D. A. Olubode V. Mrs. Comfort Waleola Oyesina & Ors (1977)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
This appeal is against the judgment of the Western State Court of Appeal delivered on the 4th day of July, 1974, in the appeal to it by the 4th defendant/respondent against the judgment of Fakayode, J., sitting in the High Court of Justice holden at Ibadan on the 10th day of May, 1972.Before the hearing of the appeal and on the application of the plaintiff/appellant,Mrs. Comfort Waleola Oyesina
Mrs. Yetunde Babayeju (nee Oyesina)
Mr. Tunji Ladipo Oyesina
and
Mr. Abioye Oyesina (Adminstrators
And Administratrixes/Trustees of the Estate of Chief T. L. Oyesina (Deceased) were substituted for the 1st defendant/respondent, who died after the appellant filed his notice of appeal.
The plaintiff in the High Court, took out a Writ of Summons against the 1st defendant/respondent claiming
“a refund of 600 (Six Hundred Pounds) given to him in 1967 for a consideration that has totally failed. The defendant has refused to refund despite repeated demand on him.”
The 1st defendant/respondent applied for and obtained an order joining
Modupe Odewunmi
Samuel Akintola Odewunmi
and, David Irinoye Odewunmi as co-defendants.
The original Statement of Claim was filed on the 11th day of October, 1969 and a Statement of Defence to it was filed on the 5th day of November, 1969.
On 12th day of January, 1970, the trial court (E. B. Craig, J., as he then was) having ordered
Modupe Odewunmi
Samuel Akintola Odewunmi
And David Irinoye Odewunmi
to be added as defendants, further ordered that “the plaintiff shall within 14 days serve them through their counsel, with copies of the writ and the pleadings already filed in court. The new defendants shall file their Statement of Defence within 30 days of such service on them.”
The 1st defendant filed an Amended Statement of Defence on 26th day of November, 1970. The co-defendants filed their Amended Statement of Defence on 31st day of December, 1970.
Although the 1st defendant’s affidavit in support of the application disclosed that they (that is, all the defendants) were co-administrators and administratrix of the estate of S. A. Odewunmi (deceased) and that the subject matter of claim was alleged to be part of the estate, the plaintiff did not amen his Writ of Summons and Statement of Claim to reflect this, or any claim against the 3 new defendants. The 1st defendant amended his Statement of Defence and the 2nd, 3rd and 4th defendants filed a joint Statement of Defence joining issue with 1st defendant as to the liability of the Administrators of the estate of S. A. Odewunmi (deceased).
Evidence was adduced by four witnesses including the plaintiff and 1st and 2nd defendants and at the conclusion of the hearing, the learned trial Judge, Fakayode, J., dismissed the 1st, 2nd and 3rd defendants from the suit and entered judgment against the 4th defendant the concluding portion of which reads:
“The person who had and received the plaintiff’s 600(pounds) for a consideration that has totally failed was only the 4th defendant in person and so I hereby give judgment for the plaintiff for 600(pounds) to be paid personally by the 4th defendant alone. The other defendants are dismissed from this action. The 4th defendant is to pay the sum of ten guineas costs to each of the other defendants and 30 guineas costs to the plaintiff.”
The 4th defendant appealed against this judgment of the Western State Court of Appeal and the only substantial point of law taken was that as the plaintiff made no claim against him either in his Writ of Summons and in his Statement of Claim or in his evidence before the court, the learned trial Judge erred in entering judgment against him. The appeal was allowed on this point and the judgment and orders of the learned trial Judge were set aside. The Western State Court of Appeal however made no consequential orders on the appellant’s claim and in this con we quote hereunder the concluding portion of the said judgment of the Western State Court of Appeal:
“In such circumstances, we fail to see how the plaintiff could be given judgment against any of the three persons joined on the application of Oyesina and against whom the plaintiff claimed nothing and with whom he did not join any issue.
