GANIYU AGUNBIADE (APPELLANT)
v.
OKUNOGA & CO (RESPONDENTS)
(1961) All N.L.R. 119
Division: High Court of Lagos
Date of Judgment: 18th January, 1961
Case Number: Appeal No. LD/56A/60
Before: De Lestang, C.J.
Appellant obtained a consent Judgment in the chief magistrate's court in Lagos. It subsequently was disclosed during a Motion for rehearing before another Chief Magistrate that the Judgment was given in error on a misrepresentation to the court by Counsel that the respondents had consented there to. Judgment was set aside accordingly, and the case heard and dismissed on its merits.
On appeal, it was contended that the Chief Magistrate had no jurisdiction to try the case because he: had no power to set aside the Judgment already given by his colleague in the same Court.
HELD:
There is no express provision in the magistrate's court (Lagos) Ordinance, Cap. 113, or in the magistrates' court (Civil Procedure) Rules, 1956, empowering a magistrates' court to set aside its own Judgment, except one obtained ex parte. However, where it is obvious that a court was misled into giving Judgment under the mistaken belief that the parties had consented to it, there is an inherent power in the court to set aside such Judgment given in error, and the court is entitled to do so ex debito justitiae.
Appeal dismissed.
Ordinance referred to:-
Magistrates' Court (Lagos) Ordinance, Cap. 113, section 46.
Orders and Rules referred to:-
Magistrates' Court (Civil Procedure) Rules, 1956.
Giwa for Appellant.
Oyero for Respondent.
De Lestang, C.J.:-This appeal arises in the following circumstances.
The appellant filed a claim in the magistrate's court for compensation by his employers in respect of an injury sustained in the course of his employment. The respondents, his employers, resisted the claim. After the usual spate of adjournments the case eventually came before Mr Adefarasin. On that day respondents' solicitor informed the court that he admitted that the appellant would be entitled to £121-1s-11d (a smaller sum than that claimed) if the claim were not statute barred which, however, he maintained it was. Whereupon the learned Chief Magistrate adjourned the case for evidence to be taken on that issue. There were in fact two further adjournments and on that of the 10th August, 1960, the respondents' solicitor was not present, although it would appear from the entry in the record that some one was present on behalf of the respondents' firm. On that day the solicitor for the appellant announced "that agreement has been reached between applicant and respondents (workman and employers) for £121-1s-11d but the question of costs will be left to the court." Thereupon without apparently enquiring from the respondents' representative whether he consented to Judgment or not the learned Chief Magistrate gave Judgment for that amount against the respondents.
On the following day the respondents filed an application to set aside the Judgment on the ground that they never consented to it and that throughout they were relying on the defence of limitation. The application came before another Chief Magistrate, Mr Crane, who set aside the Judgment and tried the case.
The decision having gone against the appellant he appeals on the sole ground that the Chief Magistrate, Mr Crane, had no jurisdiction to try the case because he had no power to set aside the Judgment already given by his colleague in the same Court.
There is no express provision in the magistrates' courts (Lagos) Ordinance, Cap. 113, or in the magistrates' courts (Civil Procedure) Rules, 1936, empowering a magistrate's court to set aside its own Judgment except an ex parte Judgment and the appellant relies on Section 46 of the Ordinance which provides that every Judgment and order of the court shall be final and conclusive.
Mr Oyero for the respondents contends that every Court has an inherent power to set aside any irregular Judgment or order given by it.
It is perfectly clear in this case that the respondents never admitted liability and that Judgment was obtained against them in the absence of their solicitor by what may almost be termed sharp practice. Appellant's solicitor has not been able to maintain either before Mr Crane or in this Court that the respondents agreed to Judgment and it is obvious to me that the learned Chief Magistrate was misled into giving Judgment against the respondents in the mistaken belief that they were consenting.
In my view the court has an inherent power to set aside its Judgment given in error. In the present case the Judgment purports to be given by consent when there was in fact no consent. It was really given without any right whatsoever and in contravention of the rules and is accordingly a nullity. The court was entitled ex debito justitiae to set it aside. There was, therefore, no want of jurisdiction.
The appeal is dismissed with costs assessed at £10-10s-0d.
Appeal dismissed.