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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 17, 2014 SUIT NO. NICN/LA/10/2014 BETWEEN 1. Amamba Madubuike 2. Levi Ubani (For themselves and as representatives of Senior and Junior Staff of ACB Plc later ACBI Bank Plc, later Spring Bank Plc and Enterprise Bank Limited) - Claimants AND 1. Clifford Lota Okoye, Esquire 2. Adolphus Ukwueze (Mr.) 3. Divine Njoku (Mr.) 4. Eunice Anaele (Mrs.) 5. Enterprise Bank Limited - Defendants REPRESENTATION Philip Ndubuisi Umeh, and with him is M. C. Ike, for the claimants. G. A. Okaro, for the 1st – 4th defendants. Anozie D. Benson, and with him are Mrs. T. T. Oladipo and Mr. Martins Emonyon, for the 5th defendant. RULING The claimant took up a complaint against the defendant. The complaint was filed on 17th January 2014 but was dated both 17th January 2014 (on the first page) and 15th January 2014 on the second page. By the complaint, the claimants are praying for – a) An order of this Honourable Court setting aside the consent judgment of Honourable Justice A. O. Kayode Ogunmekan (Mrs.) dated 27th July 2007 in Suit No. LD/906/2007 between the 1st defendant herein and 2nd – 4th defendants herein. b) An order for the leave of the Court to recognize and enforce in the same manner as a judgment or order of the High Court of Lagos State, the Final Arbitral Award given on the 28th day of May 2007 by the Arbitral Tribunal (Staff Pension Trust Arbitration) in the matter of an Arbitration between the 2nd – 4th defendants and 5th defendant as per the duly certified true copy of the Final Arbitral Award dated 28th day of May 2007. c) An order compelling the 5th defendant to distribute the sum of N77,751,737.70 together with the accrued interest to the pensioners pro-rata as per the Arbitral Award dated the 28th day of May 2007 and verification of members/computation of severance benefits and the schedule attached thereto. d) And such other order(s) as this Honourable Court may deem fit to make in the circumstances. Accompanying the complaint are the statement of facts establishing the cause of action, list of witnesses, witness deposition on oath, list of documents and copies of the documents. The 5th defendant entered appearance by filing its memorandum of appearance. It then filed its statement of defence, list of witnesses, written statement on oath, list of documents and copies of the documents. Thereafter, the 1st – 4th defendants entered appearance and filed their joint memorandum of appearance, joint statement of defence, list of three witnesses, written statements on oath of the three witnesses, list of documents and copies of the documents. At the Court’s sitting of 5th May 2014, the Court noted that relief a) sought for by the claimants is praying for the Court to set aside the consent judgment entered as such by the High Court of Lagos State in Suit No. LD/906/2007, while relief b) is praying this Court to enforce an arbitral award in same manner as a judgment or order of the High Court of Lagos State. To the Court, the issue that arises from all this is whether the Court is competent to hear and grant all the reliefs in the manner prayed for by the claimants. Parties were then asked to address the Court on this issue. In line with the directive of the Court, the claimants filed their written address on 15th May 2014. The 1st – 4th defendant reacted to this written address of the claimants by filing a reply written address dated and filed on 5th June 2014. To this process, the claimants filed a reply on points of law dated 4th July 2014 but filed on 8th July 2014. On its part, the 5th defendant filed a written address dated and filed on 13th June 2014 regarding the issue raised suo motu by the Court. The claimants reacted to the written address of the 5th defendant by filing a reply written address dated 4th July 2014 but filed on 8th July 2014 Meanwhile, the 1st – 4th defendants filed a preliminary objection dated and filed on 20th May 2013 with an accompanying written address. The claimants reacted by filing a counter-affidavit of 19th June 2014 with an accompanying written address dated 19th June 2014. The 1st – 4th defendants did not file any reply on points of law regarding the reply written address of the claimants in opposition to the preliminary objection. The 5th defendant did not file any reaction to the preliminary objection of the 1st – 4th defendants. For ease of treatment, I shall take the arguments regarding the preliminary objection of the 1st – 4th defendants first before taking arguments on the issue raised suo motu by the Court. THE PRELIMINARY OBJECTION OF THE 1ST – 4TH DEFENDANTS Submissions of the 1st – 4th Defendants The preliminary objection of the 1st – 4th defendants prays for an order striking out this suit for want of jurisdiction to entertain same, and for such further order(s) as the Court may deem fit to make in the circumstances. The grounds of the objection are – 1. That on 27th July 2007 when the judgment of High Court of Lagos State sought to be set aside was delivered, this Court was an inferior Court to the High Court of Lagos State. 2. That the National Industrial Court has no jurisdiction to set aside the judgment of the High Court of Lagos State. 3. The facts leading to the arbitral award are issues of contract and as such cannot be litigated after six years of the accrual of cause of action. 4. That this Court cannot recognize and enforce an award as the judgment or order of High Court of Lagos State as this Court is not the High Court of Lagos State. 5. That the claimants not being representatives of all the members of the Retired Senior and Junior Staff of ACB Plc are not among the categories of people who can apply to set aside the consent judgment in Suit No. LD/906/07 by fresh action. By way of introduction, the 1st – 4th defendants noted that the claimants sued the defendants in this suit claiming that the consent judgment obtained by 1st defendant against the 2nd, 3rd and 4th defendants as representatives of Joint Action Committee of the Retired Senior and Junior Staff of ACB Plc was obtained by fraud. The 1st defendant, who was the solicitor that represented the Retired Senior and Junior Staff of ACB Plc in an arbitration, sued the Retired Staff in an action in which the 2nd, 3rd and 4th defendants were named as parties who represented them. The 2nd, 3rd and 4th defendants realizing that the suit was based on an agreement which they voluntarily signed with the 1st defendant entered into a terms of settlement which was made a judgment of the High Court of Lagos State on 27th July 2007. The claimants tried in Suit No. LD/906/2007 and Suit No. LD/194/2008 to set aside the judgment at the High Court of Lagos State without success and also tried in Suit No. M/755/2010 against the 5th defendant to set aside the judgment also without success. The 1st – 4th defendants then framed five issues for the determination of the Court, namely – 1. Whether this Court can set aside judgment of High Court of Lagos State delivered on 27th July 2007 before its elevation to a Court recognized by the Constitution. 2. Whether this Court has jurisdiction to recognize and enforce an arbitral award as a judgment or order of the High Court of Lagos State. 3. Whether the claimants not being named parties in Suit No. LD/906/07 sought to be set aside are entitled to bring a fresh action to set aside the consent judgment instead of leave to appeal. 4. Whether this suit having been instituted after over six years of the accrual of cause of action is competent having regard to the limitation laws. 5. Whether the originating processes in this suit were signed in compliance with the Rules of this Court and the Legal Practitioners Act and if not whether this Court has jurisdiction to entertain this suit. Regarding issue 1, it is the contention of the 1st – 4th defendants that by virtue of Constitution of Federal Republic of Nigeria (Third Alteration) Act 2010, which commenced on 4th March 2011, the National Industrial Court (NIC) was established as a Court under the Constitution. This pre-supposes that before 2010, this Court was not a constitutional court and as such the High Court of Lagos State being a constitutional court at that time had supervisory jurisdiction over the NIC. That the question now arises, whether this Court if it at all has jurisdiction to set aside the judgment of the High Court of Lagos State can do so in retrospect. To the 1st – 4th defendants, the consent judgment of the High Court of Lagos State per Kayode Ogunmekan J. sought to be set aside in this suit was delivered on 27th July 2007 about three years before this Court became a constitutional court. If this Court lacked the power to set aside the judgment of the High Court of Lagos State in 2007 when the judgment was delivered can it set aside the same judgment now? You cannot put something on nothing and expect it to stand, citing Macfoy v. UAC [1962] AC 150 at 160. Also referred is Chief Olabode George v. Federal Republic of Nigeria [2014] 5 NWLR (Pt. 1399) 1 though a