Alhaji Raimi Edun V. Odan Community, Ado Family And Okokomaiko Community (1980) LLJR-SC

Alhaji Raimi Edun V. Odan Community, Ado Family And Okokomaiko Community (1980)

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N. ANIAGOLU, J.S.C.

On 12th June, 1980, this Court, upon consent of the parties, delivered a consent judgment in the above case which came on appeal to the Court from the judgment of the Federal Court of Appeal. The details of the consent judgment (hereinafter simply referred to as the Consent Judgment) were as contained in the judgment of this Court as read by my Lord, the Presiding Justice, Sowemimo, J.S.C. as follows:

JUDGMENT

This case was instituted in 1961 and the judgment of the Federal Court of Appeal came before us in 1980 that is 19 years after the institution of the case in the court of first instance i.e. the High Court Ikeja. At the court of first instance, the 2nd to 5th Defendants i.e. the Odan Parapo family (including Adu family), who are the 1st Respondents before us; the 6th to 8th Defendants, the Okokomaiko community, who are the 2nd Respondents before us properly made an application at the Ikeja High Court to be joined to the suit.

The Court of first instance granted the application but failed in its order to comply with the Western Region High Court (Civil Procedure) Rules 1958, Order 7 Rules 11 and 12 which made it mandatory that the Order to be made by the court should be that the writ of summons be amended as well as the pleadings so as to include the claims which the two sets of Respondents who were later joined, but the court of first instance only asked that the two sets of defendants should be served with the original writ of summons and statement of claim filed by the plaintiffs, within 14 days and that the Defendants joined should file defence within specified number of days.

The Plaintiff therefore served the writ of summons and statement of claim, which is against the 1st Defendant alone (not before us) and the result was that at the close of pleadings there was no issue joined between the Plaintiff and the 2nd to 8th Defendants and the defence purported to be filed by the 1st to 5th and 6th to 8th Defendants who were joined were not defences at all but claims.

The result was that on the 20th of November 1972 when the High Court of Ikeja made an order to the effect that the settlement of the case and the terms of settlement filed in the Ikeja High Court be treated as a consent judgment between the Plaintiff, the Oniba of Iba etc, and the 1st Defendant, Olojo of Ojo etc., that was the only judgment that could be given, taking into consideration that the court had erroneously excluded the 2nd to 8th Defendants from filing proper statements of defence when the writ of summons and statement of claim of the Plaintiff were never amended. Therefore the ruling of the High Court Ikeja dated the 28th of July 1974 was made without jurisdiction and so also the purported appeal to the Federal Court of Appeal, judgment of which was given on the 20th of July 1978 cannot also stand. In the circumstances of this case therefore, the parties have agreed to settle the matter and agreed to this Order.

ORDER OF COURT

It is hereby ordered that the consent judgment given on 20th of November 1972 between the Plaintiff and the 1st Defendant should stand subject however that the judgment does not affect the claims of the 2nd to 5th Defendants i.e. the Odan Parapo family (Adu family included) and the Okokomaiko community, the 6th to 8th Defendants. The plans of the land which they are claiming are delineated in plan Nos. AB. 1381 of 13/8/62 (Odan or Ado Family) Parapo and CW 649/62 of 20/11/62 Okokomaiko community. The ruling and costs awarded on the 20th of July 1974 by the High Court Ikeja are hereby set aside and judgment and costs ordered by the Federal Court of Appeal on 20th July 1978 are hereby set aside and all the costs be refunded to the Plaintiff if they had been paid. We make no order as to costs and parties before us should bear their own expenses. The appeal before us is therefore allowed subject to the above qualifications. The parties are not to use this agreed settlement for purposes of claiming compensation to be paid by the Lagos State Government which had acquired the land in dispute.

(Sgd) (G.S. SOWEMIMO)

JUSTICE, SUPREME COURT.

