Akin Olugbade & Ors v. Onigbongbo Community & Ors (1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

The applicants, who are the executor and beneficiaries of the estate of the 10th Claimant, Claudius Adebowale Soderu (deceased) in Suit No. HK/11/59 at the Ikeja High Court, brought this motion on notice under section 22 of the Supreme Court Act, 1960, Order VII Rule 29 of the Supreme Court Rules (1972) and Order 20 Rule II of the Supreme Court of England, for an order of this Court

“to correct the error or slip on the face of the CONSENT JUDGMENT signed and delivered by His Lordship, Sir A. Adetokunbo Ademola, the Chief Justice of Nigeria (as he then was) on the 31st day of January 1972, the error or slip being the wrongful joining or misjoinder of the Late Claudius Adebowale Soderu, the 10th Claimant in Suit No. HK/11/59 as one of the 3rd to 31st Claimants represented in the consent judgment by Mr. Ajose-Adeogun, holding Chief F.R.A. Williams’ brief, in Appeal Nos. SC/83/1970 and SC/369/1970 and for an order that the 10th Claimant is entitled to be paid compensation of N4,400.00 for his 4,390 acres of land compulsorily acquired by the Minister of Lagos Affairs, Mines and Power and for such further and or other order or orders as this Honourable Court may deem fit to make in the circumstances. ”

There are accordingly two distinct prayers sought by this motion: (1) an order to correct an error on the face of the consent judgment delivered by the Supreme Court on January 31, 1972, and (2) an order directing that the 10th Claimant is entitled to be paid compensation of N4,400.00 for his 4,390 acres of land compulsorily acquired by the Government. We shall deal with both matters separately.

The issues can best be appreciated by tracing, so far as is relevant, the history of the litigation in the two distinct and separate cases which culminated in the judgment now being dealt with. In Suit No. 1K/119/66 Molajo appeared as the learned counsel for the Bale Onigbongbo and others against T.M. Sogunle for whom Chief F.R.A. Williams appeared as the learned counsel before Odesanya, J., who, after hearing the case, ruled on January 8, 1968, as follows:

“In the result the plaintiffs succeed in part. They are entitled to judgment which is now entered for them for a declaration-

(1) That the deeds of conveyance executed by the 1st defendant T.M. Sogunle in favour of the 2nd, 3rd and 4th defendants, Samuel Bolarinwa Olaiya, Isaac Adegbola Oshitelu, D.A. Famoroti and dated and registered as set out above are void.

(2) That T.M. Sogunle, the 1st defendant is a customary tenant of the plaintiffs’ family, the Kuyasi Awushe family of Onigbongbo and has forfeited his customary tenancy and any right, title or interest under Yoruba Native Law and Custom in any part of the land shown on exhibits’ J1′ and ‘L’.

This second declaration amends the declaration sought by the plaintiffs by their writ of summons which is accordingly amended.

The claim for possession is dismissed.

The plaintiffs are entitled to the costs of this action assessed at ‘a3239:10s:Od.”

If this judgment had stood, T.M. Sogunle would not have been entitled to any compensation under the other appeal in SC/369/1970. When this appeal appeared to have reached the Supreme Court, Chief Williams asked for an accelerated hearing of SC/83/1970, which is the appeal of T.M. Sogunle against the judgment in IK/119/66, apparently so as to enable Sogunle to be included in the compensation claim under SC/369/1970. Sogunle died, however, and leave was granted for the substitution of Jeremiah Idowu and others for Sogunle in the SC/83/1970 appeal.

The parallel appeal in SC/369/1970 came up against the judgment of Sagoe, J., In IK/11/59 in which the then Minister of Lagos Affairs brought an originating summons to determine those entitled to claim compensation for the land it had compulsorily acquired, and the 32 claimants had been declared to be customary tenants of the Onigbongbo. In the Ikeja High Court, the late Mr. L.B. Augusto appeared for the 10th claimant, Mr. C.O. Soderu; at one stage, Mrs. M.D. Jinadu appeared apparently holding Mr. Agusto’s brief; but on December 10, 1962, Mr. Agusto again appeared for Mr. C.O. Soderu. The trial had not commenced until Mr. Agusto would seem to have ceased to appear for C.O. Soderu. Then on October 30, 1967, Mr. Akesode declared himself as appearing, on behalf of Chief Williams from whose chambers he came, for the 3rd to the 31st claimants that is, including C.O. Soderu the 10th claimant. There were statements of individual interests attached to the motion. Molajo again appeared for the 1st and the 2nd claimants, the Onigbongbo.