criminal matter, the Supreme Court held at page 22 per Fabiyi, JSC as that – The law was not made with retrospective effect. It could not have been so in the face of the clear provisions of section 36(8) of the 1999 Constitution. This court as the guardian of the Constitution, will not allow such to happen. See FRN v. Ifegwu [2003] 15 NWLR (Pt. 842) 113. It is, therefore, the submission of the 1st – 4th defendants that the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 which conferred a constitutional court status on this Court and which commenced on 4th March 2011 cannot take effect in retrospect to reach out for a judgment delivered on 27th July 2007 by the High Court of Lagos State. On issue 2 i.e. whether this Court has jurisdiction to recognize and enforce an arbitral award as a judgment or order of the High Court of Lagos State, the Court was referred to relief b). To counsel to the 1st – 4th defendants, this Court has no power to step into the shoes of the High Court of Lagos State and as such cannot recognize and enforce any award as a judgment or order of the High Court of Lagos State, citing section 254C(4) of the 1999 Constitution, as amended, which provides as follows – The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain. That it follows from the foregoing that the National Industrial Court was bestowed with its own powers in certain issues relating to arbitral awards. To counsel, a prayer for this Court to recognize and enforce an arbitral award as the judgment and order of the High Court of Lagos State is incompetent and as such deprives this Court of jurisdiction to entertain same. Therefore, it goes without saying that there is a feature in the case which deprives the Court of jurisdiction, citing Madukolu v. Nkemdilim [1962] 2 SCNLR 341. It is the considered view of counsel that there is a feature in the case which deprives the Court of jurisdiction and consequent upon which the case was not initiated by due process of law. Regarding issue 3 i.e. whether the claimants, not being named parties in Suit No. LD/906/07 sought to be set aside, are entitled to bring a fresh action to set aside the consent judgment instead of leave to appeal, counsel to the 1st – 4th defendants contended that by virtue of section 243(a) of the 1999 Constitution (as amended), the parties affected or any other person having interest in the matter can appeal to the Court of Appeal. That section 243(a) of the 1999 Constitution (as amended) provides as follows – 243 Any right of appeal to the Court of Appeal from the decision of the Federal High Court, National Industrial Court or a High Court conferred by this Constitution shall be (a) exercisable in the case of civil proceeding at the instance of a party thereto or with the leave of the Federal High Court or the Court of Appeal, at the instance of any other person having an interest in the matter...” Regarding the expression “person having interest”, the Court of Appeal held in Ojora v. Agip (Nig) Plc [2005] 4 NWLR (Pt. 916) 515 held it, for the purpose of an appeal by an interested party, to be synonymous with “person aggrieved”. And a person aggrieved is a person who has suffered a legal grievance, a person against whom a decision has been given, by which he has been deprived of something or refused of something or his right or title to something has been affected. Also referred is Kalu v. Odili [1992] 5 NWLR (Pt. 240) 130. It is, therefore, the submission of counsel to the 1st – 4th defendants that the claimants not being named parties in Suit No. LD/906/07 and who do not represent the interest of all members of Retired Junior and Senior Staff of ACB are at best aggrieved parties and are only entitled to apply for leave to appeal against the consent judgment in the said Suit No. LD/906/07. That the originating processes in Suit No. LD/906/07 are frontloaded as No. 24 in the list of the documents relied upon by the 1st – 4th defendants and this Court is permitted by law to examine the document in the Court’s file in determining the issue, referring to Osafile v. Odi [1990] 3 NWLR (Pt. 137) 13. To counsel, a careful perusal of the affidavit in support of this application shows that the attempt by the claimants to authenticate the capacity in which they sued was refuted by some members of the association. That the claimants are in the categories of persons interested in the matter whose right is limited to leave to appeal against the said judgment. Regarding issue 4 i.e. whether this suit having been instituted after over six years of the accrual of cause of action is competent having regard to the limitation laws, counsel to the 1st – 4th defendants contended that it is settled law that in determining when the cause of action arose, it is the writ of summons and statement of claim that the Court has to look at, referring to Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1. That paragraph 17 of the statement of facts establishing the cause of action states as follows – That Claimants aver that the 5th Defendant made a publication in the Punch Newspaper dated 24th day of September, 2007 that they will commence payment of the entitlement due to the pensioners effective from 26th September 2007 and that payment to the pensioner’s will be less the sum of N72,515,000.00 being 30% of the total pension payable which is still subject to litigation in Suit No LD/906/2007. At the trial, the Claimants shall rely on the said Punch Newspaper dated 2nd day of September, 2007. To counsel to the 1st – 4th defendants, it is clear from the averment in paragraph 17 of facts establishing the cause of action that the cause of action arose on 24th September 2007 when the 5th defendant made a publication suggesting that the money will not be paid. That section 8(1) of the Limitation Law of Lagos State 1994 now 2004 states as follows – (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued (a) actions founded on simple contract (b) actions founded on quasi-contract (c) actions to enforce a recognizance…. Furthermore, that section 8(6) provides that “no arrears of interest in respect of any debt shall be recovered after the expiration of six years from the date on which the interest became due”. That using the guide provided by the Supreme Court in Adekoya v. FHA [2008] 11 NWLR (Pt. 1099) 539 at 557, a careful look at the statement of claim will show that the publication which made it clear to the claimants that the money will not be paid was done on 24th September 2007; a look at the writ of summons will also reveal that this action was instituted on 17th January, 2014. That this will give us an arithmetic figure of six years, three months and twenty-four days. Furthermore, that in the case of Adekoya v. FHA (supra), Niki Tobi JSC held: “It is a matter of calculation of raw figures in the determination of whether an action is statute-barred or not. A Court of law has no discretion in the matter. It is as stringent as that”. Counsel to the 1st – 4th defendants went on that it is clear from prayer b) of the claimants in the writ of summons that their claim is to enforce a recognizance. It is also crystal clear that the claimants claim is founded on simple contract of employment between them and the 5th the defendant in this suit. On issue 5 i.e. whether the originating processes in this suit were signed in compliance with the Rules of this Court and the Legal Practitioners Act and if not whether this Court has jurisdiction to entertain this suit, counsel to the 1st – 4th defendants contended that a careful perusal of the claimants’ originating processes to wit form of complaint and statement of facts establishing the cause of action shows that they were signed with the name of two persons beneath the signature on top of the names, citing SLB Consortium v. NNPC [2011] 9 NWLR (Pt. 1252) 317 at 337, Peak Merchant Bank v. NDIC [2011] 12 NWLR (Pt. 1261) 253 and Adeneye v. Yaro [2013] 3 NWLR (Pt. 1342) 625. It is accordingly the submission of counsel that the originating processes filed by the claimant was signed by a signatory, whose name cannot be ascertained to know whether or not he or she is a legal practitioner and as such is incompetent, urging the Court to hold as such. That once a Court process is incurably bad, there is then a feature in the case that deprives the Court of jurisdiction, referring to Mdukolu v. Nkemdilim [1962] 2 SCNLR 341. In the light of all the foregoing, counsel to the 1st – 4th defendants then urged the Court to strike out this suit with substantial cost against the claimants. Submissions of the Claimants In reaction to the submissions of the 1st – 4th defendants regarding their preliminary objection, the claimants referred the Court to their counter-affidavit and then adopted the issues formulated by the 1st – 4th defendants. Regarding issue 1 i.e. whether this Court can set aside the judgment of High Court of Lagos State delivered on 27th July, 2007 before its elevation to Court recognized by the constitution, the claimant answered in the affirmative. To the claimants what determines the