LAUTECH v. ABIODUN (2021)

LAUTECH v. ABIODUN

(2021)LCN/15087(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 19, 2021

CA/IB/325/2015

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY {LAUTECH} APPELANT(S)

And

LAWAL ADEDOLAPO ABIODUN RESPONDENT(S)

RATIO

DUTY OF THE COURT TO REFRAIN FROM MAKING ANY FINDING WHICH MAY PREJUDICE THE SUBSTANTIVE CASE DURING INTERLOCUTORY PROCEEDINGS

…it is necessary to restate the trite principle of law that in interlocutory proceedings, certain boundaries must not be crossed. A trial Court or an appellate Court must desist from making any finding which may prejudice the substantive case. See FSB INT’L BANK LTD vs. IMANO (NIG) LTD (2002) LPELR (1219) 1 at 28-29, AKINRIMISI vs. MAERSK NIG LTD (2013) LPELR (20179) 1 at 11, AGWU vs. JULIUS BERGER (NIG) PLC (2019) LPELR (47625) 1 at 23-24 and CIL RISK & ASSET MANAGEMENT LTD vs. EKITI STATE GOVT (2020) LPELR (49565) 1 at 80-85. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

IMPORT AND EFFECT OF A CONSENT JUDGMENT; WHETHER A CONSENT JUDGMENT CAN BE SET ASIDE

The import of a consent judgment was restated in the case of WOLUCHEM vs. WOKOMA (1974) LPELR (3502) 1 at 20 as follows: “The rule is that actions may be settled by consent during trial. Usually such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between 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.” See also RASC LTD vs. AKIB (supra) and SPM LTD vs. ADETUNJI (supra). On the effect of a consent judgment, Uwaifo, J.S.C. stated as follows in ABEY vs. ALEX (1999) LPELR (32) 1 at 13: “…where the parties settle or compromise pending proceedings, whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration… its effects are (1) to put an end to the proceedings, for they are spent and exhausted; (2) to preclude the parties form taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supersede the original cause of action altogether, that is to say, the terms of settlement or compromise must henceforth regulate the relationship and entitlement of the parties in regard to the subject matter.” It is pertinent to state that contrary to the Appellant’s submission, the settled legal position seems to be that since parties in brokering amicable settlement out of Court are creating new rights between them in substitution for and in consideration of the abandonment of the claims before the Court, the agreement on which the Court enters consent judgment is not necessarily circumscribed by the reliefs claimed in the action as the agreement supersedes even the original cause of action. See ABEY vs. ALEX (supra) and WOLUCHEM vs. WOKOMA (supra). My learned brother, Ugo, J.C.A. eloquently expressed the legal position, inter alia, in the following words in FALAKI vs. FAGBUYIRO (2015) LPELR (25848) 1 at 132:
“Coming to His Lordship’s holding that the agreement in the consent Judgment…detracted from the reliefs claimed…, I think he was wrong. Firstly…His Lordship failed to appreciate that he was not dealing with a judgment obtained after due contest, in which case the judgment must be limited to the orders sought. In a settlement, parties, including the Claimant, must necessarily shift position to gain a common ground; it is give and take on all sides, hence it is preposterous to expect the parties to stick to the reliefs as originally claimed.” It is consequently immaterial and of no moment if the parties in reaching a compromise agreement went beyond the reliefs claimed in the action. The agreement embodied in the Terms of Settlement creates new rights between the parties which supersedes even the original cause of action. The lower Court was therefore not in error when it entered consent judgment based on the Terms of Settlement. See CBN vs. BECKITI CONSTRUCTION LTD (1998) 6 NWLR (PT 553) 23, STAR PAPER MILL LTD vs. ADETUNJI (2009) 13 NWLR (PT. 1159) 647 and GALADANCHI vs. ABDULMALIK (2014) LPELR (23593) 1 at 43-47. Though a consent judgment, being the product of the compromise agreement between the parties, is binding on the parties; it is not sacrosanct and it can be impugned where the circumstances to do so exist. In AFEGBAI vs. A-G EDO STATE (2001) LPELR (193) 1 at 21-22, Ayoola, JSC asseverated: ”A consent judgment will be set aside on any ground which may invalidate on 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…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… ‘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.” See also VULCAN GASES LTD vs. G. F. IND A.G (2001) LPELR (3465) 1 at 39-40, R.A.S.C. LTD vs. AKIB (2006) LPELR (2937) 1 at 33 and CHUKWUKADIBIA vs. EZE (2015) LPELR (25748) 1 at 51. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER A CONSENT JUDGMENT CAN ONLY BE SET ASIDE BY A FRESH ACTION

I invite my Lord, Karibi-Whyte, JSC to speak on this. Hear my Lord in AFEGBAI vs. A-G EDO STATE (2001) SCNJ 418 at 456: “It is clear from the facts of the appeal before us that the consent judgment entered into is binding on the parties … When a consent judgment has been ordered it remains binding on the parties until it is set aside by a fresh action.” See alsoTALABI vs. ADESEYE (1972) 8-9 SC 20, VULCAN GASES LTD vs. G. F. IND A.G (supra) and HARUNA vs. ADAMU (2016) LPELR (41157) 1 at 20-21. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHAT ARE THE REQUIREMENTS OR PRE-CONDITIONS TO BE ESTABLISHED FOR A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM

The law is settled beyond peradventure on the requirements or pre-conditions to establish in order for a plea of estoppel per rem judicatam to succeed. These requirements or pre-conditions are: 1. That the parties or their privies are the same in both the previous and present proceedings. 2. That the claim or issue in dispute in both actions is the same. 3. That the res or subject matter of the litigation in the two cases is the same. 4. That the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final. 5. That the Court that gave the previous judgment relied on to sustain the plea must be a Court of competent jurisdiction. It is important to emphasise that these conditions are conjunctive and unless they are fully established, the plea of estoppel per rem judicatam cannot be sustained. See FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14, ODUTOLA vs. ODERINDE (2004) LPELR (2258) 1 at 30, LONG-JOHN vs. BLAKK (2005) LPELR (1792) 1 at 12 and THE HONDA PLACE LTD vs. GLOBE MOTOR HOLDINGS LTD (2005) LPELR (3180) 1 at 31-32. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent herein was the Claimant before the High Court of Oyo State in an action which she instituted against the Appellant herein in SUIT NO. HOG/9/2009. The Respondent claimed the following reliefs in the said action:
“1. AN ORDER of the Honourable Court declaring the Plaintiff as duly admitted to study medicine in the Defendant University.
2. AN ORDER of the Honourable Court mandating the Defendant to accord the Plaintiff all rights and privileges accruable to a medical student of the Defendant.
3. AN ORDER of the Honourable Court directing the Defendant to pay the sum of N50,000,000.00 (Fifty Million Naira) to the Plaintiff as general damages.”

