IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 26TH DAY OF AUGUST 1983
JOSEPH AFOLABI AND OTHERS ........................................ APPELLANTS
JOHN ADEKUNLE AND ANOTHER ......................................... RESPONDENT
BEFORE: Irikefe, Bello, Idigbe, Obaseki, Aniagolu JJ.S.C.
The respondents in the High Court sued for a declaration of title of land. Both parties (i.e. the appellants and the respondents) agreed that the original owner of the land in dispute was the Ataoja of Oshogbo but were in disagreement over the disposition of the land in dispute. The first respondent claimed that the Ataoja granted the land in dispute to his father whilst the first appellant claimed that the land in dispute is a part of a larger area granted to the Oshogbo Hausa Community by the Ataoja and that the seriki of the Hausa Community of Oshogbo sold the land in dispute to him. The trial Judge found as a fact that the said land in dispute was part of a larger area of land granted the father of the first respondent but that the first respondent failed to sue in a representative capacity.
He then ruled that he would either dismiss the claim or non-suit the respondent and called upon Counsel to address him on which of these two orders he should make Counsel for both parties submitted that non-suit was the order appropriate to the case in the circumstance. The trial Judge accordingly entered an order for non-suit by reason of the fact that although the land was granted and belonged to the family of the first respondent he failed to sue in a representative capacity for himself and on behalf of his family.
The respondents appealed to the Federal Court of Appeal against the said judgment while the appellants cross-appealed complaining against the initial finding by the trial Judge that the land in dispute formed part of the land granted to the first respondent’s father by the Ataoja of Oshogbo. The Federal Court of Appeal upheld the trial Judge’s finding, amended the respondent’s writ of summons, altering the capacity in which the first respondent sued then proceeded to set aside the order for non-suit and in its place entered judgment for the respondent for a declaration of title as claimed.
On further appeal to the Supreme Court.
(1) Consent involves an element of volition, a voluntary agreement, a deliberate and free act of the mind. A party who bows to an adverse judgment of a court and in the course of it takes a step designed to minimise loss, cannot be said to have consented to the judgment of the court.
(2) It is clear that the learned trial Judge had ground that the land belonged to the first respondent’s family, that he had decided to either dismiss the case or non-suit the respondents and faced the parties with these alternatives in choosing an order for non-suit the respondents were simply choosing a lesser of two evil.
(3) The constitutional requirement that an appeal against a consent order should be by leave, does not apply since the respondents cannot be said to have consented to the judgment of the trial Judge.
(4) It is the duty of courts to aim at, and to do, substantial justice and to allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice and the end of litigation.
(5) Having come to the conclusion that the first respondent was suing in the wrong capacity but that he had made out a case in another capacity it would have been quite proper for the court below to make the necessary amendment to the writ of summons.
(6) The amendment of the writ of summons to reflect the representative capacity under which the first respondent should have sued made by the Federal Court of Appeal is justified by the evidence in his case and is dictated by the justice and merits of the case.
(7) In the present case there is no dispute as to whether the first respondent as head of family obtained consent of members of family before sale to the second respondent and so the question whether sale is void–ab–initio for lack of consent do not arise.
Statutes referred to:–
(1)The Constitution (Amendment) (No.2), No. 42 of 1976
(2) High Court Rules, Western Region of Nigeria.
Cases referred to:–
(1) Ababio IV v. Quartey and another (1914) P.C. Appeal No. 94.
(2) Bakare Elufisoye v. Samuel Alabetutu (1968) N.M.L.R. 298.
(3) City Property Development Limited v. Attorney–General of Lagos State and others (1976) 1 All N.L.R. 28.
(4) Craig v. Craig (1967) N.M.L.R. 52.
(5) Ecklin v. Little (1889–90) 6 T.L.R. 366.
(6) England v. Palmer (1955) 14 W.A.C.A. 659.
(7) Gbogbolulu v. Hodo (1941) 7 W.A.C.A. 164.
(8) Kojo Atta v. Kwaku Apamu and others (1941) 7 W.A.C.A. 75.
(9) Mrs Aigbe v. Bishop J Edokpolor (1977) 2 S.C. 1.
(10) Odulaja v. Williams (1940) 6 W.A.C.A. 198.
(11) Omoregbee v. Lawani (1980) 3–4 S.C. 108.
(12) Oshodi v. Aremu (1952) 14 W.A.C.A. 83.