jurisdiction of the Court is the law in force, citing Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 476 Ratio 11. That it is pertinent from this case that the law which regulates cause of action is different from the law that governs jurisdiction. It is the existing law that governs cause of action if trial has started while the law that determines jurisdiction is the law enforce. It is also apparent from the above case that a Court losses jurisdiction once a law expressly divests the Court of the requisite jurisdiction. From the above case, it is clear that State High Court was divested of jurisdiction by Decree 107 of 1993 effective from 17/11/93 when Decree 107 came into force and vested same on the Federal High Court and that after 17/11/93 all the matters originally vested in the State High Court became vested in the Federal High Court. Applying Obiuweubi v. CBN to the instant case, the claimants submitted that the High Court of Lagos State was divested jurisdiction to handle this matter effective from 4th March 2011 when the Third Alteration to the 1999 Constitution came into force. That this line of argument accords with the reasoning of Hon. Justice Okuwobi of the High Court of Lagos State, Ikeja Judicial Division in his Ruling dated the 20th December 2013 (Exhibit Mc1). In paragraph 3 of page 11 of the said Ruling (Exhibit Mc1), the law Lord held as follows: At the material time trial had not commenced in the High Court of Lagos State, it had been divested of jurisdiction. For all the reason herein given this Court can no longer maintain adjudicative authority over the claims of the Claimants. The proper forum is the National Industrial Court.... By extension, that Hon. Justice Okuwobi of the High Court of Lagos State, Ikeja Judicial Division held in the Ruling dated the 20th December 2013 (Exhibit Mc1) in Suit No: LD/194/2008 in the case between the claimants herein and all the defendants herein that the National Industrial Court has the jurisdiction to entertain this matter. This decision of His Lordship has not been appealed or set aside. That it will be wrong, therefore, for counsel to argue that this Court has no jurisdiction to entertain this matter while the Ruling as per Exhibit Mc1 is still subsisting and has not been set aside. The claimants went on that the case of Chief Olabode George v. Federal Republic of Nigeria [2014] 5 NWLR (Pt. 1399) 1 at 22 G – H cited by the 1st – 4th defendants is not applicable; the reason being that the said case borders on whether a person can be convicted for an act which was not an offence at the time the act was committed as provided for in section 36(8) of 1999 Constitution, as amended. That section 36(8), which forbids retrospective legislation for a criminal act, was relied upon in Chief Olabode George v. Federal Republic of Nigeria. It does not in any way deal with the power of the Court to entertain a suit based on new legislation. Thus the arguments of the counsel for the 1st – 4th defendants are based on the counsel’s poor understanding of the law. The said arguments are misplaced and do not represent the position of the law. To the claimants, what determines the jurisdiction of the Court are the Reliefs claimed, referring to Ndaba Nigeria limited v. Union Bank of Nigeria Plc & ors [2009] 13 NWLR (Pt. 1158) 256 at 304 – 305 G – B. That this Court has the power to adjudicate all the reliefs claimed by the claimants in the statement of facts establishing the cause of action. Relief a) of the claim of the claimants deals with setting aside the consent judgment per Hon. Justice A. O. Kayode Ogunmekan (Mrs.) dated 27th July 2007. To the claimants, this Court can grant this relief, citing Sken Consult v. Secondy Ukey [1981] 1 SC at 6. Applying Sken Consult v. Secondy Ukey to the instant case, the claimants submitted that this Court (not necessarily the individual Judges) as a Court of co-ordinate jurisdiction with the High Court of Lagos State can set aside any order or judgment of that Court within its original jurisdiction and which is a nullity or suffers a fundamental (as opposed to irregularity). That the claimants in this case have alleged in paragraph 40 of their statement of facts establishing the cause of action that the consent judgment dated 27th July 2007 was obtained by fraud, misrepresentation of facts and figures and the Court lacked the jurisdiction to enter the consent judgment dated 27th July 2007. The claimants also gave particulars of misrepresentation from paragraphs 40(a) – (o) of their statement of facts. That if same are proved, of course, the purported consent judgment would have been affected by some fundamental defects and therefore a nullity. That this Court in such circumstances will be competent to set aside the order or purported consent judgment. The claimants continued that it is also germane to state here that one of the grounds by which the claimants seek to set aside the consent Judgment dated 27th July 2007 is that an order was made against the 5th defendant who is not a party in the suit that gave rise to the said consent judgment, referring to paragraph 22 of the statement of facts establishing the cause of action, which provides as follows – The Claimants aver that the said consent judgment dated the 27th day of July, 2007 is a nullity. The court lacked the Jurisdiction to make the said consent Judgment against the 5th Defendant who was not a party to the said suit. In the said Consent Judgment, Spring Bank, now the 5th Defendant who was not a party to the suit that gave rise to the Consent Judgment was ordered to pay the sum N72, 557,971.00 out of the pensioners fund as per the Final Award. The Claimants further aver that Judgment of the Court or Order of the Court as the case may be cannot be given or made against a person who is not a party in a suit. That the law is settled that a Court cannot make an order against a person who is not a party in a suit, referring to Babatola v. Aladejana [2001] 12 NWLR (Pt. 728) 597 at 604 Ratio 8. The claimants then submitted that the High of Lagos State lacked the jurisdiction to enter consent judgment dated 27th July 2007 against the 5th defendant who was not a party in the said suit that gave rise to the consent judgment. Furthermore, that the consent judgment dated 27th July 2007 is a nullity as order was made against the 5th defendant who was not a party to the suit. That this Court, therefore, has the jurisdiction to set aside the consent judgment on this ground also and as such the Court should discountenance the arguments of the learned counsel in this issue and resolve same in favour of the claimants. On issue 2 i.e. whether this Court has the jurisdiction to recognize and enforce an arbitral award as a judgment or order of the High Court of Lagos State, the claimants contended that this Court is vested with the jurisdiction by virtue of section 254C(4) of the 1999 Constriction, as amended, to recognize and enforce the arbitral award dated 28th May 2007 as the judgment of this Court. The said section 254C(4) of the 1999 Constitution, as amended, provides as follows – The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of Inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain. That it is, therefore, erroneous to argue that this Court lacks jurisdiction merely because the claimant’s counsel referred to High Court of Lagos State in relief b) as endorsed on the face of the complaint and the statement of facts establishing the cause of action. Jurisdiction is determined by law and not by the act of any of the parties. Allusion to the High Court of Lagos State by the counsel for the claimants in relief b) afore-stated cannot and does not rob this Court of the jurisdiction to entertain this suit. Reference to the High Court of Lagos State instead of this Court is merely an incidental slip which this Court has power to amend to read National Industrial Court under its inherent jurisdiction. And as such, this Court should discountenance the arguments of the learned counsel on this issue and resolve same in favour of the claimants. Regarding issue 3 i.e. whether the claimants, not being named parties in Suit No: LD/906/07 sought to be set aside, are entitled to bring a fresh action to set aside the consent judgment instead of the leave to appeal, the claimants contended that section 243(a) of the 1999 Constitution was quoted out of context by the counsel for the 1st – 4th defendants. That the action in the Suit No. LD/906/07 which led to the consent judgment dated 27th July 2007 was commenced against the defendants therein in a representative capacity. That the law is settled that parties who are represented as defendants in an action are also parties to the suit, referring to Akanbi v. Durosaro [1998] 12 NWLR (Pt. 577) 284 at 286 Ratio 2, where the Court held as follows: Terms of settlement or consent judgment entered into by a defendant or both parties bind all represented parties who do not need to be signatories thereto. Such represented parties are also bound by the judgment arising from such representative