Judgement Compromise In Nigeria: Is The Practice Legal?

By Habeeb Gobir

Introduction

Under the administration of justice in Nigeria, judgment of court often settles the issues in dispute between parties and makes a pronouncement on their rights and entitlements. However, there is nothing preventing parties after the judgment of a court from changing their positions from what they were in court. Before, during, or after trial, or on appeal, and even after judgment, the parties are at liberty to compromise or settle their matter on terms agreeable to both sides. The term of settlement can come in before the court delivers judgment on the matter, and such a settlement, once entered as a judgment in court upon the application of the parties involved, become a consent judgment. And where judgment has been delivered, the parties may mutually agree to modify the judgment, a practice known as “judgment compromise.”

Terms of Settlement

Terms of Settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are created in substitution for and in consideration of the abandonment of the claim or claims pending before the Court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd v. ADETUNJI (2009) 13 N.W.L.R. (Pt. 1159) 647 (SC), is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings in a matter heard on its merits. It is not, however, a judgment on the merits of the case, though it creates an enforceable right.” Per EKO, J.S.C. (Pp. 7-8, Paras. B-A).

The Duty of the Court to Encourage Out-of-Court Settlement

Various court rules in Nigeria have also made it an obligation for judges in court to constantly advise the litigants before them to explore out-of-court settlement. An example of this is Order 19 of the High Court of the Federal Capital Territory of the Civil Procedural Rules which mandates judges to encourage settlements among the parties outside the court. A similar provision can be found in Order 18, Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019. The order mandates a judge presiding over a case coming for the first time to grant to the parties 30 clear days within which they may resolve the dispute out of court.

The Court of Appeals Rules also include provisions for out-of-court settlement. Order 16 of the Court of Appeal Rule, 2016 establishes the Court of Appeal Mediation Program (CAMP). Under this rule, the court of appeal may refer an appeal upon request of the parties to the Court of Appeal Mediation Programme (CAMP), provided that such an appeal relates to civil matters or such other matters as may be mutually agreed upon by the parties.

Consent Judgement

Simply put, a consent judgment is a situation where parties in litigation unequivocally agree to terms of settlement which they mutually refer to the court as the basis for the court’s judgment. Through their mutual agreement to settle the matter, they have given their consent to the end of the litigation. That makes it a consent judgment. The court in the case of Ibeto v. Aminu (2007) ALL FWLR (Pt. 355) 521 at 533 Paras. A – D (CA) defined consent judgement as thus:

“A consent judgement is a judgment in which terms are/were settled and agreed upon by the parties to the action” 

In order to have a consent judgment therefrom, the parties must reach a complete and final agreement on the vital issues in their terms of settlement. They must be ad idem as far as the terms of their compromise agreement are concerned, and their consent must be free and voluntary. The consent judgment emerges the moment the Court, on the application of the application of the parties, enters into such a compromise agreement as the judgment of the Court. Gases Ltd v G. F. Ind A. G. (2001) 9 NWLR (Pt. 719) 610 at 645.

It should, however, be noted that a consent judgment only binds the parties to it and not a stranger. VULCAN GASES v. GESELLSCHAFT (2001) 5 SCNJ 55). Equally, a consent judgment, though it is final between the parties thereto, can be set aside on many grounds. The court in the case of Amori v. Iyanda (2008) 3 NWLR (Pt. 1074) 250 at P. 280, paras, A – E; Pp. 280-281, paras. E – D; P. 284 paras. C – F; Pp. 286-287, paras. E-A set the following as the grounds upon which a consent judgment can be set aside:

1. Where it was obtained by fraud.

1. Where it was obtained by misrepresentation or non disclosure of a material fact which there was an obligation to disclose.

1. Where it was obtained by duress.

1. Where it was concluded under a mutual mistake of fact; and

1. Where it was obtained without proper authority.

Judgement Compromise

Judgement compromise, unlike consent judgement, is an agreement that takes place between parties after judgement. It’s a set of mutual agreements where parties agree to compromise or vary the judgement of the court as it relates to their dispute. When a compromise agreement is brought to the notice of the court, the agreement compromising the action between the parties completely supersedes the original cause of action, and the court has no further jurisdiction in respect of that action. In other words, when judgment has been delivered by the court but the parties are not satisfied with it, they may negotiate and reach a settlement agreeable to them. In law, the parties have compromised the judgment. The compromise or settlement becomes a new independent agreement. An appeal can only be brought against the new agreement and not against the judgment that was compromised. The court in the case of Minaj v. Comptroller General of Prison (2021) 8 NWLR Part 1777 reiterates this position. The court held thus:

“Once parties compromise or vary a judgment of court, the right to appeal is extinguished. With the compromise agreement, the Court of Appeal no longer has jurisdiction to entertain the appeal. In the instant case, with compromise agreement dated 21 December 2016, the Court of Appeal no longer had jurisdiction to entertain the respondents’ case who were the appellants at the Court of Appeal. It acted ultra vires to have set aside the judgment of the trial court.”

Judgment compromise has gained prominence in our justice system in Nigeria, and parties have resorted to it on many occasions. As a matter of fact, it has received the judicial blessings of the supreme Court in Minaj’s case cited above. This is notwithstanding the looming danger associated with it. Many problems are associated with this practice. But of interest to this writer is the deviation of the principle from the basic principle of court judgment. This is discussed in detail below.

The Legal Implication

In every litigation, be it civil or criminal, the judgement or order of a competent court, once delivered, remains valid and binding unless and until it is set aside by an appellate court or by the lower court itself. This is even the law where the court that delivers the judgement lacks jurisdiction. The judgment will remain binding until it is set aside. N.I.W.A. v. S.P.D.C. (2007) ALL FWLR (Pt. 361) 1727 at 1746 Paras. G-H (CA). This is a well-established principle of law and not a novel legal preposition.

If the above is taken to be what the law is, then it would not be out of place to argue that judgment compromise is a strange practice in our justice system. Allowing parties to compromise on the decision of the court is nothing but a robbery of the court’s property. Under the justice system in Nigeria, the court is the owner of its judgement and can do anything with it. Parties cannot, therefore, turn around to compromise a court judgement. The Supreme Court in the case of Otu v. A.C.B (2008) Vol. 3 M.J.S.C 191 at 208 paras. E reiterates the above principle. Per Niki Tobi JSC held thus:

“A judgment, and this includes a ruling of a court of law is valid or so presumed until it is set aside on appeal. A court of law, trial or appellate, has the power or jurisdiction to protect its judgment by providing teeth to bite any act of interference to weaken it legal strength of enforcement or enforceability in the judicial process, In the judicial process, a court of law has the power or jurisdiction to set aside its own order in appropriate circumstances. It has the discretion to do so and once the discretion is exercised judicially and judiciously, an appellate court cannot interfere. After all, the court is the owner of the order and it can do anything with it, like every owner of property.”

The words of justice Niki Tobi in the above case remain ever trite and evergreen. It firmly established the basic principle of every court judgement, which is its bindingness. A court order is meant to be obeyed, and it’s not subject to variation by the parties. A court judgement should, at all times, remain binding as between the parties and cannot be superseded by a subsequent agreement made by the parties. One argument that can be canvassed in favor of judgment compromise is that it’s a way of encouraging out-of-court settlement. But it doesn’t rule out the fact that it is an affront to the basic principle of court judgment. It can cripple the effectiveness of court judgments, and where this is allowed, it will hinder the attainment of justice.