Samuel Sogbesan V. Mr. Adebowale Ogunbiyi & Ors (2005)

LawGlobal-Hub Lead Judgment Report

OGUNBIYI, J.C.A.

This is an appeal against the ruling of his Lordship, Justice Rhodes Vivour of the Lagos High Court, delivered on the 6th July, 2001, whereby the appellant’s application dated 2nd day of March, 1998, was dismissed. The appellant desired to set aside the consent judgment entered into by the parties and signed on the appellant’s behalf by his counsel. The appellant claimed that the judgment even though signed by his counsel on his behalf was however without his instructions and very much against his will.

The facts that gave rise to this appeal are simple and briefly as follows: At pages 9 – 10 of the record of proceedings, the lower court on the 17th March, 1997, entered judgment in the suit No. LD/2896/95, in terms of the settlement agreed upon between the parties and evidenced at pages 11 and 12. Consequent to same, the appellant as the defendant, brought a motion on notice dated 2nd March, wherein he prayed as follows:

“(1) Extension of time within which to apply to set aside the judgment delivered on 17th March, 1997.

(2) That the judgment entered in suit No. LD/2896/95 on the 11th March, 1997, be set aside by this Honourable Court.

(3) …”

In support of the motion is an affidavit of 15 paragraphs, and these are all evidenced at pages 4 – 6 of the record; consequent to the foregoing, arguments commenced on the 13th April, 2000, and concluded on the 2nd May, 2001, with a counter affidavit having been filed in the interim on the 5th April, 2001. All these are also evidenced at pages 39, 41 and 13 – 14 of the said record respectively. The ruling that gave rise to this appeal was delivered on the 6th July, 2001, wherein the lower court refused and dismissed the application to set aside the consent judgment.

By a notice of appeal dated 25th July, 2001, the appellant filed two grounds of appeal. Both parties to the appeal filed their respective briefs of arguments with that of the appellant dated 9th June and filed the 11th June, 2003. That of the respondents was dated 25th October, 2004, and filed the same day. The appellant further filed a reply brief dated the 29th October, 2004, and also filed the same day. When the appeal was called up for hearing, the learned counsel, Mrs. I. O. Harrison represented the respondent; there was however no representation for the appellant. The learned respondents’ Counsel, in arguing the appeal adopted their brief and urged us to dismiss the appeal. It is pertinent to restate that even in the absence of the appellant’s Counsel, with his brief having been filed, same was deemed argued consequent to the provisions of the Rules of this court per Order 6 rule 9(5). From the grounds of appeal filed therefore, the appellant formulated two issues for determination as follows:

1) Whether a counsel’s compromise can bind his client when such counsel acted contrary to the client’s specific instructions?

2) Whether the learned trial Judge correctly applied the provisions of the law to the issues canvassed before him?

On behalf of the respondents however, their learned Counsel Mrs. I. O. Harrison first raised a preliminary objection and subsequently formulated three main issues from the grounds of appeal as follows:

Preliminary issue

Whether the notice of appeal filed by the appellant on the 25th day of July, 2001, is competent

Main issues