Pleadings were filed and exchanged in the said action and the matter went to trial. The Respondent testified and closed her case. Afterwards, the Appellant, rather than enter upon its defence, elected to pursue an out-of-Court settlement of the action. The parties reached an amicable settlement which was reduced into Terms of Settlement and entered by the Court as the consent judgment in the said action.

Thereafter, the learned counsel for the Respondent wrote to the Appellant requesting for the full implementation of the Terms of Settlement. The Appellant replied, formally stating that the University would abide by the Terms of Settlement. However, rather than abide by the Terms of Settlement as stated in the letter, the Appellant commenced an action before the High Court of Oyo State in SUIT NO. HOG/3/2014: LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY (LAUTECH) vs. LAWAL ADEDOLAPO ABIODUN. The Appellant claimed the following reliefs:-
(i) An order of this Honourable Court declaring that the consent Judgment entered by the Oyo State High Court Coram R. B. Akintola on 12th day of November, 2012 in Suit No: HOG/9/2009 is ineffectual having been entered pursuant to Terms of Settlement lacking in mutuality of consent of parties and characterised by misrepresentation and misapprehension of material facts.
(ii) An order of this Honourable Court declaring that the Terms of Settlement leading to the Consent Judgment in Suit No: HOG/9/2009 directing the release of Certificate and induction of the Defendant in the absence of proof that the Defendant underwent

the relevant courses and passed the requisite examinations and acquired the necessary skill is illegal and against public policy.
(iii) An order of this Honourable Court declaring that the purported consent judgment dated 12th day of November, 2012 is unenforceable and not binding on the Medical and Dental Council of Nigeria for not being party to Suit No: HOG/9/2009 leading to the said consent judgment.
(iv) Declaration that the consent judgment was a product of misrepresentation by the Defendant as to her being Medical student of the Claimant or her academic status in the University.
(v) An order of this Honourable Court setting aside the consent judgment in Suit No: HOG/9/2009 dated 12th November, 2012 between the Claimant and the Defendant for being invalid, unlawful, against public policy, made in absence of proper or necessary party in breach of fair hearing provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and without jurisdiction.

The Respondent filed her Statement of Defence incorporating a Counterclaim for the following reliefs:-
1. A declaration that the consent judgment entered by this

Honourable Court in Suit No. HOG/9/2009 on the 12th day of November, 2012, is valid and subsisting.
2. An order of this Honourable Court directing the Plaintiff/Defendant to counter-claim, its agents, privies and successors-in-title to implement the judgment of this Honourable Court in Suit No. HOG/9/2009 entered on the 12th day of November, 2012.
3. An order of this Honourable Court awarding the cost of One Hundred Million Naira (N100,000,00.00) against the Plaintiff/Defendant to counter-claim in favour of Defendant/counterclaimant as general damages.

The Respondent further filed a preliminary objection, wherein she urged the lower Court to dismiss and/or strike out the Appellant’s action. The preliminary objection was predicated on the following grounds:
i. The Suit is incompetent as it is commenced by an invalid Writ of summons.
ii. The consent judgment sought to be dismissed/set aside by the Plaintiff/Respondent was reached with the Plaintiff/Respondent’s consent.
iii. The Plaintiff/Respondent further indicated its consent, support for and readiness to implement the judgment after it was delivered.

The present Suit is an afterthought and an abuse of Court and/or judicial process.
v. The suit sought to be re-opened by the Plaintiff/Respondent is caught by doctrine of estoppels per rem judicata.
vi. The Plaintiff/Respondent is stopped from changing its position after same had been voluntarily conveyed to this Court and made the Judgment of this Court by way of mutual consent.
vii. The Plaintiff/Respondent by this action wants to deny the Defendant/Applicant the enjoyment of the fruit of her labour.
viii. The Plaintiff/Respondent is deliberating in its defiance to the Orders of this Honourable Court in Suit No. HOG/9/2009.

The lower Court took argument on the preliminary objection and in its Ruling, which was delivered on 30th June 2013, it sustained the preliminary objection and dismissed the Appellant’s action. The said Ruling is at pages 250-280 of the Records. The Appellant was dissatisfied with the said decision and appealed against the same by Notice of Appeal filed on 18th August, 2015. The Notice of Appeal is at pages 281-286 of the Records.

The Records of Appeal was compiled and transmitted on 10th December, 2015,

but deemed as properly transmitted on 29th November, 2017. The Appellant further transmitted Additional Records of Appeal on 3rd April, 2018 but deemed properly transmitted on 17th October, 2018. The parties filed and exchanged briefs of argument. The Appellants Brief of Argument, which was settled by Alhaji Lasun Sanusi, SAN, Aminat O. Sanusi, Esq., Chinedu Ugwu, Esq. and Akpobome Akpughe, Esq., was filed on 26th September, 2019. The Appellant further filed a Reply Brief on 10th November, 2020.

The Respondents’ Brief of Argument, which was settled by Kazim Badmus, Esq., Abdulrahman Okunade, Esq., Alayoku Abayomi Anthony, Esq., and Olaoluwa O. Fagbewesa, Esq., was filed on 10th December, 2019 but deemed as properly filed on 27th October, 2020.

