ADAMU HARUNA v. NAZIFI SALISU ADAMU & ANOR (2016)

ADAMU HARUNA v. NAZIFI SALISU ADAMU & ANOR

(2016)LCN/8460(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2016

CA/K/166/2014

RATIO

JUDGMENT: MEANING OF A CONSENT JUDGMENT
A consent judgment is defined as a judgment, the provisions and terms of which are settled and agreed to by the parties to the action, or better still, as an agreed judgment, a settlement that becomes a Court judgment when the Judge sanctions it Lamurde v. Adamawa State Judicial Service Commission (1999) 12 NWLR (Pt. 629) 86, Afegbai v. Attorney General, Edo State (2001) 14 NWLR (Pt. 733) 425, Dana Impex Ltd. v. Awukam (2006) 3 NWLR (Pt. 968) 544, Ibeto v. Aminu (2007) 5 NWLR (Pt. 1028) 446. In Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 123, the Supreme Court stated that:
“A consent judgment means when the parties unequivocally agree to Terms of Settlement which they mutually refer to the Court as a basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation. That makes it a consent judgment.”
In Union Homes Savings & Loans Limited v. CPL Industries Limited (2009) LPELR-CA/L/716M/06, Agbo, JCA, put the point thus:
“Parties to a dispute in Court are entitled to determine the dispute in agreed terms. Such agreed terms may on their demand be entered by the trial Court as its judgment. It is such a judgment that is referred to as ‘a consent judgment.’ A consent judgment is therefore a contractual agreement between parties to a dispute inter se determination the rights and claims in dispute and given the final authority and force of the judgment of a Court of law.”
It is elementary that once entered, a consent judgment serves as a final determination of the dispute between the parties and it is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end – Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. (2001) 9 NWLR (Pt. 719) 610, Race Auto Supply Company v. Akibu (2006) 6 SCNJ 98, Star Paper Mill Ltd v. Adetunji (2009) 13 NWLR (Pt. 1159) 647. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUDGMENT: WHETHER JUDGMENTS OF COURT ARE GOVERNED BY THE ARBITRATION AND CONCILIATION ACT
It is elementary that judgments of Court are not governed by the Arbitration and Conciliation Act 2004 and thus, the reliance placed on the Act by the Appellant in his applications before the lower Court was completely misplaced. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PROCEDURE: CONSENT JUDGMENT; PROCEDURE FOR SETTING ASIDE CONSENT JUDGMENT
It is settled law that the procedure for setting aside a consent judgment is by a substantive suit instituted for that purpose, and not by a motion, and this is so whether or not the ground for the setting aside is fraud. This position of law has been settled by a long line of cases. In Babajide v. Adisa (1966) 1 All NLR 254, Onyeama, JSC reiterated this statement of law and the learned Justice relied on the following statement of Romer, J in Ainsworth v. Wilding (1896) 1 Ch. 673 at 676:
“The application is made in the action in which judgment is given, and the ground of the application is that the judgment, which was based on the consent of the parties at trial, was consented to under a mistake on the part of the applicant. The respondents have raised the objection that the Court has no jurisdiction to discharge the judgment on such motion? I think that a fresh action must be brought and that I have no jurisdiction to hear the matter on motion, at any rate without the consent of the parties.”
The position of law was restated in Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. supra, Afegbai v. Attorney General, Edo State (2001) 14 NWLR (Pt. 733) 425, Dana Impex Ltd v. Awukam (2006) 3 NWLR (Pt. 968) 544, OCT Educational Services Ltd v. Padson Industries Ltd (2012) LPELR-CA/IL/31/2009. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUDGMENT: CIRCUMSTANCES FOR SETTING ASIDE A CONSENT JUDGMENT
In Afegbai v. Attorney General, Edo State supra, Ayoola, JSC explained the circumstances in which a consent judgment will be set aside thus:
“A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded be rescinded. When therefore, a consent judgment is sought to be aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for recession of contract. In Huddersfield Banking Co. Ltd v. Henry Lister & Son Ltd. ? it was held that a consent order made by the Court to give effect to a comprise 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 common mistake regarding a material fact. In that case Lindley, CJ 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 is based can be invalidated or no. It the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad.’ “
This position of law was restated by the Supreme Court in Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. supra. Dovetailing from this, it has been held by the Courts that a consent judgment can be set aside (i) where it was obtained by fraud; (ii) where it was obtained by misrepresentation or non-disclosure of a material fact which there was an obligation to disclose; (iii) where it was obtained by duress; (iv) where it was concluded under a mutual mistake of fact, as opposed to a unilateral mistake; and (v) where the consent judgment was obtained without proper authority – Ibezim v. Ndulue (1992) NWLR (Pt. 216) 157, Lamurde v. Adamawa State Judicial Service Commission supra, Amori v. Iyanda (2008) All FWLR (Pt. 416) 1864. A party seeking to rescind or resile from the terms mutually agreed upon under a consent judgment has the arduous and heavy duty of proving the existence of one of these circumstances – Dana Impex Ltd v. Aderotoye (2006) 3 NWLR (Pt. 966) 78. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
AGENCY: LIABILITY OF AN AGENT ACTING ON BEHALF OF AN UNDISCLOSED PRINCIPAL
It is settled law that when a person makes a contract in his own name, without disclosing either the name or the existence of a principal, he is personally liable on the contract to the other contracting party, even though he may be in fact be acting on a principal’s behalf – West African Shipping Agency (Nig.) Ltd v. Kalla (1978) 3 SC (Reprint) 15, Asafa Foods Factory Ltd v. Alraine Nigeria Ltd (2002) 12 NWLR (Pt. 781) 353. In the words of Lord Reid in Basma v. Meekes (1950) AC 441 “an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

