IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
22nd DAY OF JANUARY 2020
SUIT NO: NICN/ ABJ/ 86/2015
MOTION NO. NICN/ABJ/292M/2018
BETWEEN:
1. DR. JOHN OLUSOLA MABADELO
2. MRS ADA A. IHECHUKWU MADUBUIKE
3. MRS GANIAT AYODELE CLAIMANTS/RESPONDENTS
4. OLUSEGUN OGINI
5. MRS JANET AYORINDE
6. REUBEN OTAJELE MUSA
(Suing for themselves and on behalf of Deputy Directors (Administration) On Salaries Grade Level 16 that sat for the 2014 Federal Civil Service Promotion examination to the post of Director (Administration) on Salary grade level 17 in the Federal Government of Nigeria’s Ministries, Departments and Agencies (MDA) with 60% scores and above in the 2014 promotion examination/interview).
AND
1. THE HEAD OF THE CIVIL SERVICE
OF THE FEDERATION DEFENDANTS/ APPLICANTS
2. FEDERAL CIVIL SERVICE COMMISSION
AND
1. GORDEN NNAMDI OGO
2. SAMUEL AKOWE ABALAK CLAIMANTS/ APPLICANTS/RESPONDENTS
3. REUBEN OTAJELE MUSA
4. DR SAMPSON ONWUMERE
(For themselves and on behalf of G.C Nwaiku, A.O Ekpeyong, Kalu Oji Uben, Freeborn Omueza And Mrs Ganiat Ayodele).
RULING.
1. This deals with two objections raised by the 1st and 2nd Defendants and the main application filed by the 2nd set of Claimants. In this ruling for proper identification the first set of claimants will be referred to as the claimants/respondents, the 2nd set of claimants who brought the main motion on notice for consideration would be referred to as the Claimants/Applicants/Respondents. While the 1st Defendant would simply be referred to as 1st Defendant/Respondent/Applicant and the 2nd Defendant will be referred to as the 2nd Defendant/Respondent/Applicant.
2. The Counsel for the 1st Defendant/Respondent/Applicant filed a Notice of Preliminary Objection dated and filed on the 08/11/2018, brought pursuant to Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the Inherent Jurisdiction of this Court, the objection is challenging the jurisdiction of this Honourable Court to hear/entertain the present proceedings (motion on notice) filed by the Claimants/Applicants/Respondents.
3. The notice of Preliminary objection is praying for an order dismissing the Claimants/Applicants/Respondents application dated 26th day of September, 2018.
4. The grounds for the objection are as follows:-
I. The terms of settlement in this suit entered into by the parties which was dated and filed on the 18th day of December 2017 having been duly executed by all Counsel on behalf of their respective clients was duly entered as a Consent Judgment binding on all the parties.
II. The consent judgment effectively and finally settled the dispute among the parties.
III. Going by the Terms of Settlement and Consent judgment that this shall not serve as a floodgate for future references in the Federal Civil Service.
IV. This Honourable Court has thereby become functus officio and lacks jurisdiction to deal with this matter.
5. The Notice of Preliminary Objection was also supported by a written address wherein the Counsel for the 1st Defendant/Respondent/Applicant formulated a sole issue for determination, to wit:-
‘’Whether this Honourable Court has the jurisdiction to set aside its consent judgment of 19th December, 2017 entered pursuant to the terms of settlement agreed between the parties and filed on the 18th of December 2017.”
6. In arguing the sole issue for determination; counsel for the 1st Defendant/Respondent/Applicant contended that it is the position of the law that a court cannot set aside its decision or the decision of the Court of coordinate jurisdiction made on the merit. Counsel relied on the case of AIR FRANCE V OKWUDIAFOR (2010) LPELR- CA/PH/81M/2006, per Awotoye, J.C.A (P19 paras A-C), where a consent judgment was defined thus;
“I am more fortified in this view by the definition of consent judgment in Black’s Law Dictionary 8th edition which defines it as agreed judgment, a settlement that becomes a Court judgment when the judge sanctions it. There must have been an agreement whether express or implied which the Court will sanction….”
7. Counsel also call in the aid of the case of UMAR V MANAGER (2018) LPELR-44526; where the court held that a consent judgment is as effective as any judgment after the matters are fully fought out to the end. Counsel further submitted that having entered consent judgment in this case, the Court has become functus officio in respect thereof.
8. It is the contention of counsel that court by putting its imprimatur on the terms of settlement filed by the parties before this Court on 18th of December, 2017 and its consent judgment entered thereby on the 19th of December, 2017 the Honourable Court stands divested of any jurisdiction to set aside the consent judgment. On this contention counsel relied on the case of LAU LOCAL GOVT V UMAR (2014) LPELR-CA/YL/52/2013. Counsel urged the Court to dismiss the application of the Claimants/Applicants/Respondents.
REPLY ON POINTS OF LAW FILED 9/10/2019 TO MOTION ON NOTICE FILED 25TH SEPTEMBER, 2019
9. The counsel for the 2nd Defendant/Respondent/Applicant also on 25/9/2019, filed a motion on notice dated 24th September, 2019. The motion was brought pursuant to Order 17 Rule 1, Order 47 Rule 19, Order 54 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2016 and under the inherent jurisdiction of the Honourable Court, praying the Court for an order dismissing the Claimants/Applicants/Respondents’ application dated 26th September, 2018 and filed 22nd October, 2018.
10. The motion on notice was premised on the following grounds:-
a. The application is incompetent and an abuse of Court processes.
b. The application does not disclose any reasonable course of action
c. This Court lacks the jurisdiction to set aside a consent judgment without any justification.
11. The application is supported by a 9 paragraph affidavit deposed to by one Owunari Emmanuel Bob- Manuel, of No. 3 Abidjan Street, Zone 3, Wuse, Abuja. A written address was also filed along with the motion on notice. In the written address twin issues were identified for resolution. They are:-
1. Whether the application brought before this Honourable Court to set aside its own judgment is competent.
2. Whether by the rules of this Court a new Counsel can appear for the Claimant/Applicants without notice of change or withdrawal of former counsel being that the application is premised on the substantive suit.