action. That in Ratio 1 of the said case of Akanbi v. Durosaro (supra), the Court held as follows – Named parties are full parties to action and others not named but represented are also parties to the action. To the claimants, from the above case, therefore, it is crystal clear that persons represented in an action commenced in a representative capacity are parties to the action. The claimants then submitted that the submission made by the counsel for the 1st – 4th defendants that the claimants herein are not parties in the action constituted in the Suit No. LD/906/07 is baseless. This is because the defendants in the action in the Suit No. LD/906/07 were sued in a representative capacity. In fact, that the Terms of Settlement dated 23rd July 2007 and listed as number 13 of the list of documents dated 15th January 2014 shows that it was signed by the 4th defendant for themselves and as representatives of the Retired Senior and Junior Staff of ACB Plc & ACBI Bank Plc (now Spring Bank Plc). Specifically, the claimants averred in paragraph 1 of the statement of facts establishing the cause of action that they are members of Retired Senior and Junior Staff of ACB Plc & ACBI Bank Plc (now Spring Bank Plc) and the 1st – 4th defendants admitted same in paragraph 8 of their statement of defence. That it is settled law that facts admitted do not require further proof. The claimants continued that Ojora v. Agip (Nig) Plc [2005] 4 NWLR (Pt. 916) 515 cited by the counsel for the 1st – 4th defendants does not apply at all. This is because of the reasons given above. That it may be pertinent to note again that a person affected by the consent Judgment can set it aside without going on an appeal, referring to Vulcan Gases Ltd v. GF Ind. AG [2001] 9 NWLR (Pt. 719) 610 at 20. The claimants then submitted that the claimants being persons affected by the consent judgment in Suit No. LD/906/07 has the right to approach this Court to set aside the said consent judgment without necessarily going on appeal by virtue of the Supreme Court decision in Vulcan Gases Ltd v. GF Ind. AG (supra). The claimants urged the Court to discountenance the arguments of the learned counsel in this issue and resolve same in favour of the claimants. On issue 4 i.e. whether this suit having been instituted after over six years of the accrual of cause of action is competent having regard to the limitation laws, the claimants contended that the counsel for the 1st – 4th defendants merely cited section 8(1) without relating same to the facts of this case. That a cursory look at the originating court process and other accompanying court processes show that the principal relief claimed by the claimants in this suit is for an order to set aside the consent judgment dated 27th July 2007. That what determines the jurisdiction of the court is the principal reliefs sought, referring to Tukur v. Govt. of Gongola State [1989] 4 NWLR (Pt. 117) 592 at 522 Ratio 13. To the claimants, it is not doubt that the first relief as endorsed on the face of the complaint and the statement of facts establishing the cause of action is the principal relief. There is nothing in the reliefs being claimed by the claimants in this suit to suggest that this action is a contractual matter to warrant the invocation of section 8 of the Limitation Law of Lagos State. The claimants went on that the first relief being the principal claim determines whether this Court has the jurisdiction to adjudicate on this matter. Furthermore, that every other claim in this matter is an ancillary claim and this Court has the jurisdiction to enter the claimants’ claims since there is no time limit within which to set aside the consent judgment or order in the Limitation Law of Lagos State. The claimants continued that counsel for the 1st – 4th defendants deliberately avoided section 8(1)(d) of the Limitation Law of Lagos State. The said section 8(1)(d) deals with the enforcement of arbitral awards and it does not contain any time limit within which to enforce an arbitral award where the arbitration agreement is under seal or where the arbitration proceedings was under the Arbitration and Conciliation Act. That the Trust Deed dated 20th March 2000, which is the arbitration agreement in this matter, is made under the common seal of the then ACB Plc whose assets and liabilities were inherited by the 5th defendant herein. Also, page 2 paragraph 1 of the arbitral award dated 28th May 2007 and listed as No. 6 in the list of documents dated 15th January 2014 shows clearly that the arbitration was conducted under the Arbitration and Conciliation Act LFN in force. That the use of word ‘or’ in the said section 8(1)(d) of the Limitation Law of Lagos State clearly shows that there will be compliance with the said section which takes any such matter away from 6 years limitation period if the arbitration agreement is under seal or the arbitration proceedings was under the Arbitration and Conciliation Act LFN in force. From the above therefore, the claimants submitted that this matter is not caught by the 6 year limitation period as the arbitration agreement was under seal and the arbitration proceedings was under Arbitration and Conciliation Act. Regarding issue 5 i.e. whether the originating processes in this suit were signed in compliance with the Rules of this Court and the Legal Practitioners Act and if not whether this Court has jurisdiction to entertain this suit, the claimants contended that the submission by the learned counsel for the 1st – 4th defendants that the originating process and other accompanying court processes were not signed in accordance with the law is baseless. Although there are two names beneath the signature as it appears on the face of the originating process and the accompanying court processes, the name of Chief Philip Ndubuisi Umeh, counsel for the claimants who signed the court processes, was marked or ticked to indicate that he was the person who signed the court processes. It is also written beneath the names of Chief Philip Ndubuisi Umeh and Ike, Malachy Chijioke that they are counsel for claimants. To the claimants, the cases of SIB Consortiun v. NNPC [2011] 9 NWLR (Pt.1252) 317 at 327 Ratio 8 and Peak Merchant Bank v. NDIC [2011] 12 NWLR (Pt. 1261) 553 cited by the counsel for the 1st – 4th defendants do not apply at all. For instance, that the case of SIB Consortiun v. NNPC (supra) deals with originating process signed by a law firm (that is Adewale Adesokan & Co.) without the name of counsel, while in the case of Peak Merchant Bank v. NDIC (supra), the person who signed the Notice of Appeal did not indicate his name to ascertain whether he is a legal practitioner or not. The claimants then submitted that the cases cited by the counsel for the 1st – 4th defendants are not applicable in view of the apparent dissimilarity between the facts of the cases cited by the counsel for the 1st – 4th defendants and the facts of this case. That the instant case shows clearly that the originating court process and other accompanying court processes were not signed by a law firm and that Chief Philip Ndubuisi Umeh who signed the processes clearly marked against his name to indicate that he is the person who actually signed same. The claimants accordingly urged the Court to resolve this issue in favour of the claimants. In conclusion, the claimants urged the Court to refuse the 1st – 4th defendants’ application dated 20th May 2014 with substantial cost. Like I pointed out earlier, the 1st – 4th defendants did not file any reply on points of law; and the 5th defendant did not react to the preliminary objection of the 1st – 4th defendants. THE ISSUE RAISED SUO MOTU BY THE COURT The Claimants’ Submissions I now proceed to the submissions of counsel regarding the issue raised suo motu by the Court. The claimants were the first to file their written address, which is dated and filed on 15th May 2014. The issue framed by the claimants is whether this Court is competent to hear and grant the reliefs sought by the claimant. The claimants answered in the affirmative, citing Anatogu v. Iweka II [1995] 8 NWLR (Pt. 415) 547 at 557, Vulcan Gases Ltd v. GF Industrial AG [2001] 9 NWLR (Pt. 719) 610 at 649 and Sken Consult v. Secondy Ukey [1981] 1 SC at 6. To the claimants, their principal relief is relief a), which seeks to set aside the consent judgment in issue. It is the submission of the claimants that this Court is competent to hear and grant the reliefs sought by the claimants in this case. That it may be pertinent to mention that the claimants had commenced action in this case against the defendants at the High Court of Lagos State to set aside the purported consent judgment in Suit No. LD/194/2008. However, the 5th defendant hereof by a notice of preliminary objection dated 6th November 2012 prayed the High Court of Lagos State for an order striking out the said suit for lack of jurisdiction. After considering arguments of counsel to all the parties in this Suit, the High Court of Lagos State qua Hon. Justice D. T. Okuwobi (Mrs.) on 20th December 2013 struck