ISHMAEL & ORS v. UKAEGBU

CITATION: (2018) LPELR-46626(CA)

In the Court of Appeal In the Owerri Judicial Division Holden at Owerri

ON FRIDAY, 23RD NOVEMBER, 2018 Suit No: CA/OW/250/2016

Before Their Lordships:

THERESA NGOLIKA ORJI-ABADUA Justice, Court of Appeal ITA GEORGE MBABA Justice, Court of Appeal IBRAHIM ALI ANDENYANGTSO Justice, Court of Appeal

Between

1. UCHECHUKWU ISHMAEL 2. CHIBUDO ISHMAEL 3. ONYEDIKACHI ISHMAEL - Appellant(s) 4. ISRAEL ISHMAEL 5. MRS. PEACE(2018) ISHMAEL LPELR-46626(CA) And EMMANUEL UKAEGBU - Respondent(s)

RATIO DECIDENDI 1. JUDGMENT AND ORDER - CONSENT JUDGMENT: Whether a consent judgment can be set aside; grounds for setting aside a consent judgment "The bone of contention herein is whether the lower Court has the power to set aside the consent judgment entered in favour of the parties in suit No. HOS/122/2002 on the 10th May, 2004 and in respect of which a Judgment Order was drawn up and signed on the 26th April, 2006. The learned Counsel for the Respondent relied on the case ofU.T.C Nigeria Ltd vs. Pamotei (supra) and contended that a consent judgment cannot be set aside save on appeal, even if it was entered under a mistake. He further argued that the only ground upon which a Court can review the judgment of the Court of a co-ordinate jurisdiction is under the slip rule to correct typographical or clerical errors or to vary the judgment to give effect to its meaning and intention. I think there is a misconception of the principle set down in the U.T.C. case (supra) because even Obaseki, J.S.C., unmistakably stated that the Court of Appeal was in error to hold that the judgment was on the merits and cannot be set aside. Also, the Supreme Court had in innumerable cases opined that Courts have inherent jurisdiction to set aside their own judgments on the grounds listed in Igwe vs. Kalu cited by the Appellants' Counsel. The Supreme Court per Ogwuegbu, J.S.C., held thus: "I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows: (i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76; Flower v. Lloyd (1877) 6 Ch.D. 297; Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1. (ii) When the judgment is a nullity. A person affected by an order of Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6, Craig vs. Kanssen (1943) KB 256, 262 and 263; Ojiako & Ors. vs. Ogueze & Ors. (1962) 1 All NLR 58, Okafor & Ors. vs. Anambra State & Ors. (1991) 6 NWLR (Pt. 200) 659, 680. (iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs. Okunoga (1961) All NLR 119 and Obimonure vs. Erinosho (1966) 1 All NLR 250. In Olorunfemi vs. Asho (supra) (Suit No. SC. 13/1999), this Court in its unreported Ruling dated 18-3-99 set aside its judgment delivered on 8-1-99 on the ground that it failed to consider the respondent's cross-appeal before allowing the appellant's appeal. It ordered that the appeal be heard de novo by another panel of Justices of this Court." See generally Alao vs. A.C.B. Ltd. (supra) Further, and even though what seemed to have been expressed in U.T.C. vs. Pamotei (supra) is probably a general principle, the Supreme Court, in the case of Race Auto Supply Company Ltd & Ors vs. Alhaja Faosat Akib (2006) 13 NWLR Part 997 page 333, per Ogbuagu, J.S.C., undoubtedly straightened the principle and unambiguously expressed that a consent judgment may be set aside either by the Court that gave/made it or a Court of competent jurisdiction on the ground for which a contractual agreement could be voided or rescinded. Then in Afegbai vs. A. G., Edo State (supra), the Supreme Court further stressed that: "A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded would be rescinded. When therefore, a consent judgment is sought to be set aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for rescission of a contract. In Huddersfield Banking Co. Ltd. v. Henry Lister & Son, Ltd. (1895-9) All ER Rep 868 it was held that a consent order made by the Court to give effect to the compromise of a legal claim by the parties concerned can be set aside, not only on the ground of fraud, but for any reason which would afford a ground for setting aside the agreement on which the order was made, for example, on the ground of a common mistake regarding a material fact. In that case Lindley, ECJ, said: "The only thing, to my mind, to be done on this point of setting aside a consent judgment is to see whether the agreement upon which it was based can be invalidated or not. If the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad." In Vulcan Gases Limited vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) LPELR-3465(SC), the apex Court per Iguh, J.S.C., laid the grounds for setting aside a consent judgment. "It is thus clear that apart from fraud which, if established in any judgment or order, necessarily invalidates the same, a consent judgment or order may be set aside for cogent and sufficient reason which in law would constitute a ground for setting aside the agreement on which such consent judgment or order was based. As Lindley, LJ. put it in Huddersfield -Banking Company Ltd. v. Henry Lister and Son Ltd. (supra) at Page 871: - "A consent order, I agree, is an Order, and so long as it stands, it must be treated as such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on that point. But that a consent order can be impeached not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in more formal way than usual. I also have not the slightest doubt." "It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception. See Attorney General vs. Tomline (1877) 7Ch. D. 388, Huddersfield Banking Company Ltd. v. Henry Lister and Son Ltd. (1895-99) All E.R. 868 (C.A.)." Then on whether a person affected by a null judgment/order is entitled to have it set aside, it stated that: "Similarly, an order, be it by consent or otherwise, which is a nullity is something which the person affected thereby is entitled to have set aside ex debitojustitiae. The Court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance cannot be said to be necessary. It can thus be said that outside the appellate procedure, a judgment or order can be set aside if it is a nullity or where a Court was misled into giving the judgment by some mistake, believing that the parties consented to its being given, whereas,(2018) in fact, they did not. SeeLPELR-46626(CA) Craig v. Kanseen (1943) K.B. 256 or (1943) 1 All ER 108 at 113; Okoli Ojiako and Ors v. Onwuma Ogueze and Ors. (1962) 1 All NLR 58; Ekerete v. Eke 6 NLR 118." See also Tomtec Nigeria Limited vs. Federal Housing Authority (supra), per Onnoghen, J.S.C. (as he then was) wherein it was held that: "It is settled law that Courts of record have the inherent jurisdiction to set aside their judgments/decision/order, in appropriate cases or under certain circumstances which include: When: (i) the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties; (ii) the judgment is a nullity; (iii) it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it; (iv) the judgment was given in the absence of jurisdiction; (v) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; (vi) where there is fundamental irregularity. See Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 436 at 453-454: Ebe vs Ebe (2004) 3 NWLR (Pt. 860) 215 at 243: Odofin vs. Olabanji (1996) 3 NWLR (Pt.435) 126 at 133." The Supreme Court had clearly established that consent judgment can be set aside, the mode of initiating the proceeding for setting the same aside and the grounds upon which that can be achieved. This has obviously dislodged the argument of learned Counsel for the Respondent and then accentuated the contentions of the Appellants that the lower Court has the jurisdiction to set aside a consent judgment."Per ORJI-ABADUA, J.C.A. (Pp. 11-18, Paras. D-E) - read in context

