By Chidiebere Okoroafo Esq, ACIArb (Uk), ACTI*
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- INTRODUCTION
Consent judgment is a judgment of court in a civil suit[1] based on consensus of the parties. It is a judgment on merit where both parties to the suit mutually apply to the court to settle their dispute between themselves by themselves for themselves. Thereafter, they submit their agreed settlement terms to the court for judicial blessing. The judicial blessing functions to adorn the terms with the toga of force of law necessary for enforcement of same as a judgment of the court.
The Black’s Law Dictionary (8th edition) defines consent judgment “as agreed judgment, a settlement that becomes a court judgment when the judge sanctions it”. Consent judgment method is simply the parties themselves resolving their disputes by themselves via a combined effort and receiving the court’s imprimatur of the said resolution in form of judgment.
- NATURE AND FEATURES OF CONSENT JUDGMENT
The consent judgment method resolves disputes pending in court without a full trial. This unique approach which combines agreement and compromise has been proven to be highly efficient in dispute resolution. The practice offers a win-win outcome for both parties. Consent judgments are easy to enforce given that it is party-driven. Both parties negotiate voluntarily, adjust their positions to reach a mutually acceptable ground, and the court formalizes it as a judgment. Consequently, parties typically fulfill their obligations easily without needing judgment enforcement mechanisms..
The most common features of consent judgment are:
- Mutuality of Agreement: Consent judgments are based on the mutual agreement of the parties. All parties are satisfied with the terms of the settlement. Mutuality of agreement is a cornerstone of a consent judgment. This shared commitment distinguishes it from a court-imposed judgment at the end of trial. It binds the parties to the agreed-upon outcome. Consent judgment is void if shown not to be consensual.
- Legally Binding: A consent judgment, although founded on the agreement of the parties, is a judicial act and has the same force and effect as a judgment rendered after a contested trial.[2] Once adopted by parties, and approved by the court, a consent judgment becomes legally binding and enforceable just like any other court judgment/order. Until successfully appealed and set aside by an appellate court, either of the parties that attempt backing off is held in contempt of the court. Though rooted in parties’ agreement, consent judgment is not a contract.[3] It is a judgment.
- Flexibility: Consent judgments can be tailored to meet the specific needs and interests of the parties. This makes for creative and flexible solutions channelled to the particular bone of contention between the parties.
- Finality: Consent judgments bring finality to disputes, the court is divested of further jurisdiction and becomes funtus officio on the issue determined in the judgment. Even though it is appealable, until so appealed, consent judgment is final and conclusive. It settles the dispute effectively and finally operating as res judicata on the matter.[4]
In Ibrahim Mmah & Ors V. APC,[5] the Supreme noted that the most important characteristic which distinguishes a consent judgment as a specie of judgment is FREE and VOLUNTARY intention of the parties to be bound by a common understanding in respect of a part or the entire matter in the suit, whether the intention is reduced into writing and filed by the parties as their terms of settlement or recorded by the court as parties’ mutual understanding , expressed by their counsel to be the basis for settling their dispute.[6] A consent judgment may be entered at any stage of a suit, including during an appeal. So, if a trial court delivers a judgment and one party appeals, both parties may still reach a compromise and executes settlement terms while the appeal is pending. This agreed settlement terms can be filed and entered as a consent judgment by the appellate court. In such cases, the appellate court’s consent judgment overrides the earlier judgment of the lower court.[7]
- CONSENT JUDGMENT: PRACTICE AND PROCEDURE
The practice and procedure for obtaining a consent judgment begin with the parties reaching a mutual agreement to settle their case out of court. They proceed to negotiation or mediation to arrive at a point acceptable to both parties. The terms of this settlement are exhibited in a written[8] agreement, often called “Terms of Settlement (ToS)”. ToS form or constitute a compromise agreement between the parties. It must be clear, voluntary, and signed by the parties or their authorized legal representatives. These terms are then filed in the court accompanied by a motion or application requesting the court to adopt the ToS as its judgment. The court reviews the terms to ensure they are lawful, fair, and not contrary to public policy, particularly in cases involving public rights or third parties. If satisfied, the court enters the terms as a consent judgment, giving it the force of a judicial order, enforceable through court mechanisms like contempt proceedings or execution processes. This procedure is governed by various civil procedure rules operating in various courts across Nigeria.