On April 8, 1968, Chief E.R.A. Williams brought a motion seeking the following orders:

“(i) For leave to amend the statement of interest already filed herein;

(ii) For leave to amend the capacity in which the applicants are claiming compensation herein by describing them as claiming ‘for themselves

and on behalf of the other descendants of Egba Refugees in Onigbongbo’;

(iii) Directing the first claimant to nominate one or more persons to represent the Onigbongbo Community in this proceedings;

(iv) Such further or other orders as this Honourable Court may deem fit to make.”

To this he also exhibited the following amended statement of interest for the several claimants:

“1. The 3rd-31st Claimants (hereinafter referred to as ‘these Claimants’) claim to be entitled to be paid compensation for the whole of the land acquired by Government subject to the payment of compensation for the reversionary rights of the first claimants.

2. The said land was about 1868 granted to the Egba Refugees for their use by the first claimants through Governor Glover subject to the usual conditions relating to customary tenancy under Yoruba Law and Custom.
3. These claimants are descendants of an successors in title to the said Egba Refugees.
4. These claimants will rely on the judgment of the Supreme Court in T. Sogunle & Ors. v. Amusa Akerele & Ors. SC/19/65.”

On 10th June, 1968, Odesanya, J., made an order granting Chief Williams’s motion as prayed, thereby making Soderu a client of Chief Williams. The order ran as follows:

“3rd to 31st claimants are hereby granted leave to amend their statements of interests in the manner sought. They are granted leave to with draw their original statements of interest. The joint amended statement of interest to be filed on or before 17th June, 1968. Adjourned for hearing: 25th and 26th July, 1968.”

It is important to observe, however, that, at the subsequent trial of the action on December 12, 1968 before Sagoe, J., Molajo (who appeared for the Onigbongbo) objected to Chief Williams’s appearance in the case for Sogunle and the others (including C.O. Soderu) on the ground that Chief Williams had appeared for the Onigbongbo landowners in Amusa Akerele v. T.M. Sogunle S.C./19/65. In his judgment dated 13th January, 1969, the learned trial judge said, inter alia, the following:

“There was at the commencement of the hearing an objection raised to the appearance of Chief E.R.A. Williams of counsel for defendants. The objection was based on the fact that Chief Williams had appeared for the plaintiffs when declaration was sought by the plaintiffs against some of the Egba Refugees. I have found out that Chief Williams did not appear for the plaintiffs in the High Court in Suit AB/21/1958, but only led when the action came before the Supreme Court in SC/1911965. It was however left to Chief Williams to decide whether the action was one in which he could now appear on the opposite side. After listening to the case to the end, I do not see any moment when Chief Williams could have been said to have used his former position as counsel to the plaintiffs in an earlier action to the advantage of his present clients, i.e., the defendants.”

Thereupon, the learned trial judge made the following findings:

‘(a) That the defendants are entitled to compensation in respect of economic trees and cash crops on the land acquired.

(b) That both the plaintiffs and defendants are entitled to compensaton in respect of the land acquired and described in Government Notice 1666 dated 11th September, 1957.I have not been asked, as it is usual, to say in what proportion this compensation should be paid and I shall not attempt to do so.

One other point to be mentioned is that the 32nd claimant, i.e., J.A. Ajao’s estate, although represented by counsel at the hearing, called no witness and did not cross-examine any of the witnesses for the other parties. The 32nd Claimant is therefore not entitled to any compensation. ”

Against this judgment the Onigbongbo appealed to the Supreme Court, (in SC/36911970) on these three grounds among others:

“1. The learned trial judge erred in law when he said the statement of interest of the parties was pleading and as it did not contain any facts relied upon against the Egba Refuges claim as a class evidence led in support of the averment that they were not as a class entitled to compensation for the land was inadmissible, and in rejecting all the evidence.

2. The learned trial judge misdirected himself on the evidence when he held that the Egba Refugees are entitled to compensation when there was no claim made by the Egba Refugees and it was clear that claims that were made were by individuals.
3. The learned trial judge erred in law by rejecting in evidence documents tendered by the appellants showing that the Egba Refugees had partitioned the land among themselves and therefore made distinct separate claims and had sold portions of their separate holdings and that the Egba Refugees had no claim in the land.”