The PARTIES before us upon whose consent the said judgment was given were the Chiefs and people of Iba; the Chiefs and people of Ojo; the Odan Parapo family which included the Ado family whose members were represented by different counsel, and the Okokomaiko community. The suit, as originally taken out in the High Court, was between the Chiefs and people of Iba represented by Gbadamosi Amodu Sonibare II and the Chiefs and people of Ojo represented by Bello Ayilara. The family of Odan Parapo (including Ado Family) and the Okokomaiko community later applied to be joined, and were joined, in the High Court.

After the Consent Judgment had been delivered the application the subject-matter of this Ruling was brought by Chief Kehinde Sofola, S.A.N., of counsel, for Chief Yakubu Dawodu, the Olojo of Ojo described in the application as representing himself, the chiefs and people of Ojo, in Badagry Division – apparently the same people who were the original Defendants in the case in the High Court and who were represented by Mukandat Araga Akinleye – praying that this Court should set aside the Consent Judgment; and that the Applicants be heard in oral argument in the appeal; or in the alternative that this Court should order the Appellants to serve their written brief on the Applicants and grant the Applicants two weeks, extension of time within which to file and serve their reply brief.

In support of the application Chief Yakubu Dawodu swore to an affidavit challenging the representation in the suit by Mukandat Araga Akinleye and the settlement of the case made between him and the Plaintiffs and filed in court on 26th October 1972. Paragraphs 4 to 37 of the said Affidavit contain the facts on which the Applicants rely for their application and are hereunder set out:

“4. That the said Oba Moses Erinle the Olojo of Ojo also died on the 7th January 1971 and when steps were taken to appoint his successor a dispute arose as to which family was entitled to present candidate for the vacant stool of Olojo of Ojo as a result of which the Lagos State Government set up a Commission of Inquiry into the dispute to make recommendations. The report of the Commission of Inquiry was released in April 1972.

