SUPREME COURT OF NIGERIA
CITATION: [2001] 9 NWLR (PT. 719) 610.;(2001)5 S.C.(PT. 1)1
CORAM
ABUBAKAR BASHIR WALI, JUSTICE, SUPREME COURT
MICHAEL EKUNDAYO OGUNDARE. JUSTICE, SUPREME COURT
ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT
SAMSON ODEMWINGIE UWAIFO. JUSTICE, SUPREME COURT
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
BETWEEN
VULCAN GASES LIMITED APPELLANT
AND
GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G.(G.I.V ) RESPONDENTS
A. I. IGUH, JSC. (Delivering the lead judgment)
JUDGMENT
This is an appeal against the judgement of the Court of Appeal, Kaduna Judicial Division, delivered on the 3rd day of June, 1992 wherein the Court of Appeal affirmed the decision of R.
D. Muhammed, J., as he then was, sitting at the Federal High Court of the Sokoto Judicial Division. The Appellant being dissatisfied with the said decision of the Court of Appeal has further appealed, with leave, to this court. I think it is necessary for a better appreciation of the issues that arise for decision in this appeal to give a background history of the dispute between the parties.
Following an agreement between the parties sometime in 1978, the respondent, Gesellschaft Fur Industries Gasverwertung A.G ( G.I.V), a foreign company with its headquarters in Geneva, Switzerland, shipped some quantities of oxygen and acetylene producing machines to the appellant at a total contract price of U.S. $606,852.00. The goods were cleared by the appellant from the Nigerian Ports Authority in Lagos without the production of the original Bill of Lading and it thereby avoided payment for the said machines. When the appellant failed to pay the purchase price of the goods, the respondent was obliged to commence a winding-up proceedings in suit No. FHC/KD/3/82 against the appellant at the Sokoto Judicial Division of the Federal High Court. This was with a view to recovering from the appellant the total contract price of U.S. $606, 852.00 for which the goods were sold.
In the course of the proceedings, the parties went into negotiation with a view to resolving their differences out of court and the learned trial Judge was duly informed of this development on the 8th day of June, 1993. The negotiation was between counsel for the two parties. In particular, the respondent, through its solicitors in Geneva, drew up its terms of settlement and got the same delivered to its counsel in Nigeria on the 22nd November, 1983 with clear instructions to settle the case strictly on the conditions therein stipulated.
For some undisclosed reasons, however, the respondents counsel in Nigeria on the 6th November, 1986 purported to agree to terms of settlement with the appellants counsel which were at complete variance with those which his clients had authorised. When the respondent became aware of this unauthorised development, it wrote to both its counsel in Nigeria and to counsel for the appellant stating categorically that it did not authorise the settlement on the terms in question and that it unequivocally rejected the same. This is on the ground that its counsel in Nigeria had exceeded the express written instructions and authority given to him by the respondent. These letters both dated the 18th December, 1986. The respondent in those letters made it clear that it did not recognise the validity of the transaction entered into by its counsel. In reply, however, the appellants counsel asserted that the authority of the said respondents counsel to bind his client could not be questioned and that he would therefore insist on the recognition of the disputed terms of settlement of the claim.
For his own part, the respondents counsel in Nigeria wrote to the Registrar, Federal High Court, Sokoto, on the 14th day of May, 1987 conveying his clients rejection of the disputed Terms of Settlement. The immediate reaction of the appellants counsel was to address their letter of the 25th May, 1987 to the respondents counsel stating that they had since filed a copy of the Terms of Settlement in court and that they would proceed to seek judgment based thereunder. This was in spite of the fact that they had been affected with actual notice that the said Terms of Settlement were in dispute and unacceptable to the respondent on the ground that they were reached by the respondents counsel without authority and contrary to his instructions.
Although the appellants counsel by their letter of the 25th May, 1987, to the respondents counsel claimed that a copy of the Terms of Settlement had been filed by them in court, it is instructive that this representation was in fact incorrect. It was not until two months thereafter, that is to say, on the 27th July, 1987 that the appellants counsel went ahead to file the alleged Terms of Settlement in court. Strangely enough, it was on the same day, that is to say, the 27th July, 1987 that the appellants counsel moved the court in the absence of the respondent and its counsel to enter judgment in the suit in terms of the disputed Terms of Settlement. The fact that there was a dispute as to the said Terms of Settlement was, however, not brought to the notice of the court by learned counsel for the appellant. It was under such circumstance that the learned trial Judge, Offili, J., in the mistaken belief that the purported Terms of Settlement represented the true agreement between the parties entered a consent judgment in respect thereof. He observed:-
"I am satisfied that the terms of settlement constitute the mutual agreement of the parties and I therefore enter judgment on terms of the settlement in Exhibit A.