ADAMU HARUNA Appellant(s)

AND

1. NAZIFI SALISU ADAMU
2. IBRAHIM ALI Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):The records of appeal in this appeal are a perfect example of how not to compile records of appeal. The processes in the lower Court were all jumbled up. The Ruling appealed against was the first document in the records and the processes by which the matter was commenced in lower Court are lost somewhere in the middle of the pack. There was no sequence or order in the arrangement of the processes in the records. It trite law that the records of appeal is the final reference of events that took place in the lower Court and should be compiled to show the events step by step from when the matter was commenced to when it was concluded – Fawehinmi Construction Co. Ltd v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171, and Ndayako v. Mohammed (2006) 17 NWLR (Pt. 1009) 673. Counsel who request for compilation of records and then refuse to supervise the compilation and allow records of appeal in nature of the one in present case come before this Court, are being most unfair to this Court. The Justices of this Court are already bogged down with a lot of work and

adding the need of sorting out the sequence of occurrence of documents in records of appeal to their tasks is most annoying. Commenting on the need for lawyers to ensure the presentation of properly compiled records of appeal, Muhammad, JSC in Otu v. ACB International Bank Plc (2008) 1 SC (Pt. II) 1 at 34 stated thus:
“Before I drop my pen, let me observe that the record of appeal before me now is one of the shabbiest I have ever come across. Many important documents (some mentioned above) were missing; many of the proceedings of the trial Court and that of the Court below were jumbled up; some pages remain unclear. This is disgusting and annoying. Learned Counsel, particularly those whose responsibility it is to sponsor the compilation record must insist that a correct and decent record is transmitted to an appeal Court. That will facilitate the quick and smooth dispensation of cases in the appeal Court.”
Similarly in State v. John (2013) 12 NWLR (Pt. 1368) 337 at 361-362 F-C, Rhodes-Vivour, JSC said thus:
“Before I conclude I must observe that the record of appeal was badly prepared. A record of appeal is a very important document that the

appeal Court rely on when hearing an appeal. The Courts are bound by the record of appeal so all proceedings relevant for the appeal as they occurred must be reproduced in the record of appeal. A proper table of contents must contain all that is in the record of appeal with the correct pages reflected. ?registrars or counsel who have the responsibility to prepare records of appeal should ensure that proceedings are collated with care to reflect the sequence in which they occurred. They must be legible and properly paged. That sadly was not the case under reference.”
This Court cannot refuse to entertain this appeal because of the badly compiled records of appeal because of its avowed duty to see that justice is done to the disputes submitted to it by the parties for adjudication on the strength of the substance of their cases, and not on the technicalities of the case. But the time is coming, soon and very soon too, when badly compiled records of appeal will be rejected by the Registry of this Court, and where they escape the Registry, would be returned by this Court to the lower Court or Counsel that compiled same for re-compilation. Counsel

and/or parties who request for compilation of records are hereby put on notice.