5. That while the Community of Ojo were waiting for the result of the Inquiry before appointing a substitute as a Defendant in this suit, the Counsel for the Plaintiffs, Chiefs F. R. A. Williams, on 6th July 1971, filed a Motion to substitute Mukandat Araga Akinleye to represent the Chiefs and people of Ojo which was opposed by the Chiefs and people of Ojo as the said Mukandat Araga Akinleye is a native of Iba, the Plaintiffs’ Community and did not have the authority of the Chiefs and people of Ojo.
6. That the High Court Ikeja granted the Plaintiffs’ application and made an order on 19th July 1971 substituting the said Mukandat Araga Akinleye for the Chiefs and people of Ojo against their opposition.
7. The Defendants, namely, the Chiefs and people of Ojo on 24th May, 1972, applied by Motion to substitute Chief Yakubu Dawodu the Otun Oba of Ojo and Alhaji Mudasiru Adeniran Ayilara for the late Moses Erinle the Olojo of Ojo after unsuccessful efforts to get the Lagos State Government to release the Report of the Commission of Inquiry before applying for substituting the Olojo of Ojo.
8. That on the 5th June 1972 the Motion was argued and the High Court Ikeja adjourned Ruling thereon.
9. That on 20th November 1972 the Court held that the reserved Ruling had been over-taken by the Terms of Settlement filed and signed only by Chief F. R. A. Williams for the Plaintiffs and Chief S. A. S. Sowemimo for the said Mukandat Araga Akinleye on 26th October 1972 without the knowledge and consent of the Chiefs and people of Ojo community.
10. That the Chiefs and people of Ojo did not instruct or authorise the said Chief S.A.S. Sowemimo or Mukandat Araga Akinleye to enter into any Terms of Settlement on their behalf.
11. That when the Chiefs and people of the Ojo community became aware of the said Terms of Settlement, they gave instructions to their Solicitor to appeal against the consent judgment and he accordingly applied to the Court for leave to appeal as interested persons by Motion dated 30th November 1972.
12. That the said Mukandat Araga Akinleye did not and does not represent the Chiefs and people of Ojo.
13. That the Chiefs and people of Ojo community were not given any Notice of the Motion to substitute the said Mukandat Araga Akinleye referred to in paragraph 5 herein.
14. That the said Mukandat Araga Akinleye is not related to Ojo. His mother was one Taiwo who was married in Ojo to David Akinleye. The natural father of the said Mukandat Araga Akinleye was one Sanusi, the Imam of Iba with whom Mukandat Araga Akinleye’s mother had an adulterous association and the said David Akinleye in consequence refused to acknowledge him throughout his life time. His said mother gave birth to another girl called Rukayat to the said Sanusi, the Imam of Iba.
15. Mukandat Araga Akinleye’s mother had already given birth to two children for David Akinleye before the adultery complained of herein and they are Comfort Abeni Akinleye and Victor Ishola Akinleye who has since died.
16. That the sympathy of the said Mukandat Araga Akinleye belonged to the Iba people, the Plaintiffs herein, and his nomination to represent the Ojo people was to make it possible to compromise the interest of the Chiefs and people of Ojo community in respect of the land in dispute.
17. That the land, the subject matter of this action, covers about 6,000 acres of land belonging to several individuals and families in Ojo and it includes Ojo town.
18. That the said Mukandat Araga Akinleye is a nonentity in Ojo and the said David Akinleye was a common man in Ojo.
19. That the said Mukandat Araga Akinleye was only about 38 years of age at the material time while there were many Chiefs and elderly people in Ojo who could represent the interest of the people of Ojo
20. That the said Mukandat Araga Akinleye was only used as a tool by the Plaintiffs surreptitiously to deprive the people of Ojo of their land.
21. That the said Mukandat Araga Akinleye has no land of his own in Ojo and was only granted permission by the Ojo people to build a small house on a small piece of land.
22. That the said Terms of Settlement referred to in paragraph 9 herein were set aside by Beckley, J. on 26th July 1974 on the ground that he was misled into giving judgment for the Plaintiffs in accordance with the said Terms of Settlement and costs were awarded against the Plaintiffs and the said Mukandat Araga Akinleye personally.
23. That by Motion dated 27th September 1974, the Solicitor acting for the Chiefs and people of Ojo applied to substitute Yakubu Dawodu the Olojo of Ojo to represent himself, the Chiefs and people of Ojo community and that the name of Mukandat Araga Akinleye be removed on the ground that the Lagos State Government had approved the appointment of the said Chief Yakubu Dawodu as the new Olojo of Ojo with effect from 8th August 1974.
24. That as a result of the appeal lodged by the Plaintiffs against the said Ruling of Beckley, J., and the High Court Ikeja ordered all pending applications including the Applicants’ applications to stay on the file pending the result of the appeal.
25. That the appeal against that Ruling of the said Beckley, J. was dismissed by Federal Court of Appeal in a reserved judgment delivered on 20th July, 1978.
26. That no Notice of Appeal was given to the Chiefs and the people of Ojo and in consequence no appearance was entered for them at the hearing of the appeal in the Federal Court of Appeal.
27. That the further appeal by the Plaintiffs against the judgment of the Federal Court of Appeal before the Supreme Court came to the knowledge of the Chiefs and the people of Ojo community only on Tuesday 10th June 1980 and accordingly they instructed Counsel to appear on 12th June 1980 on their behalf when the matter was listed to come up for mention.
28. That the Supreme Court mistakenly entered a consent judgment on 12th June 1980 on the ground that the parties agreed to settle the matter out of Court based on misrepresentation of material facts herein appear.
29. That the necessary application has been made for a Certified True Copy of the said judgment of this Honourable Court together with the Order made thereon and as soon as the same is supplied, it will be filed in Court.
30. That the Olojo of Ojo, the Chiefs and people of Ojo did not and do not agree to the alleged Terms of Settlement and were not consulted at any stage.
31. That very great injustice will be done to the Applicants allowing the order of Court to stand.
32. That the Olojo of Ojo, Chiefs and people of Ojo are not parties to the alleged agreement to settle.
33. That the said Mukandat Araga Akinleye was never at any time authorised by the Olojo of Ojo, Chiefs and people of Ojo to defend the action on their behalf or to consent to any Terms of Settlement or judgment.
34. That the appeal before the Supreme Court which I understand had been argued should be concluded on its merits and a decision thereon given in the interest of Justice.
35. That all the proceedings referred to in this affidavit are contained in the Record of Appeal in this case together with all the Motions, Judgments, Rulings and Orders of Court.
36. That the Applicants were not aware of the appeal before the Federal Court of Appeal and this Honourable Court as they were not served with any Notices in respect thereof.
37. That I honestly and reasonably believe that the Appellants and the Respondents will not suffer any prejudice if this application is granted.”

