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RONKE ODULAJA
V.
OLUFEMI WILLIAMS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
19TH DAY OF OCTOBER, 1940
2PLR/1940/55 (WACA)
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OTHER CITATION(S)
2PLR/1940/55 (WACA)
(1940) VI WACA PP. 198 – 199
LEX (1940) – VI WACA PP. 198 – 199
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
RONKE ODULAJA, AN INFANT BY JACOB ALEXANDER WILLIAM ODULAJA HER GUARDIAN AND NEXT FRIEND — Plaintiff-Appellant
AND
OLUFEMI WILLIAMS — Defendants-Respondents
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REPRESENTATION
Geary — for Plaintiff-Appellant
Taylor — for Defendant-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW – SUIT BY INFANT:- Application by an infant, by her guardian and next friend for damages for breach of promise of marriage – Award made thereto – Scheme of instalmental payment – How may be properly varied – Whether on appeal
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeal against consent judgment, as to part ordering payment by installments — Appeal — When would be deemed misconceived
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CASE SUMMARY
The Plaintiff-Appellant, then an infant, by her guardian and next friend sued the Defendant-Respondent in the Supreme Court for damages for breach of promise of marriage. The trial court made an award in favour of plaintiff but stipulated that same be paid in instalment. Appellant/Plaintiff lodged an appeal complaining against the payment scheme alone.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
The judgment in question being on the face of it a consent judgment could only be upset on appeal as to the whole. One party cannot pick and choose on appeal which portion of a consent judgment shall hold good and which shall not.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA; PETRIDES C.J., GOLD COAST; AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case the Plaintiff-Appellant, then an infant, by her guardian and next friend sued the Defendant-Respondent in the Supreme Court for damages for breach of promise of marriage.
On the 13th December, 1939, the following judgment was given by Butler Lloyd, J.-
“By consent judgment for Plaintiff for £100 and costs 10 guineas to be paid by monthly instalment of £1 commencing end December except as to costs.”
On the 23rd February, 1940, Plaintiff-Appellant’s Counsel filed a motion for the 1st March, 1940, asking for an Order:-
“that the judgment of this honourable Court dated the 13th day of December, 1939, may be varied in so far as direction that the £100 should be paid in £1 monthly instalments and that immediately payment may be ordered on the ground that the Plaintiff was not consulted and never consented to a monthly payment, and that such Order was not for the benefit of the infant Plaintiff.
“Dated day of February, 1940.”
This motion came before Carey, J. during the temporary absence from Nigeria of Butler Lloyd, J. Carey, J. by consent added as a variation to the Order of Butler Lloyd, J. the words “Liberty to the Plaintiff to apply.”
The Plaintiff-Appellant was granted leave to appeal from the judgment of Butler Lloyd, J. of the 13th December, 1939, and that is the appeal now before us.
The Appellant is not asking that the whole judgment be set and aside but only that part which orders payment by instalments.
We are of opinion that the appeal is entirely misconceived. The judgment in question, being on the face of it a consent judgment, could only be upset on appeal as to the whole. It is obvious that one party cannot pick and choose on appeal which portion of a consent judgment shall hold good and which shall not. 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. So that if any part of the judgment had to be set aside on appeal the whole would have to be set aside.
Apart from this, the question of payment by instalments is governed by Schedule II Order 41 rule 8 of the Rules of Court which reads:-
“When any judgment or order directs the payment of money, the court may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest. Such order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time.”
It is therefore open to the Plaintiff-Appellant to apply to Butler Lloyd, J., who is now in Nigeria, for variation or rescission of the Order for payment by instalments, but we express no opinion on the question as to whether the terms of the consent judgment do or do not preclude the Judge from acting under the above quoted rule.
The appeal is dismissed with costs assessed at 7 guineas.
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