Bessoy Limited V. Honey Legon (Nig) Limited & Anor (2008)

LawGlobal-Hub Lead Judgment Report

R.C. AGBO, J. C. A.

The appellant was plaintiff in Suit No. ID567M/96 in which the 1st respondent was a defendant. Appellant’s counsel, purportedly without the consent of the appellant negotiated a comprise with the defendant and the written compromise was entered as judgment of the Lagos State High Court. Not satisfied with the terms of the consent judgment the appellant filed against the 1st respondent and the Chief Registrar of the High Court of Lagos State Suit No. 1D/1948/99 and claimed of the defendant as follows:

“1. A DECLARATION that the consent judgment of the Ikeja High Court in suit 10/567/M/96 between BESSOY LIMITED v. HONEY LEGON (NIG) LTD dated the 28th day of July 1998 is not enforceable in line with the purported “Terms of Settlement” filed and dated the 24′ day of July 1998.

2. A DECLARATION that the plaintiff did not consent to nor executed the said terms of settlement neither was it informed as to Its contents nor did the plaintiff instruct any counsel to execute same on its behalf.
3. A DECLARATION that the unilateral decision by the plaintiffs counsel (then) in the said suit to enter into terns of settlement and subsequently consent judgment outside the plaintiffs express instructions and without authorization of the plaintiff so to do, does not amount to the consent of the plaintiff and therefore does not bind the plaintiff.
4. A DECLARA none that the said judgment dated the 28th day of July 1998 was delivered without jurisdiction and or was obtained by fraud and collusion.
5. A DECLARATION that the plaintiff rather than the defendant is the one entitled to all that parcel of land situated at Ojota Ogudu Phase II know and referred to as Petrol Filling Station Ojota Ogudu Phase II Scheme in Somolu Area of Lagos State containing an area of approximately 3027.093 square meters more particularly delineated and verged “PINK” on survey Plan No. AT/LN1743 and covered by an irrevocable power of attorney dated 28th day of April 1999 from the Registered Trustees of Apostolic Church to the Plaintiff and further reinforced vide the judgment of Hon. Justice A.C. Adeyinka in SUIT. ID/567M/96 delivered on the 16th day of January, 1997 giving the plaintiff powers to recover the said land.
6. A DECLARATION that the purported Registration of the same land as part of the land registered as No. 98 at page 98 in volume 1999 AH of the Lagos State of Nigeria Land Registry Office, lkeja, Lagos despite the subsisting interest of the plaintiff thereto is null and void and of no effect.
7. AN ORDER setting aside the afore stated terms of settlement dated the 24th day of July 1998 and the said consent judgment dated the 28th day of July 1998.
8. AN ORDER of perpetual injunction restraining the defendants, their agents, servants, subordinates, officers and privies from disturbing the possession, title and or other proprietary rights of the plaintiff either by way of execution or other enforcement of the said IKEJA HIGH COURT Judgment dated the 28th day of July 1998 or by other entry by the defendants, their agents, servants, subordinates, officers and privies of the said land aforementioned.”

Upon service on the 1st respondent the appellant’s statement of claim and without filing its statement of defence 1st Respondent filed a motion on notice on 15th October 1999 dated the same date pursuant to Order 23 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules and the inherent jurisdiction of the court praying the court for an order dismissing the suit or alternatively an order striking out the suit. The grounds set in the motion paper were “(1) the suit is an abuse of process (2) the statement of claim discloses no reasonable cause of action and the plaintiff’s action is frivolous and vexatious (3) this court lacks jurisdiction to entertain the suit.” Affidavits were filed and exchanged. The motion was argued and in a ruling dated 3rd day of May 2006 but delivered on 20th June 2006 the trial judge adjudged as follows:

“I accordingly hold that the plaintiff has not proved any fraud by either his erstwhile counsel or the defendant or its counsel in this case to warrant setting aside the consent judgment entered into by Hon Justice A. F. Adeyinka on 16/11/97 in Suit No. ID/567M/96. I according uphold the preliminary objection of the defendant and dismiss the action of the plaintiff.”

Dissatisfied with this ruling the appellant filed this appeal challenging the said ruling on 5 grounds of appeal set out in its notice of appeal to wit:

“GROUND ONE

The judgment is against the weight of evidence

GROUND TWO

The learned trial judge misdirected himself in law in holding that “the respondent/plaintiff (now appellant) filed no counter affidavit to the affidavit of the 1st defendant/applicant and by reason thereof further held that the said defendant/applicant’s affidavit and “its averments stand unchallenged and uncontradicted” – which formed the major basis of the lower Court’s Ruling against the appellant presently being complained of in this appeal.

GROUND THREE

The learned trial judge of the lower court erred in law when he held that “I accordingly hold that the plaintiff has not proved and fraud by either his erstwhile counselor the defendant or its counsel in the case to warrant setting aside the consent judgment.”

GROUND FOUR

The learned trial court erred in law by holding that “once a client has retained counsel he is bound by the counsel’s agreement however much he may disapprove and that it has no jurisdiction to set aside the consent judgment being complained of.