Counsel for all the parties opposed the applicants’ application to set aside the Consent Judgment.

Relying on the facts deposed to in the affidavit set out above and citing, in aid, the Federal Supreme Court case of Adeigbe and Another v. Salami Kasumu and Others (1965) 1 All N.L.R. 248 at 251-252; the Privy Council judgment in Chief Kofi Forfei v. Barima Kwabena Seifah (1958) 1 All E.R. 289; and the English Court of Appeal decision in Shephard v. Robinson(1919) 1 K.B. 474, especially the judgment of Bankes, L.J., Chief Sofola strenuously urged on us to set aside the Consent Judgment, on the grounds (i) that the special features disclosed by the facts set out in the affidavit dictated, ex debito justitiae, that the Consent Judgment be set aside, (ii) that this Court would not have entered the Consent Judgment had it been aware of those features disclosed by those facts, and (iii) that being the final Court of Appeal- a Court of last resort – this Court, on general principles, would not withhold the exercise of its jurisdiction where it becomes aware that failure to exercise it would occasion injustice to an Applicant. Although in the heat of argument Chief Sofola did say that this Court had no jurisdiction to enter Consent Judgment in the way it did and that on the authority of Chief Forfei v. Seifah (supra) we should set the judgment aside, he did not seriously contend the Jurisdiction of this Court to enter the said Consent Judgment.

He further contended that the action was brought by the Plaintiffs in a representative capacity and that the statement of claim showed that the Plaintiffs were churning that the Defendants were their customary tenants – a contention which the Defendants stoutly denied. When Plaintiffs’ Counsel, Chief Williams, applied in the High Court to substitute Mukandat Araga Akinleye for Moses Erinle as representing the Chiefs and people of Ojo, he argued, the Defendants opposed and Ruling was reserved sine die. Referring to several pages of the volumnous record of proceedings, Chief Sofola said that the Defendants applied for leave to appeal in the High Court against the judgment entered by the High Court, but the application was never dealt with by the High Court. Subsequently, Beckley, J., set aside the said judgment, transferred the case to Dabiri, J. for hearing and determination and ordered that the applications by the Defendants should remain in the file until the Federal Court of Appeal decided the appeal. Having opposed the Plaintiffs’ attempt to substitute Akinleye for Moses Erinle in the High Court and having applied for leave to appeal in the High Court, Chief Sofola argued that the Applicants had showed sufficient interest and identification with the case that they should be notified of any step being taken by any of the parties in the case. This, he said, was not done. Instead the Plaintiffs and Mukandat Araga Akinleye, went behind the backs of the Applicants, and entered into some terms of settlement which were made the subject of a Consent Judgment in the High Court but which judgment was later set aside by Beckley, J. as hereinbefore stated. Notice was neither given to them of the proceedings before the Federal Court of Appeal nor of the proceedings before this Court right up to the time the present Consent Judgment the subject-matter of this application was entered. It was after the Consent Judgment was entered in this Court that his clients heard for the first time that the matter was in this Court.

