A Consent Judgement Requires A Fresh Action Not A Motion on Notice To Set It Aside

By O.G. Ogbom, Esq

In Saraki v Kotoye(1992) 9NWLR, [Pt 264] at 165., NDIC v Federal Mortgage Bank of Nig. (1997) 2 NWLR [Pt 490] 746, judgement is defined as that binding, authentic, official, judicial determination of the court in respect of a the claim and action or suit before it. While Decision means in relation to court or tribunal, any determination of that court or tribunal and includes a judgement, decree, conviction, sentence, order or recommendation. The above meaning is so elastic to cover Interlocutory and final decision. And without being unnecessarily pedantic, a judgement, as defined ordinarily, refers to the official and authentic decision of a court of law upon the respective rights and claims of the parties to an action or suit therein, litigated and submitted for the court’s determination.

In other hands, Consent judgement is agreed judgment without the necessity of calling witnesses in civil cases. It has the quality of finality and speedy dispensation of justice. Where parties consents to a decision of the Court, the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended under section 241(2)(c), limits their right to appeal except with the leave of court obtained in advance. It also can be defined as a decision, where the provisions and terms are settled and agreed to by parties to the action, and due effect is given thereto by the court. Consent judgment comprises of two words, “consent” and “judgment.” While consent means agreement, approval or permission as to some act or purpose, especially given voluntarily by a competent person, judgment on the other hand, is a court’s final determination of the rights and obligations of the parties in a case.

In Vulcan Gases Ltd. v. Okunlola [1993] 2 NWLR (Pt. 274) p. 142. the Court held that a consent judgment presupposes out of court settlement reached by the parties, and that the terms of the said settlement or agreement are furnished to the court and forms the basis of the court’s judgment in the suit. Such judgment is intended to put an end to further litigation between parties just as much as if the judgment was the result of a decision of the court after the matter had been fought to the end. Similarly, in D.T.T. Ent. (Nig.) Co. Ltd. v. Busari [2011] 8 NWLR (Pt. 1249) p. 387, the Supreme Court held that consent judgments are not like the regular judgments of the courts entered after a trial is conducted by the court either summarily or upon a full trial. It is not dependent upon exchange of pleadings or calling of evidence. In fact, there is no stage in the proceedings where the law requires a consent judgment to be entered as the same can be entered at any stage in the proceedings because it is simply based on an agreement between the parties to the litigation which agreement they consider binding on them and those who claim through them. In view of the fact that consent judgment creates new rights between the parties in substitution for and in consideration of the abandonment of the extant claim(s), it does not matter whether at the stage in which it was entered, the defendant had filed a defence to the claim(s) of the claimant or the claimant had filed a defence to a counter-claim or that evidence had been called or issues resolved. What matters is the agreement of the parties. It is important to also state that a judgment obtained on admission by a defendant is not a consent judgment according to Lamurde v. Adamawa J. S. C. [1999] 12 NWLR (Pt.629) p.. 86. In most cases, It is admissions are necessarily conclusive against the maker when carefully evaluated and considered by the court against the particular circumstances under which it was made. Admissions are either formal or informal. Formal admissions are admission made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading, as facts admitted in a pleading need not be proved any longer, but are taken as established. Formal admission may also take the form of clear admissions filed or made by a party to civil proceedings or by his counsel in the course of the trial of a civil suit. See CHIEF BARON NWIZUK & ORS. V CHIEF WARIBO ENEYOK & ORS. 1953 14 WACA 354. The Court however, even in the case of a formal admission in a civil proceedings has discretion to require the admitted facts to be proved by some other evidence other than by admission itself. See proviso to section 74 of the Evidence Act 2011. NWANKWO V NWANKWO 1995 5 SCNJ 44. This is not the same as consent judgement which has to do with voluntary and mutual agreement of parties and requires no further proof.

In Woluchem v Wokoma (1974) All NLR 543 (SC); the Supreme Court of Nigeria held that in order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in court.

When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the court. Consent judgement has also been considered in its narrow sense to the fact that a mere admission of a claim or submission to the decision of a court does not amount to consent judgment, the consent or agreement of the parties must be free and voluntary. See also the cases of R. Lauwers Import-Export v Jozebson Industries Ltd (1988) 3 NWLR (pt. 83) 429 (SC) and Abdulkarim v Incar (Nig.) Ltd. (1992) 7 SCNJ (pt. II) 366 (SC).

