IN THE SUPREME COURT OF NIGERIA

On Wednesday, the 12th day of June 1963

FSC 421/1962

BEFORE:

Ademola, C.F.J.

Brett F.J.

Bairamian, F.J.

BETWEEN:

NIGERIA WATER RESOURCES DEVELOPMENT LIMITED ....................................................................................... APPELLANT

And

A.K. JAIYESIMI ................................................................................................................... RESPONDENT

Appeal by defendant:

Subsection (2) of section 110 of the 1960 Constitution of the Federation confers a right of appeal from the High Court in:-

"(a) Final decisions in any civil proceedings before the High Court sitting at first instance, provided that nothing in paragraph (a) of this subsection shall confer any right of appeal- (iii) from any order made with the consent of the parties”

Subsection (7) defines "decision" to include (inter alia) judgments and orders.

Subsection (4) enables an appeal to be brought by leave in:-

"(b) any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Federal Supreme Court by virtue of paragraph (a) of that subsection;....."

The High Court note read: "Both Counsel agree that the plaintiff be awarded £850 as rent for one year plus £425 being six months rent in lieu of notice. Judgment entered for plaintiff for £1,275. Costs assessed at 100 guineas." The defendant appealed without seeking leave; the plaintiff objected that he could not do so. The defendant argued that what he appealed from was not a consent judgment; also that proviso (iii) to subsection (2)(a) meant an interlocutory order.

HELD:

(1)     As the trial Judge did not decide how the action should be determined but merely entered judgment for the amount agreed upon by Counsel for the parties, the judgment was a judgment by consent. (Sarkis u. Sarkis, 4 N.L.R. 133 distinguished.)

(2)     Final decisions in subsection (2)(a) include both final judgments and final orders and in proviso (iii) an "order made with the consent of the parties" means a final order made with such consent for judgment to be entered according to the settlement made by the parties: hence the determination is indifferently spoken of as a consent judgment or order. (Wellesley v. White [1921] 2 K.B. 204; Rossiter v. Langley [1925] 1 K.B. 741; and Hadida v. Fordham & Sons Limited (1893) 10 T.L.R. 139.)

Appeal struck out.

Other cases cited:-

Moore v. Tayee 2 W.A.C.A. 43; Onslow v. Commissioners of Inland Revenue (1890) 25 Q.B.D. 465 at 466.

APPEAL from the High Court of Western Nigeria.

Agbaje-Williams for the Appellants.

Odusote for the Respondent.

Ademola, C.J.F. On May 1st 1963 at Ibadan we struck out this appeal for want of jurisdiction and stated we would give our reasons later. We now do so.

The judgment appealed against reads as follows:-

"NOTE BY COURT. Both Counsel agree that the plaintiff be awarded £850 as rent for one year plus £425 being six-months rent in lieu of notice. Judgment entered for plaintiff for £1,275. Costs assessed at 100 guineas."

The appellant sought no leave to appeal and none was obtained. The respondent gave notice that he would rely on the preliminary objection that as the judgment of the High Court was by consent of the parties, the appeal could not have been brought without leave and should therefore be struck out. He referred to the relevant provisions in section 110 of the Constitution of the Federation, and to the case of Moore v. Tayee 2 WACA 43 where Lord Atkin said that all appeals "exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them."

Counsel for the appellants contested that the decision from which they had appealed was a consent judgment or order; he also argued that if it was a consent judgment, the appellants had a right of appeal.

On the question whether the decision was a consent judgment, Counsel relied on the case of Sarkis v. Sarkis 4 N.L.R. 133 at p.; 135 and argued that not every case of compromise constitutes a judgment by consent, and that this was not one.

It seems clear from the judgment in Sarkis v. Sarkis (supra) that the trial Judge took the responsibility of determining the action in accordance with the suggested terms of settlement to which the defendant was never a party, having refused to accept the terms. The learned Judge formed the opinion that the pro posed terms were eminently reasonable and entered judgment accordingly. This cannot, by any stretch of the imagination, be regarded as judgment by consent.

In the instant case, the trial Judge did not adjudicate on any issue in the action, nor did he decide how the action should be determined: he merely entered judgment for the amount agreed upon. It cannot be said that he took any responsibility whatever for the action being determined in the way it was determined. Although the words "by consent" were not written after the word "judgment", it was abundantly clear that the decision determining the action was brought about by consent of parties.

In considering the second leg of the argument by Counsel for the appellants, the statutory provisions, to the extent that they are relevant, are in section 110 of the Constitution of the Federation. They read:-

"(2)    An appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court as of right in the following cases:-

(a)     Final decisions in any civil proceedings before the High Court sitting at first instance;

Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal:- (iii) from any order made with the consent of the parties

"(4)    Subject to the provisions of subsection (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Federal Supreme Court with the leave of the High Court or the Federal Supreme Court in the following cases:-

(b)     any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Federal Supreme Court by virtue of paragraph (a) of that subsection;

The respondent relied on proviso (iii) of subsection (2)(a) in the above provisions as showing that the appeal could not have been brought without leave. For the appellants, however, Counsel argued that the judgment appealed from was a final judgment, and that the word in proviso (iii) to subsection (2) was "order" and that "order" in that proviso meant no more than an interlocutory order and so there was no need to obtain leave to appeal.