Replying, Chief Williams argued that Chief Sofola was making a mountain out of a mole-hill. The Consent Judgment, he said, was entered on 20th September 1972. The Ojo community asked for leave to appeal against the High Court judgment while the Odan Parapo community took a different course and asked that the Plaintiffs’ case be dismissed for want of prosecution. What was relevant, he said, was the application of the Okokomaiko community which asked that the High Court judgment be set aside. It was that Okokomaiko application that went to the Federal Court of Appeal and later, in these proceedings, to this Court. The application for leave to appeal from the consent Judgment of the High Court, filed by the Ojo community, was still before the High Court. The present Applicants wanted to remove Akinleye and substitute him with some other person as representing the Ojo community but the learned Judge stated that the application was overtaken by events, namely the agreement on the terms of settlement.

He contended that any part of the Ojo community which chose to complain that the present Supreme Court Consent Judgment was obtained by fraud or conspiracy should Institute a substantive action in the High Court to set it aside but could not jump into this matter, in which they were neither parties before the Federal Court of Appeal nor before this Court, to ask to have it set aside. All the facts adduced by Chief Sofola, he said, were irrelevant to the issue of the procedure he has adopted to intervene in the case in the Supreme Court. He has not obtained leave of the Federal Court of Appeal or of this Court to intervene in this matter.

All other Counsels (Messrs, Agusto, Bashua and Awoliyi) associated themselves with the submission of Chief Williams that Chief Sofola’s mode of intervening in the case was procedurally improper. Mr. Agusto contended that the question being raised by Chief Sofola that the person substituted to represent the Ojo people is not the proper person, was not the appeal now before this Court and that his remedy would lie not in this Court but in a substantive action before the High Court. Mr. Bashua submitted that this application must, in any event, be dismissed. Mr. Awoliyi in adopting Chief Williams’ argument stated that the 1st Defendants were out to gamble. They wanted the Okokomaiko community to fight the battle to the Supreme Court and then reap from their efforts. They, however, forgot that what the Okokomaiko community wanted was simply to protect their Interest in the order made by this Court. The present Applicants who were not parties to the proceedings before the Federal Court of Appeal could not be heard in this Court who was hearing an appeal from the deliberations of the Federal Court of Appeal in the matter.

In his further reply Chief Sofola contended that even if this Court said that the Applicants were strangers, the Court nonetheless should grant leave for the Applicants to be made parties in order to avoid miscarriage of justice. This Court, he said, in the interest of justice could allow a departure from the rules and grant leave. He said he was then applying for leave. In the alternative, this Court could order the arrest of the Consent Judgment while ordering them to go to the Federal Court of Appeal to obtain the necessary leave.

It is clear from his argument that Chief Sofola, in his pursuit of what he considers to be the intrinsic justice in his clients’ case, is less mindful of the procedure he has chosen to intervene in the appeal proceedings before this Court. But however strongly he may feel (and he may possibly have genuine complaints for so feeling) this Court must be sure that it is properly seized of a matter before embarking upon its determination. The Court is an Appellate Court whose foundations are firmly laid in the Constitution and blaming the provision in the Constitution giving it original jurisdiction in certain specified matters (See S.212), it has no original Jurisdiction. The appeal before this Court, in the course of the determination of which the Consent Judgment was delivered, came from the judgment of the Federal Court of Appeal in pursuance of the jurisdiction conferred on this Court by S.213 of the Constitution. The parties in the case before the Federal Court of Appeal did not include the Applicants who neither applied to the Federal Court of Appeal to be made parties before that Court, nor applied to it for leave to appeal against its judgment (even though they did not take part in the proceedings as persons having an interest in the matter, in accordance with S.1177 (a) of the Constitution (Amendment) (No.2) Decree No. 420 1976. (See: in Insurance Office Ltd. v. Victoria O. Ojemuyiwa (1965) 1 All N.L.R. 1 decided on the identical S.176 (6) (a) of the 1963 Constitution of Nigeria).

The position, My Lords, is that the Applicants are asking you to set aside a Consent Judgment in respect of an appeal:

(a) In which they are not parties;

(b) In which they had not applied to the Federal Court of Appeal to be made parties;

(c) In which they had not applied to the Federal Court of Appeal, or to this

Court, for leave to appeal against the judgment of the Federal Court of Appeal in respect of which this appeal was brought; and

(d) in which the parties to the appeal have agreed to the Consent Judgment.

