Benedicto Olayinka Joacquim Vs Oluwakemi Joacquim & Anor (1975)

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FATAYI-WILLIAMS, J.S.C. 

This is an application by the defendant/appellant for an order for extension of time within which to appeal, and for leave to appeal, against the order of the High Court of Lagos State dated 19th May, 1975. The applicant, in addition to asking for any further or other orders which we may deem fit to make, is also asking for an order that the notice of appeal already filed with the application should be deemed to have been duly filed.

The order complained of was made on 19th May, 1975 during the hearing of an application for leave to appeal against an earlier order of the same court made in an action which was commenced in the court on 8th July, 1974, whereby the plaintiffs/respondents claimed against the defendant/appellant an order that an account be taken of the money, rents, profits, or compensation received by the defendant/appellant and his agents or representatives in respect of certain properties owned by their grandfather, the late Alexander Oguntunde Joacquim, in the Lagos State. In the same action, the plaintiffs/respondents also asked the court for the payment of any amount of money found due to them on the taking of such account.

Later, on 10th August, 1974, the plaintiffs/respondents applied to the same High Court by summons under Order 12 rule 3 of the High Court (Civil Procedure) Rules, for an order directing that proper account be taken in relation to the said case. On 4th October, 1974, the defendant/appellant filed an affidavit in position to the said summons.

The High Court on 20th January, 1975, nevertheless, made an order in terms of the summons and directed the defendant/appellant to prepare proper accounts in relation to the said suit, and to submit the same within three months from the date of the order. Not satisfied with this order for accounts, the defendant/appellant applied to the High Court on 28th January, 1975, for leave to appeal to this court against the said order of 20th January, 1975. What transpired at the hearing of the application is stated in paragraphs 8 to 12 of the affidavit sworn to in support of the present application which read:-

“8. That on the 19th day of May, 1975, the said application came before His Lordship Mr. Justice M. A. Odesanya who, in the course of the hearing thereof, suggested to me, in my capacity as counsel for the defendant, and in the interest of the infant-plaintiffs that the defendant should consider making some concessions to the plaintiffs having regard to their tender age, their family relationship, and Yoruba customs for elders to tend the young ones. In consequence thereof, I persuaded my client, the defendant/appellant to agree to pay a once-and-for-all concessional payment of N200 (Two Hundred Naira) to, and for the upkeep of the said children, pending the determination of the application before the court and of the substantive action.

9. That in the drawn-up Order made in that behalf, it is stated that by consent of the parties, it is ordered that ‘the defendant/appellant shall pay forthwith the sum of N200 (Two Hundred Naira) to the plaintiffs/respondents, and their father’s share of their grandfather’s estate to them every month from now’. A copy of the said Order is herewith attached and marked Exhibit D which Order is the subject matter of the application herein.
10. That as I was present in court when the Order was made I have personal knowledge that the said Order of 19th May, 1975 does not represent the concession made by me on behalf of the defendant/appellant, and the said Order goes beyond the scope of the instructions given to me by my client and of which I informed the court; and my client had no means of complying therewith.
11. That on the 19th day of May, 1975, soon after His Lordship Mr. Justice M. A. Odesanya had read out the Order in the said terms, I invited His Lordship’s kind attention to that part of the Order containing the words ‘and their father’s share of their grandfather’s estate to them every month.’
12. That at the time I made the said observation, Mr. A. Noibi, counsel for the plaintiffs/respondents had already left the court. Accordingly, His Lordship quite rightly stated that when the matter came up to court at the next adjourned date, I should raise the issue with a view to His Lordship making necessary correction of any error in the Order as read.” (The underlining is ours.)

No counter-affidavit was filed by the plaintiffs/respondents in denial of the above averments. Be that as it may, learned counsel for the plaintiffs/respondents, on 9th June, 1975, wrote to the defendant/appellant. Attached to this letter is a copy of the drawn-up order of the court about which the defendant/appellant had been complaining. On being shown the said drawn-up order, learned counsel for the defendant/appellant wrote immediately to Odesanya, J., who made the order expressing his surprise at seeing the drawn-up order in that form having regard to the observation which he had made in court earlier. He also sent a copy of this letter to learned counsel for the plaintiffs/respondents.

Later, on 30th June, 1975, the defendant/appellant was granted leave to appeal against the earlier order for accounts. Nothing was, however, done about the “consent order” complained about, instead, the court observed that there was no formal application before it and suggested that a formal application should be made if the defendant/appellant was satisfied that the High Court still had jurisdiction to amend the order. Meanwhile, the time to appeal against the “consent order” had expired hence the present application both for extension of time within which to appeal and for leave to appeal. The main complaint of the defendant/appellant which we do not propose to go into at this stage is that the “consent order” of 19th May, 1975, does not correctly represent the true concession made by him.

Although no affidavit was filed in answer to the complaint of the defendant/appellant, learned counsel for the plaintiffs/respondents, nevertheless, opposed the present application, although he was not quite clear about the basis for his opposition.

A party to a consent order, by virtue of the provisions of sections 117(4)(b) and 117(2)(f)(iii) of the Constitution of the Federation, may, with leave of the High Court or of the Supreme Court, appeal against that order. (See The Governor, Eastern Nigeria v. Eugene Onyelu & Ors. (1965) 1 All NLR 191 at page 192). If he is out of time, he can apply to the Supreme Court for extension of time within which to apply for leave to appeal by virtue of the provisions of section 31(4) of the Supreme Court Act.

In considering whether or not an appeal lies against consent order, it is pertinent, we think to refer to the observation of Lord Denning, MR., in Purcell v. F.C.Trigell Ltd. (CA) (1971) LR 1 QB 358 at page 363H. It reads:-

“The plaintiff says that no appeal lies from an order made with the consent of the parties, except in circumstances in which a contract may be set aside or varied, such as mistake, misrepresentation, and so forth: and that this applies to interlocutory orders as well as to final orders. Mr. Hicks for the plaintiff relied in this regard on Toder v. Sansam (1775) 1 Bro. PC 468. I think that the plaintiff puts his case too high. I think that a party who gets leave, can appeal from a consent order on wider grounds at any rate in interlocutory matters. He can appeal, for instance, on the ground of his own mistake: see Mullins v. Howell (1879) 11 Ch.D 763 where Sir George Jessel, MR., said at page 763 ‘There is a larger discretion as to orders made on interlocutory applications than as to those which are final judgments’.”

The reason why the defendant/appellant is asking for leave to appeal against the order of 19th May, 1975, is that the order does not correctly represent the true concession made by him. As it is possible that a mistake was made in the making of the consent order, we think it is in the interest of justice to have a hard look, both at the circumstances prevailing at the time the order was made and also at the proceedings of the court on the day it was made, to see whether there are any grounds for complaint.

In these circumstances, we are of the view that the application should be granted and it is hereby granted. We accordingly order as follows:-

(a) that the defendant/appellant be and is hereby granted extension of the time until today 5th December, 1975, within which to apply for leave to appeal against the order of the Lagos High Court made in Suit No. LD/891/74 on 19th May, 1975;

(b) that the defendant/appellant be and is hereby granted leave to appeal against the said order;

(c) that the notice and grounds of appeal already filed with the papers in support of this application shall be deemed to have been duly filed provided the appropriate filing fees are paid; and

(d) that the record of appeal shall include a certified true copy of the proceedings of the High Court on 19th May, 1975, during which the order complained of was made.

The defendant/appellant is awarded costs of this application assessed at N20.

Other Citation: (1975) LCN/1992(SC)