Taiye Oshoboja V. Alhaji Surakatu I. Amuda & Ors. (1992)

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L. UWAIS, J.S.C.

The appellant was the defendant in an action which was brought by the respondents, as plaintiffs, in the High Court of Lagos State sitting at Ikeja claiming that the judgment of the Court given by Taylor, J. (as he then was) on the 2nd day of June, 1958 be set aside. The background to the action is as contained in paragraphs 7 to 11 and 13 to 20 inclusive of the plaintiffs’ Amended Statement of Claim, which read as follows:-

“7. On the 3rd March, 1958, it was agreed by counsel in the two Suits AB/24/55 and AB/29/55 that AB/24/55 should be heard first and that it should be a test case for the other suits AB/29/55 and that the former shall decide the latter. The proceedings of AB/24/55 of the 3rd March, 1958 before the Hon. Justice John Taylor will be relied upon.

8. In the event that happened judgment was given in favour of the plaintiff in Suit No. AB/24/55 on the 2nd June, 1958.
9. On the said 2nd day of June, 1958 the said trial Judge in pursuance of the agreement of 3rd March, 1958 dismissed the plaintiff’s case No. AB/29/55. Proceedings of the 2nd day of June, 1958, therein will be relied on at the trial of this action.
10. The defendants therein then appealed to the Supreme Court of Nigeria against the judgment in AB/24/55 and the judgment of 2nd June, 1958 was set aside by the Supreme Court. The judgment of the Supreme Court in appeal No. SC. 169/1964 will be relied upon at the trial.
11. The plaintiff made several attempts to appeal against the dismissal of AB/29/55 but the Supreme Court decided per incuriam that the defendants representing the Oshoboja family having died the application was bad and leave to appeal and substitute other persons were refused. Proceedings before the Supreme Court will be relied on at the trial.”

“13. The Supreme Court of Nigeria in its judgment dated the 4th day of November, 1966 ordered that the case be retried in the High Court.

14. The action was retried by the Honourable Justice Beckley, and in a considered judgment he dismissed the defendants’ action Suit No. AB/24/55 with costs.
15. Tesi Opebiyi the original plaintiff died in August 1982 and the present plaintiffs were substituted by order of court.
16. In a unanimous considered judgment delivered on the 11th day of July, 1984, in Sc. 116/83 the Supreme Court of Nigeria affirmed the judgment of the Honourable Justice Beckley which dismissed the defendant’s said action.
17. The plaintiffs will contend that Suit No. AB/29/55 was dismissed by Taylor J. on the basis of counsel’s agreement of 3rd March, 1958, that the decision in AB/24/55 should decide AB/29/55 and the mistaken assumption both by counsel and the court that the judgment in AB/24/55 would stand.
18. The plaintiffs will also contend that to allow the judgment of dismissal of AB/29/55 to stand after the judgment in AB/24/55 was set aside by the Supreme Court will result in a denial of justice to the plaintiff in AB/29/55 which result cannot be and has never been contemplated by the court.
19. The plaintiffs therefore claim that the agreement of 3rd March, 1958, binds both parties and upon the dismissal of the Suit No. AB/24/55 the judgment of Taylor J. dismissing Suit No. AB/29155 must be set aside. Defendants’ motion on notice dated 26th June, 1984 will be relied on.
20. The plaintiffs, also claim that the judgment of Taylor J. in AB/29/55 delivered on the 2nd day of June, 1958 be set aside as

(1) it was given under a mistake of fact that Suit No. AB/24/55 was won by the plaintiffs therein. (2) the bais (sic) for the judgment had disappeared when the Supreme Court set aside the judgment in AB/24/55 and ordered a retrial;

(3) the consideration for compromise which is a decree or judgment in favour of one of the parties in AB/24/55 had totally failed;

(4) at the retrial of AB/24/55 before Beckley J. Suit No. AB/24/55 was dismissed, and

(5) the Supreme Court of Nigeria in a unanimous judgment delivered in SC. 116/83 affirmed the judgment of Beckley J.:

Without filing a Statement of Defence, the defendant brought an application under Order 22 rule 4 of the High Court of Lagos (Civil Procedure) Rules, 1972 for the plaintiffs’ Amended Statement of Claim to be struck out on the ground “The Statement of Claim does not disclose any grounds on law to support the claim endorsed on the writ of summons,”

It is the ruling in the application that gave rise to the appeal to the lower court and then to this Court, In the ruling, the learned trial Judge (Longe J.) stated as follows:-

“I have considered the legal authorities cited by Chief Williams but I must say that before these authorities can have any bearing on this application one fundamental point has to be resolved. This is the Order made by Taylor J. in AB/29/55 on 3rd June, 1958 a consent order or an order to which the parties submitted. The answers to these questions shall determine whether or not the plaintiff has got a cause of action, of which it is necessary to inquire whether or not fraud or injustice has occurred in the process of agreeing to or submitting to such an order.”

and then found thus:-

“Thus, although I found because of the circumstances surrounding judgment in AB/29/55 delivered by Taylor J. on 2nd June, 1958 that it is a consent judgment with a little characteristic feature of submitting to the consent judgment, there is nothing in the Writ nor in the statement of Claim of the Plaintiff to found any cause of action that, that judgment should be set aside on the ground of fraud injustice to the Plaintiffs/Respondents in this case.

The applicants are therefore entitled to come under Order 22 rule 4 that the Statement of Claim be struck out as it does not disclose any grounds in law to support the claim endorsed on the Writ of Summons. The fact that suit No. AB/24/55 was eventually set aside is, in my own opinion, not such a fresh evidence unknown to the plaintiff as to form a ground that the judgment should be set aside. I believe the proper thing for the plaintiffs to do, if an appeal on AB/29/55 is no more feasible, is to institute a completely fresh action since issues formulated in AB/29/55 did not actually go on trial for determination. In adopting this line of action however, the doctrine of estoppel per rem judicatam may come into focus. All this is a matter of opinion. I may be wrong.