12. In arguing issue 1; Counsel contended that the term consent judgment has been defined in EGEMOLE V OGUEKE (2010) ALL FWLR (PT 513) 1424 AT 1434 as;
“A judgment, the provisions of and terms of which are settled and agreed to by the parties to the action and that due effect be given to it by the court. It is final judgment and being final, it cannot even be set aside by the court that granted the judgment”.
13. It is the contention of counsel that in the present case the terms of settlement which the consent judgment was predicated upon were the complete and final agreement, entered voluntarily with the full knowledge and understanding by all the parties. Counsel added that a consent judgment has the same quality and effect as a judgment entered after full hearing/trial and cannot be set aside by mere motion on notice by the trial court. On this contention counsel relied on the case of FIRST MOTORS LTD V ALPHA PROPERTIES INTL LTD (2013) ALL FWLR (PT 665)346 AT 358. Counsel further argued that an aggrieved litigant can only challenge a consent judgment where he alleges that said judgment was obtained by fraud or mistakenly entered by the judge on the basis of fraudulent misrepresentation by entering an appeal against the judgment or file a fresh suit asking the court to vacate the consent judgment. To buttress his argument counsel placed reliance on the case of VULCAN GASES LTD V G.F.I.G (2001) FWLR (PT.53) 1.
14. In arguing issue 2; “Whether by the rules of this Court a new Counsel can appear for the Claimant/Applicants without notice of change or withdrawal of former counsel being that the application is premised on the substantive suit.” Counsel reproduced the provision of Order 54 of the National Industrial Court of Nigeria (Civil Procedure) Rules which provides for the change of Counsel in an on-going case and submitted that since the application is to set aside the consent judgment in the substantive suit, (SUIT NO: NICN/ABJ/86/2015) the new counsel ought to file a notice of either change of counsel or withdrawal of counsel. Counsel urged the Court to hold that the new counsel to the 9 Claimants/Applicants Stanley Orakpo, Esq; is not properly before the Court.
15. Counsel urged the court to hold that the application is incompetent and an abuse of court process.
16. In reaction to the 2nd Defendant/Respondent/Applicant’s application, the Claimants/Applicants/Respondents filed on 7/10/2019 a 4 paragraphs counter-affidavit in opposition to the motion on notice. The counter affidavit was supported by a written address wherein counsel raised two issues for determination, to wit;
1. In view of the provisions of the rules of this Honourable Court and case law decisions whether this Motion on Notice should not be dismissed for being an abuse of court process?
2. Whether Order 54 of the Rules of this Honourable Court applies to the Motion on Notice in view of the fact that this is a post judgment application and if it does whether the failure to comply with it should be a ground for dismissing the application.
17. Counsel for the Claimants/Applicants/Respondents in arguing issue 1; Urged the court to hold that this Honourable court is indeed clothed with the jurisdiction to entertain the claimants/applicants/respondents motion on notice by virtue of Order 47 Rule 22 of the Rules of the Honourable Court which provides that the court may suo motu or on application of any party affected, correct, rescind or vary its order or ruling. In support of this argument counsel relied on the case of SKEN CONSULT (NIG) LTD V SEKONDY UKEY (1981) 1 SC 6.
18. Counsel further argued that; the purported terms of settlement that was filed in this court on the 18th of December 2017 and was adopted and entered as consent judgment by the court on the 19th of December, 2017 was a fraudulent misrepresentation of consent of the parties on the issue. Counsel argued that the counsel to the then Counsel to the claimants OLUSOLA EGBEYINKA ESQ has express instructions on what the terms of settlement should be, he cannot derogate from them.
19. It is also the contention of counsel that failure to serve the parties hearing notice as required by Order 42 Rule 6(2) of the Rules of this Honourable Court has rendered the consent judgment incompetent. Counsel argued that hearing notice is a mandatory provision by virtue of Order 42 Rule 6(2) which uses the word “Shall” and counsel submitted that they were never served hearing notices contrary to the provisions of the Rules of the Honourable Court and that the record of proceedings only show that on that day only 3 out of the 97 claimants were even in court contrary to the claims by the claimants/respondents that claimants were in court and terms of settlement when read to them by the Honourable President of the court all chorused YES.
20. Counsel also contended that there was failure of the parties to sign the terms of settlement; Counsel while reproducing the provisions of Order 47(9) argued that the rule requires that the parties are to sign the terms of settlement. Counsel argued that none of the parties signed the terms of settlement except their counsel Shola Egbeyinka Esq; whom they accused of betraying them.
21. Counsel further argued that the Court indeed has the jurisdiction to entertain the motion on notice: NICN/ABJ/292M/2018 and therefore the Defendants/Respondents/Applicants’ notice of preliminary objection lacks merit.
22. It is further argued that the grounds upon which their application to set aside the consent judgment is predicated are grounds provided for by the Supreme Court in the case of S.O. ALAKA VS ADEKUNLE (1959)LLR 76, IBEZIM V IBEZIM (2015) ALL FWLR (PT813) 1783 A 1826 C-E.
23. On issue 2; “Whether Order 54 of the Rules of this Honourable Court applies to the Motion on Notice in view of the fact that this is a post judgment application and if it does whether the failure to comply with it should be a ground for dismissing the application”. Counsel argued that Order 54 of the NICN (Civil Procedure) Rules, 2017 only applies from commencement of the trial to the time judgment is delivered in a matter and anything after that is regarded as a new action with a new suit number vide Order 47 Rule 19 of the NICN (Civil Procedure) Rules, 2017. Counsel further argued that being a new sui it is not necessary for counsel who attended the matter at the trial must be the one who will attend the post judgment application unless he is re-engaged as the litigants are free to engage a new counsel without having to comply with Order 54 of the Rules of this Court.
24. Counsel posited that this Honourable Court has the jurisdiction to entertain the Claimants/Applicants/Respondents’ Motion on Notice No: NICN/ABJ/292M/2018 dated 26th September 2018 and that there is a deliberate fraudulent misrepresentation to the trial judge that parties consented to the terms of settlement when in fact they did not. That there was a failure to serve parties hearing notices that will indicate that a consent judgment will be entered on 19th December, 2017 as required by the NICN (Civil Procedure Rules, 2017 and that there was a breach of Order 47 Rule 9 of the Rules of this Honourable Court in that terms of settlement were not signed by parties.