Indeed, the Applicants have not, in their motion before us, asked for leave to appeal. What they asked for was an Order of this Court:

“(a) that the consent judgment entered herein on the 12th day of June 1980 be set aside and that the appeal be heard on its merits;

(b) granting the Applicants leave to be heard in oral argument in the appeal by waiving compliance with the provisions of Order 9 in so far as they relate to the preparation and filing of Briefs Argument by the Applicants so as to accelerate the hearing of the appeal in the interest of justice; or

(c) ALTERNATIVELY, directing the Appellants to serve their written Brief on the Applicants and granting the said Applicants an extension of time of two weeks within which to file and serve their own Brief;

(d) That in the meantime all further proceedings herein be stayed; and (e) that the Appellants and the 1st Respondent, Mukandat Araga Akinleye, do pay to the Applicants the costs of and occasioned by the said consent judgment. ”

Chief Sofola did not refer us to any Rule of Court, or to any decided authority, in support of the procedure he has adopted in bringing this application before us. He pleaded, however, that even if this Court said they were strangers to the appeal, the Court, nonetheless, should, as a Court of last resort, grant them leave to make their application “in order to avoid a miscarriage of justice”.

My Lords, this plea has not impressed itself upon me and I dare say should not impress itself upon Your Lordships. It is true, although that is not Chief Sofola’s plea and is not the case here, that a court of last resort, in a proper appeal before It, may, in certain circumstances, in the interest of justice, entertain a point of law not raised in the court below. This was expressed by Privy Council in Connecticut Fire Insurance Company and Kavanagh (1892) A.C. 473 on appeal from the Court of Queen’s Bench for Lower Canada, Province of Quebec, and appeal sited at p.480, Lord Watson, delivering the judgment of the Court stated that

“When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea.”

But even then, that principle is subject to the qualification, mentioned by Lord Watson, and approved by this Court in Samuel Fadiora and Another v. Festus Gbadebo and Another (1978) 3 S.C. 219 at 248 that the question of law will not be entertained when it cannot be disposed of without deciding nice questions of fact which the court below would be in a more advantageous position to determine. All this, as I have already said, is in respect of an appeal properly before the court of last resort – not in respect of a matter, like the instant one, which has been brought to the court of last resort ab extra under procedural irregularity. The court of last resort will indeed do justice but must do the justice by procedures laid down by the Law and the Constitution. The moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a kangaroo court. Lest the erroneous impression be left that by my line of reasoning our penchant is with procedure rather than with justice and that we are oblivious to Justice and more mindful of procedure, it is necessary for me to point out that the Applicants appeared to have slept on their rights by their failure to take part, or do anything, in the case in the Federal Court of Appeal and through that Court to the Supreme Court until after the Consent Judgment was delivered. It will also not be out of place if special attention was drawn to the fact that the Lagos State Government had already acquired the land in dispute and that the Consent Judgment is not to be made the basis, by any of the parties, for claiming compensation from the said Lagos State Government as stated in the judgment of Sowemimo, J.S.C., set out hereinbefore.

We were referred by Chief Sofola to paragraph 1631 of Volume 22 of Halsbury’s Laws of England 3rd Edition at p.766 – where it is stated that where in a Consent Judgment the consent is given through mistake or misapprehension of the solicitor or counsel as to his authority, and the consent is Withdrawn before the order is drawn up, the Consent Judgment should be set aside and the matter put back on the list for the party to be heard. The citation is, however, entirely of no avail to the Applicants in a matter to which they are not parties.

FINALLY, it is not inconceivable that circumstances may exist in which a stranger to a suit on appeal to this Court upon which a Consent Judgment has been entered, may challenge the Consent Judgment on grounds of fraud or conspiracy. Considerable doubt, however, must be entertained on whether he can sustain the challenge, as a matter of procedure, otherwise than by a substantive action instituted in a court of competent original jurisdiction.

