NTEILE V. IRAWAJI:  On whether authority of counsel includes entering into agreement or compromise with opposing party even where client dissented. An insight into the decision of the Supreme Court therein.

 

Citation: (2021) 16 NWLR   PT. 1803 AT 411.

PARTIES IN FULL:

ELDER JONAH A.A. NTEILE

[For himself and representing the members of Egwe Isiyork Ruling House of Ataba-Andoni]

V.

1. PRINCE ISAAC IRAWAJI

2. CHIEF M. IJORK

3. MGBOWAJI N. BENSON

4. SUNDAY UGONG

 

Courtesy: Moruff O. Balogun, Esq.

 

Summary of facts: 

At the High Court of Rivers State, Bori, one Chief Samson Avadeng Oruk XV for himself and representing the Egwe Isiyork ruling house of Ataba sued the 4th respondent and two others, challenging the selection and installation of the 4th respondent, who was sued as the 1st defendant, as the Okan-Ama of Ataba. Following the demise of the sole claimant in the suit, the 1st, 2nd and 3rd respondents and the appellant were substituted for the deceased claimant and accordingly they filed amended originating processes in the suit. At the conclusion of trial, the trial court in its judgment granted the claims of the appellant, 1st, 2nd and 3rd respondents.

 

Dissatisfied, the 4th and 5th respondents appealed to the Court of Appeal. Subsequent to filing of briefs of argument at the Court of Appeal, the parties met on several occasions, after the chieftaincy dispute had lingered for a period of twenty-seven years in court, to settle the dispute out of court. The parties seem to have agreed as to how to settle the matter and thereafter filed terms of settlement. The terms of settlement were signed by the parties and their counsel. On 29/10/2015, the parties appeared before the Court Appeal and informed the court that they had amicably settled the matter out of court. They urged the court to enter the terms of settlement as the judgment of the court. Upon the request of the parties, the Court of Appeal entered the terms of settlement and adopted same as its Judgment.

 

The appellant was aggrieved by the decision of the Court of Appeal and he appealed to the Supreme Court. The appellant’s complaint was that the consent judgment of the Court of Appeal was tainted with and obtained by fraud; misrepresentation of facts, lack of consent of the parties as well as lack of capacity on the part of the respondents to impose fresh terms of agreement alien to the customs and traditions of the Alaba community, given that he was not involved or consulted during the process leading to the settlement. He claimed the consent judgment was incompetent and as such the Court of Appeal lacked the requisite jurisdiction to enter the terms of settlement as a consent judgment and the court was misled into believing that the parties had mutually consented to the terms of settlement.

 

The 1st- 3rd respondents raised a preliminary objection to the competence of the appeal on the grounds that the appeal was incompetent because it was filed by a non-existent and non-juristic person given that the appellant was dead; and that the appellant’s notice of appeal did not reflect the same title as contained in the processes at the trial court, contrary to Order 2 rule 8 of the Supreme Court Rules 1985 (as amended) and by the alteration made therein, the respondents assumed double status in the appeal.

Held: Unanimously dismissing the appeal.

 

The following issues were raised and determined by the Supreme Court:

On whether authority of counsel includes entering into agreement or compromise with opposing party even where client dissented –

It is within the general authority of counsel retained by a party to conduct a case to consent to the withdrawal of the case. A compromise is within his apparent authority and binding on the client, notwithstanding that the client may have dissented, unless the dissent was brought to the notice of the opposite party at the time. The authority of counsel extends, when it is not expressly limited, to the whole of the matter he is briefed to handle by his client and all other issues incidental to it.

 

He has the authority to do everything which in the exercise of his discretion he thinks is in the best interest of his client and that includes the authority to enter into an agreement with the opposite party to the case on every principle and such agreement should be held binding on his client. In carrying out instructions by his client, counsel functions as an independent contractor who exercises skill and judgment and is free to act as he considers fit within the instruction and in the interest of his client.

 

In the instant case, P.N. Anosike retained by the clients, including the appellant, without any proof or evidence of limitation, was clothed with authority to do everything which by his discretion, he deems best in the interest of his clients. Thus, if within that authority as recognised by law, he enters into agreement or compromises with the opposite parties resulting in the drafting of terms of settlement, such should be held binding on his clients who, except the appellant, wholly endorsed the terms of settlement which was eventually adopted and entered as the judgment of the Court of Appeal.

 

On extent and scope of authority of counsel –

A counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which a counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the case.

 

If within the limits of his apparent authority, he enters into an agreement with the opposite party, the agreement should be held binding on his client. But this general authority of counsel is predicated on the existence of a counsel/client relationship. Where there is no such relationship, an act done by a legal practitioner on behalf of a party to a case cannot be said to be binding on that party.

 

On bindingness of consent judgment on represented parties –

A judgment given in favour of the plaintiff by the trial court in a representative capacity is for the benefit of not only the plaintiff alone but also for all the parties. In the same vein, the terms of settlement or consent judgment entered into by a defendant in a representative capacity will bind all represented parties. Terms of settlement binds all the represented parties who do not need to be signatories. Such represented parties are also bound by the judgment arising from such representative action.