25. Counsel urged the Court to dismiss the Notice of Preliminary Objection as lacking in merit and to hold that this court has the jurisdiction to entertain the application.
MOTION ON NOTICE DATED 26TH SEPTEMBER, 2018 AND FILED 22ND OCTOBER 2018
26. The counsel to the Claimants/Applicants/Respondents filed a motion on notice dated 26/09/2018 and filed 22/10/2018. The motion on notice was brought pursuant to Order 17 rule 1 and Order 47 Rule 9, 19, 22 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the Hhonourable court, praying the honourable Court for:
1. An Order extending the time for the applicants to apply to set aside the consent judgment.
2. An Order of this Honourable Court setting aside the order of the trial Court dated the 19th December 2017 which entered as consent judgment the terms of settlement filed in the trial court between the parties.
3. An Order of this Honourable Court reinstating the Order of injunction dated the 19th of July 2015 made by the trial Court in the course of the trial.
4. An Order of injunction restraining the Respondents from continuing to give effect to the terms of settlement filed in the court on the 18th of December 2018 in the event that the consent judgment is set aside.
5. Any other Order(s) as this honourable court may deem fit to make in the circumstances of this case.
27. The grounds for this application are as follows:-
I. That the term of settlement was never discussed with the Claimants/Applicants/Respondents.
II. That the terms of settlement even when drafted by their counsel was never given or shown to the Claimants/Applicants before it was executed by the Counsel.
III. That no hearing notice was served on the Claimants/ Applicants, that the terms of settlement was going to be adopted on the 19th of December 2017.
IV. That the Claimants/Applicants representatives on record in the suit did not sign the terms of settlement as required by Law.
V. That the terms of settlement did not represent the Claimants/Applicants clear mandate to their counsel.
VI. That at no time did the Claimants/Applicants mandated their solicitor to adopt before the Honourable trial Court the terms of settlement entered as judgment on the 19th of December 2017 by the Honourable Trial Court.
28. The application was supported by a 36 paragraph affidavit deposed to by one Nnamdi Ogo of Flat D-13, Phase 3, Nigerian Army Housing Estate, Kurudu, Abuja. The application was supported by a written address wherein a sole issue was formulated for determination, to wit:-
“Whether the applicants merit the grant of the reliefs as sought based on the material facts contained in their affidavit in support and all the circumstances of the case”
29. In arguing the sole issue for determination, counsel while relying on Order 47 Rule 22 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 contended that the court may suo motu or on application of any party affected correct, rescind or vary its Order or ruling. To support his contention counsel cited and relied on the case of AMOR V IYANDA (2008) ALL FWLR (PT.416) 1864, where, the court set out the conditions that should exist before a Court can set aside a consent judgment. Counsel further argued that their instruction to their counsel Olusola Egbeyinka, Esq; was that he was to ensure 81 out of the 97 officers that took the examination and interview that scored the cut off mark of 60% are promoted with all their entitlements effective from 1/1/2014. However, it is the argument of counsel that despite the instruction counsel failed to respect the wishes and desires of the claimants/Applicants and ensured the promotion of all 97 officers without their entitlements and benefits. Counsel argued that the deliberate failure to reflect the referendum result in terms of settlement amounts to professional misconduct; on this submission counsel relied on the case of WADA VS BELLO (2017) ALL FWLR (PT 897) 2039 AT 2094.
30. It is also the contention of counsel that the action of the then claimants counsel Olusola Egbeyinka, Esq; was unethical as he did not consult with the claimants or show the draft terms of settlement before it was taken to the trial Court. Counsel to the Claimants/Applicants further argued that Olusola Egbeyinka’s refusal to react to EXHIBIT CC – which was the letter expressing claimants/Applicants dissatisfaction in the terms of settlement and thereafter consent judgment was obviously an admission since what is not denied is deemed admitted. To support this view counsel relied on the case of R.M.A.F.C V ONWUEKWEIKPE (2010) ALL FWLR (PT.528) 947 AT 963 B-C. it is the position of counsel that the failure of claimant’s counsel to strictly adhere and comply with Order 42 Rule 4, 6 (2) and (3), Order 47 (9) of the NICN (Civil Procedure) Rules, 2017 renders the terms of settlement and consent judgment a nullity.
31. Counsel urged the Court to exercise its powers as provided in Order 47 (22) of the Rules of the Honourable Court and set aside the consent judgment as it was obtained in the absence of the parties affected by it and clients’ signatures were not on the said terms of settlement.
32. CLAIMANTS/RESPONDENTS COUNTER AFFIDAVIT TO THE 36 PARAGRAPH AFFIDAVIT IN SUPPORT OF THE CLAIMANTS/APPLICANTS MOTION ON NOTICE DATED 26TH DAY OF SEPTEMBER 2018 BUT FILED ON THE 22ND DAY OF OCTOBER 2018.
33. Counsel to the Claimants/Respondents filed a 196 paragraphs counter affidavit deposed to by Dr Israel Okwudiri Igwe who was one of the Claimants in the matter with his address at Flat F, Block 8, Gwarimpa Housing Estate, FCT, Abuja. The Counter affidavit was supported by a written address wherein counsel outlined five issues for determination, as follows:-
1. WHETHER having regard to the 36 paragraph affidavit of GORDEN NNAMDI OGO in support of the Motion on Notice dated 26th day of September, 2018 but filed on the 22nd day of October 2018, the Claimants/ Applicants have furnished this Honourable Court with cogent, compelling and substantial material facts as to why the said application seeking for an extension of time within which to set aside the consent judgment ought to be granted?
2. WHETHER the depositions in paragraph 12,15,19,24,25,26,33,34 in the 36 paragraph affidavit of GORDEN NNAMDI OGO filed in the registry of this Honourable Court on the 22nd Day of October, 2018 is not offensive to the express provision of Section 115(2) of the Evidence Act, 2011 (as amended)?
3. WHETHER the Claimants/Applicants established beyond reasonable doubt fraudulent acts as to why the consent judgment entered freely and voluntarily between parties which were duly pronounced upon by this Honourable Court on the 19th Day of December 2017 ought to be set aside?