From the records of appeal, the dispute leading up to this appeal, was the joint claim of the Respondents for the sum of N6,432,500.00 against the Appellant and the dispute was taken before the Kano Multi Door Court House by the Respondents for Alternative Dispute Resolution. The records show that the notice of the referral of the dispute to the Kano Multi Door Court House for resolution and dated the 8th of June, 2012 was sent to the Appellant and that the Appellant consented to the resolution of the dispute by the Kano Multi Door Court House by signing a Submission Form. The records show that the parties, Respondents and Appellant signed the necessary Forms of the Kano Multi Door Court House, namely an Agreement to Arbitration, Confidentiality Agreement and a Confirmation of Attendance at the ADR Center. The records show that the dispute was mediated and settled between the parties and they executed a Terms of Settlement dated the 19th of July, 2012. The Appellant was the respondent before the Kano Multi Door Court House while the Respondents were the applicants and the

Terms of Settlement read thus:
“Whereas the above named parties herein have agreed to amicably settle the dispute between them at the Kano Multi Door Court House (KMDC) and resolved that this terms of settlement is entered as judgment of the High Court of Kano.
Background
1. The 1st Applicant is Nazifi Salisu Adamu of No. A116/115, Sabon Gari Market, Fagge Local Government Kano.
2. The 2nd Applicant is Ibrahim Ali of No.5 Zainab House, Kantin Kwari Market, IBB way Kano.
3. The Respondent is Adamu Haruna of High Point Maritime Services Limited, IBB way Kano.
4. The subject matter of the case is monetary in nature.
5. The 1st Applicant is claiming the sum of Three Million Six Hundred and Thirty Two Thousand Five Hundred Naira only (N3,632,500.00).
6. The 2nd Applicant is claiming the sum Two Million Eight Hundred Thousand Naira only (N2,800,000.00).
7. The Respondent has confirmed and agreed the entire claim against him.
Settlement Terms
In regard to the issue in dispute, parties hereby agree as follows:
1. The Respondent has promised that he shall pay the deposit of One Million Naira (N1,000,000.00) on

or before 31st August, 2012 which shall be shared amongst (sic) the 1st and 2nd Applicants proportionately.
2. The Respondent also promised that he shall pay the remaining balance of Five Million, Four Hundred and Thirty-Two Thousand, Five Hundred Naira only (N5,432,500.00) in three month installmental payment, September, October and November, i.e. One Million, Eight Hundred and Ten Thousand, Eight Hundred and Eighty-Three Naira (N1,810,833.00) each month.
3. In case of any dispute, misunderstanding or any default of the above terms of settlement the issue shall be reported to the Kano Multi Door Court House for taking any appropriate action.
4. The terms of settlement is binding on the parties herein upon the signature of their respective representatives initialing each page confirming that the clauses accurately reflect the settlement terms.
5. The terms of settlement constitutes the definitive agreement of the parties on the subject matter hereof and supercedes, cancels, and annuls all prior agreement, understanding, representation and undertaking relating to the subject matter hereof.
6. The terms contained herein shall be in full

and final settlement of all the Applicants’ claims against the Respondent.”

The records of appeal show that the terms of settlement were duly signed by the parties and they were entered as the judgment of the High Court of Kano State on the 24th of July, 2012. The records show that, consequent on the failure of the Appellant to make payments as agreed in the terms of settlement, the Director of the Kano Multi Door Court House addressed a letter dated the 1st of November, 2012 to the ADR Judge in the High Court of Kano State referring the matter for appropriate action and whereupon the parties were by a notice dated the 16th of November, 2012 invited to attend before the ADR Judge. The records show that the parties attended before the lower Court on the 24th of December, 2012 and the following ensued:
“1st Claimant ? the Respondent has broken the terms of agreement between us dated 19/07/2012 as he has not paid anything from the amount I am claiming from him in the sum of N3,632,500.00k. The agreement was that he is going to pay N500,000.00 by the end of August, 2012 and balance to be paid in three installment from September, October and