out the case for want of jurisdiction. Before the said order, the Court had reasoned and found that the action was commenced in 2008 before the amendment to the 1999 Constitution by the Third Alteration Act 2010 which became operational on 4th March 2011. Furthermore, that the Court found that the claims in that case were caught by section 254C(1)(k) of the 1999 Constitution, as amended. The Court had no option but to bow to the clear words of section 254C(1)(k) of the 1999 Constitution, as amended, and held that the High Court of Lagos State can no longer maintain adjudicative authority over claims of the claimants (i.e. the 1st and 2nd claimants in this case) and that the proper forum is the National Industrial Court, referring to a copy of the Certified True Copy of the ruling attached as part of the claimants’ written address and marked Annexure I. That in obedience to this court order of the High Court of Lagos State, the claimants filed this fresh suit seeking the reliefs/claims which are again the subject of serious contentions. The claimants continued that it may be pertinent to mention that when they first attempted to seek the present reliefs as part of their effort to set aside the purported consent judgment in Suit LD/906/2007 before the High Court of Lagos State, the 2nd – 4th defendants, as the 1st – 3rd defendants in the said suit LD/906/2007, filed a preliminary objection asking the Court then to strike out our said application dated 20th August 2007. After considering the arguments of counsel on both sides, the learned Presiding Judge then, Hon. Justice J. O. Pedro (Mrs.) in an unreported ruling dated 22nd February 2008 refused their motion seeking to set aside the consent judgment dated 20th August 2007 as highly irregular. However, the Judge had upheld much earlier in the said ruling, after reviewing some authorities, the submission of Mr. G. A. Okaro, learned counsel for the 1st – 3rd defendants (who incidentally is the same counsel in this Court for the 2nd – 4th defendants) that “the procedure for setting aside a consent judgment is by a substantive suit and argued that this is the position whether or not by fraud”, referring to page 4 lines 16 – 30 of the ruling attached hereto as Annexure II. Continuing, Hon. Justice J. O. Pedro cited with approval the decision of the Supreme Court of Nigeria in the case of Vulcan Gases Limited v. G.F Industrial A.G. (supra). That the decision of Hon. Justice Pedro of the High Court of Lagos State in the unreported case in Suit LD/906/2007 enjoys support from the learned author of the book, Civil Procedure in Nigeria, 2nd Edition by Fidelis Nwadialo at page 510, paragraph 3 from lines 1 – 12, who wrote – A Consent Judgment can be set aside for mutual mistake but not for unilateral mistake, unless the unilateral mistake was induced by fraud or misrepresentation. A stranger, it has also been opined, may challenge such a judgment on grounds of fraud or conspiracy. It does not in any way bind a stranger. A Consent Judgment may also be set aside on the same grounds as the agreement on which it is based may be set aside by the Court…The procedure for setting aside the judgment is by way of substantive action, that is, a fresh action instituted by the affected party, or the stranger as the case may be, in a Court of competent original jurisdiction. The question now is what is a court of competent original jurisdiction? Clearly, this excludes an Appeal Court, since it has no original jurisdiction beyond what is stated in section 239(l) of the 1999 Constitution (as amended). Essentially, it has appellate jurisdiction as prescribed in section 240 of the said Constitution. That by the Constitution of the Federal Republic of Nigeria, Third Alteration Act 2010, in section 6, the National Industrial Court was established and vested with original jurisdiction in section 254C (1)(k) “relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, in any part of the federation and matters incidental thereto”. To the claimants, this section 254C(1)(k) of the 1999 Constitution, as amended, no doubt confers original jurisdiction on the National Industrial Court to handle the reliefs and/or subject matter of the present case to the exclusion of any other Court; with effect from 4th March 2011. Thus the National Industrial Court is a superior court of record and of co-ordinate jurisdiction with the High Court of Lagos State. That as a fresh suit, the claimants are entitled to file same in a Court with the appropriate jurisdiction and competence notwithstanding that the purported consent judgment was granted on 27th July 2007. The applicable and current law that regulates jurisdiction over a matter of this nature is section 254C(1)(k)of the 1999 Constitution (as amended) and not otherwise, citing Dadah v. NYSC [2004] 13 NWLR (Pt. 891) 639, Olutola v. Unilorin [2004] 18 NWLR (Pt. 905) 466 and Osakwe v. Federal College of Education Technical, Asaba & ors [2010] 1 NWLR (Pt. 1201) 1. It is the claimants’ submission that the High Court of Lagos State had jurisdiction at the time the cause of action arose, but now it has been divested of its jurisdiction by the new law in force at the time of filing of this fresh suit on 17th January 2014. The new law in force is section 254C(1)(k) of the 1999 Constitution (as amended) incorporating the new regime which commenced on 4th March 2011. On whether one judge has power to set aside or vary the order of another judge of concurrent or co-ordinate jurisdiction, the claimants answered in the affirmative, citing Sken Consult v. Secondy Ukey [1981] 1 SC 6. That applying the decisions reached in the Sken Consult case (supra) to this case at hand, it is the claimants’ view that this Court (not necessarily the individual judge) as a Court of co-ordinate jurisdiction with the High Court of Lagos State can set aside any order or judgment of that Court within its original jurisdiction and which is a nullity or suffers a fundamental defect (as opposed to an irregularity). To the claimants, they have listed the incidents of fraud and misrepresentation in paragraph 40(a) – (o) of their statement of facts, which if proved would render the consent judgment a nullity. That this Court in such a circumstance will be competent to set aside the orders or purported consent judgment. That Vulcan Gases Ltd v. G.F. Industries A.G. (supra) held that “where a party to an action seeks to challenge it on the ground that it was obtained by fraud or mistake a judgment or order that finally disposes of the issues raised between the parties, the only way of doing it that are open to him are by appeal from the judgment or order to a higher Court, or by bringing a fresh action to set it aside. The claimants went on that Supreme Court in the case of Anatogu & ors v Iweka II & ors [1995] 8 NWLR (Pt. 415) 547 at 557 Ratio 12 held that – The general rule is that the Court has no power under any application in the action to alter or wary a judgment or order after it has been uttered or drawn up, except so far as is necessary to correct errors in expressing the intention of the Court or under the “slip ride”. There are however, exceptions to this rule. Some of them are – (a) A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process can be set aside by the Court which gave the judgment or made the order. (b) A judgment or order made against a party in default may be set aside and the matter reopened. (c) There is jurisdiction to make, upon proof of new facts, an order supplemental to an original order e.g. supplemental order to an order for specific performance that there be an inquiry as to damages sustained by reason of the defendant’s delay in completing the agreement, at any rate from the date of the original order for specific performance. (d) If a judgment or order has been obtained by fraud a fresh action will lie to impeach the judgment. (e) A judgment may be set aside on the ground that fresh evidence has been discovered which, if tendered at the trial, will have an opposite effect on the judgment. In short, that this case which referred to and followed the earlier Supreme Court decision in Sken Consult v. Ukey [1981] 1 SC 6 confirmed the trend of our submissions so far. The law as enumerated in these lines of cases has not changed and it remained valid to say that the National Industrial Court has the jurisdiction and competence to set aside the judgment or consent judgment of the High court of Lagos State which is affected by a fundamental defect like fraud, mistake or lack of jurisdiction among others, and which falls within the purview of section 254C(1)(k) of the 1999 Constitution, as amended. To further support their view that a High Court or any other Court for that matter including the Supreme Court has inherent jurisdiction to set aside its own judgment or a judgment of a Court of co-ordinate jurisdiction given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court, the claimants referred to the views of the learned author of the book, Civil Procedures in Nigeria, 2nd Edition by Fidelis Nwadialo at pages 