At the hearing of the appeal, Ms. A. O. Fasogbon, learned counsel for the Appellant and A. A. Alayoku, Esq., of counsel for the Respondent, urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant distilled three issues for determination as follows:-
i. Whether the learned trial Judge was not wrong when he dismissed the action (fresh suit HOG/3/2014)

challenging the purported consent judgment which was entered without jurisdiction having been made against strangers, outside reliefs before the Court and in reliance on extraneous points/matters including letter of 12th November, 2012 made years after the purported consent judgment. This issue covers grounds 1 and 7 of the Grounds of Appeal.
ii. Whether the learned trial judge did not act without and or in excess of jurisdiction when at the stage of preliminary objection as so [sic]whether or not fresh suit HOG/3/2014 seeking to set aside consent judgment in suit HOG/9/2009 was competent, proceeded to resolve all the substantive issues in the fresh suit HOG/03/14 and the counter-claim thereto against the Claimant/Appellant. The issue covers grounds 2 and 3 of the Grounds of Appeal.
iii. Whether the learned trial judge did not violate the Constitutional right of the Appellant to fair hearing when without hearing the fresh suit HOG/3/14 seeking to set aside the purported consent judgment in suit HOG/9/09 and the Counter Claim thereto on merit dismissed the suit summarily relying on issue raised suo motu by the Court, without affording Appellant

hearing on the issue, thereby engendering serious miscarriage of justice. This issue covers grounds 4, 5 and 6 of the Grounds of Appeal.

On her part, the Respondent formulated five issues for determination, namely:-
i. WHETHER THE CONSENT JUDGMENT OF 12/11/12 IN THE SUIT HOG/9/2009 BETWEEN LAWAL ADEDOLAPO ABIODUN VS. LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY WAS ENTERED BY THE LEARNED TRIAL JUDGE WITH JURISDICTION.
ii. WHETHER OR NOT THE LEARNED TRIAL JDUGE WAS RIGHT IN DISMISSING THE FRESH SUIT HOG/3/2014 BETWEEN LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY VS. LAWAL ADEDOLAPO ABIODUN, WHICH SOUGHT TO CHALLENGE THE CONSENT JUDGMENT OF 12/11/12.
iii. WHETHER THE LEARNED TRIAL COURT EXECEEDED ITS JURISDICTION IN ADDRESSING AND RESOLVING UPON ISSUES THAT SUMMARIZED THE CHALLENGE AGAINST ITS JURISDICTION AS ALREADY ARGUED BY THE PARTIES.
iv. WHETHER OR NOT ISSUES 3 AND 4 ADDRESSED AND DECIDED UPON BY THE LEARNED TRIAL COURT WERE EXACTLY THE SAME AS GROUNDS IV AND V OF THE DEFENDANT’S (RESPONDENT HEREIN’S) PRELIMINARY OBJECTION AS WELL AS ISSUES 2 AND 3 IN THE WRITTEN ADDRESS IN SUPPORT OF THE PRELIMINARY OBJECTION.

WHETHER THE LEARNED TRIAL JUDGE NEEDED TO GO TO HEARING IN DETERMINING THE COURT’S COMPETENCE TO HEAR THE APPELLANT’S (PLAINTIFF’S) FRESH SUIT.SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the Respondent’s preliminary objection was for the lower Court to determine whether the fresh action to set aside the consent judgment is valid or affected by res judicata; but that the lower Court proceeded to determine the substantive case which had not been heard. It was posited that consent judgment can be set aside on recognised grounds vide VULCAN GASES LTD vs. OKUNLOLA (1993) 2 NWLR (PT 274) 139 at 156 and OGUNSOLA vs. NICON (1991) 4 NWLR (PT 188) 762 at 770; and that the consent judgment can be set aside where it is a nullity. The case of TOMTEC NIG LTD vs. FHA (2009) 18 NWLR (PT 1173) 358 at 382 was referred to.

It was asserted that the consent judgment was a nullity, for being in breach of the provisions of the Medical and Dental Practitioners Act, Cap. M8, LFN, 2004, since it is only the Medical and Dental Practitioners Council that can induct qualified persons into the Medical and Dental

Profession, and not a University like the Appellant. It was stated that the lower Court was therefore misled into giving the consent judgment and that it constituted a mutual mistake since the law cannot compel doing the impossible.

It was further submitted that the lower Court lacked the jurisdiction to grant the reliefs on the consent judgment as they were outside the reliefs claimed in the action before the lower Court. It was opined that parties are bound by the reliefs claimed and that a Court has no jurisdiction to grant reliefs not claimed. The cases of COMMISSIONER FOR WORKS, BENUE STATE vs. DEVCON LTD (1988) 3 NWLR (PT 83) 407 at 420, SEATRUCKS (NIG) LTD vs. PYNE (1995) 6 NWLR (PT 400) 166 at 179, ISAH vs. INEC (2016) 18 NWLR (PT 1544) 184 at 238, UFOMBA vs. INEC (2017) 13 NWLR (PT 1582) 175 at 197 and GWABRO vs. GWABRO (1998) 4 NWLR (PT 544) 60 at 68 were relied upon. It was maintained that induction was never part of the reliefs claimed, and that the lower Court acted per incuriam and without jurisdiction in the reliefs it granted in the consent judgment. The cases of NBN LTD vs. MOBIL OIL (NIG) LTD (1994) 2 NWLR (PT 328) 534 at 551,

EYO vs. OKPA (2010) 6 NWLR (PT 1191) 611 at 635 and OFODILE vs. EGWUATU (2006) 1 NWLR (PT 961) 421 at 432 were cited in support.

It is the further contention of the Appellant that a Court cannot make an order against a person who is not a party and had no opportunity of a hearing. It was stated that the Medical and Dental Practitioners Council was not a party to the action and so the lower Court lacked jurisdiction to make orders against it in the consent judgment. The cases of OKOMU vs. NIGERIAN STORE WORKERS UNION (1973) 9-10 SCNLR 390, AWONIYI vs. REGD TRUSTEES OF AMORC (2000) 10 NWLR (PT 676) 522 at 540, ANYANWOKO vs. OKOYE (2010) 5 NWLR (PT 1188) 497 at 520 among other cases were called in aid.

The Appellant argued that the lower Court, at the stage of the preliminary objection, delved into the reliefs in the substantive matter and resolved the same based on its personal opinion and extraneous matter. Court decisions, it was posited, are based on evidence and not on the opinion of the judex vide OWONIKOKO vs. AROWOSAFE (1997) 10 NWLR (PT 523) 61 at 75, BARUWA vs. OSOBA (1997) 3 NWLR (PT 492) 164 at 179-180 and OGUNJEMILA vs. AJIBADE (2010) 11 NWLR (PT 1206) 559 at 566-567.