November. But nothing has been paid from August to date.
2nd Claimant ? My claim is in the sum of N2,800,000.00k which he promised to pay N500,000.00k by end of August and the balance to be paid in three installment starting from September to October and November. But no single kobo was paid to date.
Respondent ? The money is to be paid by the company. The company will start paying by end of February, 2013.
COURT ? RULING
I have perused the terms of settlement between the parties and I have not seen the name of any company mentioned in the agreement. By paragraph 7 of the Background of terms of settlement the respondent has confirmed and agreed on the entire claim against him. The settlement terms clearly stipulated four months for the payment of the entire sum of Six Million Four Hundred and Thirty-two Thousand, Five Hundred Naira. But from the months of August when the respondent promised to start paying to the end of November, not a single kobo was paid. The entire sum is therefore due for execution.
According, I hereby order for the execution of the entire sum claimed by the claimants against the respondent. His

moveable property shall be disposed to satisfy the claimants’ money. If the moveable property fails to satisfy the sum claimed, his immovable property if any shall be disposed to satisfy the judgment sum.”

The Appellant thereafter filed two motions on notice before the lower Court and both of them were dated the 8th of January, 2013.In the first motion, the Appellant prayed for an order setting aside the judgment of the lower Court comprising of the Terms of Settlement dated 19th day of July 2012 having been entered in contravention of the Applicant’s right to fair hearing and the rules regulating the procedure of hearing and being a nullity and also for an order setting the matter for proper hearing before the Multi Door Court House and proper adjudication. The second motion prayed for an order setting aside the order of execution of the judgment and attachment of the Appellant’s properties. The Respondents opposed both applications. The lower Court heard both applications together and it dismissed both of them in a rather terse Ruling delivered on the 23rd of January 2013. The lower Court stated in the Ruling thus:
“… I will not hesitate to point

out that counsel has a misconception of the procedure at the Multi Door Court House. None of the laws cited is relevant to this application.
As such the application is incompetent and it is accordingly dismissed. My order for execution still stands.”

The Appellant was dissatisfied with the Ruling and he caused his Counsel to file a notice of appeal dated the 5th of February, 2013 and containing two grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 2nd of April, 2015 and in response, Counsel to the Respondents filed a brief of arguments dated the 8th of May, 2015 on the 12th of May, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether the learned trial Judge was not in error in holding that the Appellant’s application was incompetent and went on to dismiss the application without taking into consideration the averment of the Appellant that he is an employee of High

Point Maritime Services Limited.
ii. Whether the learned trial Judge was not in error when he failed to consider Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 32 and 48 of the Arbitration and Conciliation Act, 2004.

In arguing the first issue for determination, stated that the lower Court dismissed the application of the Appellant without considering the deposition in the affidavit in support, particularly the averment that the Appellant was an agent of the company with which the Respondents into a contract and thereby breached the Appellant’s right to fair hearing. Counsel referred to the case of Longe v. First Bank of Nigeria Plc (2010) 3 SCNJ 295 wherein he said the Court held that failure of the Court to consider brief of arguments filed amounts to breach of fair hearing as provided by Section 36 of the Constitution. Counsel stated that the Appellant narrated in his deposition that he was the Kano Branch Manager of High Point Maritime Services Ltd, a clearing agency company with office at No. 17 Calcutta Crescent Apapa, Lagos, and that he thus disclosed his principal and that is the person that

ought to have been sued and not the Appellant, as an agent does not incur liability for his principal and he referred to the case of Osigwe v. PSPLS Management Consortium Ltd (2009) 1 SCNJ 1. Counsel stated that the Appellant deposed that when he tried to present his case with documents to the arbitrator, he was told that he did not need the documents and this amounted to denial of the constitutional right of the Appellant and which vitiated the entire proceedings before the lower Court and made them null and void and he referred to the cases of Victino Fixed Odds Ltd v. Ojo (2010) 3 SCNJ 111 and Pan African Int’l Corporation v. Shoreline Lifeboats Ltd (2010) 3 SCNJ 179. Counsel urged this Court to resolve the issue for determination in favour of the Appellant.

On the second issue for determination, Counsel repeated his arguments on right of fair hearing and stated the lower Court did not take cognizance of the provisions of Section 32 of the Arbitration and Conciliation Act 2004 which says that any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award and also of Section 48 which says that the

Court may set aside an arbitral award if the party making the application furnishes proof and that he was not allowed to present his case. Counsel stated that it was obvious that the Respondent was not able to present his case before the arbitrator and that it is settled law that a Court should not abdicate its responsibility or allow error to stand uncorrected, but should intervene and do what justice requires and he referred to the case of Lawal v. Dawodu (1972) All NLR 707, amongst others. Counsel urged this Court to also resolve this issue for determination in favour of the Appellant.

