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

LawGlobal-Hub Lead Judgment Report

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.

Meanwhile, the defendants application succeeds and the Statement of Claim in suit No. ID/473/81 is struck out and the Suit is dismissed as no cause of action has been established to exist. The order is made accordingly.”

The plaintiffs, aggrieved by the ruling appealed from it to the Court of Appeal. The lower Court (Mohammed J.C.A., Akpata and Babalakin J.J.C.A., as they then were) in its judgment, as per Mohammed. J.C.A. observed as follows:-

“The two findings made by Longe J. in his ruling are in my strong view definite findings that the judgment of Taylor J. in AB/29/55 is a consent judgment. It is relevant to refer to the definition of a consent judgment as given by the learned author of Halsbury’s Laws of England. 4th Edition Vol. 26 paragraph 527 at page 257.

Counsel (sic) judgment is defined therein as follows:-

“lf either party is willing to consent to a judgment or order against himself, or if both parties are agreed as to what the judgment or order ought to be, due effect may be given by the court to such a consent. ”

It is indeed clear from the wordings of this definition, that if an agreement is reached by the parties, as to what the judgment or order to be and if a judgment is entered under that agreement, the judgment shall be a consent judgment. In the matter under consideration, in this appeal, the parties had two suits before Taylor. J. and both are based on declaration of the title to the same piece of land. The parties agreed with the learned trial Judge to go ahead with the trial of the suit No. AB/24/55 and that the trial shall be a test case for the other suit No. AB/29/55. It was agreed that the decision in AB/24/55 would decide AB/29/55. In other words AB/29/55 should abide the result of AB/24/55. Since this agreement was as to what the judgment in AB129/55 ought to be,

it is a consent judgment.”

and then remarked and held thus:-

…………………………. Mr. Molajo is asking this Court to set aside the ruling of Longe J. and exercise its general powers under section 16 of the Court of Appeal Act, No. 43 of 1976, and set aside the consent judgment of suit No. AB/29/55, made by Taylor J. on 2nd June, 1958. I have no hesitation in coming to the conclusion, reproducing all acts (sic.) about the case in hand, and after considering the authorities referred to by both counsel, in this appeal, that the parties in AB/29/55 were involved in a mutual mistake of fact. It is crystal clear that the common belief upon which both parties had acted in AB/29/55 did not exist. Their mistake was to limit the level of their agreement in Taylor (sic.) court whereas the basis of such an agreement could be disturbed, as was done, in an appeal against the judgment of Taylor J. in the Supreme Court. It is my strong view that this agreement was concluded under a mutual mistake and misapprehension of the respective rights of the parties.”

The learned Justice (Mohammed J.J.C.A.) then concluded his judgment, with which Akpata and Babalakin J.C.A. were in agreement, as follows:-

“Mr. Molajo applied, in his brief of argument, that, this court should act under its general powers pursuant to Section 16 of the Court of Appeal Act, 1976, and set aside the judgment of Taylor J. in suit No. AB/29/55. The learned Senior Advocate referred to the chequered history of this action and submitted that since the basis for the consent judgment had been invalidated by the Supreme Court when it confirmed the judgment of Beckley J. in AB/24/55, sending the case back to the High Court for a retrial would add more hardship to the parties who have been on this case for about 30 years now. I entirely agree with Mr. Molajo that there is no need for me to send this case back for retrial before the High Court because all what would be determined there has been considered by me, in this judgment. It is only left for me to put in the final nail in the coffin, and consequently, I hereby set aside the judgment of Taylor J, (as he then was) in suit No. AB/29/55, delivered on 2nd June, 1958. The appellants are entitled to the costs this appeal, which I assess at N750.00.” (Italics mine)

Not satisfied with the judgment, the defendant appealed to this Court. He stated in his brief of argument the issues which he intended to canvass. They are:-

“(i) Whether the Court of Appeal had jurisdiction to enter judgment for the plaintiffs on their claims even if (as they did) they came to the conclusion that Longe J. was wrong in holding that the (Amended) Statement of Claim discloses no ground for the relief claimed.