The Appellant maintained that Exhibit LAUTECH4 to its counter affidavit against the preliminary objection, as well as the undertaking given by the Respondent, show the impossibility of giving effect to the consent judgment and confirm the mutual mistake and misapprehension that bedevilled the consent judgment. It was stated that the lower Court set out the recognised conditions for setting aside a consent judgment, but failed to apply the same even though they were all present in the Appellant’s fresh suit. It was asserted that the law is settled that a Court is not to encroach into the arena of university examinations. The cases of UNIV of CALABAR vs. ESIAGA (1997) 4 NWLR (PT 502) 719 at 742 and MAGIT vs. UNIAGRIC (2005) 19 NWLR (PT 959) 211 at 257 were referred to. It was posited that a consent judgment can be set aside on the same reasons as the agreement on which it is based and that a fresh action to set aside a consent judgment is an exception to the doctrine of res judicata. The case of BICHI INVESTMENT (NIG) LTD vs. JGB VENTURES (2016) ALL FWLR (PT 851) 1248 at 1268 was called in aid.

It was further submitted that the lower Court was wrong to abandon the issues formulated on the preliminary objection and formulate its own issues which were unrelated to the grounds of the preliminary objection. It was asserted that a Court is to restrict itself to the issues placed before it for adjudication. The cases of OGBE vs. ASADE (2009) 18 NWLR (PT 1172) 106 at 133, NGERE vs. OKURUKET (2017) ALL FWLR (PT 882) 1302 at 1345 and IRONKWE vs. U.B.A. (2017) ALL FWLR (PT 879) 650 at 680-681 were cited in support. The lower Court, it was opined, exceeded the issues raised and strayed into the substantive issues in the fresh suit and counterclaim, as a result of which it dismissed the fresh suit and granted the counterclaim without hearing the matter. It was maintained that a case which has not been heard cannot be dismissed and that the substantive suit can only be decided after the parties have been heard on it, and not on the opinion or speculation by the Court. The cases of GEORGE vs. GEORGE (2001) 1 NWLR (PT 694) 349 at 358, MOHAMMED vs. HUSSEIN (1998) 14 NWLR (PT 584) 146, EKPEOGU vs. ASHAKA CEMENT CO. PLC (1997) 6 NWLR (PT 508) 280 at 292 and COKER vs. ADETAYO (1992) 6 NWLR (PT 249) 612 at 625 were referred to.

The Appellant forcefully argued that the findings and holdings of the lower Court were final resolutions of the substantive suit at the stage of the preliminary objection and therefore perverse, misconceived and unjust. The cases of BUREMOH vs. AKANDE (2017) 7 NWLR (PT 1563) 74 at 98, A-G FEDERATION vs. A-G ABIA STATE (2001) 11 NWLR (PT 725) 689 at 742, GENERAL ELECTRIC CO vs. AKANDE (1999) 1 NWLR (PT 588) 532 at 546 and BANK OF IRELAND vs. UBN LTD (1998) 10 NWLR (PT 569) 178 at 189 were relied upon.

It was submitted that for res judicata to apply, the issues in the two actions must be the same, but that the issues in the cases were not the same vide TOBIN vs. MOBIL PRODUCING (NIG) UNLTD (2015) ALL FWLR (PT. 778) 808 at 825-826. It was conclusively stated that it was a violation of the right to fair hearing for the lower Court to have proceeded to determine the substantive suit and counterclaim without hearing the action or taking witnesses.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court was right to assume jurisdiction in the Respondent’s action as the

subject matter was within its jurisdiction, the Court was properly constituted and the suit disclosed a reasonable cause of action. The cases of NURTW vs. RTEAN (2012) 1 SC (PT II) 119, ELELU–HABEEB vs. A-G FEDERATION (2012) 2 SC (PT I) 145, ADISA vs. OYINWOLA (2000) 6 SCNJ 29, ONUORAH vs. KRPC LTD (2005) ALL NLR 386 among other cases were relied upon. The meaning and effect of consent judgment as stated in VULCAN GASES LTD vs. OKUNOLA (supra), DANA IMPEX LTD vs. ADEROTOYE (2006) 2 NWLR (PT 966) 78 at 82, 100-101 and RASC LTD vs. AKIB (2006) 3 NWLR (PT 997) 333 at 340 and 355 were referred to and it was posited that a consent judgment creates new rights for the parties and that the terms agreed upon may even be different from the reliefs claimed. The case of SPM LTD vs. ADETUNJI (2009) 13 NWLR (PT 1159) 647 at 654 was cited on the requirements for a valid consent judgment and it was opined that the consent judgment which sprung from the parties Terms of Settlement met the requirements.

It was asserted that the Appellant’s contention that the consent judgment was entered against a person who was not a party was strange, since it is only after

the Appellant has fulfilled its part of the Terms of Agreement that the Medical and Dental Council of Nigeria would induct the Respondent pursuant to Sections 8 and 16 of the Medical and Dental Practitioners Act. It was maintained that the consent judgment was validly entered and that the lower Court cannot set it aside, except on appeal with leave vide AKANBI vs. DUROSARO (1998) 12 NWLR (PT 577) 287.

It was further contended that as a general rule, the consent judgment having been validly entered cannot be set aside by a fresh suit before the trial Court. The case of LAMURDE vs. ADAMAWA STATE (1999) 12 NWLR (PT 629) 89 was referred to on the factors to be considered before a consent judgment can be set aside. It was maintained that none of the factors, be it fraud, misrepresentation, duress, mutual mistake of facts or absence of proper authority, was present in this matter. It was asserted that the Appellant’s counsel had the general authority to act on its behalf and represent it; and that the consent judgment was not affected by the fact that the Terms of Settlement were negotiated by the Appellant’s counsel. The case of

AFEGBAI vs. A-G,EDO STATE (2001) 7 NSCQR 552 was cited in support. The Respondent opined that a consent judgment puts an end to the litigation in the same manner as a judgment in matter that was fought to the end. The case of AMORI vs. IYANDA (2007) 8 NWLR (PT 1074) 250 at 255 was called in aid.