724 – 727. In view of the authorities cited so far and the original jurisdiction of the National Industrial Court over the subject matter of this suit, the claimants submitted that this Court has the jurisdiction and competence to handle this suit and to grant all the reliefs sought, if at the end of trial, the Court is satisfied and the claimants have proved their case by the standard prescribed under the Evidence Act. The 1st – 4th Defendants’ Submissions in Reaction to the Claimants’ Submissions In reacting to the submissions of the claimants regarding the issue raised suo motu by the Court, what the counsel to 1st – 4th defendants did was simply to frame the five issue they raised in their preliminary objection (already listed and treated above) and then reproduced word for word the submissions they made in their regard. This being the case, and since I have narrated the said submissions earlier in this judgment, it will be most idle to repeat them here. The said submissions are accordingly deemed reiterated for present purposes. The Claimants’ Reply on Points of Law in Opposition to the Submissions of the 1st – 4th Defendants Given that the 1st – 4th defendants submissions in reaction to the claimants submissions on the issue raised suo motu by the Court was the same with their submissions on their preliminary objection, the reply on points of law of the claimant was equally the same with the claimants’ reaction submissions in opposition to the preliminary objection of the 1st – 4th defendants. Once again, it will be very idle to repeat the submissions here even if labeled as reply on points of law by the claimants. The said submissions are accordingly deemed reiterated for present purposes. The 5th Defendant’s Submissions The sole issue framed by the 5th defendant for the determination of the Court is – Whether this Court has jurisdiction over this matter which seeks, in the main, the order of this Court to set aside the consent judgment of the High Court of Lagos State in Suit No. LD/906/2007 delivered on 27th July 2007. To the 5th defendant, there is no doubt that on 27th July 2007 when the High Court of Lagos State delivered the consent judgment in Suit No. LD/906/2007 which the claimants in the present suit are seeking the order of this Court to set aside, the jurisdiction in respect of matters relating to pension was vested in the State High Courts. It is also not in issue that by the combined effect of sections 6 and 254C(1)(k) of the 1999 Constitution, as amended, this Court from 4th March 2011 became vested with exclusive original jurisdiction over pension matters which was hitherto vested in the State High Courts. However, that for this Court to assume jurisdiction over matters relating to pension, the Court must critically look at and review the statement of claim vis-à-vis the reliefs sought therein to come to the conclusion whether the action comes within section 254C(1)(k) of the 1999 Constitution, as amended. Where and if the claim of the claimants as constituted is not within matters provided under section 254C(1)(k) then this Court would decline jurisdiction in the circumstance. For the Court to make this informed decision, the Court is guided by the reliefs/claim of the claimants as set out in the claimants’ statement of claim, referring to Onuorah v. KRPC [2005] 6 NWLR (Pt. 921) 393 SC. To the 5th defendant, reliefs a) of the claimants in this suit which seeks the order of this Court to set aside a consent judgment of the High Court of Lagos State cannot be within the jurisdiction of this Court. We submit that this Court, if it assumes jurisdiction to set aside a judgment of the High Court of Lagos State would indirectly be sitting on appeal over a judgment of a Court of co-ordinate jurisdiction. This, the Court cannot do so. That agreed that a Court can set aside its judgment upon certain circumstances which include proof of fraud, but the unique circumstances of the instant matter would not permit the Court to take such step against a judgment of the High Court of Lagos State, though a Court of co-ordinate jurisdiction. That the option open to the claimants in the matter is for the claimants to appeal against the consent judgment. If the claimants succeed on appeal, the Court of Appeal will under its Rules set aside the contentious consent judgment of the High Court of Lagos State. The 5th defendant’s submission is premised on the fact that as at the time the High Court of Lagos State delivered the consent judgment in issue, that Court had the exclusive original jurisdiction to so do. Perhaps it would have been otherwise, if the High Court of Lagos State at the material time of delivering the judgment had no competent jurisdiction over the matters leading to the judgment. This basically is the reason behind the decision of the Supreme Court in the case of Sken Consult Ltd v. Secondy Ukey [1981] 1 SC 6 generously referred to and relied upon by the claimants’ counsel in his written address. In that case, the Hon. Justice Nnamani clearly stated and distinguished the situation where such judgment may be set aside by a Court of coordinate jurisdiction and where it is only appealable. At pages 35 – 36, His Lordship stated – It is my view that looking through the authorities it would seem that the issue can be resolved depending on whether in the course of proceedings, there has been fundamental defect, such as we have had in the instant case, which goes to the issue of jurisdiction and competence of the Court in such a case, the proceedings are a nullity and any orders made would also be a nullity. If of course the Court is competent and the Order is the result of the Judge’s judicial discretion after hearing evidence, the decision will only be appealable.” And at page 36 His Lordship continued – From the deduction I have made from the authorities, Warrington, J. ought to have set aside the Order made by Romer, J. which he found had been made without jurisdiction and which were treated as nullities.... That from the Supreme Court decision above quoted, it is apparent that a judgment of Court can only be set aside by a court of co-ordinate jurisdiction where there is clear evidence of lack of jurisdiction or competency on the part of the Court that gave the judgment otherwise the judgment can only be set aside on appeal and not by way of fresh action. To the 5th defendant, the question then is: did the High Court of Lagos State as at the time it delivered the consent judgment, which this Court is being asked to set aside in the present suit, have jurisdiction to so do? The 5th defendant answered in the affirmative; and then submitted that the competency of the High Court of Lagos State at the material time over matters relating to pension cannot be displaced by mere allegation of fraud or misrepresentation in the process leading to the consent judgment. Consequently, the 5th defendant submitted and urged the Court to decline jurisdiction over this matter which is only appealable. The 5th defendant so urged for the following reasons – (a) That the High Court of Lagos State was competent and had jurisdiction over pension matters as at the time the consent judgment was delivered. (b) That a Court can only set aside a judgment of a Court of co-ordinate jurisdiction where such judgment was given without jurisdiction and competency. (c) That if this Court assumes jurisdiction over the instant case, it would amount to sitting on appeal against a consent judgment of a Court of coordinate jurisdiction delivered with the requisite jurisdiction. (d) That in such circumstances as in the instant case, the option opened to the claimant is to appeal against the consent judgment. The Court of Appeal having the power under its Rules to set aside such judgment upon success of the appeal will do so. The Claimants’ Reply on Points of Law in Opposition to the Submissions of the 5th Defendant The claimants adopted the sole issue formulated by the 5th defendant. The claimants reiterated that what determines the jurisdiction of the Court is the law in force, citing Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 476 Ratio 11 and Cypril O. Osakue v. Federal College of Education (Technical) Asaba [2010] 2 – 3 SC (Pt. III) at 161. In the main, the claimants proceeded to repeat the arguments already made in their reaction to issues raised by the 1st – 4th defendants in their written address in support of their preliminary objection. I shall accordingly merely paraphrase the argument of the claimants in that regard. To the claimants, the law which regulates cause of action is different from the law that governs jurisdiction. It is the existing law that governs cause of action if trial has started while the law that determines jurisdiction is the law enforce. That it is also apparent from the above case that a Court losses jurisdiction once a law expressly divests the Court of the requisite jurisdiction. That applying Obiuweubi v. CBN (supra) to the instant case, the High Court of Lagos State was divested jurisdiction to handle this matter effective from 4th March 