(13) Raji Akano and another v. Alhaji Yisau Ajuwon (1967) N.M.L.R. 7.
(14) Re ley’s will Trusts Somerset and another v. Ley and another (1964).
(15) Walter Wiri and others v. Godwin Wuche and others (1980) 1–2 S.C. 12.
Chief F.R.A. Williams (with Mrs O.K. Adernokun, T.E. Williams) for the Appellants.
Abiola Orionye for the Respondents.
Aniagolu J.S.C. In this case on appeal, the contending parties have based their claims to the land in dispute upon derivative titles. The central issue, which the learned trial Judge resolved in favour of the plaintiffs, was whether the land was part of the land which, in 1939, OBA DOKUN LATONA II the ATAOJA OF OSHOGBO, granted to the father of the first plaintiff, one JOSEPH FOLARIN ADEKUNLE (now deceased), or whether it formed part of the area which the ATAOJA OF OSHOGBO granted to the OSHOGBO HAUSA COMMUNITY “from time immemorial.”
The first plaintiff, who is the accepted head of the Adekunle family, sold and conveyed to the second plaintiff the land in dispute in the exercise of the claimed proprietary rights of the Adekunle family, while the first defendant purchased the same land from the third defendant in purported exercise, by the third defendant who was in SERIKI of the Hausa Community of Oshogbo, of the claimed right of ownership of the land in dispute by the said Hausa Community. And so it was, that both parties agreed that the original owner of the land in dispute was the ATAOJA OF OSHOGBO.
Despite the fact, however, that the High Court found as a fact that the said land in dispute was part of the larger area of land granted to the father of the first plaintiff, it non-the-less non-suited the plaintiffs by reason of the fact that the land was granted, and belonged, to the family of the first plaintiff, and that he failed to sue in a representative capacity for himself and on behalf of the Adekunle family made up of himself and the other children of Joseph Folarin Adekunle.
The learned trial Judge held as follows
“As shown on the writ of summons and the Statement of Claim, the first plaintiff instituted this action in his personal capacity jointly with the second plaintiff with their claim against the defendants as set out in the earlier part of this judgment. However in the amended Statement of Claim after describing in the earlier paragraphs the situation of the land and how the grant of the land was made to the father of the first plaintiff, it was stated in paragraph 8 as follows:
Paragraph 8: ‘After the said J.F. Adekunle’s death in 1970 his children including the first plaintiff as their head inherited the said parcel of land.
Throughout his evidence-in-chief before the court, the first plaintiff never said anything about the interest of the other children of his late father in the land in dispute despite the averment in paragraph 8 of the Statement of Claim quoted above thus giving the impression that he was the only one entitled to the portion of the land in dispute claimed by him. It was under cross-examination by Mr Ojewunmi, learned Counsel for the first and second defendants, that he said as follows:—
‘My father had total number of seven children made up two males and five females. The children were born of four different mothers. My father had only four wives. All the children succeeded to the estate of my father. Up till now we have not applied for letters of administration in respect of the estate. The estate has not been distributed. My father had no other piece of land around the area where the land in dispute is situate. The development being undertaken by my father was on the part of the land near Sabo Road. Myself and the other children of my father have not undertaken any physical development of the land since the death of my father. I only sold a portion of the land to the second plaintiff.’
At no time did the plaintiff lead any evidence as to his representative capacity and the facts elicited from the plaintiff under cross-examination as quoted above are the only reference made to the other children of his father who have interest in the land. Even then no reference was made to the names of these other children of his father, who are not all of the same mother with him, nor was there any allegation made that they have consented to it.
In my view an in agreement with the submission of learned Counsel on this point the first plaintiff has prosecuted this action in a wrong capacity.”
The trial Judge found himself unable to make any amendment to the writ of summons by reason of the difficulty which he considered to be insurmountable. He said:
“Unfortunately, the difficult created in this case is in my view insurmountable because if even I were to amend the writ of summons and the Statement of Claim to show the plaintiff as suing in a representative capacity the evidence led would still not support a judgment being entered in his favour in that capacity.”
Further on in the judgment he wrote:
“In the circumstance that the first plaintiff sued in a wrong capacity and with a joint claim with the second plaintiff as on their writ of summons, I cannot enter judgment for the plaintiff in this case against the defendants as sought in their said writ of summons because there is no way I can amend the writ to show them suing together for and on behalf of the other children of J.F. Adekunle (deceased) (sic).”
