Ronke Odulaja & Ors V. Olufemi Williams (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal against consent judgment, as to part ordering payment by instalments—appeal misconceived.

Held : The judgment in question being on the face of it a consent judgment could only be upset on appeal as to the whole. One party cannot pick and choose on appeal which portion of a consent judgment shall hold good and which shall not.

The facts are sufficiently set out in the judgment.

Geary for Plaintiff-Appellant. Taylor for Defendant-Respondent.

The following joint judgment was delivered :-

KINGDOM, C.J. NIGERIA, PETRIDES C.J, GOLD COAST AND GRAHAM PAUL, C.J. SIERRA LEONE.

In this case the Plaintiff-Appellant, then an infant, by her guardian and next friend sued the Defendant-Respondent in the Supreme Court for damages for breach of promise of marriage.

On the 13th December, 1939, the following judgment was given by Butler Lloyd, J.—

” By consent judgment for Plaintiff for £100 and costs 10 guineas to be paid by monthly instalment of £1 commencing end December except as to costs.”

On the 23rd February, 1940, Plaintiff-Appellant’s Counsel filed a motion for the 1st March, 1940, asking for an Order :—

” that the Judgment of this honourable Court dated the 13th day of December, 1939, may be varied in so far as direction that the £100 should be paid in £I monthly instalments and that immediately payment may be ordered on the ground that the Plaintiff was not consulted and never consented to a monthly payment, and that such Order was not for the benefit of the infant Plaintiff.

“Dated the 23rd day of February, 1949.”

This motion came before Carey, J. during the temporary absence from Nigeria of Butler Lloyd, J.; Carey, J. by consent added as a variation to the Order of Butler Lloyd, J. the words ” Liberty tc, the Plaintiff to apply.”

The Plaintiff-Appellant was granted leave to appeal from the judgment of Butler Lloyd, J. of the 13th December, 1939, and that is the appeal now before us.

The Appellant is not asking that the whole judgment be set aside but only that part which orders payment by instalments.

We are of opinion that the appeal is entirely misconceived. The judgment in question, being on the face of it a consent judgment, could only be upset on appeal as to the whole. It is obvious that one party cannot pick and choose on appeal which portion of a consent judgment shall hold good and which shall not. If, as is contended, the Plaintiff-Appellant did not agree to the part as to instalments, then it is clear that the parties were not ad idein and the ” consent ” of the Defendant is no consent at all. So that if any part of the judgment had to be set aside on appeal the whole would have to be set aside. Apart from this, the question of payment by instalments is governed by Schedule II Order 41 rule 8 of the Rules of Court which reads :-

” When any judgment or order directs the payment of money, the court may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest. Such order may be made- at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time.”

It is therefore open to the Plaintiff-Appellant to apply to Butler Lloyd, J., who is now in Nigeria, for variation or rescission of the Order for payment by instalments, but we express no opinion on the question as to whether the terms of the consent judgment do 01 do not preclude the Judge from acting under the above quoted rule.

The appeal is dismissed with costs assessed at 7 guineas.