2011 when the Third Alteration to the 1999 Constitution came into force. That the power of the Court to set aside consent judgment is not a creation of the statute whatsoever. Therefore, it is wrong to assert that section 254C(1)(k) of the 1999 Constitution, as amended, did not make provision for setting aside consent judgment. This is because, the power of the Court to set aside consent judgments are derived from the decisions of the superior Courts, citing Vulcan Gases Ltd v. GF Ind. AG [2001] 9 NWLR (Pt. 719) 610. That the claimants being persons affected by the consent judgment in the Suit No. LD/906/07 has the right to approach this Court being a Court of coordinate jurisdiction to set aside the said consent judgment without necessarily going on appeal by virtue of Vulcan Gases Ltd v. GF Ind. AG (supra). The claimants went on that this line of argument accords with the reasoning of Hon. Justice Okuwobi of the High Court of Lagos State, Ikeja Judicial Division when he declined jurisdiction in his ruling dated 20th December 2013 (attached as Exhibit Mc1 to the claimants’ counter-affidavit dated 19th June 2014. That this decision of His Lordship has not been appealed or set aside and so the 1st – 4th defendants are bound by it until same is set aside, referring to Aje Printing (Nig) Ltd v. Ekite LGA [2009] 7 NWLR (Pt. 1141) 512 at 516 Ratio 4. That it will be wrong, therefore, for counsel to argue that this Court has no jurisdiction to entertain this matter while the ruling as per Exhibit Mc1 is still subsisting and has not been set aside. To the claimants, what determines the jurisdiction of the Court are the reliefs claimed, referring to Ndaba Nigeria Limited v. Union Bank of Nigeria Plc & ors [2009] 13 NWLR (Pt. 1158) 256 at 304 – 305 G – B. That this Court has the power to adjudicate all the reliefs claimed by the claimants in the statement of facts establishing the cause of action. Relief a) of the claim of the claimants deals with setting aside the consent judgment of Hon. Justice A. O. Kayode Ogunmekan (Mrs.) dated 27th July 2007. The claimants continued and cited Sken Consult v. Secondy Ukey [1981] 1 SC 6. That applying the decision reached in Sken Consult v. Secondy Ukey (supra) to the case at hand, the NIC (not necessary the individual judges) as a Court of coordinate jurisdiction with the High Court of Lagos State can set aside any order or judgment of that Court within its original jurisdiction and which is a nullity or suffers a fundamental (as opposed to irregularity). The claimants went on that in paragraph 40(a) – (o) of their statement of facts establishing the cause of action, they particularized the incidents of fraud and misrepresentation, which if proved would show that the consent judgment is affected by fundamental defects and therefore is a nullity. That this Court in such circumstance will be competent to set aside the order of the purported consent judgment. The claimants reiterated that one of the grounds by which the claimants seek to set aside the consent judgment is that an order was made against the 5th defendant who is not a party in the suit that gave rise to the said consent judgment, referring to paragraph 22 of the statement of facts establishing the cause of action. That the law is settled that a Court cannot make an order against a person who is not a party in a suit, referring to Babatola v. Aladejana [2001] 12 NWLR (Pt. 728) 597 at 604 Ratio 8. The claimants continued that the counsel for the 5th defendant appears to have unnecessarily widened the scope of the written address. That the question is whether this Court has jurisdiction to set aside the consent judgment dated 27th July 2007 and not whether the State High Court has jurisdiction over the matter at the time the said consent judgment was entered. That although the claimants have shown that this Court has jurisdiction to set aside the consent judgment on some grounds such as fraud, misrepresentation and the fact that an order was made again the 5th defendant who was not a party in the suit that gave rise to the said consent judgment, the role of this Court at this stage is not to determine whether there was fraud or misrepresentation as doing same would amount to delving into the substantive matter at the interlocutory stage but to determine whether or not it has power to set aside consent judgment based on the authorities cited before it. Furthermore, that the 5th defendant appears to have shot itself on the leg when it stated in its written address dated 13th June 2014 that the only option open to the claimants is to appeal the consent judgment dated 27th July 2007. Reliance was placed on the case of Sken Consult v. Secondy Ukey (supra) for that assertion. The counsel for the 5th defendant who wrote the said written address for the 5th defendant forgot that the law Lord in the case of Sken Consult v. Secondy Ukey (supra) noted that the judgment will only be appealable if the Court is competent and the order is the result of the judge’s judicial discretion after hearing evidence. Based on the above, the claimants submitted that Hon. Justice Kayode Ogunmekan (Mrs.) was not competent to have entered the consent judgment dated 27th July 2007 since the 5th defendant herein who was a necessary party in the action constituted in the Suit No: LD/906/2007 was not sued in the said action before the consent judgment was handed down. Again, the consent judgment is tainted with fraud and misrepresentation as highlighted above. Also that none of the parties in the Suit No: LD/90612007 gave evidence in the Court before the said consent judgment was handed down. The claimants went on that they need not prove that the 5th defendant herein was not a party in the Suit No: LD/906/2007 which gave rise to the consent judgment dated 27th July 2007 since no appearance of the name of the 5th defendant herein as a party in the said Suit No: LD/906/2007 is apparent in the said consent judgment dated the 27th July 2007. Hence, the order commanding the 5th defendant herein to release the sum stated in the consent judgment dated 27th July 2007 vitiates the said consent judgment since the 5th defendant herein was not a party in the action constituted in the Suit No: LD/906/2007 which gave rise to the said consent judgment. That the 5th defendant herein is forbidden to blow hot and cold. The law forbids a party to approbate and reprobate, referring to Kayode v. Odutola ][2001] 11 NWLR (Pt. 725) 659 at 668 Ratio 17. That the 5th defendant herein who argued that the High Court of Lagos State does not have jurisdiction to enter the consent judgment dated 27th July 2007 as per the ruling attached herewith as Annexure A cannot turn around to argue that the same High Court of Lagos State has jurisdiction to entertain this action. This amounts to approbating and reprobating, referring to the ruling dated 22nd May 2009 per Hon. Justice J. O. Pedro herein attached as Annexure A where the 5th defendant argued that the High Court of Lagos State has no jurisdiction to enter the consent judgment dated 27th July 2007. In conclusion, the claimants submitted that based on the totality of the argument canvassed above and the case law cited by the counsel for the claimants in opposition to the 5th defendant’s written address, the Court should hold that this Court has jurisdiction to entertain this action. COURT’S DECISION I heard learned counsel and considered all the processes filed in this case. The submissions of the parties in terms of the preliminary objection of the 1st – 4th defendants and the issue raised suo motu by the Court were common in a number of respects in terms of both the objection and the competence of the Court to hear and grant the reliefs prayed for by the claimants. In that wise, I shall accordingly address the issues as are raised in the submissions without any specific categorization as to whether they relate to the objection of the 1st – 4th defendants or the issue raised suo motu by the Court. The point is that in terms of both the objection of the 1st – 4th defendants and the issue raised by the Court as to the competence of the Court to grant the reliefs of the claimants, the result of any positive finding in their terms would be the same, namely, striking out the case whether for lack of jurisdiction or for lack of competence on the part of the Court to grant the reliefs in question. In, therefore, considering the merit of the issues at hand, I need to clarify certain misconceptions inherent in the submissions of counsel. The 1st – 4th defendants in their preliminary objection had argued that prior to the Third Alteration to the 1999 Constitution, this Court was not a constitutional court and as such the High Court of Lagos State being a constitutional court at that time had supervisory jurisdiction over this Court. I think there is a confusion of thought here in terms of the use of the phrase ‘constitutional court’, which should simply portray the meaning: of the Constitution. A court is of the Constitution whether or not it is an inferior or superior court of record. In