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Lpelr-46626(Ca) 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 <span style="font-size: 12px;">"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 &amp; Ors. vs. Ogueze &amp; Ors. (1962) 1 All NLR 58, Okafor &amp; Ors. vs. Anambra State &amp; 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 &amp; 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 &amp; 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.
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