(ii) Whether the Court of Appeal was correct in holding that the Statement of Claim in the action should not have been struck out by the High Court ..”

In his brief, defendant contends that if the High Court decides to reject an application by a defendant under Order 22 rule 4 or under its inherent powers, it is incontestable, that there can be no question of the High Court granting the substantive relief claimed by the plaintiff. That being the case, he submitted that it was a misconception for the Court of Appeal to do what it did in the present case under the guise of the powers conferred upon it by Section 16 of the Court of Appeal Act, 1976. He invites us to hold that the Court of Appeal had no jurisdiction to have considered or granted the substantive claim of the plaintiffs in the action.

Next, the defendant’s brief drew attention to paragraph 20 of the Amended Statement of Claim (quoted above) and referred to the following remark made by Mohammed, J.C.A. in the course of his judgment-

“I entirely agree with Mr. Sofunde (for the defendant) that the only ground material and relevant to the contention of the appellants is mutual mistake of fact.”

And argued that in the circumstances of the remark none of the matters pleaded in sub-paragraphs (2) to (5) of paragraph 20 of the Amended Statement of Claim could be relevant. Nor could sub-paragraph (1) thereof since it refers only to an alleged mistake by Taylor, J. On this account, it is submitted that the appeal ought to be allowed and an order dismissing the appeal before the Court of Appeal be substituted.

In reply, Mr. Molajo learned counsel to the plaintiffs argued in their brief that the parties in the two suits before Taylor J. namely Suit No. AB/24/55 and Suit No. AB/29/55 were under the mistake of fact that the parties in the two suits were the same and that it was as a result of the mistake of fact that they agreed that the result of one of the suits should decide the other. Learned counsel submitted that having established that the mistake of fact by the parties led to the consent judgment given by Taylor J. there was no justification in arguing, as the defendants’ brief had done, that the Court of Appeal should have sent the case back to the High Court to hear, since the dispute between the parties had been in Court for 35 years. He submitted further that the Court of Appeal has jurisdiction under section 16 of the Court of Appeal Act, 1976 and its inherent jurisdiction to decide the dispute as it did without remitting the case to the High Court to do so. He cited in support of his submissions the following cases- Bolatito v. Sale Administrator (1986) 5 NWLR (Pt.42) 496 at p. 510 F-H and at p. 511 A-G and Igboho Local Government v. Boundary Settlement Commission, (1988) 1 NWLR (Pt.69) 189 at p.198 .E-G

In the plaintiffs’ brief of argument, a third issue in addition to the two raised in the defendant’s brief of argument for determination, was formulated. The issue reads:-

“Is the plaintiff’s Statement of Claim so plainly demurrable that no legitimate amendment can save it”

As there is no cross-appeal by the plaintiffs I examined the grounds of appeal filed by the defendant. None of the grounds will accommodate the third issue for determination as formulated by the plaintiffs. It is now settled that an issue for determination cannot stand on its own. It has to be hinged to a ground of appeal. The third issue is therefore incompetent and I ignore it by attaching no weight to it or saying any more hereafter about it.

Now Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, Cap, 52 of the Laws of Lagos State 1973 reads:-

“4. The Court or a Judge in Chambers may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just..”

The contention of the defendant in the High Court was that “The Statement of Claim does not disclose any ground on law to support the claim endorsed on the Writ of Summons”, The relevant part of Order 22 rule 4 applicable to the present case is the section thereof which refers to non-disclosure of reasonable cause of action. The words” cause of action” have been defined by this Court in a number of cases to simply mean the facts which when proved will entitle a plaintiff to a remedy against a defendant – see Bello v. A.G., Oyo State, (1986) 5 NWLR (Pt.45) 828 at p. 876A; Egbe v. Adefarasin, (1987) 1 NWLR (Pt.47) 1 at p. 20 D; Thomas v. Olufosoye, (1986) 1 NWLR. (Pt.18) 669 at p. 682 F; Adimora v. Ajufo, (1988) 3 NWLR, (Part 80) 1 at p. 17 F; Egbue v. Araka, (1988) 3 NWLR, (Pt.84) 598 at p. 613 C and Akilu v. Fawehinmi (No.2), (1989) 2 NWLR. (Pt.102) 122 at p. 169 D. On the other hand the meaning of the phrase “reasonable cause of action” has been considered in Drummond – Jackson v. British Medical Association & Ors.(1970) I WLR 688 at p. 696 C; (1970) 1 All E.R. 1094 at p. 1101 e. where Lord Pearson said:-