4. WHETHER the equitable doctrine of estoppel and standing by will not catch up with the application of the Claimants/Applicants dated 26th Day of September 2018 but filed 22nd Day of October, 2018 in the light of the consent judgment made on the 19th Day of December, 2018?
5. WHETHER the claimants/ Applicants Motion on Notice dated 26th Day of September, 2018 but filed 22nd day of October 2018 is not an academic exercise?
34. In arguing issue 1; ‘’WHETHER having regard to the 36 paragraph affidavit of GORDEN NNAMDI OGO in support of the Motion on Notice dated 26th day of September, 2018 but filed on the 22nd day of October 2018, the Claimants/Applicants have furnished this Honourable Court with cogent, compelling and substantial material facts as to why the said application seeking for an extension of time within which to set aside the consent judgment ought to be granted? Counsel refers the Court to the decision in BABALE V EZE (2011) 11 NWLR (PT1257)48 C.A, and submitted that once the time fixed by the rules of Court for bringing an application to set aside judgment has elapsed, an application for extension of time to set aside must show both good reasons why the application was not brought within the time and that the application has merit. Counsel argued that in an application such as this sympathy cannot override the clear provisions of the Rules. Counsel further relied on the case of WILLIAMS AND OTHERS V HOPE RISING VOLUNTARY FUNDS SOCIETY (2001) 34 W.R.N171 AT 172 TO 173.
35. According to counsel in the entire 36 paragraphs affidavit deposed to by GORDEN NNAMDI OGO, there was nowhere he disclosed any cogent reason why they were bringing an application praying the Court to set aside the consent judgment of 19th Day of December, 2017, counsel argued that the Claimants/Applicants/Respondents lacked cogent reasons because some of them were in Court the day the Honourable President and presiding Judge of the Court painstakingly read out the content of the terms of settlement and all the claimants chorused in open court and none of them raised any objection. Counsel submitted that the said application is highly devoid of merit and lacking in material facts and substance and therefore urged the court to resolve the issue in favour of the Claimants/Respondents.
36. In arguing issue two; ‘’WHETHER the depositions in paragraph 12,15,19,24,25,26,33,34 in the 36 paragraph affidavit of GORDEN NNAMDI OGO filed in the registry of this Honourable Court on the 22nd Day of October, 2018 is not offensive to the express provision of Section 115(2) of the Evidence Act, 2011 (as amended)? Counsel argued that paragraphs 12,15,19,24,25,26,33,34 which were reproduced seriatim in his written address offended the provisions of section 115(2) of the Evidence Act, 2011, as they are replete with arguments, opinions, conclusions, extraneous matters and ought to be struck out. On this contention reliance was placed on the case of IDU GODWIN EMEKA V HON LINDA CHUBA IKPEAZU AND OTHERS (2017) 15 NWLR PT 1589 345 AT 356, where it was held that “By virtue of section 115(1) and (2) of the Evidence Act, 2011 every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. An affidavit shall not contain extraneous matter, by way of objection or prayer or legal argument or conclusion. Thus depositions in any affidavit sworn in support of a cause or matter must not be drafted to include legal arguments, conclusions in law or fact. Where depositions in an affidavit offend this basic law, the offending paragraphs of such an affidavit must be struck out”.
37. Counsel urged the Court to strike out these paragraphs of the affidavit and once that is done there will be an empty affidavit making the entire application worthless.
38. In arguing issue three; ‘’WHETHER the Claimants/Applicants established beyond reasonable doubt fraudulent acts as to why the consent judgment entered freely and voluntarily between parties which was duly pronounced upon by this Honourable Court on the 19th Day of December 2017 ought to be set aside? Counsel argued that as to the Claimants/Applicants/Respondents assertion that there was fraud, he pointed out that it is worthy of note that fraud connotes criminality which is a very serious issue and must be established beyond reasonable doubt. In support of this argument counsel relied on the cases of ALFA RAMONI WOMILOJU V MADAM ABOSEDE KIKI AND ANOTHER (2009) 16 NWLR PT 1166 143 AT 147 and ABDULWAHAB ABDULRAHMAN V SAMUEL AFOLABI ODUNEYE AND OTHERS (2009) 17 NWLR PT 1170 PG 220 AT 225 where it was held on standard of proof of crime “ By section 138(1) and (2) of the Evidence Act, when the commission of a crime by a party is in issue in any proceeding whether civil or criminal, it must be proved beyond reasonable doubt…”
39. Counsel argued that the Claimants/Applicants/Respondents did not furnish the courts with the particulars of the fraud alleged; they only made sweeping remarks about fraud. Counsel submitted that the claimants/Applicants were fully aware of the terms of settlement as they were in Court on the 19th day of December 2017 when it was entered as Consent judgment and the claimants clapped hands in court and jubilated among themselves.
40. Counsel argued that the learned counsel to the Claimants/Applicants/Respondents failed to take a critical look at exhibits X, X1, X2, DOCTOR 7, 7a, 7b, 7c, 7d, 7e, and 7f, as it was clear that it was not stated that the 81 Deputy Directors (Administration) will be promoted with all accrued allowances and financial benefits paid to them. Counsel argued that the learned counsel Stanley Orakpo, Esq; failed to avert his mind to these documents and failed to fully study all the Exhibits in the captioned brief and hence the wrong assertions made by Counsel. Counsel further argued that exhibit C points irresistibly to the fact that the Claimants expressly briefed and authorized the law firm of Falana & Falana’s Chambers, Abuja Office to file a suit for the purpose of challenging their non-promotion to the post of Director (Administration), there was no instruction from the Claimants to Falana & Falana’s Chambers that arrears or financial benefits be sought for and claimed.
41. Counsel further submitted that from exhibits E, E1, G, G1, L, M, N, O, P, Q, R, U, U1, Z, DOCTOR 2, all points to conclusive fact that Olusola Egbeyinka, Esq; of Falana & Falana’s Chambers acted professionally.
42. It is contended that paragraphs 3.10, 3.11, 3.12, 3.13, and 3.14 of the written address of the Claimants/Applicants/Respondents’ counsel castigated Olusola Egbeyinka, Esq; despite not having a firm grip of the facts of Claimants suit. Thus why, the case of MAKUN V FUT MINNA, which is not relevant to the issue at hand was cited by the counsel for the Claimants/Applicants/Respondents. as Olusola Egbeyinka, Esq; of Falana & Falana’s chambers represented the Claimants diligently throughout the subsistence of the suit.