Again, In Afegbai v. A.G., Edo State [2001] 14 NWLR (Pt. 733) p. 425., the Supreme Court held that where a person has given his Counsel a general authority without limitation to act on his behalf and to represent him in an action, the fact that the terms of agreement were negotiated and judgment entered by Counsel on behalf of such client and not by the client will not affect the validity of the judgment. The consent judgment so entered, will be valid and enforceable.

The court held this: “There is a consent judgment where parties to an action in court have fashioned out an agreement as to how to settle their dispute out of court and apply to the court to give judgment on the term they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties.”

The point must also be made that consent judgment is not applicable to criminal proceedings and is quite different from plea bargaining.

In Nwude v. F.R.N. [2016] 5 NWLR (Pt. 1506) p. 471. the Court held that in criminal cases, the accused has a right to plead “guilty” or “not guilty”. When the accused pleads guilty it will not be taken as a consent judgment simpliciter. It only means that the accused, after due consideration and consultation with his legal team, has decided to admit his/her culpability/guilt. That in law, will not amount to consent judgement.

The effects of consent judgement on a non-party.

The law is well settled that a consent judgment is similitude of a contract as it gives birth to new rights and obligations.  It is a notorious principle of law that a stranger to a contract is not bound by it even if it is made for his benefit. The elementary position of the law is that consent judgment operates for or against parties to it.  It has no effect, either by way of estoppel or otherwise, against a person who is not a particeps in its proceeding. An agreement or out of court settlement between parties supersedes the original cause of action altogether and the court has not further jurisdiction in respect of the original cause of action which has been so superseded.  If the terms of such new agreement or out of court settlement are breached or not complied with, the injured or aggrieved party must seek his remedy based on the agreement or out of court settlement.  In other words, this cause of action is founded on that agreement or out-of-court settlement.

The is well settled that leave is required to appeal against consent judgement.

Section 241 (2) (c) of the 1999 cfrn (as amended) clearly provides that:
s. 241 (2), Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

In Samba Petroleum Co. Ltd. v. F.C.M.B. [2014] 3 NWLR (Pt. 1394) p. 346. the Court held that by virtue of Section 241(2)(c) of the 1999 Constitution as amended, parties cannot appeal without leave of court from a decision of the High Court made with the consent of parties. A consent judgment has higher efficacy and binding effect than an ordinary judgment and is therefore more difficult to dislodge.

How Consent Judgement Can Be Set Aside.

A party seeking to rescind the terms freely, voluntarily and mutually agreed upon, has an arduous task and heavier duty to prove fraud and other vitiating elements. In Lamurde v. Adamawa State J. S. C.(supra), the Court stated the circumstances for setting aside a consent judgment and they are as follows:
a. Where the consent judgment was obtained by fraud,
b. Where it was obtained by misrepresentation or non-disclosure of a material fact for which there was an obligation to disclose,
c. Where it was obtained under duress,
d. Where it was concluded under a mutual mistake of fact,
e. Where the consent judgment was obtained without proper authority.

Flowing from the above, an aggrieved litigant has two major ways of challenging a consent judgment which he claims was obtained by fraud or mistakenly entered by the judge on the basis of fraudulent misrepresentation. The aggrieved litigant can either appeal against the judgment; or file a fresh action seeking an order of the court to vacate its judgment and not by motion on notice.

An aggrieved litigant can only challenge a consent judgment where he alleges that said judgment was obtained by fraud or mistakenly entered by the judge on the basis of fraudulent misrepresentation by entering an appeal against the judgment or file a fresh suit asking the court to vacate the consent judgment.

In EGEMOLE V OGUEKE (2010) ALL FWLR (PT 513) 1424 AT 1434, the court held this:
“A judgment, the provisions of and terms of which are settled and agreed to by the parties to the action and that due effect be given to it by the court. It is final judgment and being final, it cannot even be set aside by the court that granted the judgment”.

A consent judgment has the same quality and effect as a judgment entered after full hearing/trial and can only be set aside by a fresh suit not motion on notice by the trial court. For a consent judgment to be made, all parties must indicate that the agreement has been mutually, freely and voluntarily agreed on and that they find it acceptable. If a party does not agree, the litigation must proceed in court, as entering a judgment against that person’s wishes would result in a deprivation of legal rights. When entered, it remains binding until set aside by a fresh action or an appellate court, if it can be established to have been obtained by fraud, misrepresentation, duress or mutual mistake of parties.

O.G. Ogbom, Esq is a Port Harcourt based lawyer, a partner at Law Freight Attorneys.
He can be reached via ogbomgoodluck@gmail.com.