The Respondent further submitted that from the grounds of the preliminary objection, the issues formulated, as well as the submissions made; the lower Court did not exceed its jurisdiction by the manner in which it set out the issues in determining the competence of the Appellant’s suit and the challenge to its jurisdiction. It was maintained that the lower Court did not raise any issues suo motu and that no extraneous issues were raised that would have necessitated any further address from the parties. The case of DAIRO vs. UBN PLC (2007) ALL FWLR (PT 392) 1880 was referred to on when it could be said that a Court raised an issue suo motu.

It was stated that judgment writing is an art and that it was open to the lower Court to adopt the issue that suited it, even if it would not involve adopting word for word the issues formulated by the parties vide NDUKWE vs. THE STATE

(2009) 2 SCM 180. It was opined that the lower Court did not exceed its jurisdiction, OKUPE vs. FBIR (1974) 4 SC 69 was referred to. It was further argued that consent judgment is a final judgment and that after delivery, the Court becomes functus officio, and that in the absence of a vitiating factor, a party dissatisfied can only appeal and not to come with a fresh suit to have the consent judgment set aside. It was maintained that the lower Court was right to have dismissed the Appellant’s fresh suit, the Respondent’s preliminary objection having exposed the suit as one caught by the doctrine of estoppel per rem judicatam, since the Appellant was seeking to relitigate issues that have been resolved in the consent judgment. Estoppel per rem judicatam, it was stated, goes to jurisdiction and once raised, must be decided before any further progress in the case. The case of GALADIMA vs. TAMBAI (2000) 11 NWLR (PT 677) 1 was relied upon. It was finally posited that the lower Court, having upheld the objection based on estoppel per rem judicatam, was right to dismiss the case without proceeding to a proper trial.

APPELLANT’S REPLY ON LAW
The Appellant contends in its Reply Brief that the Respondent is guilty of proliferation of issues for determination, more so, when she did not file a cross appeal or Respondents Notice. The case of AMODU vs. THE COMMANDANT, POLICE COLLEGE MAIDUGURI (2009) 15 NWLR (PT 1163) 75 at 85 was called in aid. It was iterated that a Court does not have the power to exceed the reliefs claimed in the writ vide YISI (NIG) LTD vs. TRADE BANK (1999) 1 NWLR (PT 588) 646 at 652-653 and NBN vs. MOBIL (supra). It was stated that the case of AKANBI vs. DUROSARO (supra) relied upon by the Respondent was inapt and irrelevant since the Appellant opted for a fresh Suit and not an appeal. It was further stated that the case of LAMURDE vs. ADAMAWA STATE (supra) cited by the Respondent sets out the conditions under which a consent judgment can be set aside and that the Respondent was wrong in her contention that a consent judgment can only be appealed against and cannot be set aside by a fresh action.

Conclusively, the Appellant contended that the Respondent did not proffer any submission that the lower Court was in error to have dismissed the fresh suit summarily and

granted the Respondent’s Counterclaim at the stage of the preliminary objection. It was maintained that the Respondent could not on her submissions justify or answer the attendant violation of the Appellant’s right to fair hearing vide MAERSK LINE vs. ADDIDE INVESTMENT LTD (2002) 11 NWLR (PT 778) 317 at 362.

RESOLUTION
The provenance of this matter is in the Terms of Settlement reached by the parties and which was entered as the consent judgment in the action in SUIT NO. HOG/9/2009. For purposes of clarity, the Terms of Settlement (see pages 80-81 of the Records) is as follows:
“TERMS OF SETTLEMENT
WHEREAS THE CLAIMANT by a writ of summons dated the 8th day of May, 2009 and filed on the 8th day of May, 2009 by paragraph 41 of the statement Claim seeks the follows:
1. AN ORDER of the Honourable Court declaring the Plaintiff as duly admitted to study Medicine in the Defendant University.
2. AN ORDER of the Honourable Court mandating the Defendant to accord the Plaintiff all rights and privileges accruable to the Plaintiff as a Medical student of the Defendant.
3. AN ORDER of the Honourable Court directing

the Defendant to pay the sum of N50,000,000.00 (Fifty Million Naira) to the Plaintiff as general damages.
WHEREAS THE DEFENDANT in his amended statement of defence dated the 10th day of May, 2011 in paragraph 29 prayed this Honourable Court to dismiss the claimant’s suit in its entirely [sic] as same is vexations, [sic] frivolous, unmerritonous [sic] and gold digging.
Now the Claimant and the Defendant (herein after called the parties) have agreed to settle this matter amicably and in terms herein under set out to wit:
(a) That the parties have agreed that the Claimant be awarded her the requisite certificate having written her M.B.B.S. Examination in the month of June, 2009.
(b) That the Claimant be registered at the Medical and Dental Council of Nigeria by the Defendant and be inducted among the next set of Medical Graduates of the Defendant’s University.
(c) The parties have also agreed that the Defendant shall accord the Claimant all rights and privileges accruable to the Claimant as a Medical student of the Defendant.
(d) That the Claimant equally agreed to withdraw this suit against the Defendant and that

neither of the parties herein shall relitigate this issue again in any Court of law in Nigeria.
(e) That both parties shall bear their respective cost of this Suit.
IN WITNESS WHEREOF the parties have by their respective counsel have hereunder set their hands on this Terms of Settlement.”

Upon the Terms of Settlement coming up before the lower Court and after hearing learned counsel for the parties, the lower Court proceeded to enter judgment in the case and ordered and adjudged as follows:
“The terms of settlement between the parties dated 12/11/12 is hereby adopted as judgment of this Court.”