2. JUDGMENT AND ORDER - FUNCTUS OFFICIO: Instance where the principle of functus officio will not be applicable to an action "The law is trite that the principles governing functus officio, would not and does not apply in certain circumstances, including where the decision of the lower Court, relied upon to sustain the plea, was a nullity, or obtained by fraud, or where the Court lacked competence or jurisdiction to make the order, or by reason of any mistake or misrepresentation fundamental to the decision; such flaws cannot keep a final judgment of the lower Court out of the reach of the same lower Court or Court of coordinate jurisdiction to set it aside. See the case of Abdulfatai & Anor vs Kayode 7 Ors (2012) LPELR - 14324 CA; (2012) 33 WRN 145; Skenconsult Nig. Ltd vs Ukey (1981) SC 6; Ezeokafor vs Ezeilo (1999) 6 SCNJ 209. See also Enterprises Bank Ltd Vs Aroso & Ors (2015) LPELR - 24720 (SC), where the Supreme Court, as per Ariwoola JSC, re-stated the exceptions to the rule of functus officio, thus: "Generally, the law is that after a judgment has been given and delivered, even if it is a consent judgment entered under a mistake, the Court no longer has power to set it aside, except in the following situations, which though not exhaustive: (a) Where there has been a clerical mistake or an error arising from an accidental slip or omission in the judgment under the slip rule; (b) Where the judgment, as drawn up, does not correctly represent what the Court actually decided or intended to decide; (c) Where the order is a nullity, owing to failure to comply with an essential provision such as service process which can be set aside by the Court which made the order and; (d) Where the judgment or order is made against a party in default. See Obimonure Vs Erinosho (1966) ALL NLR 245; Adeigbe vs Kusimo (1965) NMLR 284; Obioha Vs Ibero (supra)."Per MBABA, J.C.A. (Pp. 20-21, Paras. A-C) - read in context (2018) LPELR-46626(CA) THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellants filed suit No. HOS/84/2014 on the 3rd October, 2014 and sought for nullification and setting aside of the consent judgment entered in favour of the parties in suit No. HOS/122/2002 Between Emmanuel Ukaegbu & Anor. vs. Uche Chukwu Ishmael & 3 Ors., and for the said suit to be restored to the cause list for determination on the merits. In their Statement of Claim filed together with their Writ of Summons on the said 3/10/2014, they asked for the following reliefs:

(a) A declaration that the judgment of the High Court of Justice delivered by Hon. Justice E. J. Ejelonu in Suit No. HOS/122/2002 on the 10th day of May, 2004 in Emmanuel Ukaegbu & Anor vs. Uche Chukwu Ishmael & 3 Ors., is a nullity as the defendants neither consented to the judgment nor signed the terms of settlement upon which it was based. ​(b) A declaration that the judgment of the High Court of Justice(2018) delivered LPELR-46626(CA) by Hon. Justice N. O. Otti (as he then was) in Suit No. HOS/122/2002 on the 26th day of April, 2012 in Emmanuel Ukaegbu & Anor. Vs. UcheChukwu Ishmael & 3

1 Ors., is a nullity as the defendants neither consented to the judgment nor signed the terms of settlement upon which it was based. (c) A declaration that the judgment of the High Court of Justice delivered by Hon. Justice N. O. Otti (as he then was) in Suit No. HOS/122/2002 on the 26th day of April, 2012 in Emmanuel Ukaegbu & Anor. Vs. Uche Chukwu Ishmael & 3 Ors is a nullity as the defendants as (sic) the Court was functus officio having delivered the same purported judgment on the 10th day of May, 2004 in the same suit between the same parties. (d) A declaration that the Counsel to the defendants in suit No. HOS/122/2002 in Emmanuel Ukaegbu & Anor vs. Uche Chukwu Ishmael & 3 Ors. Has no authority to consent to a judgment or take a position that is in contradiction or at variance with the express terms of the purported terms of settlement dated 17th day of January, 2004 before the Court. (e) An Order(2018) setting LPELR-46626(CA) aside the judgments of the Court in Suit No. HOS/122/2002 in Emmanuel Ukaegbu & Anor vs. Uche Chukwu Ishmael & 3 Ors delivered by Hon. Justice E. J. Ejelonu on the 10th day of May, 2004 and Hon. Justice N.O. Otti (as he then was) on the 26th day of April, 2012 respectively be set aside.

2 (f) An Order that Suit No. HOS/122/2002 in Emmanuel Ukaegbu & Anor. Vs. Uche Chukwu Ishmael & 3 Ors. Be restored to the cause list for determination on its merits.

Judgment of the lower Court was delivered on the 4th May, 2016 dismissing the said suit which it viewed as totally misconceived in law. It held that it is not allowed to: (i) review the judgment of Courts of co-ordinate jurisdiction entered in their presence and that of their Counsel, (ii) determine that the Appellants did not in fact consent to the judgments and (iii) hold that their Counsel had no authority to represent them in the matter as he did.

Being distressed at the judgment, the Appellants filed their Notice of Appeal on 26/5/2016. The record was transmitted to this Court on 12/6/2017 but it was deemed as properly compiled and transmitted on the 31st October, 2017 upon the application on notice filed by the Appellants on 12/6/2017(2018) which was LPELR-46626(CA) moved on the same 31/10/2017. The Appellants’ Brief of Argument was filed on 17/11/2017 while the Respondent’s Brief was filed on the 6th December, 2017. The Appellants’ Reply Brief was filed on 15/1/2018.

3 The Appellants via their learned Counsel, David Onyeike, Esq., postulated a lone issue in their Brief of Argument thus:

“Whether the learned trial Judge had power to set aside the consent judgments in the circumstances of this case.” The Respondent for his part rephrased the lone issue in the like manner:

“Whether the learned trial judge was right in refusing to review the judgment of his learned brother.”

