Under the Nigerian legal system, parties are encouraged to amicably settle their matters even after court proceedings have commenced. When parties who are already in court decide to resolve their differences amicably, they often enter an agreement embodying their terms of settlement and request the court to enter those terms as the judgment of the court. The judgment of the court in those circumstances is called a consent judgment.
There was, however a trend in the Court of Appeal, whereby, rather than enter the parties’ terms of settlement as a consent judgment, pursuant to a report of an amicable resolution of their dispute by the parties, the appeal is struck out by the court upon the notion that the court of appeal lacks jurisdiction to enter consent judgment. This issue came up for consideration in the recent case of EMEKA ARIGUZO & ANOR V. MRS. FELICIA OSOBU & 4 ORS (CA/L/868/2015).
In that case, the parties, in the course of the appeal against the decision of the High Court, agreed to amicably resolve their dispute which related to real property. Their respective lawyers prepared and all parties signed the terms of settlement. The parties then applied that the Court of Appeal enter the terms of settlement as a consent judgment.
The Court of Appeal in determining whether it could enter, as its own judgment, terms of settlement agreed upon by parties, critically analysed the provision of Order 16 Rules (3) (a) and (4) of the Court of Appeal Rules, 2011 in force at that date (the 2011 Rules).
By the provisions of Order 16 Rule 3 of the 2011 Rules parties, at any time during the course of the hearing of an appeal, could explore mediation or any other Alternative Dispute Resolution mechanism they considered appropriate in the circumstances towards the resolution of their dispute. Order 16 Rule 4 of the 2011 Rules further provided that where any of the Alternative Dispute Resolution mechanisms adopted was successful, the Court shall adopt the agreement reached by the parties as the judgment of the Court.
The Court of Appeal therefore decided based on the provision of the 2011 Rules, that parties to an appeal are at liberty to settle their disputes at any time during the appeal proceedings, through mediation or any other Alternative Dispute Resolution mechanism. It noted that since its own internal mediation programme – the Court of Appeal Mediation Programme (CAMP) – was yet to be inaugurated, parties could take advantage of Order 16 Rules 3 and 4 of its rules, to settle their disputes amicably out of Court, and the Court would adopt the terms of settlement as its judgment.
The Court, following the decision of the Supreme Court in SPM LTD V. ADETUNJI (2009) 13 NWLR (Pt. 1159) 647 S.C decided that it is a cardinal principle of the Nigerian judicial system to allow parties to amicably resolve their disputes and the terms of settlement of the dispute could be filed and made the judgment of the appellate court, even if as in this case, the terms did not flow from the decision of the trial court. Such terms of settlement must however be ascertainable and capable of being enforced with the acquired or abandoned rights of the respective parties clearly spelt out therein.
While this case provides further judicial support for entry of consent judgment by the Court of Appeal, it is important to note that the provisions of Order 16 Rule 3 of the 2011 Rules are not replicated in the Court of Appeal Rules, 2016 (the 2016 Rules) which was enacted after the delivery of the decision of the court of appeal under review.
Under the 2016 Rules, there is no provision for alternative dispute resolution procedure other than under the Court of Appeal Mediation Programme. Furthermore, the matters that can be referred to the Court of Appeal Mediation Programme are limited by Order 16 Rule 1(1) of the 2016 Rules to civil appeals in respect of breach of contract, liquidated money demand, matrimonial causes, child custody, parental actions, inheritance, chieftaincy or personal actions in tort. It is if this court-supervised dispute resolution mechanism is successful that the Court must adopt the agreement reached by the parties as its own judgment.
The silence of the 2016 Rules as to the fate of settlement agreements reached by parties in respect of appeals not covered by Order 16 of the 2016 Rules certainly raises the question as to whether such terms of settlement will still qualify to be entered as the judgment of the Court of Appeal.
It is however hoped that when this issue does arise, the Court of Appeal will resolve it in line with the principles enunciated in Ariguzo’s case.
*Olaniran Obele and Olakunle Uthman of Tayo Oyetibo LP acted for the Appellants in this appeal.