No order as to costs." (Italic mine)
In consequence of this development, the respondent engaged the services of the law firm of Beatrice Fisher and Company, Legal Practitioners and instructed them to apply for the consent judgment to be set aside. This fresh proceeding which was commenced at the Federal High Court, Sokoto Judicial Division, by way of Originating Summons is the origin of the present appeal. The originating summons was commenced by the respondent by its lawful attorney, one Olaniyi Okunlola Esq., Barrister and Solicitor in the chambers of Beatrice Fisher and Co.
By the said Originating Summons dated the 27th day of June, 1988, the respondent, as the applicant, sought for the following orders:-
"1. A declaration that the consent judgment dated the 27th July, 1987, and given by this Honourable Court in Suit No. FHC/KD/3/82, was given under a mistake of fact and misrepresentation, and is therefore a nullity.
2. A consequential order setting aside the consent judgment dated the 27th day of July, 1987.
3 An order directing that any amount of money that has been paid or which remained to be paid under the terms of Settlement dated 6th November, 1988, Exhibit "2" herein, be paid to this Honourable Court, pending the final determination of the actual liability of the Respondent to the petitioner in Suit No.FHC/KD/3/82."
At the hearing of the originating summons, the appellant herein raised a preliminary objection to the competence of the action. This was on the ground that the said Mr. Okunlola had not obtained a Power of Attorney at the time he filed the action authorising him to institute the proceeding for and on behalf of the respondent. It was his submission that before a party could commence an action, it must be shown that he had locus standi in the matter.
In his ruling delivered on the 25 January, 1989 the learned trial Judge considered the arguments in respect of the preliminary objection and dismissed the same. Upon a careful consideration of the prayers in the originating summons, the court granted reliefs 1 and 2, holding that the consent judgment was given under misrepresentation and mistake of fact. Accordingly, it set aside the said consent judgment made on the 27 July, 1987. The learned trial Judge, however, refused to grant prayer 3 but ordered instead that the sum of N247, 625. 53 paid to the respondents solicitors by the appellant for delivery to the respondent which amount the former held on to, be returned to the appellant forthwith. In his view, the money was paid under a mistake in that there was no agreement between the parties in respect of the payment and no useful purpose would, therefore, be served by paying the same into court pending the determination of the appellants actual liability as prayed for. Said he:-
"The application succeeds and accordingly I make the following orders:-
- The consent judgment dated 27th July 1987 and given by this court in Suit No. FHC/KD/3/82 is a nullity because there was no agreement between the parties.
- The said consent judgment dated 27th July 1987 is hereby set aside.
I do not think it is just and equitable to order the money paid under the terms of settlement to be paid to this court pending the determination of the respondents actual liability. There was no agreement between the parties, therefore, any money paid pursuant to the said agreement was money paid under a mistake and it should be returned to the defendant. I therefore order that the sum of N247,625.53 paid by the Defendant to the plaintiffs Solicitors be returned to the defendant forthwith. Dissatisfied with this decision of the trial court, the appellant lodged an appeal against the same to the Court of Appeal, Kaduna Judicial Division. That court in a unanimous decision dismissed the appeal holding that in-as-much as the parties were not ad idem in respect of the terms of settlement upon which the trial court erroneously acted, they could not form the basis of or sustain a consent judgment as known to law. It was therefore of the opinion that the trial court was right to have set aside the said consent judgment.
Aggrieved by this decision of the Court of Appeal, the appellant has further appealed to this court.
Six grounds of appeal were filed by the appellant against this decision of the Court of Appeal: it is unnecessary to reproduce them in this judgment. It suffices to state that the parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.
The four issues distilled from the appellants grounds of appeal set out on their behalf for the determination of this appeal are as follows:-
"(1) Whether a person who had no locus standi at the time he commenced proceedings as a done of a power of attorney can continue the action as such based on a power of attorney issues after the commencement of the action.