The enrolled order of judgment entered on 12th November, 2012 is at pages 94-95 of the Records. The matter is however far from over. The Appellant about fourteen months later, precisely on 28th January, 2014 instituted the action, which resulted in this appeal, seeking to set aside the said consent judgment of 12th November, 2012. On account of its materiality in the determination of this appeal, I will set out the pertinent paragraphs of the Appellant’s Statement of Claim on which it anchored its hankering after the

setting aside of the consent judgment. In paragraphs 33, 34, 35 and 36 of the Statement of Claim, the Appellant averred as follows:
“33. The Claimant states that the Defendant deliberately concealed material facts which she was under obligation to disclose during the settlement given [sic] birth to the consent judgment.
34. Claimant further states that Counsel who entered the consent judgment acted under misapprehension and ignorance of the facts that the Defendant, had or would be able to produce the aforesaid documents listed in the undertaking of 1st June, 2009.
PARTICULARS OF MISREPRESENTATION/ MISAPPREHENSION OF FACTS
a. the Defendant falsely asserted that she did all the courses, examinations and training mandatory for the award of degree (MBBS) in Medicine while the record of the University after careful investigations from concerned departments establish the contrary.
b. the Defendant falsely claimed that she had in her possession and would produce some necessary documents to substantiate her studentship of Department of Medicine to wit:
(i) University Examination Identification Card
(ii) Financial clearance,

as evidence of school fee payment from Bursary Department
(iii) Evidence of registration either in the University or College of Health Sciences for Part IV MBBS Examination
(iv) Evidence of Continuous Assessment from the component departments, which Defendant till date has not been able to produce to the Claimant.
35. The Claimant avers that the consent judgment was made in breach of the constitutional right to fair hearing and Audi Alteram partem principle as it was made against Medical and Dental Council of Nigeria which was not a party and therefore a nullity.
36. The Claimant avers that her counsel entered into and signed the terms of settlement adopted as the consent judgment by the parties by mistake of facts, ignorance of material facts and fraudulent misrepresentations of facts by the Defendant as stated in the paragraphs above
PARTICULARS OF FRAUD
a. The Defendant was only admitted to study Pure and Applied Biology but keep parading herself as Medical Student of the University.
b. The Defendant was not admitted to study Medicine at any time by the Claimant.
c. The score of the Defendant at the time of

admission through her Pre-degree programme was 245 which was far and still below the cut off mark for admission into Medicine which was 280.”
(See pages 7-8 of the Records)

The Respondent in her Statement of Defence joined issues with the Appellant on the grounds on which it wanted the consent judgment to be set aside. See paragraphs 2-5 of the Statement of Defence/Counterclaim on page 139 of the Records. So the parties were at issue as to whether the terms of settlement and consent judgment were lacking in mutuality, whether they were characterized by misrepresentation and misapprehension of facts and indeed whether there had been fraudulent misrepresentation of facts.

Let me hasten to state that the action was not subjected to plenary hearing at the lower Court. The action was defenestrated in limine based on the preliminary objection filed by the Respondent. In the light of the fact that the matter never went to trial, it is necessary to restate the trite principle of law that in interlocutory proceedings, certain boundaries must not be crossed. A trial Court or an appellate Court must desist from making any finding which may

prejudice the substantive case. See FSB INT’L BANK LTD vs. IMANO (NIG) LTD (2002) LPELR (1219) 1 at 28-29, AKINRIMISI vs. MAERSK NIG LTD (2013) LPELR (20179) 1 at 11, AGWU vs. JULIUS BERGER (NIG) PLC (2019) LPELR (47625) 1 at 23-24 and CIL RISK & ASSET MANAGEMENT LTD vs. EKITI STATE GOVT (2020) LPELR (49565) 1 at 80-85. The parties have gone at length to proffer submissions which border on and call for determination of the substantive case. This is even so, when the Appellant complains that the lower Court had prejudged the substantive case and determined the same without hearing it. Accordingly, I will not join the parties on the odyssey towards prejudging and a prejudicial determination of the substantive matter which is yet to be heard.

Before I proceed any further, what is the import of a consent judgment? The import of a consent judgment was restated in the case of WOLUCHEM vs. WOKOMA (1974) LPELR (3502) 1 at 20 as follows:
“The rule is that actions may be settled by consent during trial. Usually such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the

blessing of the Court. Settlement between 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.”
See also RASC LTD vs. AKIB (supra) and SPM LTD vs. ADETUNJI (supra). On the effect of a consent judgment, Uwaifo, J.S.C. stated as follows in ABEY vs. ALEX (1999) LPELR (32) 1 at 13:
“…where the parties settle or compromise pending proceedings, whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration… its effects are (1) to put an end to the proceedings, for they are spent and exhausted; (2) to preclude the parties form taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supersede the original cause of action altogether, that is to say, the terms of settlement or compromise must henceforth regulate the relationship and entitlement of the parties in regard to the subject matter.”

It is pertinent to state that contrary to the Appellant’s submission, the settled legal position seems to be that since parties in brokering amicable settlement out of Court are creating new rights between them in substitution for and in consideration of the abandonment of the claims before the Court, the agreement on which the Court enters consent judgment is not necessarily circumscribed by the reliefs claimed in the action as the agreement supersedes even the original cause of action. See ABEY vs. ALEX (supra) and WOLUCHEM vs. WOKOMA (supra).
My learned brother, Ugo, J.C.A. eloquently expressed the legal position, inter alia, in the following words in FALAKI vs. FAGBUYIRO (2015) LPELR (25848) 1 at 132:
“Coming to His Lordship’s holding that the agreement in the consent Judgment…detracted from the reliefs claimed…, I think he was wrong. Firstly…His Lordship failed to appreciate that he was not dealing with a judgment obtained after due contest, in which case the judgment must be limited to the orders sought. In a settlement, parties,

including the Claimant, must necessarily shift position to gain a common ground; it is give and take on all sides, hence it is preposterous to expect the parties to stick to the reliefs as originally claimed.”
It is consequently immaterial and of no moment if the parties in reaching a compromise agreement went beyond the reliefs claimed in the action. The agreement embodied in the Terms of Settlement creates new rights between the parties which supersedes even the original cause of action. The lower Court was therefore not in error when it entered consent judgment based on the Terms of Settlement. See CBN vs. BECKITI CONSTRUCTION LTD (1998) 6 NWLR (PT 553) 23, STAR PAPER MILL LTD vs. ADETUNJI (2009) 13 NWLR (PT. 1159) 647 and GALADANCHI vs. ABDULMALIK (2014) LPELR (23593) 1 at 43-47.

