Yesufu Babajide V Akitoye Aisa And Anor (1966)
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ONYEAMA, J.S.C.
The plaintiff, Yesufu Babajide, claimed against the defendants a declaration of title to an area of land; the writ was issued from the High Court at lbadan on the 29th of December, 1960. On the 20th of February, 1961, the court ordered pleadings allowing the plaintiff ninety days within which to file a Statement of Claim and a plan of the land in dispute, and the defendants sixty days thereafter within which to file a Statement of Defence and a plan if necessary.
On the 5th of June, 1961, the court granted the plaintiff an enlargement of thirty days for complying with the order as to pleadings, and on the 4th of July, 1961, the plaintiff filed his Statement of Claim and plan claiming that the land had descended to him from his ancestor Odubiyi and accusing the defendants and their servants and agents of trespass on the land.
On the 20th of October, 1961, the plaintiff filed notice of motion for judgment as the defendants had not up to then filed their Statements of Defence although, according to affidavit, the Statement of Claim and the plan had been served on their counsel Mr R. 0. A. Akinjide on the 12th of July, 1961.
The application ultimately came up for hearing on the 11th of December, 1961 and an order was made entering judgment for the plaintiff. As the proceedings of the 11th of December, 1961 are of considerable importance in this appeal, we set them out in full:
“Yesufu Babajide v. Akiteye Aisa and Another. Oloko holds Kolawole’s to move. Peluola holds Akinjide’s brief on notice, not opposing the application. ORDER:-Order as prayed.
Judgment is hereby entered by consent against the defendants, jointly and severally for declaration of title to the piece or parcel of land situate lying and being at Iropo, Eruwa Council Area, Ibadan and which is more particularly shown as edged red in the plan filed with the Statement of Claim. A counter-signed copy of the plan filed to be lodged in court within four weeks of today, otherwise this judgment will become suspended till one is so lodged. See the case of Adedire Ogunleye v. Gabriel Arewa, reported at page 9 of 1960 Western Nigeria Law Report, Part 1. Costs Assessed at 45 guineas.
(Signed) O. SOMOLU-Judge.”
The judgment was duly enroled.
On the 15th of August, 1962, the defendants gave notice of motion under Order 1, rule 12(b) of the Sheriffs and Civil Process Law for an order setting aside the judgment of the 11th of December, 1961. They based the application on the allegation contained in paragraph 8 of the supporting affidavit as followings:-
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“That we did not give our solicitor instruction not to oppose the motion for judgment and if we had the opportunity of giving instructions to him at all before the motion was heard, we could have instructed him to oppose motion.”
In his affidavit Mr Akinjide, solicitor for the defendants, swore:
“2. That the motion of 11/12/61 was served on me and I had no opportunity of seeing the defendant before it was taken.
“3. That on the day the motion was taken, a junior, Mr Peluola, held my brief with instructions to oppose the motion and seek adjournment for time to file another motion for extension of time.
“4. That Mr Peluola was only some days old at the Bar and when he got to court, he said that he was not opposing the motion, contrary to the instructions I gave him.”
Mr Peluola swore to an affidavit in which he deposed:
“3. That I completely misunderstood the proceedings whereby judgment was given in terms of the motion contrary to my instructions.”
and “5. That I made an honest mistake that day and I pray the court to relist the case.”
The application came before the court on the 5th of November, 1962. The record of the arguments is extremely laconic and is set out in full hereunder:
“1/23/61 Yesufu Babajide vs. A. Aisa and Another. Fatoki for Kolawole for plaintiff. Akinjide for defendant. Akinjide: I am moving under Judgments (Enforcement) Rules Cap 116 Sheriffs and Civil Process Law. Order 1, rule 12B. Refers to affidavit of Mr Peluola of the 1st September, 1962. Fatoki opposes the application.”
After these arguments, and on the affidavits filed, the learned judge (Stephen Peter Thomas, J.) allowed the application, set aside the judgment of December 11, 1961, and allowed the defendants thirty days within which to file a Statement of Defence.
From this order of Thomas, J. the plaintiff brought this appeal and his main ground of appeal is:
“The learned judge erred in law in setting aside the consent judgment upon the motion by the respondents when the proper procedure was by a fresh action.”