43. It is also the contention of counsel that the address of the counsel for the Claimants/Applicants/Respondents is riddled with lies and falsehood and he has an obligation to protect his own reputation as a lawyer, counsel relied on the case of NIGERIAN BAR ASSOCIATION V OLASENI OLADIPO AJAYI (2017) 13 NWLR 151 AT 152 TO 153.
44. Counsel to the Claimant/Respondents also submitted that he did not in any way admit the false and malicious content of the Claimants/Applicants/Respondents’ letter dated 21st May, 2018, the response to the said letter is marked as exhibit Y in the counter affidavit of Dr. Israel Okwudiri Igwe because all efforts to effect service on the Claimants/Applicants/Respondents proved abortive. Counsel urged the Court to resolve issue 3 in their favour.
45. In arguing issue four; ‘’WHETHER the equitable doctrine of estoppel and standing by will not catch up with the application of the Claimants/ Applicants dated 26th Day of September 2018 but filed 22nd Day of October, 2018 in the light of the consent judgment made on the 19th Day of December, 2018? Counsel argued that he was aware that a number of claimants were present in the Court on the 19th Day of December when the Honourable President not only read out the terms of settlement but also asked each counsel representing the parties if the terms of settlement filed before him is the true and noble intention of the parties, individual counsel answered YES at different times. Counsel further argued that even from the affidavit of the Claimant/ Applicant GORDEN NNAMDI OGO it is clear that some of the Claimants/Applicants/Respondents were physically present before this Honourable Court on the 19th Day of December, 2017, when the consent judgment was entered. Counsel while relying on the case of REV. IKPANA V REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA AND OTHERS (2006) 3NWLR PT 966PG 106 AT 113, where the Court held that under the principle of Equity, Equity aids the vigilant and not the indolent.
46. Counsel further submitted that the Claimants/Applicants/Respondents in the present suit are estopped from asserting the facts that they are either not in the knowledge of the terms of settlement or the consent judgment. On this contention reliance was placed on the case of FIRSTBANK OF NIGERIA PLC V MAY MEDICAL CLINICS AND DIAGNOSTIC CENTER LIMITED AND ANOTHER (2006) 4 NWLR (PT971) 442 AT 452. Counsel submitted that Claimants/Applicants herein cannot reprobate and approbate simultaneously by denying that they are not in the knowledge of the existence of the terms of settlement.
47. In arguing issue five; ‘’WHETHER the claimants/ Applicants Motion on Notice dated 26th Day of September, 2018 but filed 22nd day of October 2018 is not an academic exercise?
48. Counsel argued that the said application to set aside the consent judgment of 19th December, 2017 is hypothetical as same do not have any meaningful purpose to serve as all the Claimants in this suit have all been promoted to the position of Director (Administration) on salary grade level 17. Counsel submitted that the said application brought by the Claimant/Applicant is needless. To buttress his point counsel placed reliance on the case of KRK HOLDINGS NIGERIA LTD V FIRSTBANK NIGERIA LIMITED AND ANOTHER (2017) 3 NWLR (PT.1552) 326 AT 327-328 where the Court held that on the attitude of the courts to academic issues, the courts cannot expend valuable energy and judicial time on academic issues.
49. Counsel submitted that the motion brought by the Claimants/Applicants/Respondents seeking to set aside the consent judgment has been overtaken by event having regard to the fact that the promotion of the Claimants to the position of Director (Administration) did not only take place but some of them retired from active Public Service and are currently earning the pension benefit of a Director.
50. Counsel submitted that the court cannot act in futility and delve into an academic issue. Counsel urged the court to resolve issue five in their favour and thereafter refuse the entire application while dismissing same and award cost of N1,000,000.00 (One Million Naira) only against the Claimants/ Applicants jointly and severally.
51. The Claimants/Applicants/Respondents, filed a 70 paragraphs further and better affidavit dated and filed on the 7th day of June, 2019. The further and better affidavit was deposed to by one Gorden Nnamdi Ogo, one of the claimants in the matter with address at Flat D-13, Phase 3, Nigerian Army Housing Estate, Kurudu, Abuja. In the further affidavit five documents were attached and marked as exhibits 1 – 5.
52. The further and better affidavit was accompanied by a reply on points of law to the Claimants/Respondents written address.
53. Firstly in response to issue one which was; on extension of time within which to apply for the consent judgment to be set aside; counsel argued that Olusola Egbeyinka, Esq; at pages 4-9 of his written address in support of the claimants/Respondents counter affidavit cited numerous legal authorities which are to the effect that an applicant praying for extension of time to set aside judgment must give cogent and convincing reasons why he did not bring the application within the time allowed by the rules. Counsel argued that the Claimants/Respondents’ counsel failed to further site the Rules of the court as to the time allowed within which to bring an application to set aside a consent judgment. This is because the rules of court is silent as to this fact, Also he stated that he had already informed the court that Claimants/Applicants/Respondents only became aware of the particulars of the terms of settlement in May 2018 and engaged him then, however counsel (Stanley Orakpo, Esq;) took ill and couldn’t file the application to set aside until October 2018. Counsel relied on the case of NWORA V NWABUEZE (2011) ALL FWLR (PT 589) 1002 AT 1028, where the Court held that length of time is irrelevant where a judgment is given without jurisdiction. Counsel argued that this case applies to the claimants as some of them were not aware of the consent judgment till sometime in April and May, 2018. Counsel relied on the record of proceedings exhibit one to show that they were not present in Court the day the terms of settlement were read out and entered as consent judgment by the Court.
