Chief Obasi Lawson Vs Elder Chinedu Okoronkwo &ors (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The main appeal and the challenge to the competence of the appeal, vide the motion on notice filed on 6th September, 2018 challenging the competence of the appeal, were argued together on 25th September, 2018. The said Motion on Notice 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
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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
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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.”
The Appellant’s Counter-Affidavit did not aver that this Terms of Settlement (Annexture 1), filed on 17th June, 2016 at the Court of Appeal, had been adopted by the Court and entered as the judgment of the Court of Appeal in the appeal No. CA/PH/275 2014 lodged against the orders made on 20th March, 2014 in the suit No. FHC/PH/CS/12/2014. One thing
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is very obvious – the Terms of Settlement, if at all, seems to have significantly varied the orders made by the Federal High Court in the suit No. FHC/PH/CS/12/2014, which orders are the subject of the appeal No. CA/PH/275/2014. I notice, from my comparison of the Particulars (VI) of paragraph 6 of the said Counter-Affidavit with Paragraph 7 at page 3 of Annexure 1 to the Counter-Affidavit, some unfortunate misleading embellishment. The words:
It is hereby affirmed that the Constitution of the Independent Petroleum Marketers Association of Nigeria 2009 (As Amended) guarantees a tenure of office of five (5) years for its officers at all levels of leadership of the Association from the National to the Zonal and Unit levels:
are not found in the of Annexture 1 to the Counter-Affidavit (which is Respondent’s Exhibit B).
Exhibit A, in the affidavit supporting the motion filed on 6th September, 2018, is the judgment of the Federal High Court in the suit No. FHC/PH/CS/12/2014 dated 20th March, 2014. The order No. 4 at page 91 thereof is as follows –
- That the 6th Plaintiff, Chief Obasi Lawson (the Appellant herein) shall forthwith be the National
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President of the 1st Defendant, the Independent Petroleum Marketers Association of Nigeria (IPMAN) pursuant to Article IV of the Constitution of the said 1st Defendant made on 14th September, 1997.
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. This Court has stated so loudly in a number of cases, including ODULAJA v. HADDAD (1973) 11 SC 35; OMOREGBE v. LAWANI (1980) 3 – 4 SC 10; OKUPE v. IFEMEMBI (1974) 3 SC 97, DUROSARO v. AYORINDE (2005) 8 N.W.L.R. (Pt. 927) 407; AJAGBE v. IDOWU (2011) LPELR. – 279 (SC). I therefore accept, as denied by the Respondents, that they were not party or privy to the Terms of Settlement
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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. Article XI (viii) of the said Constitution, 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.
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
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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.
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
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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.
When this motion was heard, Mr. Joe Agi, SAN, of Counsel for the Appellant, contended that it is incompetent, having not been brought as Notice of Preliminary Objection because it challenges the competence of the appeal. This to me appears to be distinction or objection as to the form and not the substance. 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)
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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. See GALADIMA v. TAMBAI (2000) 6 S.C.N.J. (Part 1) 195 at 206.
That is why it is provided in Order 2 Rule 9 (1) of the extant Supreme Court Rules that:
A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and file such notice together with ten copies thereof with the Registrar within the same time.
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 con of Order 2 Rule 9 (1) of the Rules of this Court. It shall be treated as such.
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At this juncture it is necessary that a sketch history of appeal No. SC.15/2018, which has attracted the Preliminary Objection, be given. A leadership crisis errupted in IPMAN. This has led to litigations, amongst which are: suit No. NSD/LF/78/2009 at the High Court of Nassarawa State. It is still pending. The Plaintiffs in that suit obtained against the Defendants including the present Appellant, who is the 1st Defendant in that suit an order of interlocutory injunction on 16th September, 2009 restraining the Defendants from parading themselves as National Executives of IPMAN pending the determination of the suit. The Appellant, as the 1st Defendant, allegedly held himself out, before the filing of suit: NSD/LF/78/2009, as the National President of IPMAN. See Exhibit D at page 99 – 100 of the Record of Appeal.
Notwithstanding the subsistence of suit No. NSD/LF/78/2009 and the Interlocul)ry Order made therein, the Appellant (as the 6th Plaintiff) and others approached the Federal High Court, Port-Harcourt, and took out the suit No. FHC/PH/CS/2014 against the immediate past National Executives of IPMAN. The Defendants in that suit appealed.
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That is the genesis of the appeal No. CA/PH/275/2014. They immediately filed, on 3rd April, 2014 an application for interlocutory injunction and an order of stay of execution of the orders in suit No. FHC/PH/CS/12/2014 pending the determination of their appeal No. CA/PH/275/2014. See Exhibits B & C to the supporting affidavit at pages 11 – 47 of the Record.
The Defendants in FHC/PH/CS/12/2014, now Appellants in CA/PH/275/2014, purporting to be entitled to remain in office, held themselves out as incumbent National Executives of IPMAN. They conducted elections on 10th May, 2014 and a new set of National Executives were purportedly elected.
