KAURA DEGBEYI V. ADAMU SARKI PADA (2002)

Background

This appeal arose from a ruling of the High Court of Nasarawa State in Suit No. PLD/K11M4/91. The appellant, Kaura Degbeyi, had commenced proceedings on behalf of the Jezhi Family concerning title to land and injunctive relief against Adamu Sarki Pada. During the pendency of the action, the parties agreed to settle the dispute out of court. A written memorandum of settlement was prepared, adopted by the parties, and signed by their respective counsel. Under the agreement, the respondent paid N40,000 to the appellant through the solicitors as full compensation for the appellant’s interests and those of members of the Jezhi Family in the land. The parties expressly agreed that the pending suit would be treated as compromised and that the appellant’s interest would be extinguished.

On 14 January 1992, the trial court adopted the memorandum, admitted it as Exhibit F, and entered a consent judgment. The judgment remained subsisting and was never appealed. More than five years later, on 18 November 1997, the appellant filed a motion seeking to set aside the memorandum of settlement, arguing principally that it had not been formally filed or endorsed as required by the applicable High Court Rules. He also contended that the lawyer who represented him had lacked authority to accept N40,000 as full and final settlement. The High Court dismissed the motion on 12 June 1998. The appellant then appealed to the Court of Appeal.

Issues

1. Whether the High Court had jurisdiction to adopt the memorandum of settlement as Exhibit F and enter the consent judgment when the memorandum allegedly had not been formally filed or endorsed for payment of filing fees.
2. Whether the High Court was wrong to refuse to act on the appellant’s affidavit evidence, which he claimed was unchallenged and uncontradicted, concerning the alleged lack of authority of his former counsel and the purpose of the payment.

Ratio Decidendi

The Court of Appeal dismissed the appeal and affirmed the decision of the High Court. It held that the appellant’s complaint concerned, at most, non-compliance with a procedural condition relating to the use or filing of a document, rather than a situation in which the document was inherently inadmissible. Where a document is admissible in law but subject to a procedural condition, its admission without objection constitutes a waiver of that condition. The appellant’s counsel had not only failed to object to Exhibit F when it was tendered, but had positively urged the trial court to adopt it as its judgment. The appellant could not therefore wait approximately six years before complaining about the absence of an endorsement or proof of payment of filing fees.

The court also applied Order 54 rule 5 of the Plateau State High Court (Civil Procedure) Rules, 1988, applicable to the proceedings. That provision permitted a document to be used where the court was otherwise satisfied that the proper fee had been paid, even if the usual endorsement by the Registrar was absent. The fact that Exhibit F did not visibly bear an endorsement did not establish that the required fees had not been paid. Its production, admission without objection, and adoption by the trial court demonstrated that the court was satisfied that the document could properly be used.

The court distinguished between evidence that is inadmissible in itself and evidence that is admissible subject to compliance with a procedural requirement. Inherently inadmissible evidence cannot be made admissible merely by consent. However, where the defect relates only to a waivable procedural condition, consent or failure to object permits the court to act on the evidence.

The court further held that an appeal must be confined to the portion of the judgment challenged in the notice and grounds of appeal. The appellant had not appealed against the consent judgment entered on 14 January 1992. His motion was directed at setting aside the memorandum of settlement, but during argument his counsel effectively sought to set aside the consent judgment itself. That change of position was impermissible. A party cannot use an appeal against a later ruling on an interlocutory motion to reopen or indirectly challenge an earlier judgment which has not been appealed.

Court Findings

The Court found that the memorandum clearly recorded the parties’ agreement and that the payment was intended as full compensation for the appellant’s and the represented family members’ interests in the land, not merely as compensation for economic trees allegedly destroyed by the respondent. The appellant’s later interpretation was inconsistent with the plain language of Exhibit F. There was also no convincing evidence that the appellant’s former counsel had exceeded his authority or misrepresented the appellant’s instructions.

The court rejected reliance on the appellant’s supposedly uncontroverted affidavit. The affidavit did not properly support the relief actually sought in the motion, and the arguments advanced at the hearing departed substantially from the formal prayers. The motion sought to set aside the memorandum of settlement, while counsel’s oral submissions sought to invalidate the consent judgment. The High Court was therefore not required to grant relief that was neither properly sought nor supported by a procedurally appropriate challenge.

The court regarded the application as legally ineffective because setting aside the memorandum, without setting aside the consent judgment founded upon it, would not advance the appellant’s interests. The consent judgment remained valid and binding. The Court of Appeal described the application as lacking merit and awarded N5,000 costs against the appellant.

Conclusion

The appeal was dismissed. The ruling of the High Court of Nasarawa State delivered on 12 June 1998 was affirmed. The consent judgment of 14 January 1992 remained valid and subsisting, and the appellant was bound by the settlement which his counsel had accepted and invited the court to adopt.

Significance

The decision illustrates several important procedural principles in Nigerian civil litigation. First, not every breach of a rule of court invalidates a judgment; a party who takes a step in the proceedings with knowledge of the alleged breach may waive it. Secondly, objections to procedural conditions governing admissibility must ordinarily be raised when the document is tendered. Thirdly, a party cannot consent to the admission of evidence that is intrinsically inadmissible, but may waive a procedural requirement attached to otherwise admissible evidence. Finally, appellate argument must remain within the judgment and grounds actually challenged. A litigant cannot attack a consent judgment indirectly through an application directed at the settlement document forming its foundation, particularly after a prolonged period of acquiescence.