“First there is in paragraph (1) (a) of the rule the expression ‘reasonable cause of action ‘ to which Lindley M.R. called attention in Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd., (1899) 1 Q.B. 86pp. 90-91. No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleading are considered. If when those allegations are considered it is found that the alleged cause of action is to fail, the statement of claim should be struck out. (Italics mine)

This statement was followed with approval, per Obaseki, J.S.C. in Thomas v. Olufosoye, (supra) at p. 628 F. It follows, therefore, that what the learned trial Judge needed to do in the present case was not to examine whether the plaintiffs Amended Statement of Claim disclosed any ground of law to support their claim as demanded by the defendant but whether the Amended Statement of Claim contained facts which if proved the plaintiffs would succeed. It was the failure to do the latter that led the learned trial Judge to consider whether the agreement before Taylor, J., that the decision in Suit No. AB/29/55 should abide the decision in Suit No. AB/24/55, gave rise to submission to judgment or consent judgment. He ran into difficulty when he found as follows:- “Although Taylor, J. did not specifically state on the case that it was consent, but from the expression of the language used and the submission of the parties, counsel to the judgment. I am convinced that the Judgment carries the characteristics features (sic) of a consent judgment as well as submission to the judgment by the counsel.” (Italics mine)

For a consent judgment is technically quite different from submission to judgment. The only common feature to them is the element of agreement and no more In Chandless – Chandless v. Nicholson, (1942) 2 K.B. 321 at p. 324, Lord Green M.R. said:-

“There is a great deal of difference between a consent order in the technical sense and an order which embodies provisions to which neither party objects. The mere fact that one side submits to an order does not make that order a consent order within the technical meaning of that expression.”

The learned trial Judge finally concluded that the judgment of Taylor, J. in suit No. AB/29/55 was a consent judgment. He said so in the following terms:-

“What then is the effect of this finding The submission of Chief Williams is (sic) correct that even if the judgment is found to be consent judgment, as I have so found it cannot be set aside except on an allegation of fraud fresh evidence having been discovered.”

In Woluchem v. Wokoma (1974) 1 All N.L.R. (Pt.1) 60S at p. 616; (1974) 3 Sc., 153 at p. 166, Ibekwe, J.S.c. (as he then was) stated the following features of a consent judgment:-

“In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in court. When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by the leave of the court.”

See also Lauwers Import, Export v. Jozebson Industries Ltd., (1988) 3 NWLR (Pt.83) 429 at pp. 444,446. There is nothing in the record to show that the procedure outlined in Woluchem’s case in fact took place before Taylor, J. in Suit No. AB/29/55. His minutes on Monday 3rd March, 1958 reads in part-

“Court: Suit is fixed for 18th and 21st April, for hearing and counsel agreed that the suit shall be a test, case for the other suit AB/29/55 and the former shall decide the latter.

(Sgd.) John Taylor

Judge 3/3/58″

His minutes on the 2nd day of June, 1958 reads as follows:,

Suit No. AB/29/55

Tesi Opebiyi & Ors. Plaintiffs .. Plaintiffs

and

Shitlu Oshoboja … Defendants

Molajo for Plaintiffs, Kolun for Defence.

Court: As this action is between the same parties as in AB/24/55

and in respect of the same subject matter, the award of title to the present defendant constitutes a bar to this case. Counsels have agreed that this action should abide the former. I therefore dismiss the plaintiffs case with costs to be assessed. Kotun says the out of pocket expenses is 2/6d and asks for 200 guineas. Molajo suggests to guineas.

Court: Costs assessed in favour of the defendant in the sum of 30 guineas.

(Sgd.) John Taylor,

Judge

2/6/58.”