Though a consent judgment, being the product of the compromise agreement between the parties, is binding on the parties; it is not sacrosanct and it can be impugned where the circumstances to do so exist. In AFEGBAI vs. A-G EDO STATE (2001) LPELR (193) 1 at 21-22, Ayoola, JSC asseverated:
”A consent judgment will be set aside on any ground which may

invalidate on 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…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…
‘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.”
See also VULCAN GASES LTD vs. G. F. IND A.G (2001) LPELR (3465) 1 at 39-40, R.A.S.C. LTD vs. AKIB (2006) LPELR (2937) 1 at 33 and CHUKWUKADIBIA vs. EZE (2015) LPELR (25748) 1 at 51.

It is premised on the Appellant’s belief that there exist grounds on which the Terms of Settlement, and a fortiori the consent judgment, can be voided or rescinded that it instituted the fresh action which spawned this appeal, predicated on the grounds averred to in paragraphs 33-36 of the Statement of Claim which I have already reproduced. To intercalate, I state once again that the substantive action at the lower Court did not go to trial so the parties did not adduce evidence to ventilate their respective positions. The Respondent has however contended that the Appellant was wrong to bring a fresh action and that setting aside the consent judgment has to be by way of an appeal and not a fresh action.

Now, was the Appellant right in bringing a fresh suit to set aside the consent judgment? I invite my Lord, Karibi-Whyte, JSC to speak on this. Hear my Lord in AFEGBAI vs. A-G EDO STATE (2001) SCNJ 418 at 456:
“It is clear from the facts of the appeal before us that the consent judgment entered into is binding on the parties … When a consent judgment has been ordered it remains binding on the parties until it is set aside by a fresh action.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See alsoTALABI vs. ADESEYE (1972) 8-9 SC 20, VULCAN GASES LTD vs. G. F. IND A.G (supra) and HARUNA vs. ADAMU (2016) LPELR (41157) 1 at 20-21. Without a doubt, the Appellant employed the correct legal process to ventilate its challenge to the consent judgment. I am unable to agree with the Respondent that a fresh action was not the appropriate avenue to seek to set aside the consent judgment. It is!

The parties made disparate submissions on the applicability of the doctrine of estoppel per rem judicatam. The law is settled beyond peradventure on the requirements or pre-conditions to establish in order for a plea of estoppel per rem judicatam to succeed. These requirements or pre-conditions are:
1. That the parties or their privies are the same in both the previous and present proceedings.
2. That the claim or issue in dispute in both actions is the same.
3. That the res or subject matter of the litigation in the two cases is the same.
4. That the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final.
5. That the Court that gave the previous judgment relied on to sustain the

plea must be a Court of competent jurisdiction.
It is important to emphasise that these conditions are conjunctive and unless they are fully established, the plea of estoppel per rem judicatam cannot be sustained. See FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14, ODUTOLA vs. ODERINDE (2004) LPELR (2258) 1 at 30, LONG-JOHN vs. BLAKK (2005) LPELR (1792) 1 at 12 and THE HONDA PLACE LTD vs. GLOBE MOTOR HOLDINGS LTD (2005) LPELR (3180) 1 at 31-32.

The Appellant’s action which seeks to set aside the consent judgment is predicated on grounds which have the legal implication of showing that the consent judgment is not valid in order for it to ground a successful plea of estoppel per rem judicatam. Furthermore, the issue in dispute in the two actions are so diametrically opposed that they cannot be the same. Indeed, the issue in the fresh action is antithetical of the compromise agreement which resulted in the consent judgment as the fresh action seeks to void and rescind the said terms of settlement. Undoubtedly, the issues in dispute in both actions are not the same. The lower Court consequently got it wrong when it held that the consent

judgment constitutes estoppel per rem judicatam. (See pages 277-278 and 280 of the Records).

The matter has not ended; at least not yet. It may be prolix, but I must iterate that the matter at the lower Court was not subjected to a plenary hearing. The parties did not call evidence before the lower Court endorsed the effective and effectual nature of the Terms of Settlement and consent judgment. It is evident that the grounds of the preliminary objection and the submissions thereon by learned counsel overlapped and abutted the grounds on which the Appellant sought to set aside the consent judgment. The lower Court, in the circumstances, bearing in mind that the substantive action had not been heard, ought to be circumspect and wary in order to avoid prejudging the issues that would fall for determination in the substantive action. See THE MISCELLANEOUS OFFENCES TRIBUNAL vs. OKOROAFOR (2001) LPELR (3190) 1 at 37, ODUTOLA HOLDINGS LTD vs. LADEJOBI (2006) LPELR (2260)1 at 48 and NNPC vs. FAMFA OIL LTD (2009) LPELR (2023) 1 at 37-38.

Without the Appellant’s matter having gone through a plenary hearing, the lower Court in deciding the

Respondent’s preliminary objection held as follows at pages 270 -271 of the Records:
“Frankly speaking, the Claimant/Respondent has not given any particulars albeit sufficient to establish the element of fraud as alleged in the consent judgment, i.e. Exhibit ‘DL1’ she has not proved the allegation of fraud beyond reasonable doubt which is by strict proof and the alleged fraud which the Claimant/Respondent has woefully failed to prove, as no evidence has been led before the Court before now to establish fraud, to me, the alleged fraud has no reasonable prospect of success more so all the facts averred and the documents exhibited both by the Defendant/Applicant and especially the Claimant/Respondent in her bid to prove/establish fraud albeit unsuccessfully are and have always been in existence before the consent judgment was delivered on 12th November, 2012.”

The lower Court continued at pages 271-272 of the Records and held:
“In essence, I hold that there was no mutual mistake, misrepresentation nor want of jurisdiction when the consent judgment was entered by R.B. AKINTOLA-JUDGE on 12th November, 2012 as the

Claimant/Respondent was ably represented by Counsel throughout the proceedings up till the time the consent judgment was entered on 12th November, 2012 and he cannot feign ignorance that she was not properly briefed as to ongoing proceedings in the Court to disclaim Tunde Falola’s misrepresentation, mutual mistake is neither here nor there.”