This application appears to me to be misconceived. It is accordingly hereby struck out with costs to the Respondents as decreed in the Order of my Lord, the Presiding Justice.

G. S. SOWEMIMO, J.S.C.: I am in complete agreement with the reasonings and conclusions of my Lord Aniagolu, J .S. C. in his very comprehensive judgment. I agree that the application should be struck out and that each Respondent should be awarded N25 costs.

M. BELLO, J.S.C.: I have had the advantage of reading the Ruling delivered by Sowemimo, J.S.C. and the Ruling prepared by Aniagolu, J.S.C. and for the reasons stated therein, I agree that the application seeking to set aside the Consent Judgment ordered by this Court is misconceived and it should be dismissed. I also agree that all the other reliefs sought are ancillary to the application and accordingly should all be dismissed.

I also agree with the order as to costs.

A. O. OBASEKI, J.S.C.: My Lords, I agree with the Ruling of Aniagolu, J.S.C. that this application is misconceived and should be dismissed.

The Applicants are seeking an order of this Court: . . .

“(a) that the Consent Judgment entered herein on the 12th day of June, 1980 be set aside and that the appeal be heard on its merits;

(b) Granting the Applicants leave to be heard in oral argument in the appeal by waiving compliance with the provisions of Order 9 in so far as they relate to the preparation and filing of briefs of argument by the Applicants so as to accelerate the hearing of the appeal in the interest of justice.

(c) Alternatively, directing the Appellants to serve their written brief on the Applicants and granting the Applicants extension of time of two weeks within which to file and serve their own brief;

(d) That in the meantime all further proceedings herein be stayed; and

(e) That the Appellants and the 1st Respondent, Mukandat Araga Akinleye, do pay to the Applicants the costs occasioned by the said Consent Judgment. ”

The facts deposed to in the affidavit evidence filed along with the motion appear to show that the applicant, Chief Yakubu Dawodu, apart from being a member of the community represented by the 1st Respondent and now their Oba titled the Olojo of Ojo was not a party to the proceedings in the High Court the proceedings in the Federal Court of Appeal and to the proceedings that culminated in the Consent Judgment in the Supreme Court.

In May, 1972, according to paragraph 7 of the affidavit, an attempt was made to make the Applicant a party but no success has yet been achieved.

Of particular interest are paragraphs 22,23,24,25 and 26 which read:

“22 That the said Terms of Settlement referred to in paragraph 9 herein were set aside by Beckley, J. on 26th July, 1974 on the ground that he was misled into giving judgment for the Plaintiffs in accordance with the said Terms of Settlement and costs were awarded against the Plaintiffs and the said Mukandat Araga Akinleye, personally;”

I wish to observe that it was not on the application of the Olojo of Ojo, Chiefs and people of Ojo that Beckley, J. set aside the Consent Judgment.

The other paragraphs of the affidavit read as follows:

“23 That by motion dated 27th September, 1974, the Solicitor acting for the Chiefs and people of Ojo applied to substitute Yakubu Dawodu, the Olojo of Ojo to represent himself, the Chiefs and people of Ojo community and that the name of Mukandat Araga Akinleye be removed on the ground that the Lagos State Government had approved the appointment of the said Chief Yakubu Dawodu as the new Olojo of Ojo with effect from the 8th August, 1974.

“24 That as a result of the appeal lodged by the Plaintiffs against the Ruling of Beckley, J. the High Court, Ikeja ordered all pending applications including the Applicant’s applications to stay on the file pending the result of the appeal.”

It is clear from the facts deposed in paragraph 24 that the Applicant was aware that an appeal was being prosecuted by the Plaintiffs against the order setting aside the Consent Judgment and they were content to stay out of the appeal proceedings.