The plaintiff has not appealed. The only appeal before us is that of the person – one of the three defendants joined by Order of Court against whom judgment was given. All we can do is to set that judgment aside but we cannot enter judgment against Oyesina or any of the other persons joined as defendants by order of the court below.
The appeal is allowed and the judgment of Fakayode, J., against the appellant for 600(pounds) as well as the order for costs both in favour of the plaintiff, D. A. Olubode are hereby set aside.”
Against this decision, the plaintiff brought this appeal to the Supreme Court on two grounds which we set out hereunder:
(1) The Court of Appeal erred in law and misdirected themselves in allowing the appeal and not making any order on the appellants’ claim which will determine the issues in controversy between the plaintiff and the defendant and thereby occasioned a miscarriage of justice.
(2) The Court of Appeal erred in law in not applying the provisions of Section 18 of the Court of Appeal Edict and or Rule 26 of Order II of the Court of Appeal Rules 1973 as a result of which it failed to give judgment personally against the first defendant/respondent.
The real question raised by this appeal, therefore, is whether a plaintiff whose claim was admitted on the pleadings and evidence before the court should go without judgment of, or relief or remedy from, the court. In our view, there can be no justification for depriving a plaintiff of judgment on an admitted claim fully supported by the evidence. It is therefore convenient at this stage to state and examine the facts.
“The plaintiff’s claim which was made against the 1st defendant/respondent, Chief T. L. Oyesina personally was for “600(pounds) being amount paid to 1st defendant as purchase price of a plot of land at Onike village, Lagos, in 1967.” He later found himself unable to convey and agreed to refund the amount. To this end, he issued and together with 4th defendant signed a cheque on the administrator’s account of the estate of Samuel Akintola Odewunmi (deceased). There were four administrators and adminstratrixes appointed to administer the estate. Having tried unsuccessfully to persuade the others to sign the cheque, he prevailed on the plaintiff/appellant not to present the cheque. The cheque was not presented and the money was not paid, hence the claim was filed.”
We find these facts pleaded in paragraphs 3, 4, and 8 of the Statement of Claim and admitted in paragraphs 1, 4, 16 and 19(7) of the Statement of Defence of the 1st defendant.
As the Writ of Summons and Statement of Claim were not amended to reflect a claim against the co-defendants, suffice it to say, that, the Statement of Defence was in the main a defence to the averment in the Statement of Defence of the 1st defendant, that the subject matter of the claim of plaintiff formed part of the estate of Samuel Akintola Odewunmi (deceased). The co-defendants i.e. 2nd, 3rd, and 4th defendants denied the liability of the estate to refund the money.
We may now examine the relevant paragraphs of the Statement of Claim already mentioned above. They read:
“3. Sometime in 1967 the plaintiff approached the defendant for the sale of a piece of land at Onike Village, Yaba;
4. The plaintiff paid to the defendant at Ibadan on 18th November, 1967 the sum of 600(pounds) and in respect of which the defendant issued a receipt No. 46 of 18th November, 1967 for the amount.
8. The plaintiff later demanded the refund of the money from the defendant and consequently the defendant issued Barclays Bank cheque No. 361685/022277 of 1st August, 1968. The defendant told the plaintiff not to present the cheque as there was no money in the bank.
We find that paragraphs 1, 4, 16 and 19(7) of the amended Statement of Defence contain sufficient admission of these averments to earn the plaintiff judgment without evidence. They read:
1. The defendant admits paragraphs 2, 4 and 9 of the Statement of Claim;
4. Regarding paragraph 4 of the Statement of Claim, the defendant issued receipt No 46 of 18th November, 1967 not in his own personal capacity but as an administrator for and on behalf of the estate of late Samuel Akintola Odewunmi (hereinafter referred to as “the Deceased”).
16. The defendant would contend at the hearing of this action that he is not personally liable to the plaintiff but that he and the co-defendants are joint and severally liable.
