ‘may’ does not render an arbitration clause permissive. In Conex Florida Corp. v. Astrium Ltd. 499 F. Supp. 2d 1287 (M.D. Fla. 2007), the court reasoned that a contrary interpretation would render the arbitration provision illusory, as parties can always agree to arbitrate, even in the absence of a contractual provision and even if the word “may” did create an ambiguity in the arbitration provisions, meaning therefore, that any uncertainty would have to be resolved in favour of arbitration. In the U.S. Federal Case Law, the term “may” was interpreted to suggest that if a dispute arises, and one party elects to arbitrate, the arbitration will be mandatory. It has been widely held that arbitration clauses are to be given the broadest possible interpretation in order to promote the resolution of controversies outside of the Courts…”

Blogger’s Note:

In reaching the above unanimous decision, the learned Justice of the Court of Appeal in delivering the Leading Judgment made reference to several case law authorities (both local and foreign) and further concluded at page 533, paras. C-D of the report that “it is perceived that by any agreement containing an arbitration clause, it is an indication that the contract requires the parties to resolve their disputes through an arbitration process. Undoubtedly, arbitration is usually encouraged because arbitration clauses reduce the burden on court systems to resolve disputes. It is said that in keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts.”
In addition to the sound reasoning of the Court in the above case, the Court was also of the view that if the parties do not intend recourse to arbitration to be mandatory, they should expressly clarify that point in the contract. The Court magnanimously suggested a draft which reads: “Any and all disputes, upon mutual agreement, may be arbitrated or with the consent of the other party, either party may commence arbitration.” See page 534, para. H of the report.

Continue reading Arbitration is mandatory even where arbitration clause states that parties “may” arbitrate their dispute.

Reliefs sought in a suit are not part of the facts pleaded.

MTN (Nig.) Comm. Ltd. v. C.C. Inv. Ltd. [2015] 7 NWLR (Pt. 1459) 437 at 474, paras. D-E, per Orji-Abadua, JCA:

“It is trite that a relief sought by a party to a suit does not constitute part of the facts in the pleading and it cannot be granted unless there are facts contained in the party’s pleading in support of it upon which evidence can be called.”

Blogger’s Note:

The above position clarifies the point that although in statement of claim, a claimant is required to clearly state the reliefs or prayers sought from the court, however, that section of the statement of claim (usually the last section) is not considered part of the facts of the case and therefore need not be specifically denied in the statement of defence. Now, even though the reliefs section is not considered part of the facts of the case, there must be some facts stated in the statement of claim to support the reliefs sought. Most importantly, the facts pleaded must then be supported by evidence such that it is only when those facts are proved that the reliefs sought can be granted by the court. It is on the basis of the foregoing that the Court of Appeal further held, relying on the case of I.M.N.L. v. Nwachukwu [2004] 13 NWLR (Pt. 891) 543, that: “it is settled law that a court cannot grant to a plaintiff a remedy which has not been claimed and established by the pleading and the evidence respectively. Thus a court cannot grant a relief which has not been specifically prayed for.”

Continue reading Reliefs sought in a suit are not part of the facts pleaded.

Nobody has a right to monopoly of names.

Offoboche v. Offoboche [2006] 13 NWLR (Pt. 997) 298 at 306, paras. B-D, per Ibiyeye, JCA:

“…No legislation in Nigeria restricts a person to a fixed number of names or enjoys a monopoly of names. In effect, even if names are identical or the same, no person in Nigeria has a legal right to restrain another person from answering or bearing those names. I dare say that the appellant is only creating dispute where there is none.”

Blogger’s Note:

The facts of this case are interesting. The case of the Appellant (Dr. Mathias Oko Offoboche) against the Respondent (Mr. Cletus (Clay) Oko Offoboche) was that the Respondent was not the biological, foster or adopted son of the Appellant and that no relationship existed between them. The Appellant caused a letter to be written to the Respondent (by the defunct Gani Fawehinmi Chambers) advising the Respondent to desist from parading himself or representing to be the son of the Appellant. Further to this, the Appellant published a disclaimer in one of the national dailies to the effect that the Respondent was not his son. Subsequently, the Appellant filed an action in court seeking a declaration that the Respondent was not his biological or adopted son; a mandatory order directing the Respondent to drop the name of the Appellant; and also orders of injunction restraining the Respondent from using the name of the Appellant, and parading himself as the Appellant’s son. The trial Court held that the Respondent was not the biological or foster or adopted son of the Appellant and restrained the Respondent from parading himself as one. The trial Court however refused the prayer for an order of injunction restraining the Respondent from using the name of the Appellant on the ground that the Respondent had the right to bear whatever name he may choose. In upholding the reasoning of the learned trial Judge, the Court of Appeal stated the above quoted position of the law, relying on the case of Alliance for Democracy v. Fayose [2005] 10 NWLR (Pt. 932) 151.

Continue reading Nobody has a right to monopoly of names.

It is improper for an order of court to contain “etc”.

Ezeadukwa v. Maduka [1997] 8 NWLR (Pt. 518) 635 at 668, paras. E-F, per Tobi, JCA (of blessed memory):

“…An order of a court must be precise, succinct and to the minutest detail. An order of a court must also be complete. Parties should not be exposed to speculations as to the real content of the order. The abbreviation etc mean et cetera. It is a Latin phrase meaning “and the rest” and something in addition. A judge should never make an order wearing a cognomen of “etc”. It is too vague, lacking restraint and therefore not useful in an order of a court…”

Blogger’s Note:

In making the above pronouncement, the learned Justice of the Court of Appeal came hard on the trial Judge for also making contradictory statements in the order of court.
In practice, court orders may very well emanate from an application or motion filed by an applicant (interim or interlocutory orders) or from a final judgment delivered in a suit upon a determination of the case on the merits. Although, in making its order, a court has a duty to strictly confine itself to the terms of an application brought before it (See Fadlallah v. Arewa Text. Ltd. [1997] 8 NWLR (Pt. 518) 546 at 559), however, the court should be mindful of the above position in making any order and also be ready to discountenance any motion containing vague prayers. On the other hand, counsel should endeavour to avoid the use of vague terms such as “etc” in filing applications in court.