In proffering argument on behalf of the Appellants, their learned Counsel, David Onyeike, Esq., strongly argued that the lower Court’s perception that it had no power to review the judgments of Courts of co-ordinate jurisdiction and to determine that the Appellants did not consent to the judgment, and, that their Counsel had no authority to represent them in the matter, was misconceived and does not represent the correct position of the law. He made reference(2018) to the cases LPELR-46626(CA) of Egemole vs. Oguekwe (2008)

12 NWLR Part 1101 page 231 paragraphs A–F; Ononaka vs. Akubue (2009) 18 NWLR Part 1165 page 539 at 558 and Tomtec (Nig.) Ltd. vs. F. H. A. (2009)

4 18 NWLR at (173) page 388 at 387 and submitted that there were permissible exceptions to the principle that once a consent judgment is entered, it cannot be set aside which include where it was obtained by fraud, where it was obtained by misrepresentation or non-disclosure of a material fact of which there was an obligation to disclose; where it was obtained by duress; where it was concluded under a mutual mistake of facts; and where it was obtained without proper authority.

Learned Counsel equally mentioned the circumstances enumerated by the Supreme Court under which judgments/decisions/orders of a Court may be set aside by the Court and then submitted that the lower Court was clearly wrong when it failed to examine the pleadings of the Appellants at the Court below to ascertain whether the facts fall within the permissible exceptions allowed by the Court and the law. He reproduced the pleadings of the Appellants and the reliefs sought by them and then argued that their(2018) case was LPELR-46626(CA) anchored within the ambit of the exceptions. He stressed that the Appellants pleaded lack of consent to the terms of settlement, fraud, misrepresentation, mistake and

5 want of authority and they ought to have been tried by the

Court below. He further cited the cases of Tomtec (Nig.)

Ltd vs. F.H.A (supra); Adebayo vs. P.D.P (2013) 17 NWLR Part 1382 page 1 at 60-61; Igwe vs. Kalu (2002) 14 NWLR Part 787 page 435 at 453-454; Ebe vs. Ebe (2004) 3 NWLR Part 860 page 215 at 243 and Odofia vs. Olabanji (1996) 3 NWLR Part 435 page 126 at 133 and contended that the lower Court ought to have set the case down for hearing rather than dismissing the same peremptorily. He therefore urged this Court to allow the appeal, set aside the decision of the lower Court and remit the case to the Court below for trial before another Judge. ​ In the Respondent’s Brief, it was submitted that the trial Court was right in refusing to review the judgment of a co- ordinate Court. He explained that only one judgment was delivered by the lower Court on the 10th May, 2004, then in 2012, an application was made to the Court for the Judgment(2018) Order in theLPELR-46626(CA) case, that it was Hon. Justice Otti who signed the Judgment Order in 2012 after Hon. Justice Ejelonu had retired, so it was only one consent judgment of the 10th May, 2004 that was the subject matter of suit

6 No. HOS/84/2014 filed by the Appellants. He recapitulated the reliefs sought by the Appellants in the said suit No. HOS/84/2014 and contended that by the seven reliefs sought, the Appellants wanted the lower Court to sit on appeal over the judgment of the Court in suit No. HOS/122/2002, therefore, the lower Court was right in refusing to yield to that. He quoted an excerpt from the judgment of the lower Court and then relied on the cases of

U.T.C. Nigeria Ltd. vs. Pamotei (1989) 2 NWLR Part 103 page 251; Afegbai vs. A. G., Edo State (2001) 7 NSCQR page 552; Bessoy Ltd. vs. Honey Legon Nig. (2010) 4 NWLR Part 1184 page 300 at. 303; Aba South Local Government &Ors. vs. Leticia Nwajiobi & Ors. (2008) 6 NWLR Part 1084 page 503 at 509 and University of Calabar vs. Inyang (1993) 5 NWLR Part 291 page 103 and submitted that a consent judgment once passed and entered, cannot be set aside save on appeal even if it was entered under a mistake. He stated that by the proceedings of the lower Court conducted on the 10th (2018)May, 2004, LPELR-46626(CA)it is clear that both the Appellants and their Counsel were present in Court on that day. Their Counsel informed the Court that the parties

7 had settled and applied that their Terms of Settlement be made the consent judgment. He stressed that the Appellants never objected to the information given by their Counsel in their presence and as a result, the Court admitted the Terms of Settlement dated 17/1/2004 as consent judgment of the Court. The parties accepted the consent judgment and acted on it.