It follows therefore that Longe J. was in error when he held that the above judgment was a consent judgment. The Court of Appeal also made the same error when it came to the same conclusion as the learned trial Judge.

As stated in Drummond-Jackson’s case (supra) what both lower courts should have done in determining whether the Amended Statement of Claim filed by the plaintiffs disclosed a reasonable cause of action was to examine the Amended Statement of Claim and see whether on the face of it, since no Statement of Defence had been filed, it disclosed facts which if proved by the plaintiffs, they would be entitled to a remedy from the trial court. This, both lower courts had failed to do. It falls on this Court now to do so in exercise of its powers under section 22 of the Supreme Court Act, Cap. 424 of the Laws of the Federation of Nigeria, 1990 and Order 8 rule 12 of the Supreme Court Rules, 1985.

On examining the Amended Statement of Claim filed by the plaintiffs herein and in particular paragraphs 7 to 11 and 13 to 20 thereof as quoted above, I am satisfied that on the fact of the averments therein the plaintiffs have a reasonable cause of action. The judgment of Taylor, J. in Suit No. AB/24/55 came to this Court on appeal as Suit No. SC.169/1964 before Brett, Onyeama and Ajegbo, J.J.S.C. In the judgment of the Court which was read by Brett J.S.C the appeal was allowed and the following consequential order was made:-

“The judgment of the High Court in Suit AB/24/1955, including the order for Costs, is set aside and the case is remitted to the High Court for retrial.”

The main reasons for allowing the appeal as contained in the said judgment are:- Both sides relied on traditional evidence and the trial Judge found the evidence of the plaintiffs more convincing than that of the defendants. The plaintiffs were also able to show that in 1911 they had been engaged in litigation with third parties in the former Supreme Court over the title to a part of the land. They were alleging their ownership in those proceedings and the Judge regarded it as an act of possession which he thought must necessarily have come to the notice of the Fagbile family and have led them to take steps to assert their rights if their family was in fact the owner of the land. There was also evidence that a member of the Fagbile family occupied part of the land as the tenant of a member of the plaintiffs’ family and the Judge regarded this as an admission of ownership.

Thus far we think the Judge was justified in the view which he took but as regards more recent events, the defendant called six of the persons who they alleged were occupying the land as their tenants.

It was not disputed by the plaintiffs that these persons were farming parts of the land but the plaintiffs suggested that it was they and not the defendants who had put them on the land. This, in our view, was one of the most important issues in the case but the Judge came to no finding on it because he was not satisfied that the land which these persons were farming formed part of the land now in dispute. We find it impossible to uphold this finding of fact; the evidence of the witnesses on the point was not only not challenged by the plaintiffs but accepted by them. The result of taking this view was that the Judge did not go on to consider whose tenants the persons concerned were and we do not feel able to resolve the question ourselves without knowing what view he would have taken. The question has a direct bearing on the issue of title, and we have come to the conclusion (regretfully in view of the lapse of time) that while the ultimate finding in favour of the plaintiffs cannot be allowed to stand, the case must go back for a re-trial.”

With the judgment of Taylor J. in Suit No. AB/24/55 set aside by the Supreme Court, should the parties any longer be bound in Suit No. AB/29/55, by the same decision of Taylor, J. In my opinion that is the question raised by opinion that is the question raised by paragraphs 10, 17, 18, 19 and 20 of the Amended Statement of Claim quoted above. I am of the opinion that the question is arguable and therefore the Amended Statement of Claim has raised a reasonable cause of action.

This stance was however made shadowy by the result of the re-trial held in Suit No. AB/24/55 before Beckley, J. In the retrial, the case for the plaintiffs was dismissed. But with regard to the judgment of Taylor, J. in Suit No. AB/29/55, Beckley, J. held as follows:-

“Before concluding this judgment I must consider the point raised in regard to the reply of the Statement of Defence, which seeks to estop the defendants from contesting the issue of title. The previous judgment in AB/24/55 was set aside by the Supreme Court as per exhibit 6 on 4th November, 1966, which relates back to the date of earlier judgment of the High Court which was given on 2nd June, 1958; so that the judgment of Justice Taylor -late Chief Judge on 2nd June, 1958 becomes extinct, and any order made earlier on which is dependent on that judgment also by implication is no longer valid, and must be deemed to have been impliedly set aside. The Court will not, in my view, enforce any order or judgment which has no basis. The order or judgment is just not in existence. It is null and void and does not in my view need any other formal order to set it aside. The order of dismissal of AB/29/55 made on 2nd June, 1958 (Exhibit 16) is in my view just not in existence. I now come to the final part of this judgment. In my view, the case for the plaintiff must be dismissed.”