It will now be necessary to add that in SC/83/1970, Sogunle’s estate also appealed to the Supreme Court against the judgment forfeiting the land previously occupied by Sogunle and the parcels of land alienated by Sogunle to strangers. This was the position in which the two appeals stood before the Supreme Court gave the consent judgment, the subject-matter of the present motion.

In support of the motion, Mr. Akin-Olugbade, as the executor to the estate of C.O. Soderu, averred in certain relevant paragraphs of his affidavit as follows:

“7. That Chief F.R.A. Williams and O. Ajose Adeogun, Esqr., subsequently realised their mistake in including, without authority, the 10th claimant as a party to the consent judgment and by a written undertaking dated the 27th day of March, 1973, O. Ajose-Adeogun, Esqr. as an associate acting for Chief F.R.A. Williams undertook to pay to my firm of Solicitors the share of compensation due to the Estate of Claudius Adebowale Soderu without deducting any fees or charges from such compensation payable to us. A Photostat copy of the written undertaking is attached and marked-Exhibit ‘D’.

8. That pursuant to the written undertaking in Exhibit ‘D’ a letter was addressed to the Permanent Secretary, Federal Ministry of Works and Housing, Lands Division, Lagos, giving authority to Ajose-Adeogun of Chief E.R.A. Williams’ Chambers to collect on our behalf the share of compensation due to the 10th Claimant a copy of the Letter of Authority is attached hereto and marked-Exhibit ‘E’.
9. That by a letter dated the 7th day of August, 1973, Chief F.R.A. Williams, acknowledging the independence identity of the 10th Claimant, informed us that he had collected from the Permanent Secretary, Federal Ministry of Works and Housing, various cheques amounting to Seventeen thousand five hundred and twenty Naira twenty Kobo (N17,520.20) and that he had paid the said sum of N17,520.20 to the Egba Refugees Descendants Community. A copy of this letter is attached and marked-Exhibit ‘F’.
10. That the share of compensation payable out of the N17,520.20 to the Estate of the 10th Claimant is N4,400.00 which Chief F.R.A. Williams has not paid to us as promised.
11. That the sum of N17,520.20 with N4,400.00 paid, in 1973, by the Federal Ministry of Works and Housing to Chief F.R.A. Williams was paid not in one cheque but in various cheques in favour of each of the claimants recognised and approved by the Court and none of the cheques was issued in the name of the so-called Egba Refugees (1867) Descendants Community to whom Chief F.R.A. Williams paid all the moneys.
12. That I believe that it is in the interest of justice that this Honourable Court should be favourably disposed to’ grant the order to correct the error that the 10th Claimant was made a party to the Consent Judgment dated the 31st day of January, 1972 and that Chief F.R.A. Williams and the recently formed Egba Refugees (1867) Descendants Community having no authority to collect the sum of N4,400.00 should pay over the said sum of N4,400.00 to the Estate of the Late Claudius Adebowale Soderu, the 10th Claimant in Suit No. HK/11/59.”

Exhibits ‘D’, ‘E’ and ‘F’ read as follows:

“D. UNDERTAKING

1.0. AJOSE-ADEOGUN, Solicitor of No. 26 Moloney Street, Lagos,

undertake to pay over to Messrs. O.B. Akin-Olugbade & Co., Solicitors of 13115, Balogun Street, Lagos, without taking any charges, the share of compensation due to the Estate of Claudius Adebowale Soderu payable by the Federal Government in respect of the acquisition of land for the Southern Police College, Ikeja, Lagos State.

Dated this 27th day of March, 1973.

E. O. Ajose-Adeogun.”

Akin-Olugbade & Co.,

13/15 Balogun Street,

Lagos, Nigeria.

27th March, 1973

Our Ref. JOS/TSF/03/73.

The Permanent Secretary,

Federal Ministry of Works and Housing,

Land Division,

Independence Building,

Lagos.

Dear Sir,

Compensation for acquisition of land for the Southern Police College, Ikeja,

Re: Estate of Claudius Adebowale Soderu

We refer to our letter dated 10th August, 1972 regarding payment of compensation in respect of the above-mentioned acquisition.

This is to inform you that, by letter we authorise Mr. O. Ajose Adeogun, Solicitor of Chief Rotimi’s chambers to collect on our behalf the share of the compensation due to the 10th Claimant-Estate of Claudius Adebowale Soderu.

Yours faithfully,

Solicitor.