He explained that after about ten years, in 2014 to be precise, the same Defendants who accepted the Terms of Settlement volte-faced, and filed a suit asking the Court to set aside the consent judgment entered in their presence and that of their Counsel. He relied on the Supreme Court decision in Afegbai vs. A. G., Edo State (2001) NSCQR page 552 where it was held that the fact that the terms of agreement were negotiated and the judgment entered by Counsel on behalf of the

Plaintiff and not by the Plaintiff himself with the defendants did not affect its validity by an iota because(2018) the plaintiff LPELR-46626(CA) has given to his Counsel a general authority without limitation to act on his behalf and to represent him in the action,and, then contended that Appellant who were bound by the actions of their Counsel cannot

8 be heard to complain that they did not consent to the judgment. He further contended that the Appellants failed to show the fraud, misrepresentations, non-disclosure, duress or lack of authority and so the trial Court could not have delved into them.

He further argued that instead of appealing against the consent judgment, the Appellants chose to file a fresh suit against the consent judgment about ten years of the cause of action. He submitted that when a party consents to or has acquiesced in a procedure adopted by a Court, particularly, where no justice had been occasioned, he would not be heard thereafter to complain that the procedure was wrong. He therefore urged this Court to dismiss this appeal.

In the Appellants’ Reply Brief, it was contended that the Respondent arguments are grossly misconceived. He cited the cases of F.B.N. Plc vs. Mmeka (2015) 6 NWLR Part

1456 page(2018) 507; Donald LPELR-46626(CA) vs. Saleh (2015) 2 NWLR Part 1444 page 829; Emirate Airline vs. Aforka (2015) 9 NWLR Part 1463 page 80 and Enukeme vs. Mazi (2015) 17 NWLR part 1488 page 411 and argued that a Respondent who had neither cross-appealed nor filed a Respondent’s Notice

9 cannot validly raise other issues or argument not canvassed at the Court below. They ought to have filed Respondent’s Notice. He further stressed that the argument that Appellants failed to show fraud, misrepresentation, non- disclosure, duress, mistake or lack of authority is misconceived because there was no trial, and the suit was dismissed in limine. The Appellant clearly pleaded those facts in paragraph 14 of the Statement of Claim but the action did not go to trial, so no opportunity was given to the Appellants to furnish the required proof.

On the argument of delay for ten years, learned Counsel referred to the provisions of Sections 15(1) and 33(1) of the Limitation Law, Cap 114 Laws of Abia State and submitted that actions founded on fraud, concealment and mistake are exempted from the period of limitation prescribed in Section 15(1). Under Section 33(1), the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with(2018) reasonable LPELR-46626(CA) diligence have discovered it. He explained the Court entered the consent judgment on the mistaken belief that the 1st Claimant

10 and his Counsel signed the Terms of Settlement and their refusal to design was concealed from the Court by the 1st Defendant’s Counsel and concealment could not be discovered because the Court’s file is missing till date. He relied on some other authorities and submitted that a consent judgment can be challenged and set aside by either an appeal or by fresh suit. He referred to Bessoy Ltd. vs.

Honey Legion (Nig.) Ltd. (2010) 4 NWLR Part 1184 page 300 at 316–317 and Oshoboja vs. Amuda (1992) 6 NWLR Part 250 page 690 at 706 and then urged this Court to set aside the judgment of the lower Court and order fresh trial of the suit.

The bone of contention herein is whether the lower Court has the power to set aside the consent judgment entered in favour of the parties in suit No. HOS/122/2002 on the 10th May, 2004 and in respect of which a Judgment Order was drawn up and signed on the 26th April, 2006. The learned

Counsel for the Respondent relied on the case ofU.T.C

Nigeria(2018) Ltd vs. Pamotei LPELR-46626(CA) (supra) and contended that a consent judgment cannot be set aside save on appeal, even if it was entered under a mistake.