(2) Whether the provisions of Order 20 Rule 5(4) of the English Supreme Court Rules and the cases of
a. GBOGBOLULU OF VAKPO V. CHIEF HADO OF ANFOEGA AKUKOME (1941) 7 WACA 165
b. AZUIKE UME & OTHERS V. ALFRED EZE EKI & ORS delivered on 30th December, 1957 are authority for regularising otherwise null proceedings.
(3) Whether the Court of Appeal was right when it affirmed the decision of the Federal High Court which set aside the consent judgment in Suit No: FHC/KD/3/82 entered and based on the terms of settlement agreed upon by the Appellants and Respondents solicitors.
(4) Whether the Court of Appeal can suo motu determine the naira equivalent of USD$306,853 in 1986 and proceed to give judgment on such finding when the rate of exchange was never made an issue before the court, no evidence was led as to the applicable rate, and the Court of Appeal did not give the parties any opportunity to address it on the issue."
The respondent, on the other hand, submitted three issues in its brief of argument as arising in this appeal for determination.
These are couched thus:-
"1. Whether the Court of Appeal was correct in affirming the decision of the Federal High Court that it had jurisdiction to entertain the suit of the Respondent.
2. Whether the Court of Appeal was correct in affirming the decision of the Federal High Court that set aside the consent judgment in Suit No. FHC/KD/3/82 in the entire circumstances of the case.
3. Whether, in the entire circumstances of this case, the Court of Appeal was wrong to have held that "payment of US$306,852 American Dollars in 1986 could not be in anyway equivalent to N247,625.53 and whether any miscarriage of justice was occasioned to the Appellant thereby."
There can be no doubt that the set of issues identified in the respondents brief of argument fully covers those set out in the appellants brief of argument. However, issue 3 formulated in the respondents brief which corresponds with the appellants issue 4 does not seem to me relevant in the determination of this appeal. The central question before the court below was whether the parties were in concensus ad idem on the essential terms that were entered as consent judgment by the trial court and, if not, whether the said consent judgment is liable to be set aside. In my view, therefore, issues 1 and 2 set out in the respondents brief of argument are amply sufficient for the determination of this appeal.
At the oral hearing of the appeal, both learned counsel for the parties adopted their respective briefs of argument and proffered additional submissions in amplification thereof.
The main contention of learned counsel for the appellant, A. Oyeyipo Esq., in respect of issue 1 is that as at the 27th June 1988 when Mr. Olaniyi Okunlola commenced the present action at the Federal High Court, he had no Power of Attorney authorising him to institute the same for and on behalf of the respondent company. He pointed out that from the reliefs claimed, it is apparent that Mr. Olaniyi Okunlola had no personal or proprietary interest in the subject matter of the action. He therefore argued that Mr. Okunlola had no locus standi to commence or prosecute the action. He referred to the decision of this court in Green v. Green (1987) 3 NWLR.(Part 61) 480 and Madukolu v. Nkemdilim (1962) 1 All NLR 581 and submitted that the respondents originating summons was incompetent and that the court had no jurisdiction to entertain the same. He called in aid the decision of the West Africa Court of Appeal in Chief Efiong Duke v. Etubom Henshaw (1940) 6 WACA. 200 and submitted that failure by Mr. Okunlola to establish his authority to sue as the accredited agent or attorney of the respondent company as at the 27th day of June, 1988 when the Originating Summons was filed is fatal to this proceeding. He stressed that it was not until the 18th July, 1988 that the Power of Attorney constituting Mr. Okunlola the respondents agent and authorising him to prosecute the proceeding for and on behalf of the respondent was executed. He submitted that once the originating summons was filed without authority, it remained a nullity and no amount of subsequent ratification could cure the defect.
Learned counsel for the respondent, Dr. B.O. Babalakin, in his reply, referred to the provisions of Order 20 Rule 5(4) of the Rules of the Supreme Court of England which state as follows:-
"An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which the party had at the date of commencement of the proceedings or has since acquired."