The judgment of Beckley, J. went on appeal to the lower court. The decision was upheld and there was further appeal to this Court, as Suit No SC. 116/1983. The appeal was allowed and the judgment of Beckley, J. was set aside. In the course of the lead judgment in the appeal, Bello, J.S.C. (as he then was) adverted to the decision of Taylor J. in suit No. AB/29/55 and remarked as follows:-

“Learned counsels have put in a lot of industry in their submissions on the issue of nullity of Taylor, J.’s decision in suit AB/29/55. With all due respect, I consider that the grounds of appeal under consideration are tantamount to an appeal to this Court from the back door against the judgment of Taylor, J. when there has been no such appeal before us. Upon the principle stated in Madukolu v. Nkemdilim (1962) 1 All NLR 587 at p. 597; (1962) 2 SCNLR 341; Adeigbe v. Kushimo (1965) NMLR 284 at 287 and Obimonure v. Ojumoola (1966) 1 All NLR 250 at 252, the court of Taylor, J. had jurisdiction and was competent to hear and determine the dispute between the parties and to make an order or give judgment by their consent. I agree with Chief Williams that if in the exercise of the jurisdiction of the court, Taylor J. made a mistake and gave a wrong judgment, the judgment is binding unless and until if has been set aside on appeal or in proceedings instituted for that purpose. Whether, the judgment is right or wrong, it must stand and cannot be questioned in these proceedings; see Meyers v. Casey & Others 17 C.L.R. 90 and Kinch v. Walcott & Others (1929) A.C. 482. It must be emphasized that the judgment of a court in any civil or criminal proceedings including all questions of law and facts decided by the court are valid and effective until they have been set aside by an appellate court: Odiase v. Agho (1972) 1 All NLR 170, 176 and Melifonwu & Ors. v. Egbaji & Ors. (1982) 9 S.C. 145. Since the judgment of Taylor J. in suit AB/29/55 is not on appeal before us it would not be right, in my view, for this Court to determine its validity on the merits. Effect must be given to its presumed validity.” (Italics mine)

Thus the plaintiffs position remained as it was when this Court, per Brett, J.S.C. gave its judgment on the 4th day of November, 1966. By taking out a Writ of summons to set aside the judgment of Taylor J. they took a hint from the judgment of Bello J.S.C. (as he then was) as quoted above.

In the light of the aforesaid, I hold that the plaintiffs have disclosed a reasonable cause of action in their Amended Statement of Claim.

I now come to consider the other question for determination raised by the defendant, which is whether the Court of Appeal had jurisdiction to enter judgment for the plaintiffs on their Amended Statement of Claim after finding that Longe J. was wrong in holding that the Amended Statement of Claim did not disclose a reasonable cause of action. The Court of Appeal in doing so stated as follows (per Mohammed, J.C.A.)-

“Mr. Molajo applied, in his brief of argument, that this Court should act under its general powers pursuant to Section 16 of the Court of Appeal Act, 1976, and set aside the judgment of Taylor, J. in suit No. AB/29/55. The learned Senior Advocate referred to the chequered history of this action and submitted that since the basis for the consent judgment had been invalidated by the Supreme Court when it confirmed the judgment of Beckley J. in AB/24/55, sending the case back to the High Court for a retrial would add more hardship to the parties who have been on this case for about 30 years now, I entirely agree with Mr. Molajo that there is no need for me to send this case back for retrial before the High Court because all what would be determined there has been considered by me, in this judgment. It is only left for me to put in the final nail in the coffin, and consequently, I hereby set aside the judgment of Taylor, J. (as he then was) in suit No. AB/29/55, delivered on 2nd June, 1958. The appellants are entitled to the costs of this appeal, which I assess at N750.00.”