 

Per OSEJI, J.S.C. stated as follows:

That brings us to subparagraph 10(C) of the particulars of fraud where the appellant stated that the terms of settlement was not personally signed for by all the parties to the appeal but was signed by the signatories in their personal capacity. From the record, the said terms of settlement was signed by the 1st respondent and their counsel.

The 1st respondent was also the 1st claimant at the trial court and most of the affidavits in support of the applications filed by the counsel was deposed to by the said 1st respondent on behalf of the others, including the appellant as the 4th claimant and this was done in a representative capacity. The said 1st respondent also on behalf of the other claimants signed the terms of settlement together with the counsel who represented them both at the trial court and the lower court.

 

On the other side of the divide, the 4th respondent in this appeal (1st defendant) at the trial court also signed on behalf of the 3rd respondent along with their own counsel. So, the signatories to the terms of settlement are made up of two persons each from the appellants and the respondents. To my mind, there is nothing wrong or irregular with the approach given that he is the 1st claimant in his own right and also representing the other members of the Egwe Isiyork ruling house just like the 2nd and 3rd respondents as well as the appellant herein.

 

On effect where judgment of court obtained by fraud –

Where a party is able to establish that a judgment against him was obtained by fraud, the remedy is that the judgment would be declared a nullity and accordingly set aside.

 

On effect where consent judgment vitiated by fraud, mistake or misrepresentation –

A complaint that a consent judgment is vitiated by fraud, mistake, misconception, misrepresentation or any other vice which would justify a ground for setting aside such agreement on which the order was based, if proved, would mean that no true consent judgment binding on the parties would have emerged. The inevitable result in such a case is that the so-called consent judgment can be set aside but by a fresh action.

In other words, a consent judgment or order may be set aside for cogent and sufficient reasons which constitute a ground for setting aside the agreement upon which the consent judgment or order was based or emanated from.

 

On requirements of valid consent judgment –

The requirements of a valid consent judgment are:

(a)  parties must reach a complete and final agreement on the vital issues in their terms of settlement;

(b)  they must be ad idem in the terms of their compromise agreement;

(c)  their consent must be free and voluntary;

(d)  the terms of settlement must be filed in court.

When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by the leave of the court.

 

On effect of consent judgment of Court of Appeal –

Where parties have agreed to terms of settlement which they duly endorsed and upon their application, was entered as the judgment of the Court of Appeal, the terms contained in the consent judgment overrides and supersedes the judgment of the trial court appealed against. Thus, so long as the consent judgment subsists, whatever order that was made in the judgment of the trial court remains moribund and of no effect having been overtaken by the subsequent agreement of the feuding parties who in the interest of their collective peace chose to chart a new path as per the terms of settlement agreed to be and was made the judgment of the Court of Appeal.

 

On nature of consent judgment –

A consent judgment is a contract between the parties whereby rights are created between them in substitution for the abandonment of the claim or claims pending before the court. Put in another way, in consent judgment, terms of settlement may be described as a contract whereby new rights are created between parties, in substitution for, and in consideration of the abandonment of the claim pending before the court. By its nature, it is a contractual agreement between the parties and that being so, no court is allowed to rewrite the contract entered into by parties thereto.

 

On whether certified true copy of document must be signed by maker of original document –

A certified true copy of a document is by law reproduced by the officer having proper custody of the original and there is no law mandating that such a certified true copy shall also be signed by the maker of the original document a second time, hence the letters “Sgd.” are usually placed on top of the name of the maker to show that the original copy was signed. So, the practice is not for a certified true copy of a document to be signed the same way as the original. It is not to be signed at all.

It is the certification by the appropriate officer that makes the document authentic. In the instant case, the appellants alleged that the Honourable Justices of the Court of Appeal did not sign their written opinions. However, the record of appeal consisted certified true copies of the original documents that made up the record. The certified true copies of the proceedings of the Court of Appeal on 29/10/2015 as shown in the supplementary record which contained the opinions of the Honourable Justices were as efficacious and as valid as the judgment order signed by the Presiding Justice, M. L. Garba, JCA (as he then was).

 

On competence of notice of appeal where filed in name of dead person –

A notice of appeal against any decision or judgment complained of is the foundation or stepping stone to a proper appeal. Therefore, where a notice of appeal is filed by a dead person or by a person not authorised to do so by law, it is incompetent, null and void ab initio. A deceased party cannot file a notice of appeal, not being a juristic person but this does not extinguish the right of appeal, because whoever wishes to succeed the deceased must first bring the proper application before the court. Any action or appeal filed by or against a dead person is incompetent and null and void because a dead person lacks juristic personality. A dead person lacks the necessary legal capacity to institute any action or prosecute an appeal. A dead person ceases to exist in the eyes of the law and any cause or action pending against such person automatically abates, unless it is one that survives the person.

 

 

Moruff O. Balogun Esq.

Ijebu Ode, Ogun State.

08052871414

09121207712 [WHATSAPP]

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