Copy to:

Mr. O. Ajose-Adeogun,

c/o Chief Rotimi’s Chambers, 26 Moloney Street,

Lagos.

Above for your information and necessary action, please

Solicitor. ”

F.R.A. Williams, Esq.,

26 Moloney Street,

P.O. Box 3426

Ref. NCB/51/72. 7th August, 1973.

Chief O.B. Akin-Olugbade.

Solicitor,

O.B. Akin-Olugbade & Co.,

13/15 Balogun Street,

LAGOS.

Dear Chief Akin-Olugbade,

Compensation for Acquisition of Land

for the Southern Police College, Ikeja,

Reg: Egba Refugees Descendants Community.

Further to my letter dated 29th June, 1973 addressed to the Permanent Secretary, Federal Ministry of Works and Housing which I copied to you, I am to inform you that cheques totalling N17,520.20 (Seventeen thousand five hundred and twenty Naira twenty Kobo) have been collected by me from the Ministry and that I have paid the amount to the Egba Refugees Descendants Community on whose behalf I collected the cheques.

Yours sincerely,

F.R. A. Williams.”

It is useful to mention that no counter-affidavit was filed before this motion was heard. We were, however, informed by Chief Williams that another action had been instituted by the applicant in the Lagos High Court claiming the same amount from him and others. Counsel’s main opposition to the motion is that the applicants could not re-open the issues already settled in the consent judgment on the ground either that being parties to it they were bound by it or that not being parties to it they could not ask this Court to correct the consent judgment between other parties. The relevant paragraphs of the consent judgment are as follows:

“1. The appellants hereby waive any rights that may have been conferred upon them by the judgment of the Ikeja High Court in Suit No. 00119166 (Raji Adebiyi Asabiyi v. T.M. Sogunle).

2. The proceedings on appeal from the aforesaid Suit No. IK/119/66 which if pending before the Supreme Court and numbered as S.C./83/1970 should be settled on the terms set font in paragraph (1) hereof.
3. All suits and proceedings which are pending in the High Court of Lagos State or on appeal therefore to the Supreme Court between the Onigbongbo Community or their grantees or other persons claiming through or under them on the one hand and the Onigbongbo Community (otherwise known as the Descendants of the Egba Refugees) or their grantees or other persons claiming through or under them on the other hand shall be settled, compromised or dealt with in the manner set forth in paragraphs 5 and 9 hereof.

(a) All suits and proceedings wherein either pany has challenged the right of the other party to make a grant of land shall be discontinued and each pany shall bear his own costs.

(b) Each of the panies hereby undertakes. not to prosecute or enforce any judgment in respect of such suits or proceedings except to the extent to which it is consistent with these Terms of Settlement.

(c) Each of the panies hereby undertake to withdraw all appeals from any judgment of the High Court in respect of the right of the other pany to deal with or exercise rights over the land and to bear his own costs in respect of such appeal.”

Apart from what is stated in these paragraphs, there is no evidence that the two appeals in S.C./83/70 and S.C./369/70 were ever consolidated by an order of the Supreme Court before or outside the consent judgment itself. The question then arises as to whether C.O. Soderu had been joined as one of Chief Williams’s 3rd to 31st claimants either with his knowledge or with his consent. There is no evidence that he did know or consent; Chief Williams could not, in view of Exhibits D, E and F, now claim to have obtained Soderu’s authority to act for him. The joinder of Soderu was clearly inadvertent and the consent judgment could not bind Soderu’s estate, especially as the consent judgment was most obviously the result of a compromise, indeed, paragraphs 4 and 6 make this quite clear.

Now, the law is that a consent judgment resulting from a compromise where the legal issues have not been litigated may be corrected at the suit of a person aggrieved by such a judgment. As Spencer Bower and Turner assert in The Doctrine of Res Judicata, 2nd edition (1969), at p. 40:

“Of course no consent judgment or order has the slightest operation or effect, whether by way of estoppel or otherwise, against any third person, or against any of the parties who is not shown to have consented. Where a party, though cited in the proceedings and served, has not appeared at the hearing, and has taken no part therein, he will not be stopped by a judgment given by consent of the other parties, when the issue has not been really litigated, and the opposition has been ‘bought off’ by the settlement. ”

In Ritchie v. Malcolm (1902) 2 I.R. 403, Andrews, J., observed at para. 410, as follows:

“In my opinion if the action does not proceed to its natural end, but terminates by reason of a compromise entered into without his knowledge, he is not bound by the result. The rule to be extracted from the judgment of Lord Penzance in Wytcherley v. Andrews (L.R. 2 P. & D. 327) is, in my opinion, applicable whether the person to whom it is sought to be applied has been cited to see proceedings or not. That rule is well stated in Tristram & Coote’ Probate Practice, 13th ed., p. 355, thus:-‘It is not necessary in the Probate Court that a person should be a party to a suit in order that he should be bound by its result; it is sufficient that he be privy to the proceeding. If a person is privy to a suit, and, knowing what is passing, is content to stand by and see his battle fought by somebody else in the same interest, and it appears that everything has been done bona fide in his interest, he is bound by the result and not allowed to re-open the case. But if the suit terminates in a compromise, entered into without notice to him and without his having knowledge that the suit is not proceeding to its natural end, he is not bound by the agreement which the parties to the suit choose to enter into. A bargain only binds those by whom it is made. Persons who are willing to stand by while a contest is going on are bound by the decision of the Court, but they are not compelled to abide by a compromise when no decision is in fact come to by the Court’.

That the principle in favour of exempting compromise from the binding effect of a consent judgment is of general application is borne out by Lord Penzance’s words in Wytcherley v. Andrews (187 D.E.R. 2 P. & D. 327, at pp. 328-329):

“On the other hand, there is a practice in this (Probate) court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the Court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened. That has been undoubtedly the rule also in the Prerogative Court, but I do not find that it has even been applied to cases of compromise. It is one thing to say that a person who stands by and lets another fight his battle, must be bound by the result of the contest; and it is quite another thing to say that, without any notice that there was going to be a compromise, and without any knowledge that the suit was not proceeding to its natural end, he must nonetheless be bound by any agreement which the parties to the suit may choose to enter into.”

The same principle was upheld by Younger, J., in King In Re Jackson v.Attorney-General (1917) 2 Ch. 420 at P. 431 and also by the West African Court of Appeal in Uwalaka & Ors. v. Agba & Ors. (1955) 15 W.A.C.A. 63, at pp. 65-66.

We do not think that it is a sufficient answer to the claim of the deceased’s estate to a return of the N,400.00 to say that there had been no specific finding to that effect in the litigation proceeding the consent judgment. This is so because the compromise robbed him and the court of the opportunity to determine a number of legal issues including Soderu (deaceased)’s share of the compensation money based upon his individual ponion as per his own original statement of interest tendered in court Exhibit D at least acknowledges the entitlement of the estate of the deceased to a share of the compensation money to be determined apparently in a manner not then considered to present any insuperable difficulty. In the absence of any affidavit to the contrary, the undertaking given in Exhibit D ought in conscience and in equity to be honoured.

We think that, in the particular circumstances of this case, justice is best achieved by this Court itself dealing with the matter, since the consent judgment of this Court which is in issue here cannot be remitted to a lower court for a new trial, nor is it necessary to re-open all the facets of this protracted case especially since only the representatives of the estate of Soderu (deceased) are the aggrieved party and their claim can and should be definitively determined once and for all by this Court. We have the necessary discretionary powers under section 22 of the Supreme Court Act, 1960, and we recall here in particular the following provision of Order VII, Rule 26 of the Supreme Court Rules (1972):

“The Court shall have power to give any judgment or make any order that ought to have been made, and to make such for her or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that pan only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

In the result we do hereby order

(i) That the joinder of Claudius Adebowale Soderu (deceased) In Suit No. HK/11/59 as one of the 3rd to 31st claimants represented in the consent judgment in Appeals Nos. S.C./83/1970 and S.C./369/1970 was inadvertent;

(ii) That the consent judgment is amended so as to exclude C.O. Soderu (deceased) as one of the 3rd to 31st claimants represented in the said consent judgment;

(iii) That the estate of the said C.O. Soderu (deceased) is entitled to be paid compensation of N4,400.00 in respect of his 4,390 acres of land compulsorily acquired by the then Minister of Lagos Affairs, Mines and Power;

(iv) That Chief F.R.A. Williams and the Egba Refugees (1867) Descendants Community should pay the said sum of N4,400.00 which had been collected by them to the Estate of Claudius Adebowale Soderu (deceased); and

(v) That the respondents do pay to the applicants costs assess at N10 to each of the two groups of applicants.

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SC.83/1970