On his part, Counsel to the Respondents also formulated two issues for determination in the appeal. These were:
i. Whether the lower Court was right when it held that the Appellant’s application dated the 8th of January, 2013 asking the Court to set aside its judgment was incompetent and dismissed same accordingly.
ii. Whether the lower Court was right when it held that the laws cited by the Appellant in support of his application dated 8th of January, 2013 were not relevant.

In arguing the first issue for determination, Counsel to the Respondents stated

that the Appellant voluntarily admitted their claims before the mediator at the Kano Multi Door Court House and consequent on which the Terms of Settlement was drafted and signed by the parties and the mediator and the Terms of Settlement were later entered as consent judgment by the lower Court and thus became a consent judgment of the lower Court and he referred to the case of Oladiti v. Sungas Co. Ltd (1994) 1 NWLR (Pt. 321) 433. Counsel stated that being a consent judgment of the lower Court, it can only be challenged on appeal or by a fresh action and not by a motion and he referred to the case of Vulcan Gases Ltd v. Okunola (1993) 2 NWLR (Pt. 224) 139 and said that as such the application of the Appellant seeking to have the judgment set aside was incompetent and that the lower Court was thus correct when it so held. Counsel stated that the issue of agency and documents that the Appellant stated that he deposed to in the said application were an afterthought because at no time throughout the mediation at the Kano Multi Door Court House did the Appellant raise any such issue and neither did he do so before the lower Court when the Terms of Settlement were

entered as judgment of Court and that Appellant only raised the issue of agency after he failed to comply with the terms of the judgment and after Respondents had taken steps to execute the judgment. Counsel stated that the purported company, High Point Maritime Services Ltd was never a party to the Terms of Settlement and that the Respondent confirmed and agreed to the claims of the Respondents personally and that Appellant did not deny signing the Terms of Settlement and it was not his case that he was coerced or misled into signing it. Counsel stated that even if the Appellant was an agent of the said company, by signing the Terms of Settlement, he willingly agreed to shoulder the liability of the company and cannot now seek to escape same. Counsel urged this Court to resolve the first issue for determination in favour of the Respondents.

In arguing the second issue for determination, Counsel stated that the Terms of Settlement entered between the parties having become entered as a consent judgment of the High Court of Kano State, the provisions of the Arbitration and Conciliation Act 2004 dealing with refusal to recognise or enforce an award were not

applicable, and that even if they were applicable, they could not assist the case of the Appellant. Counsel stated that the complaint of the Appellant was that the mediator did not give him an opportunity to present his case and that this was a complaint of misconduct on the part of the mediator and that the proper course of action for such complaint is to apply to set aside the award or remit it to the mediator under Section 29 of the Arbitration and Conciliation Act and he referred to the case of United Nigeria Insurance Co. v. Adene (1971) 7 NSCC 159. Counsel stated that under Section 29 of the Act, the application must be made within three months from the date of the award and that where it is not so made, it is incompetent and he referred to the case of Home Development Ltd v. Scancila Contracting Co. Ltd. (1994) 8 NWLR (Pt. 369) 252. Counsel stated that in the instant case, the Terms of Settlement was made the judgment of Court on the 24th of July, 2012 while the application to set aside the judgment was made on the 8th of January, 2013, six months after and that even if the judgment was treated as an award, the application was incompetent by virtue of

the provisions of Section 29 of the Act. Counsel urged this Court to also resolve this issue for determination in favour of the Respondents.

Reading through the records of appeal, the Ruling of the lower Court and the arguments contained in the respective brief of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal. It is whether the lower Court was correct when it dismissed the two applications of the Appellant dated and filed on the 8th of January, 2013 praying to set aside the judgment of the lower Court comprising of the Terms of Settlement dated 19th day of July 2012 and to set aside the order of execution of the judgment and attachment of the Appellant’s properties.

From the narrative made in the earlier part of this judgment of events that took place before the lower Court as could be gleaned from the records of appeal, the parties voluntarily attended before the Kano Multi Door Court House for mediation of the dispute between them and they voluntarily resolved the dispute and signed a Terms of Settlement dated the 19th of July, 2012 detailing the points of agreement between them

on the resolution of the dispute. The opening part of the Terms of Settlement read:
“Whereas the above named parties herein have agreed to amicably settle the dispute between them at the Kano Multi Door Court House (KMDC) and resolved that this terms of settlement is entered as judgment of the High Court of Kano.”

