CONSENT JUDGEMENT: THE NEED TO BE CAREFUL NOT TO JUMP OUT OF THE FRYING PAN INTO THE FIRE

Our administration of justice system in Nigeria is so complex and litigation process too slow and rigorous that it takes time for cases to be disposed in court. And for litigants who may wish to appeal from High Court to Court of Appeal or even to the Supreme Court, there is a considerable monetary implication involved which not every citizen can afford.

It is for the above reason(s) that sometimes parties to a case engage in talks outside court with the intention of resolving the matter. So when the dispute is successfully resolved, the terms of the settlement is given to court and the court adopts it as its judgement in the case. The terms of the agreement adopted by the court is what is known as “consent judgment” or “agreed judgement”.

Therefore, consent judgment in simple terms refers to a judgment given after the parties to a case have agreed among themselves to have the claim resolved amicably and later file the terms of settlement in Court and urged on the Court to adopt it as the judgment of the Court. See OBOT & ANOR v. OKPON & ORS (2018) LPELR-45175(CA). It should be noted that consent judgment is of equal force with the judgement delivered by a court after hearing a case on the merit. See OBOT & ANOR v. OKPON & ORS (supra).

As simple and more convenient as consent judgment appears, Litigants ought to be cautious else they will end up making their case more complicated, if not even fruitless, thereby leading to frustration and regretting not following litigation process to the end. That is why we will make an attempt as to whether the court that enters consent judgment matters and will also consider the procedure that one can adopt in applying for setting aside of consent judgement.

Consent Judgment must Be Sanctioned By a Court of Competent Jurisdiction. The court that gives effect to agreed judgement matters a lot. If the consent judgment is delivered by a wrong court, the said agreement shall be a nullity. Example, an agreement in respect of customary title to land cannot be entered in Magistrate Court as consent judgment; an agreement on labour dispute cannot be sanctioned by a High Court. 

The case of ABUNG & ORS v. EKABOKON GLOBAL SERVICES LTD & ORS (2018) LPELR-44791(CA) is very illustrative on this point. The case is in respect of mining but the action was instituted at the Cross River State High Court. In order not to prolong the matter, the parties settled it outside and filed the terms of their agreement before the court and same was adopted by the court as its judgement. Different persons appealed against the consent judgment as interested parties and the judgement was set aside for want of jurisdiction. The Court of Appeal was of the view that since the court lacked jurisdiction on mining issues, it could not sanction an agreement on same. 

By the combined effect of section 251 (1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 7(1)(n) of the Federal High Court Act including the provisions of the Mineral and Mining Act, Federal High Court should have been the court with the requisite jurisdiction to sanction the agreement.

Another point which may be relevant is the jurisdictional competence of the Court of Appeal to enter a consent judgment. It was  an issue in the case of ARIGUZO & ANOR v. OSOBU & ORS (2016) LPELR-41286(CA). The Court of Appeal held that it could enter consent judgment. It relied on Order 16 of its 2011 Rules (which has been retained in Order 16 of its extant 2016 Rules) which gives room for parties to an appeal to settle their dispute at anytime during the appeal proceedings, through mediation or any other Alternative Dispute Resolution mechanisms.

As noted earlier, consent judgment is in the same pedestal with a judgement entered by a court after hearing a case on the merit. Therefore it has two procedures, to wit, filing an appeal or filing a fresh action seeking an order of Court to set the consent judgment aside. See the case of EDUN VS. ODAN COMMUNITY & ORS (1980) LPELR – 1022 SC

In AFEGBAI VS. AG EDO STATE & ANOR (2001) LPELR – 193 (SC) p. 37.PARAS D – E, his Lordship Karibi – Whyte, JSC reiterated that:

“When a consent judgment has been obtained, it remains binding on the parties until set aside by a fresh action, if it can be established to have been obtained by fraud….” (underlined for emphasis)

In HARUNA v. ADAMU & ANOR (2016) LPELR-41157(CA) an application was made by way of Motion on Notice for the setting aside of consent judgment. The action was dismissed and the court held thus:

In the most recent case of ECOBANK (NIG) LTD v. OLIVE ENERGY OIL & GAS LTD & ANOR (2018) LPELR-44112(CA) it was held as follows:

“From a plethora of decided authorities, the law is settled that a consent judgment could only be set aside by a fresh action or by an appeal with the leave of Court not by a motion on Notice as has been done by the appellant.” (underlined for emphasis)

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