11 He further argued that the only ground upon which a Court can review the judgment of the Court of a co-ordinate jurisdiction is under the slip rule to correct typographical or clerical errors or to vary the judgment to give effect to its meaning and intention. I think there is a misconception of the principle set down in the U.T.C. case (supra) because even Obaseki, J.S.C., unmistakably stated that the Court of Appeal was in error to hold that the judgment was on the merits and cannot be set aside. Also, the Supreme Court had in innumerable cases opined that Courts have inherent jurisdiction to set aside their own judgments on the grounds listed in Igwe vs. Kalu cited by the Appellants’

Counsel. The Supreme Court per Ogwuegbu, J.S.C., held thus: "I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows: (i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached(2018) or set asideLPELR-46626(CA) by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76; Flower v. Lloyd (1877) 6 Ch.D. 297;

12 Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1. (ii) When the judgment is a nullity. A person affected by an order of Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6, Craig vs. Kanssen (1943) KB 256, 262 and 263; Ojiako & Ors. vs. Ogueze & Ors. (1962) 1 All NLR 58, Okafor & Ors. vs. Anambra State & Ors.(1991) 6 NWLR (Pt. 200) 659, 680. (iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs. Okunoga (1961) All NLR 119 and Obimonure vs. Erinosho (1966) 1 All NLR 250. In Olorunfemi vs. Asho (supra) (Suit No. SC. 13/1999), this Court in its unreported Ruling dated 18-3-99 set aside its judgment delivered on 8-1-99 on the ground that it failed to consider the respondent's cross- appeal before allowing the appellant's appeal. It ordered that the appeal be heard de novo by another panel of(2018) Justices of LPELR-46626(CA) this Court." See generally Alao vs. A.C.B. Ltd. (supra) Further, and even though what seemed to have been expressed in U.T.C. vs. Pamotei (supra) is probably a

13 general principle, the Supreme Court, in the case of

Race Auto Supply Company Ltd & Ors vs. Alhaja Faosat Akib (2006) 13 NWLR Part 997 page 333, per Ogbuagu, J.S.C., undoubtedly straightened the principle and unambiguously expressed that a consent judgment may be set aside either by the Court that gave/made it or a Court of competent jurisdiction on the ground for which a contractual agreement could be voided or rescinded. Then in

Afegbai vs. A. G., Edo State (supra), the Supreme Court further stressed that: "A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded would be rescinded. When therefore, a consent judgment is sought to be set aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for rescission of a contract. In Huddersfield Banking Co. Ltd. v. Henry Lister & Son, Ltd. (1895-9) All ER Rep 868(2018) it was held LPELR-46626(CA) that a consent order made by the Court to give effect to the compromise of a legal claim by the parties concerned can be set aside, not only on the ground of fraud, but for any reason which would afford a ground for setting aside the

14 agreement on which the order was made, for example, on the ground of a common mistake regarding a material fact. In that case Lindley, ECJ, said: "The only thing, to my mind, to be done on this point of setting aside a consent judgment is to see whether the agreement upon which it was based can be invalidated or not. If the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad." In Vulcan Gases Limited vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) LPELR-3465(SC), the apex Court per Iguh, J.S.C., laid the grounds for setting aside a consent judgment. "It is thus clear that apart from fraud which, if established in any judgment or order, necessarily invalidates the same, a consent judgment or order may be set aside for cogent and sufficient reason which in law would constitute a ground for setting aside the(2018) agreement LPELR-46626(CA) on which such consent judgment or order was based. As Lindley, LJ. put it in Huddersfield -Banking Company Ltd. v. Henry Lister and Son Ltd. (supra) at Page 871: - "A consent order, I agree, is an Order, and so long as it stands, it must be treated as

15 such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on that point. But that a consent order can be impeached not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in more formal way than usual. I also have not the slightest doubt." "It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception. SeeAttorney General vs. Tomline (1877) 7Ch. D. 388, Huddersfield Banking Company Ltd. v. Henry Lister and Son Ltd. (1895-99) All E.R. 868 (C.A.).” Then on whether a person affected by a null judgment/order(2018) is entitledLPELR-46626(CA) to have it set aside, it stated that:

"Similarly, an order, be it by consent or otherwise, which is a nullity is something which the person affected thereby is entitled to have set aside

16 ex debito justitiae. The Court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance cannot be said to be necessary. It can thus be said that outside the appellate procedure, a judgment or order can be set aside if it is a nullity or where a Court was misled into giving the judgment by some mistake, believing that the parties consented to its being given, whereas, in fact, they did not. See Craig v. Kanseen (1943) K.B. 256 or (1943) 1 All ER 108 at 113; Okoli Ojiako and Ors v. Onwuma Ogueze and Ors. (1962) 1 All NLR 58; Ekerete v. Eke 6 NLR 118." See also Tomtec Nigeria Limited vs. Federal Housing

Authority (supra), per Onnoghen, J.S.C. (as he then was) wherein it was held that:

"It is settled law that Courts of record have the inherent jurisdiction to set aside their judgments/decision/order,(2018) LPELR-46626(CA) in appropriate cases or under certain circumstances which include: When: (i) the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties; (ii) the judgment is a nullity;

17 (iii) it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it; (iv) the judgment was given in the absence of jurisdiction; (v) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; (vi) where there is fundamental irregularity. See Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 436 at 453-454: Ebe vs Ebe (2004) 3 NWLR (Pt. 860) 215 at 243:Odofin vs. Olabanji (1996) 3 NWLR (Pt.435) 126 at 133." The Supreme Court had clearly established that consent judgment can be set aside, the mode of initiating the proceeding for setting the same aside and the grounds upon which that can be achieved. This has obviously dislodged the argument of learned Counsel for the Respondent and then accentuated the contentions of the Appellants that the lower Court has the jurisdiction to set aside a consent judgment.

It is glaringly(2018) clear LPELR-46626(CA) in the record of this appeal that the lower Court was not invited by the Appellants in their new suit to review the judgment of a Court of co-ordinate jurisdiction. The Appellants commenced a new suit as was enunciated in

18 Vulcan Gases Limited vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (supra) and pleaded that the consent judgment was obtained by fraud, misrepresentation, or non-disclosure of a material fact, mistake, and, want of authority which they needed provision of oral evidence to prove. As distinctly displayed in the judgment of the lower Court contained in the record of appeal, the law was completely misconceived by it which occasioned a miscarriage of justice. It was therefore wrong of the lower Court to have dismissed the Appellants’ suit without conducting a hearing therein. This Court finds merit in this appeal and as a result, this appeal is allowed. Accordingly, the judgment of the lower Court delivered on the 4th May, 2016 is hereby set aside. Consequently, suit No. HOS/84/2014 filed by the Appellants on the 3rd October, 2014 is remitted to the High Court of Abia State for trial before another Judge. There will be no order as to costs.

ITA GEORGE(2018) MBABA, LPELR-46626(CA) J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my

Lord, T.N. ORJI-ABADUA J.C.A., and I agree with her sound reasoning and conclusion thatthe Appeal is meritorious and should be allowed. ​

19 The law is trite that the principles governing functus officio, would not and does not apply in certain circumstances, including where the decision of the lower Court, relied upon to sustain the plea, was a nullity, or obtained by fraud, or where the Court lacked competence or jurisdiction to make the order, or by reason of any mistake or misrepresentation fundamental to the decision; such flaws cannot keep a final judgment of the lower Court out of the reach of the same lower Court or Court of coordinate jurisdiction to set it aside. See the case of

Abdulfatai & Anor vs Kayode 7 Ors (2012) LPELR - 14324 CA; (2012) 33 WRN 145; Skenconsult Nig. Ltd vs Ukey (1981) SC 6; Ezeokafor vs Ezeilo (1999) 6 SCNJ 209. See also Enterprises Bank Ltd Vs Aroso &

Ors (2015) LPELR - 24720 (SC), where the Supreme Court, as per Ariwoola JSC, re-stated the exceptions to the rule of functus officio, thus:

"Generally, the law is that after a judgment has been given and delivered, even if it is a consent judgment entered(2018) under a mistake,LPELR-46626(CA) the Court no longer has power to set it aside, except in the following situations, which though not exhaustive:

20 (a) Where there has been a clerical mistake or an error arising from an accidental slip or omission in the judgment under the slip rule; (b) Where the judgment, as drawn up, does not correctly represent what the Court actually decided or intended to decide; (c) Where the order is a nullity, owing to failure to comply with an essential provision such as service process which can be set aside by the Court which made the order and; (d) Where the judgment or order is made against a party in default. See Obimonure Vs Erinosho (1966) ALL NLR 245; Adeigbe vs Kusimo (1965) NMLR 284; Obioha Vs Ibero (supra).

This case fits into such stated exception, as ably discussed and illustrated in the lead judgment. I too allow the appeal and abide by the consequential orders in the lead judgment. (2018) LPELR-46626(CA)

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree with the judgment just delivered by my learned brother T.N. ORJI- ABADUA JCA, and I adopt the reasoning and conclusion as mine.

21

(2018) LPELR-46626(CA) Appearances:

David Onyeike, Esq. For Appellant(s)

Chief Gabriel Emperor O. Ogbonna, Esq.For Respondent(s)

(2018) LPELR-46626(CA)