Before he made the order for non-suite he ruled that he would either dismiss the claim or non-suit the plaintiffs. He then called upon Counsel to address him on which of these two orders he should make. This was what he said:
“What is now left to consider is the decision to be recorded that is whether it should be one of dismissal or non-suit and I will like to hear the views of the Counsel for the parties on this point in line with the principle laid down in the case of Mariam Ashabi Craig v. Victor Emmanuel Craig and another 1967 N.M.L.R. 52. This is that where a court is disposed to entering a non-suit in a case the views of the parties must be heard by the court on what they consider an appropriate decision.”
Both Counsel for the first and second defendants (Mr Fatoki) and for the third defendant (Mr Adediran) submitted that non-suit was the order appropriate to meet the justice of the case in the circumstances. Counsel for the plaintiff (Mr Falade) also submitted that a non-suit order should be entered. He said:
“I urge the court to enter a non-suit.” Whereupon, the judge entered an order for non-suit saying:
“Court:–I will follow the principle laid down in the case of Chief Effiong Duke v. Etubom Henshaw (supra) that in a circumstance like this there should be a non-suit rather than a dismissal of the claim.”
The plaintiffs appealed to the Federal Court of Appeal against the said judgment while the defendants cross-appealed complaining against the initial finding by the trial Judge that the land in dispute formed part of the land granted to the first plaintiff’s father by the Ataoja of Oshogbo.
Having upheld in its judgment the said trial Judge’s finding that the land was part of the land granted to first plaintiff’s father, the Federal Court of Appeal, in the interest of justice, amended the plaintiff’s writ of summons, altering the capacity in which the first plaintiff sued, by adding the words:
“for himself and on behalf of the J.F. Adekunle family.”
It then proceeded to set aside the order for non-suit and in its place entered judgment for the plaintiffs for a declaration of title as claimed; N100.00 damages for trespass, and injunction against the defendants.
The foregoing is the background against which one must consider the submissions made by appellant’s Counsel, Chief F.R.A. Williams, S.A.N., in his Brief, and amplified by him in his oral arguments.
These submissions, in summary, were:
(i) that the order of non-suit made by the trial Judge was a consent judgment to which all the parties subscribed; that a party to a consent judgment cannot appeal against that judgment without leave of court; that leave not having been asked for or obtained, by the plaintiffs, their appeal to the Federal Court of Appeal was therefore incompetent, and the Federal Court of Appeal was therefore without jurisdiction to hear the appeal;
(ii) that the amendment made by the Federal Court of Appeal was, ex debito justitiae, improper, being too late in the day when amendment should be made; that at the stage when the trial Judge asked the parties to address him on the issue of dismissal or non-suit, the plaintiffs had the option to ask for amendment or for a non-suit; they chose to ask for non-suit; that the Federal Court of Appeal was wrong to have amended the writ at that stage of the proceedings. Had the plaintiffs amended their writ at the proper stage, the defendants might have amended their statement of defence and properly met the case of the plaintiffs;
(iii) that the conveyance of the family land to the second plaintiff by the first plaintiff in his personal capacity was, on the authorities, void and therefore the entry of judgment for the plaintiffs, by the Court of Appeal, was, in all the circumstances, improper.
I propose to deal with these submission seriatim:
1. The Non-Suit Order
In respect of the submission on this head, it is clear that the learned trial Judge had found that the land belonged to the Adekunle family which was one of the matters in contest; that the trial Judge had decided to either dismiss the case or non-suit the plaintiffs and faced the parties with those alternatives. In choosing an order for non-suit the plaintiffs were simply choosing a lesser of two evils. After all, they sued for a declaration of title, damages for trespass and injunction and wanted the court to enter judgment for them in terms of their claim. They were not “consenting” to either of the two alternatives; they were simply faced by the trial Judge with a dilemma in the two alternatives. If they did not choose the lesser evil of a non-suit they would be met peremptorily with an order of dismissal by which order their case would be shut out forever.
I conceive that “Consent involves an element of volition; a voluntary agreement–a deliberate and free act of mind. A party who bows to an adverse judgment of a court and in the course of it takes a step designed to minimise loss, cannot be said to have consented to the judgment of the court. Thus, in Odulaja v. Williams (1940) 6 W.A.C.A. 198 at 199 the West African Court of Appeal had this to say, in an appeal against a consent judgment, as to the part ordering payment by instalments, to which, it was alleged, consent was not given:
“If, as is contended, the plaintiff-appellant did not agree to the part as to instalments, then it is clear that the parties were not ad idem and the ‘consent’ of the defendant is no consent at all.”