It is noteworthy that where parties consent and agree between themselves to execute a consent judgment on terms which the said agreement is made the judgment of the court, the parties have deliberately excluded the powers and discretion of the court to interfere in the agreement freely entered into.[9] The court is only bound to enter the ToS as its consent judgment as executed by the parties without more.[10]
- AN UNSATISFIED PARTY: AVAILABLE REMEDY
Occasionally, a party may attempt to withdraw from the ToS and seek to retract from same after the consent judgment is entered. Various factors could birth this situation such as allegation of fraud, misrepresentation, duress, deception, etc. That is, the unsatisfied party arguing that any of the foregoing caused him to execute the ToS. In such cases, the dissatisfied party has two options: request the same court to set aside the consent judgment; or appeal the judgment to the Appellate Court. The particular option to exercise largely depends on the specific circumstances of the case and the reasons for seeking retraction.
3.1. Setting Aside Consent Judgment
After the parties have filed the ToS, adopted same and the court enters same as the consent judgment of the Court, any party who is unsatisfied with the judgment may take steps to set the judgment aside by filing a new suit in the same court which delivered the judgment.[11] The only acceptable approach towards setting aside the consent judgment is by a fresh action.[12] The grounds upon which the consent judgment may be impugned includes allegation of fraud, mistake, misconception or by any other vice which must be clearly shown in the surface of the claim.[13] Indeed, a consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded. It is only by way of a fresh action can a court examine the entire circumstances of the case in order to determine whether the alleged compromise/ agreement entered as consent judgment should be sanctioned or dismantled. This is simply because the court after delivering the consent judgment, becomes functus officio.[14] The fresh action connotes an independent cause of action distinct from that resolved by the court in the consent judgment. The fresh action, therefore, makes the consent judgment itself the basis of the new suit. Consequently, a post judgment motion/application, whether on notice or ex parte, seeking to set aside a consent judgment cannot be entertained let alone, granted by the Court.[15]
33.2.Right of Appeal Against Consent Judgment
As efficacious as consent judgment is, it is subject to an appeal. Hence, the second available option for an unsatisfied party to a consent judgment is filing appeal to nullify the judgment. This raises issue of fair hearing so that where either parties seeks to be heard on appeal on the merit of a consent judgment, the law avails the right of appeal to such a party.
Notably, the procedure for appealing consent judgment is sui generis due to its peculiar nature, and same is constitutionally regulated. The philosophical undertone for this is that a consent judgment, being a binding agreement voluntarily entered into by parties and endorsed by the court, is treated as a contract [with judicial flavour] that reflects the mutual intentions of the litigants. Courts, guided by judicial precedents such as Afegbai v. AG Edo State,[16] impose a high threshold for appeals, requiring appellants to secure the leave of court before appealing same irrespective of what ground upon which the appeal is based. This standard is justifiable to uphold the sanctity of agreements, and prevent parties from reneging on terms they freely accepted.
Section 241(2)c of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that nothing shall confer any right of appeal without the leave of the Federal High Court or a High Court or the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties. In other words, in appealing against the consent judgment of a High Court, leave of either the High Court which delivered the judgment, or the appellate court is mandatory. Appealing consent judgment is not as of right.[17] The practice is for the party intending to appeal to file an application for leave to appeal first in the same court that delivered the consent judgment. The affidavit in support of the application must disclose reasonable facts in proof of the ground for the leave. The court will grant the leave upon such ground if it is convinced. Where the court is not convinced by the grounds submitted, the leave is denied. Where the leave is refused, then, similar application is made to the Court of Appeal [or the Supreme Court as the case may be]. The general principle of law that where leave is required to do an act and no leave is obtained, then, the act if done without the leave is rendered void is applicable in appealing consent judgment. Hence, where a party files appellate processes challenging consent judgment without leave of court first obtained, then, the appeal is a nullity by that very fact. In other words, without leave of court first sought and obtained before filing an appeal against consent judgment, the appeal becomes incompetent and liable to be struck out.[18]