Learned counsel made reference to the statements of the law on the subject by the learned authors of Halsbury?s Laws of England, 4th Edition, Vol.37 Page 209, Para. 276 and Note 3 to Para. 115 at Page 88 as well as to The Supreme Court Practice (The White Book), 1997 Edition, Vol.1., Para. 20/5 at Page 356-357, Para. 20/5-8/17 at Pages 366-367. He noted, citing the decision in Chief Gbogbolulu of Vakpo v. Head Chief Hodo of Anfoega Akukome (1941) 7 WACA. 164, that the reasoning of the court below with regard to the point in issue was the overriding need to do substantial justice to the parties rather than adhere to strict technicalities that may result in defeating the ends of justice. He stressed that Mr.Okunlola did not purport to sue for himself but that he sued expressly on behalf of the respondent. He also pointed out that it was never disputed that Mr. Okunlola was the lawful attorney of the respondent. The complaint of learned counsel for the appellant is that the Power of Attorney issued to Mr. Okunlola was executed a few days after the originating summons was filed. This is in spite of the fact that the respondent had expressly deposed on oath as far back as on the 14th April, 1988 that the firm of Beatrice Fisher and Co. in which Mr. Olaniyi Okunlola was a partner had been instructed and authorised to institute an action to set aside the consent judgment entered at the Federal High Court on 27th July, 1987. He urged the court to resolve this issue in favour of the respondent.
As already indicated, the appellants complaint under issue 1 is that the Federal High Court had no jurisdiction to entertain the respondents case because when the action was commenced by Mr. Olaniyi Okunlola, he purported to act as agent or Attorney of the respondent when in fact he did not have the requisite authority to do so. I think the question for resolution under this issue will be better appreciated if the basic principles governing the relationship of principal and agent are briefly considered.
Usually, the relationship of principal and agent may arise in any of five ways, namely:-
- By express appointment whether orally or by a letter of appointment or, indeed, by a Power of Attorney. Under this heading, no formality, such as writing is required for the valid appointment of an agent except, for instance, where the authority of the agent is to execute a deed on behalf of a principal, in which case, the agency itself must be created by deed.
- By ratification of the agent? s acts by the principal. See f or example B ird v. B ro wn (1950) 4 Exch 786, Firm v. Staines (1897) 2 QB 70 etc. This mode of creation of agency is sometime expressed in maxim omnis retihabitio retrotrahitur et priori mandato aequiparatur
- By virtue of the doctrine of estoppel.
- By implication of law in the case of agency of necessity and
- By presumption of law in the case of cohabitation.
The issue under consideration is only concerned with the first two of the five ways under which the relationship of principal and agent may arise.
It cannot be seriously disputed that the respondent before the institution of the present proceeding did authorise and/or instruct the law firm of Beatrice Fisher and Co. to institute an action to set aside the consent judgment entered at the Federal High Court on the 27th day of July, 1987 in suit No. FHC/KD/3/82. This is deposed to in the affidavit of one Rene Merkt, a director of the respondent company as far back as on the 14th April, 1988 well before the originating summons was filed. This is per paragraph 21 of his said affidavit of the 14th April, 1988. It is not in dispute that Mr. Olaniyi Okunlola was at all material times a counsel in the firm of Beatrice Fisher and Co. It is also clear on the face of the originating summons itself that the action was brought by Mr. Okunlola as the lawful Attorney of the respondent company. He did not purport to sue for himself. The respondent repeatedly affirmed that it authorised Mr. Okunlola to be its agent in the matter of the present proceeding for the setting aside of the disputed consent judgment. I think, in these circumstances that one may say without any fear of contradiction that the respondent, by express appointment, had constituted Mr.Okunlola its agent in the matter of the prosecution of the proceeding in issue.
Learned counsel for the appellant did, however, concede that the respondent subsequently executed a Power of Attorney formally constituting Mr. Okunlola its lawful agent to represent the company in the litigation with the appellant. This power of Attorney was executed on the 18th July, 1988, after the originating summons was filed. Learned counsel then contended that the originating summons having been filed by Mr. Okunlola as attorney of the respondent before the execution of the Power of Attorney, the proceeding was incompetent and null and void. This now brings me to the constitution of agency by subsequent ratification of the agents acts by the principal.