The Appellant’s faction fixed the AGM of IPMAN for 13th May, 2014 during which their factional National Executive Council would be elected. The Appellant, who meanwhile had been performing and discharging the functions of National President of IPMAN by virtue of the order he obtained from the Federal High Court in suit No. FHC/BH/CS/12/2014, was alleged to be acting in concert with the Inspector General of Police (IGP) and the Commissioner of Police (FCT). At the High Court of the
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Federal Capital Territory (FCT) the Respondents, as Plaintiffs, sued the Appellant, the Commissioner of Police (FCT) and the IGP in the suit No. FCT/HC/1479/2014. The suit, on the Originating Summons, was taken out on 12th May, 2014 by the National Executive Officers, said to have been elected on 10th May, 2014.
Against the hearing of the suit No. FCT/HC.1479/2014 at the FCT High Court the Appellant, as the 1st Defendant, filed a Notice of Preliminary Objection. The Objection and the substantive suit were heard together and a composite decision was delivered on 28th May, 2014. It appears from the Records that, inspite of the pendency of the suit No. FCT/HC.1479/2014, the Appellant’s faction conducted election to fill the other vacancies purportedly existing in the National Executive Council of IPMAN, himself having been sworn-in as the National President of IPMAN on 20th March, 2014, pursuant to Order No. 4 made in that regard by the Federal High Court in suit No. FHC/PH/CS/12/2014.
The FCT High Court, on 28th May, 2014, overruled the Preliminary Objection of the Appellant. On the merits; the Court restrained him from further interfering
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with the administration, management and control of IPMAN. He was also restrained from doing anything capable of prejudicing the hearing and determination of the pending motion for interlocutory injunction and stay of execution of the decision of the Federal High Court Port Harcourt in suit No. FHC/PH/CS/12/2014 pending the determination of the appeal – CA/PH/275/2014. The FCT High Court, on the said 28th May, 2014, further nullified the purported swearing-in of the Appellant on 20th March, 2014 and the election of the other National Executive Officers conducted earlier in May, 2014 by the Appellant’s faction. See pages 637 and 638 of the Record. This is what agitated the present appeal.
At the risk of repetition, the Appellant by the end of March, 2017 had been in the office of the President, IPMAN and discharging same for over 3 years.
The Respondents posit, in this Preliminary Objection, that the Appellant’s hold to the office as National President of IPMAN by virtue of the Federal High Court order of 20th March, 2014 by which he assumed the office of National
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President of IPMAN in accordance with the 1997 Constitution had lapsed by effluxion of time. And that by dint of the said order the Appellant held his office for three (3) years from the said 20th March, 2014. The Respondents further contend that by the lapse of his three year tenure this appeal, designed to secure that office, has become academic after 20th March, 2017.
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: PLATEAU STATE v. A.G, FEDERATION (2006) ALL F.W.L.R. (Pt. 305) 590 at 646 – 637.
This now takes me to the purported Terms of Settlement filed at the Registry of the Court of Appeal, Port-Harcourt in the Appeal: CA/PH/275/2014 on 17th June, 2016. The purported Terms of Settlement was vigorously contested, and vehemently denied, in paragraph 9 (f) & (g) of the Further and
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Better Affidavit filed by the Respondents/Objectors on 18th September, 2018. Curiously, the said averments were not challenged or disputed. The Appellant had between 18th and 25th days of September, 2018 to challenge or dispute those averments. He however, chose to remain taciturn. As I earlier stated in this judgment: Facts not disputed by the party against whom they are averred are taken as admitted. The averments in paragraph 9 (f) & (g) not denied/disputed and therefore deemed admitted are as follows –
(f) Paragraph 6(vii) of the Appellant’s Counter-Affidavit filed on 14 September, 2018 is false and not true. The truth is that the purported Annexture 1 (the purported Terms of Settlement) referred to by the Appellant was never the agreement of all parties before the Court of Appeal Port-Harcourt Division, as alleged by the Appellant. The said appeal pending before the Court of Appeal in Appeal No. CA/PH/275/2014 wherein the purported Annexture 1 was filed is an appeal of 8 Appellants and 20 Respondents. The purported Annexture 1 was only signed by the 2nd Appellant and the 6th Respondent (that is the Appellant on record (herein) in a case of 28 parties. The purported
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Terms of Settlement filed on 17th June, 2016 is hereby annexed as Exhibit B.
(g) In further response to the Appellant’s paragraph 6 (vi), I state that the said Annexture 1 (the Terms of Settlement now Exhibit B) has not been adopted by the Court of Appeal, as such does not have force of Law. Besides, the 3rd, 4th, 5th, 6th and 7th Appellants who are also members of the IPMAN Board of Trustees and the 8th Appellant as well as the 1st, 2nd, 11th and 12th Respondents to that appeal pending in the Court of Appeal, Port Harcourt Division have filed various affidavits challenging the purported terms of settlement (Annexture 1). The 3rd Appellant’s affidavit was filed on the 11th November, 2016 and all others were filed on the 2nd February, 2018 after the judgment of the Court of Appeal Division of 7th December, 2017 was delivered. In their affidavits they completely agree, embrace and are all in full support of the instant judgment appealed against. And they have also averred that they were not part of the Annexture 1 (the Respondent’s Exhibit B). Copies of all the aforementioned affidavits are hereby annexed as Exhibits C, D, E, F, G, H and I respectively.<br< p=””
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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 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
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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. This appeal, being now academic and incompetent, is hereby struck out.
Costs assessed at N2,000,000.00 shall be and is hereby awarded against the Appellant herein in favour of the Respondents jointly/or severally.
SC.15/2018