54. In replying issue two; ON WHETHER PARAGRAPH 12, 15,19,24,25,26,33,34 OF THE AFFIDAVIT OF THE CLAIMANTS/ APPLICANTS ARE NOT OFFENSIVE TO THE PROVISION OF SECTION 115 (2) OF THE EVIDENCE ACT 2011(AS AMENDED), Counsel stated that the counsel for the Claimants/Respondents failed to point out to the court what makes the paragraphs offensive to section 115 (2) of the Evidence Act, 2011 (as amended). Counsel argued that in fact Dr. Isreal Okwudili was not in fact qualified to depose to the counter affidavit which was full of contradictions and fallacies. To buttress his contention counsel relied on the case of NYUMA V AOR (2008) ALL FWLR (PT 439) 571 AT PAGE 592 C-D. Counsel submitted that in spite of Counsel for the Claimants/Respondents invoking the name of the learned silk Femi Falana (SAN) just to give credibility to the counter affidavit, the affidavit still lacks credibility.
55. In replying issue three; Counsel argued that the deponent of the counter affidavit stated that the term of settlement is expected to be filed after parties to the suit have reached an out of court settlement and he was right to have deposed to such. Counsel further submitted that there is nothing from exhibit one which is the record of proceedings to show that the terms of settlement were read to the claimants on the 17th day of December, 2018 and there is no evidence that they all trumpeted yes in agreement. Counsel further argued that the counsel to the Claimants/Respondents acted in contravention of the claimant’s instruction which was to promote 81 officers to the level of Director with financial benefits, it is submitted that even the mere failure of counsel to serve hearing notices was a contravention of section 36 of the Constitution of the Federal Republic of Nigeria. Counsel further argued that the execution of the terms of settlement was not properly done as it is supposed to be one of the 6 Deputy Directors that represented the 97 Deputy Directors in the original suit that ought to have signed the terms of settlement.
56. In replying issue four; Counsel argued that parties are bound by the record of proceedings and from the said record, one of the representatives of the Deputy Director Mr. Samuel Akowe Abalaka was not in Court on that day and the Rules never provided nor contemplated that consent to terms of settlement shall be obtained by the trial court by acclamation in open court. Counsel submitted that for the court to exercise its equitable jurisdiction to set aside the consent judgment and give the parties the opportunity to agree to pay arrears of financial benefits to the Claimants/Applicants before a true consent judgment is entered.
57. In replying issue five; Counsel argued that the exercise of setting aside the consent judgment will not be an academic exercise and does not amount to making an order in vain while relying on the cases of VULCAN GASES LTD V GESSELLSCHAFT FUR INDUSTRIES GASVERWETING A.G (G.I.V) (2001) FWLR (PT 531), IGWE V KALU (2002) FWLR (PT 97) 677 (2000) 14 NWLR (PT 787) 435 AT 464, MARK V EKE (2004) ALL FWLR (PT 200) 1455 AT 1475-1476 G-C. Counsel concluded by urging the Court to set aside the consent judgment to enable the parties to come to an agreement for the payment of arrears of financial benefit to all the officers in this case who had retired on or before 31st December, 2017.
58. Counsel urged the court to discountenance the objection of the Claimants/Respondents and grant the substantive motion on notice.
COURT’S DECISION:
59. I have carefully considered the three applications filed by the parties in this suit and all the processes filed for and against the applications.
60. The applications filed by the 1st and 2nd Defendants were preliminary objections filed against the application filed by the Claimants/Applicants/Respondents to have the consent judgment of this court set-aside.
61. After appraisals of the three applications, the written and oral submissions of counsel, the issues calling for resolutions are:-
1. Whether having regards to the prayers contained in the application of the Claimants/Applicants/Respondents, the said application for setting aside of consent judgment is competently before the court.
2. If the answer to the above poser is in the affirmative, then whether the Claimants/Applicants/Respondents have made out a case for grant of extension of time to apply to set aside the consent judgment of this court and an order setting aside the order of this court dated the 19th December 2017 which was entered as consent judgment upon the terms of settlement filed before this Court by the parties.
62. Both counsel for the 1st and 2nd Defendants have argued that the application for setting aside of the consent judgment of this court is not competently before the court in that a consent judgment is not the type of order or judgment that is susceptible to being set aside via motion on notice when the grounds for applying to impugn the said order or judgment is fraud. Counsel urged the court to dismiss the Claimants/Applicants/Respondents’ application seeking to set aside the consent judgment of this court for being incompetent.
63. The counsel for the Claimants/Applicants/Respondents on the other hand has argued that the application is competent and this court has power to grant the application for setting aside of order of consent judgment that was made by the court when such consent judgment was made without authority of the Claimants and the said judgment was not signed by the parties and the Claimants not put on notice that the matter will be coming up before the court for consent judgment.
64. The law has long been settled that a consent judgment or order made by a court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception. This means a consent judgment or order of court may be set aside if the conditions for setting aside are met by a party applying for setting aside. An order, be it by consent or otherwise, which is a nullity, is something which the person so affected thereby is entitled to have it set aside ex debito Justitiae. The court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance cannot be said to be necessary. It can thus be said that outside the appellate procedure, a judgment or order can be set aside if it is a nullity or where a court was misled into giving the judgment by some mistake, believing that the parties consented to its being given, whereas, in fact, they did not. See Ojiako and others v. Onwuma Ogueze and Ors. (1962) 1 All NLR 58; Ekerete v. Eke 6 NLR 118.
65. It is thus, clear that apart from fraud which, if established in any judgment or order, necessarily invalidates the same, a consent judgment or order may be set aside for cogent, compelling and sufficient reasons which in law would constitute a ground for setting aside the agreement on which such consent judgment or order was based. A consent order, like every order of court as from the date of its making is binding on all the parties concerned. A consent order is an order valid in law, and so long as it stands, it must be treated as such. But, as noted earlier in this ruling consent order can be impeached not only on the ground of fraud but upon any grounds which invalidate the agreement.
66. Before continuing with further consideration of these applications, I shall point out that during the oral adumbration of his application, Mr. Orokpo, counsel for the Claimants/Applicants/Respondents has orally applied to discontinue with the ground of his application alleging fraud. It is instructive that none of the counsel for the other parties in this suit objected to this oral application of counsel for Claimants/Applicants/Respondents. In fact counsel reiterated his position while replying to Olusola Egbeyinka’s oral submission on issue of fraud. As it is now, the issue of fraud as one of the grounds for impeaching or prodding the court to set-aside the consent judgment of this court delivered on 19/12/2017, has gone, as is no longer an issue before the court, as counsel that raised the issue has abandoned same and there was no opposition to the abandonment. In the circumstance, it is my view that the ground of fraud has vacated the record of this court for having been abandoned. Therefore, all argument canvassed by counsel for the parties in respect of issue of fraud have also vacated the record of the court. This is because fraud is no longer a live issue for consideration. In the circumstances, the issue of fraud is hereby discountenanced for the purposes of the applications under consideration. With this holding we are now left with the issue of lack of service and non-signing of the terms of settlement by the representative of the parties.
