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CONSENT JUDGEMENT MAY BE SET ASIDE WHERE VITIATED BY FRAUD, MISTAKE, OR ANY OTHER VICE

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Dictum

Where, however, purported consent judgment is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. The result, in such a case is that the so called consent judgment can be set aside but by a fresh action. See Talabi v. Adeseye (1972) 8-9 SC 20. The court, therefore, has discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned and made an order of court. It is this jurisdiction that the respondent in the present application invited the trial court to exercise, alleging that the consent judgment in issue was vitiated by mistake and misconception and that there was, in fact, no concensus ad idem between the parties in the terms of the compromise agreement which were the basis of the consent judgment. I will now briefly dispose of the right of a party to repudiate the action of his solicitor.

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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CONSENT JUDGEMENT MAY BE SET ASIDE

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 v. Tomline (1877) 7 Ch. D. 388, Huddersfield Banking Company Ltd. v. Henry Lister and Son Ltd. (1895-99) All E.R. 868 (C.A.) … 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.”

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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BLESSING OF THE COURT IN RESPECT TO A CONSENT JUDGEMENT

As it was said by this court in Abel Woluchem v. Dr. Charles Wokoma (1974) 3 S.C. 153 per Ibekwe, JSC: – “The rule is that actions may be settled by consent during the trial, usually, such settlement is a compromise and, in order to have binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.” In order to have a consent judgment, therefore, the parties must reach a complete and final agreement on the vital issue 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 parties enters such compromise agreement as the judgment of the court. The position was explained by this court per Ibekwe, JSC in Abel Woluchem v. Dr. Charles Wokoma (supra) as follows:- “As far as we can discern from the record of appeal, the parties never reached a complete and final agreement on the issue of settlement………..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 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.”

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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CONSENT JUDGEMENT IS BINDING ONLY ON THOSE WHO CONSENTS

Such, therefore, is the binding force of a consent judgment. Accordingly,no consent judgment or order has any operation or effect whether by way of estoppel or otherwise against any of the parties who is not shown to have consented to it; but as between consenting parties and their privies, a consent judgment or order is as effective in respect of the matters which are thus settled as any judgment given after the matters are fully fought out to the end. See Talabi v. Madam Adeseye (1972) 1 All NLR (Pt. 2) 255. A court judgment is either by consent in which case it must have been passed with the mutual consent of the parties whose blessing it must receive or else it is one passed by the court after the action has been contested and fought out to the end.

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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