It has been argued in the defendant’s brief and by his learned counsel Professor Kasumu, SAN that suppose it is conceded that the Court of Appeal was right in holding that the plaintiffs Amended Statement of Claim had disclosed a reasonable cause of action, the proper order for it to make having regard to section 16 of the Court of Appeal Act, Cap. 75 of the Laws of the Federation of Nigeria, 1990 is an order which the trial court could make. Learned Senior Advocate submitted that Longe, J. could not have entered judgment in favour of the plaintiffs if he had come to the conclusion that the Amended Statement of Claim disclosed a cause of action because the only application before Longe, J. was the defendant’s motion to strike out the Amended Statement of Claim. Given the situation, it is further argued, the trial court could only find either the Amended Statement of Claim did not disclose a cause of action in which case it strikes it out; or in the alternative a cause of action is disclosed and therefore the case would be adjourned for trial. Finally, learned Senior Advocate submitted that a Statement of Defence is an essential part of any civil proceedings and the defendant must be given the opportunity to file it. In his reply, Mr. Molajo learned counsel for the plaintiffs, argued that because the appeal went to the lower court under special circumstances; the Court of Appeal had jurisdiction under section 16 and its inherent jurisdiction to set aside the judgment of Taylor, J. in Suit No. AB/29/55. He relied on the cases of Bolatito (supra) and Igboho Local Government (supra).

Section 16 of the Court of Appeal Act which prescribes its general powers corresponds with Section 22 of the Supreme Court Act, Cap. 424. It provides-

“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part of may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

There is no doubt that section 16 has given the Court of Appeal amptitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of first instance and in the present case the jurisdiction of the High Court. This is not in doubt, whatsoever. But the question is: can a High Court decide a case in the light of its Civil Procedure Rules without pleadings but merely on a Statement of Claim when the defendant has not defaulted in filing a Statement of Defence The answer is simply in the negative. It follows therefore that the Court of Appeal cannot also decide a case on a statement of claim when the statement of defence is yet to be filed. To do so will amount to not only breaching the rules of pleadings but also overreaching the defendant and thus occasioning a miscarriage of justice. The importance of pleadings in our adversary system of administration of justice cannot be overlooked. For it is when issues are joined that a case can proceed on trial. Even then, when evidence is given which is not supported by the pleadings, it goes to no issue and will be disregarded. All these essentials cannot be sacrificed on the altar of expediency. The fact that the present case had gone on for 35 years before it reached the Court of Appeal is unfortunate, but that could not give the Court of Appeal the jurisdiction to decide a case merely on a Statement of Claim without default of pleadings or issues being joined. I, therefore, hold that the lower Court misdirected itself in assuming jurisdiction under Section 16 of the Court of Appeal Act to give judgment for the plaintiffs on their Amended Statement of Claim. The appropriate order it should have made after holding, though for a wrong reason, that the Amended Statement of Claim disclosed a reasonable cause of action, was to remit the case to the High Court for the remaining pleadings to be filed and evidence be called by the parties.

On the whole, I find that there is merit in the appeal and it succeeds in part.

The decision of the Court of Appeal is hereby set aside. The case is remitted to the High Court to be heard by a Judge other than Longe, J. N1,000.00 costs in favour of the defendant against the plaintiffs.

A. B. WALI, J.S.C: I agree with my learned brother, Uwais, J.S.C. whose judgment in draft I had been opportune to read that the amended Statement of Claim discloses a reasonable cause of action and that having regard to the issues involved in the case and the state of pleadings, the Court of Appeal was wrong in assuming jurisdiction under Section 16 of the Court of Appeal Act, 1976 to give judgment for the plaintiffs.

I would therefore allow the appeal for the reasons ably stated in the lead judgment and adopt the consequential orders contained therein, including that of costs.