As has been stated in Re Ley’s Will Trusts Somerset and another v. Ley and another (1964) 2 All E.R. 326 at 329, in a consent judgment or order, the court has no power to compel a party to agree to a compromise.
It is my view that once the element of compulsion comes in, the element of volition goes, and the subsequent order can never be “a consent order.” By the provisions of Order 28, rule 3 of the Western Region of Nigeria 1959 High Court Rules Ca. 44 Vol. II the court could enter non-suit without the consent of the parties.
Rule 3 provides:
‘3. The court may in any suit, without the consent of parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”
What the learned trial Judge did, by calling upon the parties to address him on what order to make–dismissal or non-suit–was merely to follow the advice of this Court in a number of cases (Craig v. Craig (1967) N.M.L.R. 52; Bakare Elufisoye v. Samuel Alabetutu (1968) N.M.L.R. 298 at 301; Mrs Aigbe v. Bishop John Edokpolor (1977) 2SC. 1; Omoregbee v. Lawani (1980) 3-4 SC. 108)–namely–that where, at the close of the hearing of a case, the trial Judge should think of entering a non-suit, it is desirable that he should ask Counsel for the parties for this submissions on the intended order. This is as it should be, as has been pointed out in these cases, because the entry of an order for non-suit means that the plaintiff is being given a second chance to prove his case–another ordeal against the defendant who, by the non-suit order, will of necessity enter into a second litigation with the plaintiff. Again, the order could mean an injustice against the plaintiff who could claim to have satisfactorily proved his case and yet, was being required to once again commence his action anew and go into the ordeal of a new trial. It is for this reason that a trial Judge should hear the parties on the important issue of non-suit before making the order.
Appellant’s Counsel, in his Brief, had pointed out that this point of “Consent” was not raised before the Federal Court of Appeal but contended that it could be raised, for the first time, before us, because being an issue as to the jurisdiction of the Court of Appeal having regard to the provisions of section 121E(2)(f)(iii) of the Constitution (Amendment) (no. 2), No. 42 of 1976, the Supreme Court will entertain it:
I am clearly of the view that the parties had not consented to the non-suit order and, therefore, the constitutional requirement that an appeal against a consent order should be by leave, does not apply here.
2. The Amendment by the Court of Appeal
I now turn to the amendment made by the Federal Court of Appeal altering the capacity (hereinbefore set out) under which the first plaintiff instituted his action. In considering this issue it is necessary to remember:
(i) that the first plaintiff is the undisputed head of the Adekunle family;
(ii) that in his paragraphs 8 and 17 of his amended Statement of Claim the first plaintiff averred that the land in dispute belonged to the children of J.F. Adekunle (which included himself) they having inherited the land since the death of J.F. Adekunle in 1970, together with “the stone foundation” built by their said father in 1968; included in these children of J.F. Adekunle were, he said, “his brothers and sisters”; and
(iii) that the learned trial Judge had found as a fact that the land in dispute was part of the land granted by the Ataoja of Oshogbo to the father of the first plaintiff–said J.F. Adekunle.
In his evidence under cross-examination the first plaintiff swore that all the children succeeded to the estate of his father–the said J.F. Adekunle. He put it thus:
“My father had a total number of seven children made up of two males and five females. The children were born of four mothers. My father had only four wives. All the children succeeded to the estate of my father.”
And so, both in his pleadings and in his evidence, the first plaintiff had admitted, and conceded, that the land in dispute and the larger area of land of which the land in dispute formed a part, belonged to him and the other children of J.F. Adekunle. He had not claimed ownership of the land to the exclusion of the other children of J.F. Adekunle. There was, therefore, no dispute between him and the said other children of J.F. Adekunle. Having found as a fact that the land in dispute rightly belonged to J.F. Adekunle, and, by implication, that persons entitled to the estate of the said J.F. Adekunle were the owners of the land, that is to say, the first plaintiff and the other children of J.F. Adekunle, could the court be doing justice if it failed to grant a declaration of title to the first plaintiff and the rest of the children of the said J.F. Adekunle? I think not.