Not done yet, the lower Court further held thus at page 275 of the Records:
“In essence, I cannot accede to the Claimant’s/Respondent’s prayer to set aside the consent judgment entered on 12th November, 2012 i.e. Exhibit ‘DL1’ she had usefully failed to prove the alleged fraud, misrepresentation mutual mistake and lack of jurisdiction which she contended was contained in the consent judgment, in fact in oral submissions before the Court when I put it to Counsel that how can the alleged fraud be proved in the case as [sic] this stage when evidence has not been adduced on other side? He replied that fraud cannot be proved at this stage as evidence has not been led by either of the parties and that the Defendant’s/Application notice of Preliminary objection dated

8th May, 2014 is hasty and ought not to have been filed which I agree with in toto.”

It is effulgent from the above pericope from the decision of the lower Court at the interlocutory stage, that without having given the Appellant the opportunity to ventilate its case by calling evidence to prove the same, the lower Court in a prejudicial manner and in a violent violation of the Appellant’s right to fair hearing proceeded to prejudge the issues in the substantive action and resultantly dismissed it without having heard it. In the words of Achike, JSC in FSB INT’L BANK LTD vs. IMANO (NIG) (supra) at 28-29:
“It is erroneous for a Court whether trial or appellate in determining an interlocutory matter to succumb to the temptation of deciding the substantive case that is yet to be agitated by the parties. That will evoke a serious outrage. The lower Courts were wrong to have gone to that length…”
See also SHANU vs. AFRIBANK NIG PLC (2002) LPELR (3036) 1 at 41, ABOSELDEHYDE LABORATORIES LTD vs. UNITED MERCHANT BANK LTD (2013) LPELR (20180) 1 at 52-53, EBEBI vs. DENWIGWE (2011) LPELR (4909) 1 at 45 and 46 and

OGBONNAYA & SONS vs. ADAPALM NIGERIA LTD (1993) LPELR (2288) 1.
The lower Court succumbed to the temptation and decided the substantive case at the interlocutory stage. This is unacceptable practice which evokes serious outrage as it breaches the right to fair hearing. It is indubitable that where the right to fair hearing has been breached, the decision reached must be set aside. See KOTOYE vs. CBN (1989) 1 NWLR (PT. 98) 419, OYEYEMI vs. OWOEYE (2017) LPELR (41903) 1 at 56, MILITARY GOV. OF IMO STATE vs. NWAUWA (1997) 2 NWLR (PT 490) 675, A-G RIVERS vs. UDE (2006) 17 NWLR (PT 1008) 436 at 456, GOMWALK vs. MILITARY ADMIN OF PLATEAU STATE (2011) LPELR (9185) 1 at 14-15 and LEXINGTON INT. INS. CO LTD vs. SOLA HOLDINGS LTD (2006) LPELR (5806) 1 at 6-10.

From what I have said thus far, the fate and destination of this appeal is fairly obvious. The lower Court erred when in sustaining the Respondent’s Preliminary Objection, it prejudged the issues in the substantive action without affording the Appellant the opportunity of a hearing in the substantive action. The lower Court was equally wrong when it sustained the objection on the doctrine of

estoppel per rem judicatam which was inapplicable in the diacritical circumstances of this matter. The preliminary objection is dismissed. In a coda, the appeal being meritorious is hereby allowed. The case is remitted to the lower Court for hearing. In view of the chequered history of this matter, which is now in its twelfth year since the action that resulted in the consent judgment was instituted; the Chief Judge of the High Court of Oyo State is to assign the substantive matter for expeditious hearing and determination by another Judge of the High Court of Oyo State, not being Fadeyi, J. The parties are to bear their respective costs of the appeal.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered.

Having read the Record of Appeal as well as the Briefs of Argument filed on behalf of the parties, I agree with my Lord that the Lower Court breached the right to fair hearing when it decided the substantive matter at interlocutory stage.

The right to fair hearing is one of the twin pillars of natural Justices and it is expressed by the maxim – audi alterem

partem Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guaranteed fundamental right, where the right to fair hearing has been breached, such breach nullifies the entire proceedings and any action taken thereof.
As stated in the lead judgment, the Trial Court should not have decided the substantive case at the interlocutory stage. The principle of fair hearing envisages that both parties to an action be given opportunity of being heard by ventilating their differences and presenting their cases without let or hindrance from the beginning to the end of trial.
In ORUGBO VS. UNA (2002) 9-10 S.C. PAGE 61 AT 69 LINES 1-21, the Supreme Court held among others that:-
“The fair hearing principle entrenched in the Constitution is so fundamental in the Judicial process or the administration of Justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction.
Once an Appellate Court comes to the conclusion that there is a breach of principle of fair hearing, the

proceedings cannot be salvaged as they are null and void ab initio.
After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an Appellate Court will throw out the correct decision in favour of the breach of fair hearing.”
See the following cases: –
– CEEKAY TRADERS LTD VS GENERAL MOTORS CO. LTD (1992) 2 NWLR PART 222 PAGE 132.
– UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD VS. NNOLI (1994) 8 NWLR PART 363 PAGE 376.
– ADIGUN VS A.G. OYO STATE (1987) 1 NWLR PART 53 PAGE 678 AT 709 PARAGRAPH F.
– OGBOH VS. FEDERAL REPUBLIC OF NIGERIA (2002) 4 S.C. PART 11 PAGE 106 AT 115 TO 116.
– MOHAMMED VS. KANO NATIVE AUTHORITY (1968) ALL NLR PAGE 42
– UNONGO VS. AKU (1983) 2 SCNLR PAGE 332 AT 362.

In view of the foregoing and for the fuller reasons ably set out in the lead Judgment, this Appeal in my view has merit and it is allowed.

I abide by the consequential Order made in the said Lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. I agree with the reasoning and conclusion reached therein. His Lordship has admirably considered and resolved all issues in this appeal. I completely agree with him that the procedure for setting aside a consent judgment is by instituting a fresh action/suit. See BABAJIDE V. AISA (1966) 1 ALL NLR 254; HARUNA VS. ADAMU & ANOR (2016) LPELR-41157 (CA). The Appellant was therefore right when he instituted a substantive action before the lower Court to set aside the consent judgment entered on 12th of November, 2012.

It is for the foregoing and the more elaborate reasons contained in the lead judgment that I also find merit in this appeal and allow it. I abide by all the consequential orders made in the lead judgment.

Appearances:

Ms. A. O. Fasogbon For Appellant(s)