Nigeria Water Resources Development Limited V A.k Jaiyesimi (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC

On May 1st 1963 at Ibadan we struck out this appeal for want of jurisdiction and stated we would give our reasons later. We now do so.

The judgement appealed against reads as follows:’NOTE BY COURT. Both Counsel agree that the Plaintiff be awarded £850 as rent for one year plus £425 being six- months rent in lieu of notice. Judgement entered for Plaintiff for £ 1,275. Costs assessed at 100 guineas.’

The appellant sought no leave to appeal and none was obtained. The respondent gave notice that he would rely on the preliminary objection that as the judgement of the High Court was by consent of the parties, the appeal could not have been brought without leave and should therefore be struck out. He referred to the relevant provisions in section 110 of the Constitution of the Federation, and to the case of Moore v. Tayee 2 WACA 43 where Lord Atkin said that all appeals ‘exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.’

Counsel for the Appellants contested that the decision from which they had appealed was a consent judgement or order; he also argued that if it was a consent judgement, the appellants had a right of appeal.On the question whether the decision was a consent judgement, Counsel relied on the case of Sarkis v. Sarkis 4 N.L.R. 133 at p.; 135 and argued that not every case of compromise constitutes a judgement by consent, and that this was not one. It seems clear from the judgement in Sarkis v. Sarkis (supra) that the trial Judge took the responsibility of determining the action in accordance with the suggested terms of settlement to which the defendant was never a party, having refused to accept the terms. The learned Judge formed the opinion that the proposed terms were eminently reasonable and entered judgement accordingly. This cannot, by any stretch of the imagination, be regarded as judgement by consent.

In the instant case, the trial Judge did not adjudicate on any issue in the action, nor did he decide how the action should be determined: he merely entered judgement for the amount agreed upon. It cannot be said that he took any responsibility whatever for the action being determined in the way it was determined. Although the words ‘by consent’ were not written after the word ‘judgement’, it was abundantly clear that the decision determining the action was brought about by consent of parties.

In considering the second leg of the argument by Counsel for the Appellants, the statutory provisions, to the extent that they are relevant, are in Section 110 of the Constitution of the Federation. They read:

‘(2) An appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court as of right in the following cases-

(a) Final decisions in any civil proceedings before the High Court sitting at first instance;

Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal

(iii) from any order made with the consent of the parties ……………………….

‘(4) Subject to the provisions of subsection (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court with the leave of the High Court or the Federal Supreme Court in the following cases- ………………..

(b) any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Federal Supreme Court by virtue of paragraph (a) of that sub-section; …………………

The Respondent relied on proviso (iii) of subsection (2) (a) in the above provisions as showing that the appeal could not have been brought without leave. For the Appellants, however, Counsel argued that the judgement appealed from was a final judgement, and that the word in proviso (iii) to subsection (2) was ‘order’ and that ‘order’ in that proviso meant no more than an interlocutory order and so there was no need to obtain leave to appeal .Counsel relied on Onslow v. Commissioners of Inland Revenue [1890] 25 Q.B.D. 465 where Lord Esher said as follows:

‘A judgement, therefore, is a decision obtained in an action, and every other decision is an order.’

It is true that in many cases judgements and orders are kept entirely distinct, but there are a number of cases where judgement or order are used as synonymous words. They are to be found more in cases relating to Increase of Rent Restriction; Wellesley v. White [1921] 2 K.B. 204 and Rossiter v. Langley [1925] 1 K.B. 741 are examples of these. In these cases, it was held that there was no jurisdiction to hear the appeals because the original orders were made by consent. The same point is illustrated in Hadida v. Fordham & Sons Ltd. [1893] 10 T.L.R. 139.

It is however hardly necessary to turn to judicial decisions in arriving at a conclusion in this matter, because the answer is to be found in the same Section 110 of the Constitution of the Federation itself. I refer to subsection (7).

It states

‘(7) In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes (without prejudice to the generality of the foregoing) a judgement, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation. ‘

It is abundantly clear that ‘final decisions’ include both final judgements and final orders and that ‘order’ in Proviso (iii), when read with subscription (2) (a), means an order in the nature of a final decision made with the consent of the parties. The parties, having agreed on how their dispute should be determined, ask the Court to enter judgement by consent in accordance with their terms of settlement, and the Court orders with their consent that judgement be entered accordingly. Thus it happens that one speaks of a consent judgement or order indifferently: for example, Combe, C.J., in Sarkis v. Sarkis (supra) describes the ground of appeal as being this, namely that ‘the plaintiff was not a consenting party to the terms of settlement which is embodied in the said order or judgement of the Court.’

The argument that ‘order’ in proviso (iii) means an interlocutory order is plainly wrong when the proviso is read with ‘final decisions’ in subsection (2) (a). The effect of the proviso is to prevent an appeal from lying as of right under subsection (2) (a) when the final decision was given by consent.

For these reasons we held we had no jurisdiction to hear the appeal filed and it was struck out.

Case Number: FSC.421/1962