4.0. WHY ENCOURAGE CONSENT JUDGMENT?
In Nigeria’s judicial system, where efficiency is often elusive, consent judgments stand out as a pragmatic swift solution to disputes. It is more than a shortcut. Consent Judgments empower litigants to resolve disputes on their own agreed terms, saving time, money, and stress. The regime functions more like Alternative Dispute Resolution (ADR) strategically implanted in litigation offering a bridge between private parties-driven settlement and judicial authority. For businesses, it ensures disputes do not derail operations; for individuals, it provides a dignified exit from conflict. Business relationships are sustained post the dispute. While not without some risks, the benefits of control, finality, and enforceability make consent judgments a powerful tool in Nigeria’s judicial arsenal. As Nigeria’s courts continue to grapple with congestion, consent judgments offer a path to speedily justice and should be encouraged by litigants and their counsel.
* Partner and Head of Dispute Resolution & Tax Advisory @ The NobleQuest Law. 09022920670, chidiebere.okoroafo@yahoo.com
[1] In criminal matter, plea bargain appears to connote similar application as consent judgment.
[2] UNITED STATES v. SWIFT & CO [1932] 286 US 106.
[3] Ibid.
[4] In Honda Place Ltd. v. Globe Motor Holdings Nig. Ltd [2005] 14 NWLR (Pt. 945), the Supreme Court held that ajudgment is not the less final because it is a judgment entered by consent of the parties. Such a judgment is as much a final judgment as one resulting from a contested hearing. This is because a judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution; and is absolute, complete, and certain and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it (p 306, paras D-G). The Court held further that a consent judgment can, in an appropriate case, sustain a plea of res judicata. The fact that a judgment was obtained upon the consent of both parties will not bar it from operating as estoppel. (P. 306, paras. C-D). See further UMAR V MANAGER [2018] LPELR-44526.
[5] [2019] 5 NWLR (Pt. 1666) 427.
[6] Per Bage JSC at Pp 441-442 paragraphs G-C.
[7] NTEILE v. IRAWAJI [2021] 16 NWLR (Pt. 1803) 411.
[8] While it is strongly advised that Terms of Settlement should be in writing, a terms of settlement is not nullified simply because it is not written. See
[9] Pacers Multi-Dynamics Ltd. V. Access Bank Plc [2023] 8 NWLR (Pt. 1885) 25 P. 59 paras B-D.
[10] Ibid. This is one point of difference between consent judgment regime in civil suit and plea bargain in criminal matter. In the latter, the court has the vires to reject the plea bargain arrived at by the prosecutor and the Defendant, but the court does nit enjoy such power in terms of consent judgment. The court cannot vary the ToS. It can only enforce it by entering same as consent judgment.
[11] In Ishmmael & Ors. V Ukaegbu [2018] LPELR-46626(CA).
[12] Ibid.
[13] See the old case of Talath v. Adeseye [1972] 8-9 SC 20. See further, Taraba State Govt v. Muazu [2020] 10 NWLR (Pt. 1733) 450.
[14] Pacers Multi-Dynamics Ltd case (n 9) @52-53.
[15] John Olusola Mabadelo & Anor v. The Head of the Civil Service of the Federation & Ors: MOTION NO. NICN/ABJ/292M/2018 decided on 22 January 2020 per Honourable Justice Sanusi Kado <https://nicnadr.gov.ng/judgement/details.php?id=4771> accessed 18 April 2025.
[16] [2001] 14 NWLR (Pt. 733) 42
[17]Umar v. APC (n 5) 441 paras B-D
[18] Ibid.
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