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Degbeyi v. Pada

KAURA DEGBEYI

( For himself and on behalf of Jezhi Family )

V

ADAMU SARKI PADA

COURT OF APPEAL

( JOS DIVISION )

IBRAHIM TANKO MUHAMMAD, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

ISA ABUBAKAR MANGAJI, JCA ( Read the Lead Judgment )

CA/J/292/98

WEDNESDAY, 13TH MARCH, 2002

APPEAL - Argument and determination of appeal - Need to be limited to the part of judgment appealed against

EVIDENCE - Admissibility of document - Document which the condition precedent to its admission was not complied with - Failure to object thereto - Effect thereof

EVIDENCE - Inadmissible evidence - Whether can be admitted by consent

JUDGMENT AND ORDERS - Argument and determination of appeal Need to be limited to the part of judgment appealed against

PRACTICE AND PROCEDURE - Consent judgment entered by court between parties when memorandum of settlement not filed - Party not appealing against consent judgment for a period of six years Application to set consent judgment aside - Absurdity of

PRACTICE AND PROCEDURE - Non-compliance with Rules of Court -

Whether will result in the judgment given in the case being set aside where party complaining of the non-compliance have taken steps in the proceedings


Issues:

1.            Whether the lower court had jurisdiction to adopt exhibit F which is a memorandum of settlement and entered a consent judgment which is exhibit G when exhibit F was not filed in court.

2.            Whether the lower court was right in refusing to act on the unchallenged and uncontradicted affidavit evidence of the plaintiff having regard to all the circumstances of the case.

Facts:

This appeal emanated from the ruling of Badamasi Maina J. of the High Court of Nasarawa State in suit No. PLD/K11M4/91 in respect of a motion on notice filed by the appellant as applicant seeking for an order of the court to set aside the memorandum of settlement. Exhibit ‘F’ prepared, adopted by the parties and signed by respective counsel on the basis of which a consent judgment was delivered on 14/1/92 on the ground that the exhibit ‘F’ was not filed in court and so could not have validly sustained the consent judgment. Furthermore, that to that extent the court below was without jurisdiction to have entered the consent judgment. The consent judgment itself was not appealed against. In the ruling which was delivered on 12/6/98 the lower court dismissed the motion where upon the appellant felt aggrieved and appealed to the Court of Appeal.