19. The defendant would contend at the trial
(7) that apart from the 600 now in dispute, the defendant never received a penny from the estate neither did he collect any rent from any of the houses and landed property owned by the estate.” (Underlining ours).
A fact admitted by the defendant in his pleading should be taken as established and should form one of the agreed facts of the case. (See Chief Okparaeke and Ors v. Obidike Egbuonu and Ors (1941) 7 WACA 53 at 55).
The evidence before the court is no less implicating. In this connection the pertinent portion of 1st defendant’s evidence reads:
“D. I. Odewunmi suggested at that family meeting that he wanted a piece of land from his brother’s estate. The family agreed to give him a piece of land at Onike village, Lagos. That is the very land plaintiff wanted to buy. The 4th defendant later came to me to say he did not want land but money. He also said he could get a buyer for the Onike land given to him. The 4th defendant brought a buyer, the plaintiff on 18th November, 1967. Plaintiff brought one Mr. Sijuwola when he wanted to pay the 600(pounds) as price for the Onike village land. Plaintiff’s money was in 400(pounds) by cheque and 200(pounds) in notes. I handed the cheque of 400(pounds) and 200(pounds) notes to 4th defendant in the presence of Mr.Olubode (plaintiff) and Mr. Sijuwola. I issued a receipt on behalf of the Administrators of the Odewunmi estate. 3rd defendant objected to the land being sold to plaintiff because plaintiff was 3rd defendants late father’s enemy. Then I called another meeting of Aresa family to decide the issues. Then the family decided that if the land was not sold the plaintiff’s money must be refunded.”
Under cross-examination, he said:
“I did not pay plaintiff 600(pounds) into any bank account. I paid it to 4th defendant…Plaintiff must have his money back.” (Underlining ours).
The Western State Court of Appeal quite rightly observed that there was no claim made against the 2nd, 3rd and 4th defendants/respondents and justifiably held that the learned trial Judge erred in law in entering judgment against the 4th defendant/respondent (who was appellant before it) when there was no claim made against him either in the Writ of Summons or in the Statement of Claim. It is settled law that a court can only enter judgment against a party against whom a relief or remedy is sought.
We therefore affirm the decision of the Western State Court of Appeal on this point and affirm the order setting aside the judgment of the learned trial Judge. However, the failure of that court to make the appropriate orders is, in our view, improper in view of the facts of this case which we have set out above. We observe that the court felt it was helpless in the matter as there was no appeal by the plaintiff before it. We find ourselves unable to share that view. We feel however that the court’s attention was not drawn to the wide powers it has under Order 2 Rule 26 of the Court of Appeal Rules 1973 which reads:
“The Court shall have power to give any judgment or make any order that ought to have been made and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the court, notwithstanding that the appellant may have asked that part only of the decision be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” (Underlining ours).
The Court of Appeal of the Western State therefore has a statutory duty to set aside a wrong decision of the lower court even if the court made it in exercise of a discretion entrusted to it (see In Re- O (Infants) (1971), 2 WLR 784 at 789) and enter the judgment or make the Order that ought to have been made.
“Every Court has a duty to do its best to arrive at a proper and just decision” (per Davies, LJ., in In Re- O. (Infants) (supra) (Underlining ours)
The exercise of this power would have enabled the court to see that justice was done and the appropriate judgment which the justice of the case demands entered. We find the grounds of appeal made out. The appeal succeeds and is hereby allowed.
We accordingly hereby made the following orders:
There will be judgment for the plaintiff/appellant for the sum of N1,200.00 (the value of Six Hundred Nigerian Pounds) against the 1st defendant/respondent and this shall be the judgment of the High Court. The 1st defendant/respondent shall pay the plaintiff/appellant costs in the High Court assessed at N60.00;
Costs in the Western State Court of Appeal assessed at N100.00; and
Costs in this court assessed at N177.00.
SC.111/1975