O. OLATAWURA, J.S.C: I had a preview of the judgment of my learned brother Uwais, J.S.C. just delivered; I agree with his reasoning and conclusion. Uwais J.S.C. has stated the cheque red history of the case right from the first trial by Taylor, J. (as he then was) to appellate courts and now to this Court. I need not go over the facts again. I will only like to comment on the issue of consent judgment and section 16 of the Court of Appeal Act if only to emphasize that the section is meant to prevent miscarriage of justice and to stop cases being sent back to the lower court where there is evidence on record which will enable that court to adjudicate on the matter as the court of trial would have done. Under what conditions can the Court of trial give judgment for a party in a case

There are many, some of them are:-

(i) Submitting to judgment without going through the process of due trial

(ii) Judgment by court after due trial

(iii) Judgment by default

(iv) Judgment by consent

Section 16 of the Court of Appeal Act cannot be used as a cloak to shut out a party from filing a defence more so when the party has not defaulted in filing his defence. This section should not be extended beyond its scope and intendment. The unfortunate position in which the respondents find themselves is no good ground for them to sidetrack the rule of court which allows a party to file his pleading.

Mr. Molajo the learned counsel for the respondents in his brief and oral submissions made a heavy weather of the age of the case in court and that it should be regarded as an exceptional circumstance why the case should not be sent back o to the High Court for trial. I agree with my learned brother Uwais J.S.C. where he said in the lead judgment:

“The fact that the present case had gone on for 35 years before it reached the Court of Appeal is unfortunate, but that could not give the Court of Appeal the jurisdiction to decide a case merely on a statement of claim without default of pleadings or issues being joined.”

I will go further by saying that there is a difference between keeping cases in our Cause Books without any attempt to hear them and cases heard but sent back by appellate courts either for retrial or hearing before another panel. The Judges seek the truth so as to know the justice of a case. They apply the law to the facts in order to attain justice. In an attempt to do all or any of these the courts sometimes err in Flaw or misdirect themselves. These mistakes and errors are thereafter corrected by appellate courts. If the road to justice is plain and smooth there will hardly be any need for appellate courts. The rules of court are made to be followed and to avoid what in common parlance is referred to as “arbitrary or jungle justice.” Consequently it takes time to know the truth of a case. An error must be corrected so as not to perpetuate injustice. The long time spent before justice is done is better than the harm done in a shorter period and perpetuated forever. We should not sacrifice justice for speedy trial.

The basis for the initial agreement was that Suit AB/24/55 should be a test case for Suit AB/29/55. At the conclusion of the trial in Suit AB/24/55 the plaintiff won, and based on the earlier agreement Suit AB/29/55 was dismissed. The fortune of the plaintiff in AB/24/55 was subsequently reversed, consequently the judgment in Suit AB/29/55 cannot be allowed to stand. The judgment of the Supreme Court in AB/24/55 had invalidated the basis on which the order by Taylor. J, was made. The plaintiff in AB/24/55 cannot now resile from the agreement reached. Since no defence has been filed in AB/29/55 it will therefore be wrong: for the Court of Appeal to give a judgment when the High Court could not have given judgment in view of the state of the pleading i.e. when only the Statement of Claim was filed. It would have been otherwise if there was application for judgment in default of pleading.

On the issue of consent, the lower courts were wrong to say that the judgment in AB/29/55 was a consent judgment. I will adopt the words of Lord Herschell L.C, In re South American and Mexican Company. Exparte Bank of England (1895) 1 CH. 37/40 where he said:

“The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the mailer has been fought out to an end.”

A case is fought after issues have been joined in the pleadings. The position in AB/29/55 as at present is one sided. The case have been on for years because of the due process of law. There are rules of court which guide the orderly conduct of cases. Everything must be done to see that each party plays the game according to the rules. I agree with Professor Kasunmu in his submission, that in any contested case a Statement of Defence is an essential ingredient for adjudication.

It is for these reasons and the fuller and well articulated reasons set out by my learned brother Uwais, J.S.C. in his judgment that I will allow the appeal in part. The decision of the Court of Appeal dated 15th December, 1987 is hereby set aside. The case is remitted to the High Court of Lagos State to be heard by another Judge. Costs of N1,000.00 in favour of the appellant.

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SC.273/1989