67. Having established that a consent order or judgment can be set aside in appropriate cases, it will now remain to determine how such action can be taken to have a consent judgment or order set aside. I think I ought to observe that the parties in the present suit have all agreed that the judgment of 19/12/17 is a consent judgment. This means that the consent judgment sought to be set aside is a final judgment of this court from which the parties could with leave of court sought and obtained, appeal against the said judgment. As it was said by the apex court in Abel Woluchem v. Dr. Charles Wokoma (1974) 3 S.C. 153 per Ibekwe, JSC: -
"The rule is that actions may be settled by consent during the trial, usually, such settlement is a compromise and, in order to have binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment’’
68. The apex court in Abel Woluchem v. Dr. Charles Wokoma (supra), per Ibekwe, JSC, (as he then was) has settled the position of the law in that for a consent judgment to be valid the parties must completely settled issue in dispute by compromise. That is to say they are at ad idem in terms of the compromise agreement reached by them. The consent judgment emerges the moment the court sanction the parties upon application, enter the terms of settlement as judgment or order of the court.
69. However, the law is well settled that where a party sought to impugn consent judgment due to alleged fraud mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. In such case the consent judgment can be set aside but by a fresh action. See TALABI V ADESEYE (1972) 8-9 SC 20. It is only when there is a fresh action that the court will examined the entire circumstances of the case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned and made an order of court. It is this jurisdiction that the Claimants/Applicants/Respondents in the present application are inviting this court to exercise, alleging that the consent judgment is fraught with irregularities that are fundamental which goes to the root of the consent judgment and based on misconception.
70. It is trite law that a consent judgment could only be set aside by a fresh action or by an appeal with the leave of Court not by a motion on Notice as has been done by the Claimants/Applicants/Respondents in the case at hand. See the case of EDUN VS. ODAN COMMUNITY & ORS (1980) 3 - 4 SC. 67; (1980) ALL NLR 216; (1980) LPELR - 1022 SC, where his lordship, Aniagolu, JSC, correctly stated the law that the proper procedure to challenge consent judgment is to have a substantive action instituted in a Court of competent original jurisdiction.
71. In the case of AFEGBAI VS. ATTORNEY - GENERAL EDO STATE & ANOR (2001) LPELR - 193 (SC) p. 37. PARAS D - E, his lordship Karibi - Whyte, JSC, reiterated that:
"When a consent judgment has been obtained, it remains binding on the parties until set aside by a fresh action, if it can be established to have been obtained by fraud - see, TALABI VS. ADESEYE (1972) 8 - 9 SC. 20. AKANBI VS. DUROSARO (1998) 12 NWLR (577) 284, ENIGBOKAN VS. BARUWA (1998) 8 NWLR (PT. 560) 96."
72. It is without any doubt that from the above decisions, there is unanimity that a consent judgment could only be set aside by a fresh action or an appeal with leave of the Court, not by motion on Notice. See also the decision in the case of Vulcan Gases V Geselloschaft Fur Industries Gaoverwertung A.G. (GIV) (2001) 5 SCNJ 55 @ 84; (2001) 9 NWLR (Pt.719) 610. This means that a consent judgment cannot be set aside by way of a motion on notice. The authorities on this issue are clear and unambiguous that a party to consent judgment or order can only approach court to have such a judgment or order set aside by filing a fresh action to establish fraud, mistake or lack of consent or any other vice that may have rendered the consent judgment or order void. The approach by way of a motion on Notice to have consent judgment of 19/12/17 set aside is wrong and violation of the law. Therefore, the said motion on notice is incompetent as it is not one of the recognized means by which a consent judgment or order can be set aside.
73. The resolution of issue one in the negative has disposed of this suit. However, being court of first instance, I shall consider the Claimants/Applicants/Respondents’ application on its merit in case there is an appeal to the court of appeal and the court overruled me on the decision that for a consent judgment to be challenged it has to be on fresh suit and not on motion on notice, which is doubtful.
74. The claimants/applicants have in their affidavit in support and further and better affidavit as well as in their addresses have argued that the consent judgment of this court delivered on 19/12/17 was not properly obtained in that parties did not consent to the settlement of the suit to forego their financial entitlement attached to their promotions to the post of directors. According the applicants the counsel that handled the negotiation for settlement did so in excess of his limited instruction regarding the settlement.
75. The remaining Claimants/Respondents filed a 130 counter-affidavit which deposed to the facts that the counsel for the Claimants in the consent judgment acted in line with instructions of the Claimants and did settle the matter in line with the mandate given to him.
76. It is apparent that the grouse of the Claimants/Applicants/Respondents is that the consent judgment did not reflect what they have agreed and instructed counsel representing them before the court to do. That is to say the consent judgment entered by the court is not in line with their instructions to counsel. They also raised the issue of non-service on them of the hearing notice of the date the consent judgment is to be heard by the court. They are also of the view that before the consent judgment is entered as judgment of the court the claimants ought to have signed the terms of settlement.
77. The question to answer now is, what then is the apparent authority of counsel in a case? To what extent does it bind his client? In Nwafor Elike VS Ihemereme Nwankwoala (1984) 12 SC 301’ (1994) ALL NLR 505, it was indicated that once instructed, counsel ought to have complete control over how the clients instructions are carried out and over the actual conduct of the case. Specifically it was held:-
‘’Subject always to the authority of a client to countermand the general authority of counsel or to withdraw or amend his instruction during the course of proceedings or even dismisses his counsel, counsel has full authority and control over the conduct of the case for which he is briefed, and to bring the client in proceedings’’.