In furtherance of this desire of the parties, the parties, the Appellant and the Respondents, attended before the ADR Judge in the High Court of Kano State on the 24th of July, 2012 and the points of agreement between them as detailed in the Terms of Settlement was, with their consent, entered as the terms of the judgment of the lower Court. By this act, the Terms of Settlement entered into by the parties before the mediator in the Kano Multi Door Court House transited into being a consent judgment of the lower Court. A consent judgment is defined as a judgment, the provisions and terms of which are settled and agreed to by the parties to the action, or better still, as an agreed judgment, a settlement that becomes a Court judgment when the Judge sanctions it Lamurde v. Adamawa State Judicial Service Commission (1999) 12 NWLR (Pt. 629) 86,

Afegbai v. Attorney General, Edo State (2001) 14 NWLR (Pt. 733) 425, Dana Impex Ltd. v. Awukam (2006) 3 NWLR (Pt. 968) 544, Ibeto v. Aminu (2007) 5 NWLR (Pt. 1028) 446. In Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 123, the Supreme Court stated that:
“A consent judgment means when the parties unequivocally agree to Terms of Settlement which they mutually refer to the Court as a basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation. That makes it a consent judgment.”
In Union Homes Savings & Loans Limited v. CPL Industries Limited (2009) LPELR-CA/L/716M/06, Agbo, JCA, put the point thus:
“Parties to a dispute in Court are entitled to determine the dispute in agreed terms. Such agreed terms may on their demand be entered by the trial Court as its judgment. It is such a judgment that is referred to as ‘a consent judgment.’ A consent judgment is therefore a contractual agreement between parties to a dispute inter se determination the rights and claims in dispute and given the final authority and force of the judgment of a Court of law.”
It is elementary that once

entered, a consent judgment serves as a final determination of the dispute between the parties and it is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end – Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. (2001) 9 NWLR (Pt. 719) 610, Race Auto Supply Company v. Akibu (2006) 6 SCNJ 98, Star Paper Mill Ltd v. Adetunji (2009) 13 NWLR (Pt. 1159) 647. It is elementary that judgments of Court are not governed by the Arbitration and Conciliation Act 2004 and thus, the reliance placed on the Act by the Appellant in his applications before the lower Court was completely misplaced.

It is settled law that the procedure for setting aside a consent judgment is by a substantive suit instituted for that purpose, and not by a motion, and this is so whether or not the ground for the setting aside is fraud. This position of law has been settled by a long line of cases. In Babajide v. Adisa (1966) 1 All NLR 254, Onyeama, JSC reiterated this statement of law and the learned Justice relied on the following statement of Romer, J in Ainsworth

v. Wilding (1896) 1 Ch. 673 at 676:
“The application is made in the action in which judgment is given, and the ground of the application is that the judgment, which was based on the consent of the parties at trial, was consented to under a mistake on the part of the applicant. The respondents have raised the objection that the Court has no jurisdiction to discharge the judgment on such motion? I think that a fresh action must be brought and that I have no jurisdiction to hear the matter on motion, at any rate without the consent of the parties.”
The position of law was restated in Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. supra, Afegbai v. Attorney General, Edo State (2001) 14 NWLR (Pt. 733) 425, Dana Impex Ltd v. Awukam (2006) 3 NWLR (Pt. 968) 544, OCT Educational Services Ltd v. Padson Industries Ltd (2012) LPELR-CA/IL/31/2009. The motion on notice filed by the Appellant to set aside the consent judgment of the lower Court was thus inappropriate and the lower Court was right in dismissing same as incompetent.

