Consent Judgement: Application to Vary Time for Payment of Judgement Sum Therein

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In the Supreme Court of Nigeria Holden at Abuja On Friday, the 2nd day of December, 2022

 

Before Their Lordships

John Inyang Okoro

Chima Centus Nweze


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Uwani Musa Abba Aji

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Justices, Supreme Court

SC.261/2006

Between

1. PACERS MULTI-DYNAMICS LTD

2. OLUGBEMI ADEKUNLE FAGBEMI

3. SANDERTON VENTURES Ā  Ā  Ā  Ā  Ā  Ā  Ā  Ā  Ā  APPELLANTS

Ā  Ā  Ā  Ā  Ā  Ā  Ā  Ā  Ā  Ā  And

ACCESS BANK PLC Ā  RESPONDENT

Ā (Lead Judgement delivered by Honourable Chima Centus Nweze, JSC)

Facts

The Appellants obtained credit facilities from the Respondent. The Appellants however, defaulted in their repayment obligations, further to which the Respondent instituted an action against the Appellants at the High Court of Lagos State for recovery of the outstanding sums. Subsequently, the parties decided to pursue an amicable resolution of the dispute, and on 20th April, 2001, the parties executed Terms of Settlement and filed the same at the High Court of Lagos State on 25th April, 2001. By the Terms of Settlement, the parties agreed that the Appellantsā€™ outstanding liability to the Respondent was the sum of N175 million and the Appellants would discharge the same by payment of an initial sum of N90 million within 45 days from the date of execution of the Terms of Settlement ,and payment of the balance of N85 million within nine months from the date of execution of the Terms of Settlement. The Terms of Settlement was entered by the trial court, as a consent judgement on 30th April, 2001.

The Appellants paid the initial sum of N90 million to the Respondent, albeit outside the 45 days period; however, they reneged on the payment of the balance of N85 million. Eleven months after the expiration of the agreed time for full payment of the judgement debt, the Appellants filed an application before the trial court, seeking to vary the Terms of Settlement entered as a consent judgement. At the hearing, the Appellants argued the 2nd leg of their application, wherein they prayed for an order of court directing that the balance due to the Respondent under the consent judgement be paid by the Appellants in instalments.

The trial court delivered its ruling on 23rd March, 2004, in which it declined jurisdiction to hear the application on the ground that it had become functus officio, and did not have the power to invoke Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 39 Rule 4(a) of the High Court Of Lagos State (Civil Procedure) Rules, 2019) to revisit its decision, as the judgement entered was a consent judgement duly agreed to by the parties, with specific time for payment of the judgement debt and the Appellantsā€™ application was filed after the expiration of the time for payment as agreed by the parties and as ordered by the court. Dissatisfied, the Appellants lodged an appeal at the Court of Appeal. However, the Court of Appeal dismissed the appeal. Still dissatisfied, the Appellants appealed to the Supreme Court.

Issue for DeterminationĀ 

The Supreme Court considered the following issue in its determination of the appeal:-

Whether the Court of Appeal was right to have affirmed the ruling of the trial court refusing the Appellantsā€™ application, in spite of the provision of Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 39 Rule 4(a) of the High Court Of Lagos State (Civil Procedure) Rules, 2019), which allows a trial court to direct the time for payment of a judgement debt.

Arguments

Counsel for the Appellants argued that the principle that a court becomes functus officio once it has delivered its ruling in a matter, is subject to several exceptions such as the instant case and under Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 39 Rule 4(a) of the High Court Of Lagos State (Civil Procedure) Rules, 2019). Counsel for the Appellants contended that given that the application brought by the Appellants for payment by instalment, was their first ever application of the kind, the trial court was still with authority to revisit the terms of payment and subsequently, grant an application for payment by instalment. He argued further that it was only if and after the application for payment by instalment has been moved and granted, that the trial court could maintain the position that the issue would no longer be revisited. He referred to the case of ALHAJI CHIEF A. R. O. SANUSI v ALHAJI AYOOLA (1992) 9 NWLR (PT. 265) 275, PARAS. H-A to buttress his position that the factual circumstances in the instant case was one of the exceptions to the doctrine that once a trial court delivers judgement, the trial court is functus officio in revisiting the judgement.

Conversely, counsel for the Respondent submitted that the trial court and the Court of Appeal were right to have refused the application, as granting the same would occasion injustice to the Respondent which would be permanently deprived of the fruit of its judgement by the Appellants who are not even willing to satisfy the judgement debt. Counsel for the Respondent argued further that since the relief sought by the Appellants before the trial court was an equitable relief, it was an appeal to the exercise of the courtā€™s discretion in the Appellantā€™s favour, and the court in exercising its discretion, has to consider the Respondentā€™s right to enjoy the fruit of its judgement whilst also considering the interests of the Appellants. Counsel submitted that the Appellants had failed to exhibit honesty, integrity and diligence in the repayment of the outstanding judgement sum, hence, they could not be entitled to the exercise of the courtā€™s discretion in their favour, having already shown bad faith.

Courtā€™s Judgement and Rationale

In resolving the issue, the Supreme Court held that no court has the power to deny any of the parties to an agreement of the benefits thereto, and the only function of the court is to interpret the agreement in enforceable terms without more. Once terms of settlement have been made consent judgement, a trial court is functus officio and does not have the jurisdiction to revisit its decision in that regard. The jurisdiction of the trial court does not include the power to tamper with the principle of finality of judgements, other than in specific circumstances provided in the rules of court or statute.Ā 

The Court held further that even though a trial court has the authority to direct the time for payment of a judgement debt under Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 39 Rule 4(a) of the High Court Of Lagos State (Civil Procedure) Rules, 2019); however, the provision does not confer authority on a trial court to revisit a consent judgement that already contained expressly an agreement as to the time for payment of a judgement debt. For the certainty and predictability of the judicial process, a court of law has no jurisdiction to re-open an issue upon which it has made a determination within the same proceedings, or to alter the effect of its decision in a matter. Endorsing the decision of the Court of Appeal in ALHAJI A. AHMED CO. (NIG) LTD v A.I.B. LTD (2001) 10 NWLR (PT. 721), the Apex Court held that an application for the trial court to revisit the terms of payment, as contained in the consent judgement, by varying the time for payment of the judgement debt as in the instant case, was incompetent, because it was already functus officio.

The Court held that in the instant case, the parties agreed that the Appellants shall pay to the Respondents the sum of N90 million within 45 days from the date of execution of the Terms of Settlement, and pay the balance within nine months of the execution of the Terms of Settlement. It follows therefore that, the actual act which Order 38 Rule 7 of the relevant rules of the trial court permitted the trial court to do, was already agreed to in the consent judgement. The trial court was thus right, to have declined jurisdiction to grant the prayers of the Appellants who had from the onset failed to exhibit honesty, integrity and diligence in their repayment of the outstanding judgement sum, and had deprived the Respondent of the benefits of settlement freely entered into by the parties and entered as consent judgement; and the Court of Appeal rightly affirmed the ruling of the trial court in refusing to order payment of the outstanding balance of the judgement sum by instalment.

Appeal Dismissed.

Representation

O. O. OniyireĀ  for the Appellants.

Abayomi AdeniranĀ  for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report



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