The effect of ratification of an agent? s act is to put the parties concerned in the same position as that in which they would have been if the act ratified had been previously authorised. Thus, even if an action is commenced without the authority of the purported plaintiff and is therefore incompetent and improperly constituted, the plaintiff can ratify his solicitors act, so that it will no longer be open to the defendant to object that the action is not properly brought. See Danish Mercantile Co. Beaumont (1951) ch 680. It does not, therefore, seem to me a correct proposition of law as contended by learned counsel for the appellant that where an action is brought without the authority of the purported plaintiff, such an action is automatically rendered a complete nullity and no amount of subsequent ratification can cure the defect. I think that view of the law, with respect, is totally erroneous, misconceived and it is hereby rejected.
I should, perhaps, mention that this position of learned counsel for the appellant, Mr. Oyeyipo, was vigorously canvassed in the Danish Mercantile Co. v. Beaumont case (supra) by the learned defence counsel in that case, Mr. Shelley, Q.C. In this connection, Mr. Shelley referred to a number of decided cases which, in his opinion, supported his contention. The Court of Appeal in England after an exhaustive and painstaking analysis of the authorities referred to by the learned Queen?s Counsel had no difficulty in rejecting this novel proposition of law. Dismissing the same in a unanimous decision of that court, Jenkins, L.J. who delivered the leading judgment had this to say:-
"I find nothing in any of those cases to constrain me to hold that the issue of a writ and the commencement of an action without the authority of the purported plaintiff is a matter which admits of no validation by subsequent ratification of the act of the solicitor concerned. So to hold would be to introduce, as I see it, an entirely novel doctrine into the ordinary law of principal and agent and to make a new exception to the general rule that every ratification relates back and is deemed equivalent to an antecedent authority.
In the absence of any decision compelling me to do so, I speaking for myself decline so to hold. I agree with what was said by Roxburgh, J., and I think that he rightly took the view that to accede to Mr. Shelleys contention would be inconsistent with the authorities in which questions of this kind have arisen, particularly in relation to companies."
I need hardly add that Hodson, L.J. was equally of the same view. Said he:-
"I am prepared to assume, as did my Lord and the Judge, that the proceedings were instituted without authority I, like my Lords, would rest my judgment on the presence of ratification I see no difficulty in Roxburgh, J?s view, which I think is perfectly correct, that the act of the liquidator in this case has been sufficient to ratify such defect, if any, as previously existed.
For these reasons as well as for those given by my Lord, I agree that this appeal fails."
I have given the above observations of Jenkins and Hodson, L.JJ. a most careful consideration and must gratefully endorse them as sound and well founded. I am therefore prepared to hold that if an action is commenced without the authority of the purported plaintiff and is therefore not properly constituted, such a plaintiff can ratify his solicitors act and it may then not be open to the defendant to object that the action is not properly before the court.
Learned counsel for the respondent did concede that there is no doubt that a plaintiff ought ordinarily to be invested with the capacity in which he sues at the date on which the action is instituted. With this submission, I am in full agreement. However, he next submitted that the failure to do so need not be fatal to the action especially where the plaintiff acquires the capacity after the issue of the writ. With this proposition, I am again in complete agreement. But learned counsel tried to justify his position by reference to statements of the law in both Halsburys Laws of England, 4th Edition and The Supreme Court Practice, 1997 already mentioned earlier on in this judgment. I need only mention that a close study of those citations reveals that they deal essentially with the amendments of writs and/or pleadings. In particular, they concern amendments to alter the capacity in which a party sues. The question that has arisen for consideration in this appeal has nothing to do with any amendments of whatever nature but with whether or not an action commenced without the authority of the named plaintiff and therefore incompetent may subsequently be saved by ratification by such a plaintiff. I have, with respect, therefore, not found the said citations of learned counsel very helpful in the determination of the issue under consideration.
As I have indicated, the only point raised by the appellant is that at the time Mr. Okunlola instituted these proceedings, he did not have the Power of Attorney pursuant to which he was acting. The records, however, abundantly show that not only did the respondent authorise him to institute the claim and for him to represent the company as its agent, the much talked about Power of Attorney was in fact executed and given to Mr. Okunlola before the hearing of the Originating Summons was commenced by the court.