Going further and assuming that the procedure adopted was in order, it is not in contest that a consent

judgment can be set aside. In Afegbai v. Attorney General, Edo State supra, Ayoola, JSC explained the circumstances in which a consent judgment will be set aside thus:
“A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded be rescinded. When therefore, a consent judgment is sought to be aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for recession of contract. In Huddersfield Banking Co. Ltd v. Henry Lister & Son Ltd. ? it was held that a consent order made by the Court to give effect to a comprise 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 common mistake regarding a material fact. In that case Lindley, CJ 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 is based can be invalidated or no. It the agreement cannot be invalidated, the consent order

is good. If the agreement can be invalidated, the consent order is bad.’ ”
This position of law was restated by the Supreme Court in Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasverwertung A.G. supra. Dovetailing from this, it has been held by the Courts that a consent judgment can be set aside (i) where it was obtained by fraud; (ii) where it was obtained by misrepresentation or non-disclosure of a material fact which there was an obligation to disclose; (iii) where it was obtained by duress; (iv) where it was concluded under a mutual mistake of fact, as opposed to a unilateral mistake; and (v) where the consent judgment was obtained without proper authority – Ibezim v. Ndulue (1992) NWLR (Pt. 216) 157, Lamurde v. Adamawa State Judicial Service Commission supra, Amori v. Iyanda (2008) All FWLR (Pt. 416) 1864. A party seeking to rescind or resile from the terms mutually agreed upon under a consent judgment has the arduous and heavy duty of proving the existence of one of these circumstances – Dana Impex Ltd v. Aderotoye (2006) 3 NWLR (Pt. 966) 78.

?In the instant case, the Terms of Settlement was signed on the 19th of July, 2012 and it was made

judgment of the lower Court on the 24th of July, 2012. The Respondents took their dispute before the Kano Multi Door Court House against the Appellant personally and in the Terms of Settlement, the Appellant undertook personal responsibility for the entire claims of the Respondents. It was not the case of the Appellant that he was coerced or misled into signing the Terms of Settlement at the Kano Multi Door Court House and he made no protest to the lower Court when the Terms of Settlement was entered as judgment. The totality of the case of the Appellant on his applications before the lower Court was that he was the Kano Branch Manager of a company called High Point Maritime Services Ltd with office in Lagos and that the dispute of the Respondents arose in the course of transactions they had with the company and that he only acted as agent of the company in the transactions and should not be held personally liable to the Respondents as he was an agent of a disclosed principal.

Reading through the Terms of Settlement, nowhere was anything said about a company or about the Appellant being an agent of a disclosed principal. The Respondent entered into the

Terms of Settlement in his personal capacity. It is settled law that when a person makes a contract in his own name, without disclosing either the name or the existence of a principal, he is personally liable on the contract to the other contracting party, even though he may be in fact be acting on a principal’s behalf – West African Shipping Agency (Nig.) Ltd v. Kalla (1978) 3 SC (Reprint) 15, Asafa Foods Factory Ltd v. Alraine Nigeria Ltd (2002) 12 NWLR (Pt. 781) 353. In the words of Lord Reid in Basma v. Meekes (1950) AC 441 “an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.”

The Appellant did not thus make out any credible case for the setting aside of the consent judgment. The decision of the lower Court on the applications of the Appellant cannot be faulted.

In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The decision of the High Court of Kano State in Suit No. ADR/KMDC/379/2012 contained in the Ruling delivered by Honorable Justice Tani Yusuf Hassan (as he then was) on the

22nd of January, 2013 is hereby affirmed. The Respondents are awarded the costs of this action assessed at N50,000.00. These shall be the orders of this Court.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA gave me the opportunity of reading the draft of the judgment just delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the consequential order.

AMINA AUDI WAMBAI, J.C.A.: I read in advance the copy of the lead Judgment of my learned brother, HABEEB A. O. ABIRU, JCA. He has admirably considered and resolved the issues in this appeal.

The consent Judgment entered by the Lower Court is a reflection of the minds of the parties who voluntarily consented to same. Except a party can prove any of the exceptions to the general rule and in accordance with the procedure allowed by Law, a consent Judgment cannot be set aside.
The exceptions being that:-
?(a) There was a unilateral mistake induced by fraud, or misrepresentation. Afegbai v. A.G. Edo State

(2001) 14 NWLR (Pt. 733) 425 or
(b) It was given without jurisdiction and therefore a nullity ? Vulcan Gases Ltd v. G.F. Ind. A.G. (2001) 9 NWLR (Pt. 719) 610.

I am in agreement with my learned brother that none of the few exceptions exists in this appeal. Resultantly, I find no merit in this appeal. Same is also dismissed by me and I abide the consequential Orders in the lead Judgment.

Appearances

M. C. AjokuFor Appellant

AND

Salisu SuleFor Respondent