It is the duty of courts to aim at, and to do, substantial justice and to allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice and the end of litigation. The correct attitude of courts, in relation there, had been expressed by the West African Court of Appeal in Gbogbolulu v. Hodo (1941) 7 W.A.C.A. 164 in which, at 165, it set out the principle thus:
“As soon as any question arose as to the capacities of the respective parties it was, in our view, the duty of the court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that could be done without any hardship to either party.”
The same approach was made by the same Court in Kojo Atta v. Kwaku Apawu and others (1941) 7 W.A.C.A. 75 at 76 the court ruled in favour of the amendment of the capacity in which the plaintiff was suing, once the plaintiff had made out his case in that capacity, as follows:
“It is quite clear that the court below could not give judgment in favour of the plaintiff ‘as suing for himself and not in a representative capacity’ unless and until the writ of summons had been amended so as to alter the capacity in which the plaintiff sued.
Having come to the conclusion that the plaintiff was suing in the wrong capacity but that he had made out a case in another capacity it would in our opinion have been quite proper for the court below to make the necessary amendment to the writ of summons provided the court was satisfied that such amendment could be made at that stage of the proceedings without injustice to the defendants. Before making that amendment the court below would have to give the defendants the opportunity of being heard on the question whether making the amendment at that stage would involve injustice to them.
The necessary amendment was not made in the court below, nor was any application made by the plaintiff in the court below for the amendment. Nor was any formal written application in that behalf made to this Court, but, when called upon in regard to Ground 1 (b) of the Grounds of Appeal, Counsel for the respondent asked this Court, in the exercise of its powers under rule 31 of its Rules, to make the necessary amendment, and after doing so to uphold the judgment of the court below.” (The italics is mine for emphasis).
The judgment of this Court in Walter Wiri and three others v. Godwin Wuche and five Others (1980) 1-2 S.C. 12 emphasis that in the interest of justice, amendments should be made to follow the facts established and accepted by court.
While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasise that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them. Their Lordships of the Privy Council were clearly endorsing this principle when in Ababio IV v. Quartey and another (P.C. Appeal No. 94 of 1914 cited in England v. Palmer (1955) 14 W.A.C.A. 659), it stated that:
“The court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties.” (Italics is mine).
In the same case reference was made to Ecklin v. Little (1889-90) 6T.L.R. 366 (wrongly therein reported as Seklin V. Little) in which, on a motion for a new trial, the court (Denman, Charles and Vaughan-Williams JJ.) amended the Statement of Claim in the action for slander to conform with the words proved at the trial, which were not those set out in the Statement of Claim, although the judge at the trial had offered plaintiff’s Counsel an amendment of the pleadings but it had been refused.
The amendment of the writ of summons to reflect the representative capacity under which the first plaintiff should have sued, that is to say,
“for himself and on behalf of the J.F. Adekunle family”
made by the Federal Court of Appeal appears to me to be justified by the evidence in his case and to have been dictated by the justice and merits of the case.
3.The Conveyance by the first Plaintiff to the second Plaintiff
The last submission by which it was said that the conveyance (exhibit A) by the first plaintiff to the second plaintiff was void ab initio, was founded on general principles and more particularly on the decision of this Court in City Property Development Limited v. Attorney–General of Lagos State and others (1976) 1 All N.L.R. 28 in which it was held that Chief Yesufu Abiodun Oniru, as the head of the Oniru Chieftaincy family, could not alone transfer family property and that if he alone executed a conveyance of family property as a grantor and a beneficial owner, the sale and conveyance must be void, unless he could show that the land had been transferred or given to him by the family.
The facts of that case are clearly distinguishable from the present case on appeal in which the first plaintiff, both in his pleadings and in his evidence, had declared that the land in dispute was inherited by, and belonged to, himself and his other brothers and sisters. There was, therefore, no dispute between him and the other members of the Adekunle family. A different situation would have arisen, giving rise to a different legal result, had the first plaintiff claimed personal ownership of the land in dispute to the exclusion of the other members of the Adekunle family. Quite to the contrary, however, he conceded that the ownership of the land was vested in him and his other brothers and sisters, making the issue one of a straight fight between him and his family on one side and the Oshogbo Hausa Community on the other side. In most the earlier reported cases in which the head of the family sold the family land without the knowledge and/or consent of the other members of the family, the issue was usually one of intra-family dispute in which the head of the family claimed exclusive proprietary rights over the family land, in virtue of his headship of the family. No such dispute exists in the present case on appeal.