78. In exercising his authority, a counsel is to do everything which in the exercise of his discretion he thinks best for the general interest of his client. No limitation can be imposed by the client on the implied authority of counsel to compromise proceedings unless this limitation of authority has been brought to the attention of the opposite side. Once however, a client has retained counsel, he is bound by that counsel’s agreement however, much he may disapprove.
79. In any event the basis of the authority of counsel to conduct a case is the instruction given to him by his client. This clearly shows that he has to be briefed and instructed before he can appear for a client. See Adewunmi V Platex Ltd (1986) 3 NWLR (Pt.32) 767. The apex court in Vulcan Gases V Geselloschaft Fur Industries Gaoverwertung A.G. (GIV) (2001) 5 SCNJ 55 @ 84, has held that the general principle of law is that at the trial of an action, the authority of counsel extends, when it is nor expressly limited, to the whole of the action and all matters incidental to it and to the conduct of the trial. In the absence of any evidence of limitation of the counsel’s authority, which in any event would come from the respondent and not the appellant,’’ Per Kekere-Ekun, JSC.
80. The authorities on this subject are in unison that decision taken by counsel cannot be challenged nor questioned by the court. Counsel had unfettered authority to handle the matter the way he deemed fit. See Festus L. Adewunmi V PlatexNigeria Limited (1986) NWLR (PT.32) 767.
81. It is settled law by amplitude of the authority of a counsel acting on behalf of a client includes the power to concede to a compromise, settlement on behalf of his client or to the entry of verdict against his client in a matter, and where it is not shown that the authority of counsel was expressly limited and did not include the power to make such a concession, the client is bound by it and cannot canvass against it. See Vulcan Gases supra; Afegbai v Attorney General Edo State (2001) 14 NWLR (Pt.733) 425, Amori V Iyanda (2008) All FWLR (Pt.416) 1864.
82. From the position taken by counsel in this suit, I will assumed that counsel are at ad idem that counsel in handling a case has general authority to conduct the case in the way and manner counsel deemed fit. The only area of difference is that the counsel for the Claimants/Respondents seems to be arguing that authority of counsel once engaged is unchallengeable. While counsel for the Claimants/Applicants/Respondents is of the view that though counsel engaged by a party has authority to act in the way he think fit, the authority is none the less limited by the instructions given to counsel by the party that engaged his services. Thus, a party can modify, abrogate or rescind an earlier authority given to counsel.
83. What is clear to me from the numerous decided authorities in respect of this issue is that a party engaging a counsel though not having not having absolute control over conduct of his case, he never the less can limit the authority of his counsel by explicit instruction amending his earlier instruction, however, such modification or abrogation of authority must be made known to the other party(s).
84. In the case at hand, vide paragraph 15 of the counter affidavit of Dr. Israel Okwudiri Igwe, it was averred in response to paragraph 8 of the affidavit in support deposed to by Gordern Nnnadi Ogo, that all the Claimants in this suit including the deponent herein via a letter dated 19th day of December 2014, titled ‘Application for legal services in the prosecution of a case on behalf of a group of aggrieved Deputy Directors Admin that wrote and passed the 2014 promotion examination with 60% and above scores against the Federal Civil Service Commission and the office of the Head of Civil Service of the Federation, unanimously resolved that the law office of Falana & Falana‘s Chambers Abuja office should seek redress in court in respect of non-promotion of Deputy Directors Administration who scored 60% and above in the 2014 Federal Civil Service promotion examination and interview without Demanding for arrears of entitlement, accrued salaries and benefits. The said letter of instructions is marked as exhibit ‘C’. The second to the last paragraph of exhibit ‘C’ read:-
‘’it is in the light of the foregoing that we use this opportunity to consult your highly refutable law firm to challenge the refusal by the office of the Head of the Civil Service of the Federation and the Federal Civil Service Commission to have us promoted to the post of Director (Administration) in the Federal Public Service.’’
85. The above quotation from exhibit ‘C’ is very clear and unambiguous it says what it says. It is apparent that in exhibit ‘C’ the claimants in this case never talked about payment of accrued salaries, allowances, benefits and other form of entitlements, apart from the issue of promotion to the post of Directors.
86. It is instructive to note that exhibit X, X1, and X2, the communications by the claimants to the defendants and their counsel handling this suit in court on their behalf of their acceptance to settle this matter out of court by promoting 81 out of 97 Deputy Directors while the remaining 16 to sit for another promotion to the rank of director. Upon acceptance of this proposal and communicating acceptance of same to the defendants and the counsel handling the case on their behalf, the claimants have clearly and in explicit terms varied and amended the earlier instructions given to counsel in exhibit ;’C’. With the communication to counsel of the varied instruction counsel is duty bound to carry out the instruction as communicated by the claimants to him. See Voulcan Gases (supra).
87. Vide exhibit ‘WI’ letter from the Head of Service of the Federation the 2nd Defendant to Ag. Chairman of the 1st Defendant it was stated that the offer was accepted through a letter to the Head of Civil Service of the Federation dated 7th September 2017 by the aggrieved Deputy Directors. The same letter was conveyed to their lawyer with a resolution to discontinue the case. Falana & Falana Chambers rejected the resolution and there has been a luck-jam. Exhibit ‘WI’ clearly shows that it was the counsel for the Claimants that rejected the resolution of the Claimants as contained in exhibits X and X1 which they communicated to counsel there by refusing to go by the new instruction.
88. It is also solidly established by exhibit ‘DD’ and ‘DD1’ attached to further and better affidavit, that counsel for the claimants did not obey the instruction of his clients when executing those exhibits. The act of repudiating the varied instructions of client is enough to nullify the consent judgment reached by the parties in this suit as it was the case in Volcan Gases case (Supra), where the apex court upheld the setting aside of consent judgment entered by Federal High Court Sokota for violating the express and explicit instruction by counsel.
89. However, the case at hand differs with Vulcan Gases case in that the claimants did not come by way of fresh action or by process of Appeal.
90. In view of my earlier holding that this application is incompetent for not having been commenced by due process, this application hereby struck out.
91. This is the decision of the court. I make no order as to cost.
Sanusi Kado,
Judge.
REPRESENTATION:
Olusola Egbeyinka, Esq; for the Claimants/Respondents
Stanley Orokpo, Esq; for the Claimants/Applicants/Respondents