Mr Agbaje’s argument was to the effect that since the judgment of December 11, 1961, was on its face a consent judgment the proper procedure for setting it aside is by a substantive suit commenced for that purpose and not by a motion: since the defendants sought relief by way of a motion the learned judge had no jurisdiction: he relied on Ainsworth v. Wilding [1896] 1 Ch. 673 where Romer, J. said at page 676:
“This is a motion to discharge a judgment given at the trial of the action, notwithstanding such judgment has been passed and entered. The application is made in the action in which judgment was given, and the ground of the application is that the judgment, which was based on the consent of the parties at the trial, was consented to under a mistake on the part of the applicant. The respondents have raised the objection that the Court has no jurisdiction to discharge the judgment on such motion and that it has no longer power in this action to deal with its judgment on the ground relied upon by the applicant, and can only deal with it if a fresh action is brought to set aside the judgment.
If I should overrule the objection as to jurisdiction, the parties desire to go into evidence on the motion. Speaking for myself, I am very sorry I do not see my way to overruling the objection, for I cannot but see that the effect of not doing so will be to cause considerable expense and probably some delay. I think that a fresh action must be brought and that I have no jurisdiction to hear the matter on motion, at any rate without the consent of the parties.”
As will be noticed, that case closely resembles the case under consideration: there, as here, it was sought to set aside a consent judgment by motion
He also referred to Kinch v. Walcott [19291 All E.R. (Reprint) 720 in which the Privy Council approved the statement of the law by Romer, J., in Ainsworth’s case.
Mr Akinjide for the respondents submitted that as the judgment in question was given in default of a Statement of Defence it was an interlocutory judgment, and could be set aside by an order made on a motion: he referred to Mullins v. Howell (1879) 11 Ch.D 763, Ainsworth’s case and Davenport v. Stafford 8 Beav. 503.
We think it is clear beyond argument that the consent judgment of the 11th of December, 1961, was final as it finally settled the rights of the parties in the Area Of Law of the claim. It was not given in default of a Statement of Defence, but as a result of the agreement of counsel representing the parties, even though the occasion of the motion for judgment was default in filing a Statement of Defence. It becomes unnecessary to consider the authorities cited which deal with interlocutory judgments, and judgments signed in default of a defence.
We agree with Mr Agbaje that the proper procedure for setting aside the judgment in this case is not by motion, and that the learned judge had therefore no jurisdiction to make the order on the application before him.
The objection was taken, in limine, that leave to appeal in this case was given on the 9th January, 1963, but the notice of appeal was filed on the 28th of January, 1963 that is to say, more than fourteen days after leave had been given; it was submitted that section 31 of the Supreme Court Act requires that notice had to be given within fourteen days of leave to appeal being obtained. The relevant portion of section 31 reads:
“31.-(1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by subsection (2) of this section that is applicable to the case.
(2) The periods described for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;”.
Mr Agbaje’s answer to the objection was that while it was right to say that leave had to be obtained to appeal from an interlocutory order, and this, he submitted, had to be applied for within fourteen days, there was no time limit prescribe for giving notice of appeal after leave had been obtained: after leave had been obtained, he said, Order 7, rule 3(2) of the Supreme Court Rules applied; if the respondent thought there was undue delay in giving notice of appeal he could move the court to set aside the appeal. Order 7, rule 3(2) is in the following terms-
“If leave to appeal is granted by the Court or by the court below the appellant shall file a notice of appeal.”
We are inclined to the view that Mr Agbaje’s submissions accurately construe section 31 of the Act: they reveal a hiatus in the law which we hope will receive the attention of the lawmaking authority. The appeal is allowed and it is ordered that the order of the High Court, lbadan, dated the 5th of November, 1962, made on the application of the defendants in Suit 1/23/61 between Yesufu Babajide and 1. Akitoye Aisa 2. A. Obasola, including the order as to costs, be and is here set aside and that the said application do stand dismissed.
The appellant will have his costs in this Court assessed at 50 guineas and on the motion in the court below assessed at 12 guineas.
Other Citation: (1966) LCN/1304(SC)