The situation in the instant case on appeal is more in line with Raji Akano and another v. Alhaji Yisau Ajuwon (1967) N.M.L.R. 7 in which this Court (per Bairamian, Onyeama and Coker, JJ.S.C.) refused to accede to the appellants’ request–a request which they based on the decisions of the West African Court of Appeal in Ajibade v. Makanjuola (1944) 10 W.A.C.A 33 and Oshodi v. Aremu (1952) 14 W.A.C.A. 83–that the sale of a portion of the family land by the head of the family should be declared void because he sold the land as “owner whereas it belonged to the family. The court held that having regard to the evidence, the allegation in the plaintiff’s Statement of Claim that the land in dispute “belonged to O according to Customary Law” is not to be read as allegation that it is O’s private property. The letter “O” stands for Omiremi. The term “owner”, the court held, is sometimes loosely used in relation to land held under customary tenure and should not be too strictly construed.
“Plainly”, the court said, “in common parlance people speak of the land of X., the head of the family; and if the members of the family themselves do so, they cannot complain if strangers do. From a lawyer’s point of view it may not be precise; but a lawyer, too, would find it hard to discover an English term by which to describe the position of the family head. In strictness he is not the owner; some think it is unwise to call him the trustee and import English ideas of trusts; perhaps manager is nearest but this term does not altogether fit either, for it is conceded that if the family head sells family land without having obtained the consent of the other members whom he ought to consult the sale is not void but voidable at the instance of the others.”
Holding that even though Omiremi was described in the sale as the “owner” there was no valid ground for upsetting the learned Judge’s finding that he sold as head of the Oko family, the court found for the family declaring ownership of the land to be vested in the family.
With the resolution, of the two issues of non-suit and Amendment of the capacity under which the first plaintiff sued, in favour of the respondents, these two complaints on which this appeal was argued before us, have now been resolved. And with that, the appeal must stand dismissed, and is hereby dismissed, with N300.00 costs to the respondents.
Irikefe, J.S.C. I had the advantage of a preview of the judgment just read by my learned brother, Aniagolu, J.S.C. and I am in full agreement with his conclusions both on matters of law and fact. I also would uphold the judgment of the Federal Court of Appeal in this matter dated 12th June, 1980.
The appeal accordingly fails and it is dismissed with costs as ordered in the lead judgment of Aniagolu J.S.C. aforesaid.
All judgments are read. Late Idigbe, J.S.C. had expressed agreement.
Bello J.S.C. I entirely agree with the judgment of my learned brother, Aniagolu J.S.C., including the order as to costs.
Obaseki, J.S.C. The main issue raised in this appeal is as to the justification of the action taken by the Federal Court of Appeal to amend the writ of summons filed in the High Court to reflect the representative capacity in which John Adekunle the first plaintiff/respondent sued. The second issue raised was whether the order of non-suit entered by the High Court against the plaintiff/respondent was a consent judgment against which an appeal can only be lodged with leave of court.
These issues have been given admirable treatment in the judgment of my learned brother Aniagolu, J.S.C. the draft of which I had the advantage of reading in advance. I am in complete agreement with his opinions on all the issues raised and I would also dismiss the appeal.
By way of emphasis, I will add the following comments. On the issue of consent judgment, I wish to observe that the facts disclosed in the record of proceedings show that the learned trial Judge invited Counsel to address him on the proper order he would make against the appellants and whether an order of dismissal or an order of non-suit would be appropriate in light of his finding that the plaintiff had not proved his claim. It is also clear from the records that it was in the course of this exercise that the concession that an order of non-suit would be a proper order was made. That would not by any stretch of imagination amount to an agreement between the parties or their Counsel on the facts submitted to the learned trial Judge for embodiment in the judgment to make the judgment a consent judgment.
Halsbury’s Laws of England Fourth Edition Vol. 26 paragraph 527 contains the following statement of the law on Judgment by Consent:
“If 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.
See Green v. Rozen (1955) 2 All ER 797 (1955) 1 WLR 741
Lees v. Motor Insurers Bureau (1952) 2 All ER 511 (1955) 1 WLR 620 C.A.
General Accident Fire and Life Assurance Corporation v. IRC (1963) 1 A11 ER 618 at 627 (1963) 1 WLR 421 at 430 affirmed (1963) 3 A11 ER 259; (1963) 1 WLR 1207 C.A.