One last word must be said before I am done with issue 1. This has to do with the submission of learned counsel for the respondent that the issue whether or not the suit was properly commenced and whether or not Mr. Okunlola had the requisite authority to commence the action is no longer a live issue in this proceeding. I find myself in total agreement with learned respondents counsel in this regard. Before this court on the 24th February, 1997 upon an application brought by the respondent, the name of the said respondent, to wit, Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) was substituted in place of Mr. Olaniyi Okunlola. This application was not opposed by the appellant. It was accordingly ordered that Mr. Okunlola who instituted the suit in his own name as the lawful attorney of the respondent be substituted by the respondent company, the donor of the Power of Attorney. It was further ordered that all the processes in the cause be amended accordingly to reflect the proper parties to the action.
I think I ought to observe, in the first place, that this amendment of the 24th February, 1997 which was not opposed in no small way helped to save this proceeding. This is because, the donee of a Power of Attorney or an agent in the presentation of a court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise. See Timothy Ofodum v. Onyeacho 1966/67 10 ENLR. 132, Jones v. Gurney (1913) W.N. 72, John Agbim v. Mallam Garuba Jemeyita (1972) 2 E.C.S. L.R 365. In the second place, it is beyond dispute that an amendment relates back to the commencement of a suit. An order of amendment takes effect, not from the date when the amendment is made or granted but from the date of commencement of the action. In other words, once ordered, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. See Grace Amanambu v. Alexander Okafor & Another (1966) 1 All NLR. 205, Warner v. Simpson (1952) 2 WLR. 109, Col. Rotimi v. Mc Gregor (1974) 11 SC. 133 at 152, Osita Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Part 135) 688. Accordingly, having regard to the amendment of the 24th February, 1997, it must be deemed that it was the respondent itself that commenced this action in its own name ab initio and all arguments relating to whether or not Mr. Okunlola had locus standi at the time he commenced the proceeding as a donee of a Power of Attorney automatically go to no issue. On the whole, it is my view that having regard to all that I have stated above, issue I must be resolved against the appellant.
Issue 2 poses the question whether the Court of Appeal was correct in affirming the decision of the trial court that set aside the consent judgment in issue in all the circumstances of the case. It is the submission of learned counsel for the appellant that the court below was in error to have set aside the consent judgment entered by trial court as the same had been agreed upon and signed on behalf of the parties through their respective counsel. He also contended that since he was not aware of any limitation to the authority of the respondents counsel in the matter of the settlement, the respondent must be bound by the agreement entered into by counsel on its behalf. Learned counsel made the point that it was not the parties that were negotiating but their respective counsel and that once they were ad idem on the terms of settlement, the views of their clients would not matter. In support of these submissions, counsel called in aid the decisions in Mosheshe General Merchants Ltd. V. Nigerian Steel Products Ltd. (1987) 1 NWLR (Part 55) 110 and Adewunmi v. Plastex Limited (1986) 2 NWLR (Part 32) 767.
Learned counsel for the respondent, on the other hand, was prepared to accept that the general principles of the law in this regard are to the effect that counsel has authority, except expressly limited, over the whole of a court action and all matters incidental to it and to the conduct of the trial. It was, however, his submission that while these principles may be correct, they are still general statements of the law and that the court still has the discretion to examine the entire circumstances of the case in order to determine whether the compromise entered into should be sanctioned by the court. Learned counsel made reference to the case of Neale v. Gordon Lennox (1902) AC 465 where, he stated, that the House of Lords held that counsel has no authority to refer an action against the wishes of his client or upon terms different from those which his client has authorised and that if he does so refer it, the reference may be set aside although the limit put by the client on his counsels authority is not made known to the other side when the reference was agreed upon. He also relied on the decision in Marsden v. Marsden (1972)2 All ER. 1162.
He stressed that as at the time the consent judgment was entered by the trial court, the parties were clearly not in agreement as to its terms and that this was to the knowledge of the appellant whose counsel failed to bring this material fact to the notice of the court. It is also instructive that the consent judgment was entered by the trial court in the absence of both the respondent and its counsel. He submitted that the court below rightly affirmed the decision of the trial court that set aside the consent judgment.
On the desirability of setting aside the consent judgment on the ground of nullity, the learned trial Judge had this to say:-
"In this case, the client had rejected the terms of settlement, he did not only inform his counsel about the rejection, he also took the trouble to inform the defendants counsel about the rejection. It is my opinion that it will be manifestly unjust to force the plaintiff to accept the terms entered into b