Paragraphs 25 and 26 read:

“25 That the appeal against the ruling of the said Beckley, J. was dismissed by the Federal Court of Appeal in a reserved judgment delivered on 20th July, 1978;

26 That no Notice of Appeal was given to the Chiefs and the people of Ojo and in consequence no appearance was entered for them at the hearing of the Appeal. ”

It should have occurred to the Applicant that until he was either Joined as a defendant or substituted for Mukandat Araga Akinleye as 1st defendant he was not a party, other than a represented party to the proceedings and that he was not entitled to service of any Notice of Appeal or other processes of the Court. He could have at the hearing of the appeal applied for leave to be added as a Respondent in view of his pending application in the Court below, I cannot assume that the Applicant did not know what Plaintiff was asking the Federal Court of Appeal to do when the appeal was against the order setting aside the Consent Judgment. It should have been obvious that the Plaintiff wanted the Federal Court of Appeal to restore the Consent judgment on the agreed terms of settlement between Plaintiffs and Mukandat Araga Akinleye (for and on behalf of the Chiefs and people of Ojo). Before concluding these examinations of the facts deposed to I will refer to paragraphs 27, 28 and 36 which read:

“27 That the further appeal by the Plaintiffs against the judgment of the Federal Court of Appeal before the Supreme Court came to the knowledge and people of Ojo community only on Tuesday, 10th June, 1980 and accordingly, they Instructed counsel to appear on 12th June, 1980 on their behalf when the matter was listed to come up for mention.”

It is a clear mis-statement of the facts on record to say that the matter was listed for mention on the 12th day of June, 1980. The hearing of the appeal had commenced on 2nd June, 1980 and counsel had agreed on the consent order to be made in the appeal.

Paragraph 28 is a very serious mis-statement. It reads:

“28 That the Supreme Court mistakenly entered a Consent Judgment on the 12th June, 1980 on the ground that the parties agreed to settle the matter out of court based on misrepresentation of material facts herein appearing.”

It should be recalled that the order setting aside the Consent Judgment was made in the application by 6th, 7th and 8th Defendants i.e. Lawal Asani, Lamoriyu Sanusi and Abudu Aro (for themselves and Okokomaiko community).

According to page 502 of the record, the motion on behalf of the 6th-8th Defendants was for an order inter alia

(a) “To set aside the Consent Judgment given on 20th of November, 1972 in accordance with the terms of settlement executed by the Plaintiffs and the 1st defendant in this suit.

(b) Relisting the original claim for a declaration of title . . .

(c) For an injunction to restrain the Plaintiffs/Respondent and/or Defendants/Respondents . . .”At the conclusion of a long ruling, Beckley, J. ordered as follows:

“I order

(1) That the Consent Judgment given on the 20th day of November, 1972 be and is hereby set aside;

(2) I also order that this action be set down for hearing on 9th September, 1974, in Court No.4 until the case is finally determined.”

Giving his reasons for setting aside the Consent Judgment, Beckley, J. said inter alia:

“It appears to have terminated the proceedings in the action which it could not have done in view of the counter-claim of the 6th-8th defendants which are still in the court’s file at the time and untried. It purports to affect the whole property including the property claimed by the other defendants and also purports to grant an injunction for the whole land in dispute. The wording of the terms of settlement is misleading and I am quite satisfied that the 6th-8th defendants had no notice of it although it affects their property. In my view, the 6th-8th defendants should have been given notice of the terms of settlement. ”

In view of the pendency of the Applicant’s motion in the court below, it is to that court he should go rather than this Court since he has now informed himself of the result of the appeal. He has failed to satisfy me that he has any locus in the appeal before us which has been disposed of which locus entitles him to make this application before us.

I agree that this application is misconceived and must be dismissed and I hereby dismiss it. Costs assessed at N25.00 is awarded to each Respondent.

A. NNAMANI, J.S.C.: My Lords, I have had the advantage of reading in draft the ruling just delivered by my learned brother My Lord, Aniagolu, J.S.C. and I entirely agree with him. I also agree with the order made in the judgment of the learned presiding Justice My Lord Sowemimo, J.S.C.

Appeal dismissed.

SC.24/1979