An order made by consent but without the sanction or direction of the court, should contain a statement on its face that it is an order by consent.”
In the case of Green v. Rozen (supra), Glade, J. at 799-800 gave five methods of disposing of an action when terms of settlement are arrived at when the action comes on for trial or in the course of the hearing. Therein the learned Judge said:
“There are various ways in which an action can be disposed of when terms of settlement are arrived at when the action comes up for trial or in the course of the hearing. I myself have had experience of at least five methods of disposing of an action in such circumstances and those five methods are not exhaustive. One can in an appropriate case, as was done in Re Hearn (1913) 108 LT 452 affd. C.A. 108 LT 737 to which Counsel for the plaintiff referred, have the terms of the compromise made a rule of court, provided that it appears that one of the terms of the compromise is that the terms shall be made an order of court.”
The proceedings in the High Court leading to the instant appeal do not fall into any of the known methods and really do not reflect any compromise by the parties. The judgment had been delivered up to the point of making the order when Counsel were invited to address the court as laid down in Craig v. Craig (1967) N.M.L.R. 52.
Turning to the failure of the learned trial Judge to amend the capacity in which the first plaintiff sued, the learned trial Judge was clearly in error in thinking that he could not, and the Federal Court of Appeal quite properly effected the necessary amendment to the writ and entered judgment for the plaintiff.
This court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained. See Ayeni v. Sowemimo (1982) 5 SC. 60; Dokubo v. Bob Manuel (1967) 1 A11 NLR 113 at 121; Mba Nta and others v. Ede Nweke Anigbo and another (1972) 5 SC. 156 at 174-175; Shelle v. Chief Asajon (1957) 2 FSC 68; Habib Disu v. L.W. Daniel Kalio FSC 216/1962 decided on 7th March 1964. It would be otherwise if the case is not made out in a representative capacity. Onwunalu Ndidi and Onwunalu v. Osademe (1971) 1 A11 NLR 14 at 16.
Turning to the need to amend, it should be observed that amendments are normally made in the interest of justice. If a refusal to amend or grant amendment would cause injustice an order of amendment should be granted and amendment made however late the proposed amendment may be. See Rolls Razor Limited v. John Bloom. The Times May 10, 1969 C.A. Rainy v. Bravo (1872) 4 L. R. P. C.A. 287 at 298-299. Sir Montague Smith delivering the judgment of the Privy Council in Rainy v. Bravo (supra) said at 298-299:
“However, when the judge, after having taken time to consider, was delivering his judgment and giving his reasons for it, the appellant then perceiving that the judgment was to be against him, applied for the first time to the learned Judge to have exercised, the power of amendment, if he had thought fit to do so, but it was a matter entirely within the discretion of the judge at the trial, whether at so late a period he would make the amendment or not, and the Chief Justice on this occasion declined to make it but offered the appellant the choice of a non-suit. Their Lordships would be at all times most reluctant to interfere with the discretion of the learned Judge, in a case of this kind when he has exercised it upon a full apprehension of all the circumstances before him; but there is a circumstance in this case which induces them to think they may properly use on this occasion the power, which they undoubtedly possess, of directing the allowance of an amendment to be made even at this last moment. Their Lordships are disposed to give the appellant an opportunity of amending, on terms to be presently stated, on the ground that they think the learned Judge was in error in shutting out altogether the evidence of three witnesses who proved the contents of the destroyed letter and in relying only upon the witness Gilpin. They think that his having shut out the evidence of those three witnesses from his consideration may have influenced his own mind in the exercise of the discretion which he possessed with regard to the amendment and probably, if the learned Chief Justice had taken the same view of that evidence which they have done, he might himself have exercised his power in a different way.” (Italics mine).
That matter was commenced in the Supreme Court of Sierra Leone by the appellant, a Barrister practising as an Advocate and Attorney in the courts in Sierra Leone, against the respondent, a Police Magistrate in Sierra Leone. It was an action for defamation in the way of his profession. See also Chief Gbogbolulu v. Chief Hodo 7 WACA 164.
The Federal Court of Appeal was acting in the interest of justice when it amended the writ of Summons in exercise of its undoubted power and granted the declaration.
I would also and I hereby dismiss the appeal and affirm the decision of the Federal Court of Appeal with costs to the respondents fixed at N300.00.