that sense, I must state that even inferior courts are constitutional courts so long as they were created pursuant to section 6 of the Constitution. Whether a court is an inferior or superior court of record is of course a different matter. Section 6 of the Constitution permits the establishment of both inferior and superior courts of record. In that sense, such courts are constitutional (i.e. they are of the Constitution) and so go contrary to the line of thinking of counsel to the 1st – 4th defendants. The 1st – 4th defendants had also submitted that the Third Alteration to the 1999 Constitution, which conferred a constitutional court status on this Court and which commenced on 4th March 2011, cannot take effect in retrospect to reach out for a judgment delivered on 27th July 2007 by the High Court of Lagos State, citing inappropriately (I may say) Chief Olabode George v. Federal Republic of Nigeria [2014] 5 NWLR (Pt. 1399) 1. In relation to this submission, I had asked counsel to the 1st – 4th defendants in open court whether appropriate legislation cannot confer a status on a Court as to allow it have jurisdiction over a matter presently before it. Counsel was simply mute and had no answer. It is worrying the kind of logic counsel would bring in advancing arguments for a client. Accepted that this Court was inferior to the High Court prior to 4th March 2011. Is counsel saying that now that this Court has jurisdiction as a superior court of record it cannot handle today matters of yesterday that the High Court can no longer hear today? It seems that counsel is confusing the law for determining a cause of action and the law for determining jurisdiction. I do not know if counsel is aware of the Supreme Court decision in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496; [2011] 2 – 3 SC (Pt. 1) 46 following its earlier decision of Osakue v. Federal College of Education, Asaba [2010] NWLR (Pt. 1201) 1, which is to the effect that the law for determining jurisdiction is the law as at the time of trial, not when the cause of action arose. If a matter comes before this Court today such as the instant case, jurisdiction will be determined by the law as at the time of trial, not the law when judgment was given at the High Court on 27th July 2007 as counsel to the 1st – 4th defendants seems to think. Even the claimants’ counsel appears incomprehensible when he reviewed Obiuweubi v. CBN and came to the conclusion that “It is the existing law that governs cause of action if trial has started while the law that determines jurisdiction is the law enforce”. Counsel repeated this line of argument in all his submissions both in terms of the preliminary objection of the 1st – 4th defendants as well as the competence of this Court to grant the reliefs prayed for by the claimants. For one, the law existing at the time the cause of action accrued will always govern the cause of action even if trial had not commenced. Secondly, like I pointed out, the law that determines jurisdiction is the law ‘in force’ (not ‘enforce’ as used by counsel to the claimants) at the time trial commences; not just ‘the law enforce’ as the claimants’ counsel puts it. Counsel to the 1st – 4th defendants had contended that a careful perusal of the claimants’ originating processes to wit, form of complaint and statement of facts establishing the cause of action, shows that they were signed with the name of two persons beneath the signature on top of the names. I actually looked at the said processes in the case file as per the Court’s record. The name, Chief Philip Ndubuisi Umeh, is actually ticked to show that he is the signatory of both the complaint and the statement of facts. Accordingly, the argument of counsel to the 1st – 4th defendants in that regard goes to no issue and is hereby dismissed. The claimants had argued that because Hon. Justice Okuwobi of the High Court of Lagos State, Ikeja Judicial Division declined jurisdiction in his ruling of 20th December 2013, which decision has not been appealed against or set aside and so the 1st – 4th defendants are bound by it until same is set aside, referring to Aje Printing (Nig) Ltd v. Ekite LGA [2009] 7 NWLR (Pt. 1141) 512 at 516 Ratio 4, it will be wrong, therefore, for counsel to argue that the NIC has no jurisdiction to entertain this matter while the ruling as per Exhibit Mc1 is still subsisting and has not been set aside. I am not too sure I understand what the claimants are arguing here. Are they saying that, simply because the Lagos High Court declined jurisdiction and said that the proper forum is the NIC, that automatically vests jurisdiction on the NIC? Can a Court of coordinate jurisdiction vest jurisdiction on another court of coordinate jurisdiction? If the claimants think the answer is in the affirmative, why then did section 24 of the NIC Act 2006, for instance, permit this Court, when in doubt as to jurisdiction in matters transferred from the High Court to it, to make a case stated to the Court of Appeal as to which of the Courts (the High Court or the NIC) has jurisdiction over the matter? If a court of coordinate jurisdiction can simply confer jurisdiction on another court of coordinate jurisdiction, there would have been no need for section 24 of the NIC Act 2006 because then the recipient court will simply be mandated to hear the matter as transferred without any hesitation. I now proceed to the actual merit of the issues at hand. From the submissions of the parties, a critical question which arises is what actually the cause of action in the instant case is. The answer to this question is necessary in determining for instance whether this case is statute-barred, and whether the cause of action in terms of its subject matter even comes within the jurisdictional mandate of this Court. The claimants’ argument that a cursory look at the originating court process and other accompanying court processes show that the principal relief claimed by the claimants in this suit is for an order to set aside the consent judgment dated 27th July 2007. The cause of action according to the claimants is, therefore, the setting aside of the consent judgment; and the jurisdiction to entertain this, to the claimants, and contrary to the argument of especially the 5th defendant, is not one that is grantable by statute but by case law. The 5th defendant had argued that setting aside judgments or orders of courts of coordinate jurisdiction is not part of the jurisdiction of this Court as can be found in the enabling statutes. The rules have always been that courts are creatures of statutes and the jurisdiction of each court is, therefore, limited and circumscribed by the statute creating it; that courts are not hungry for jurisdiction; that judges have the duty to expound but not to expand their jurisdiction; and that a court cannot give itself jurisdiction by misconstruing a statute. See generally Tukur v. Government of Gongola State [1989] NWLR (Pt. 117) 517, Mudiaga-Erhueh v. NEC [2003] FWLR (Pt. 137) 1066, African Newspaper & ors v. FRN [1985] 2 NWLR (Pt. 6) 137 SC, Ifeajuna v. Ifeajuna [2000] 9 NWLR (Pt. 671) 107, Eguamwenze v. Amaghizemwav [1993] 9 NWLR (Pt 315) 1 and SCC (Nig.) Ltd & 2 ors v. Yusuf Sedi [2013] 1 NWLR 230. Now, contrary to the argument of the claimants, to my mind, they are in this Court in this case simply because of reliefs b) and c). This is because if reliefs b) and c) were not in the kitty, the claimants would not be in this Court praying that that the consent judgment of Hon. Justice A. O. Kayode Ogunmekan (Mrs.) dated 27th July 2007 in Suit No. LD/906/2007 as per relief a) be set aside. In my opinion then, relief a) is not the principal relief of the claimants. The crux of the matter is that the sum of N77,751,737.70 together with the accrued interest which the claimants want this Court to distribute to the pensioners pro-rata as per the arbitral award of 28th May 2007, is the sum paid to 1st defendant as additional professional fees in Suit No. LD/906/2007, when by paragraph 24 of the statement of facts, the 1st defendant had already been paid in full his fees in the arbitral proceedings since he did not render any service to the pensioners outside of the arbitral tribunal. See also paragraphs 30 – 32 of the statement of facts where the claimants pleaded that the 1st defendant be estopped from seeking for the payment of the additional N77,751,737.70. This to my mind is the kernel of the claimants’ claims in this case. Now, if the 1st defendant was wrongly paid additional professional fees, why would the claimants disguise their action as one for setting aside of the consent judgment of 27th July 2007 instead of simply suing the 1st defendant for a return of the excess professional fees paid? The answer to my mind is simply to then bring the action within the jurisdiction of this Court in the guise of the distribution of pension funds as per relief b) and c). Section 254C(1)(k), which provides that this Court has jurisdiction over matters “relating to or connected with disputes arising from payment or non-payment of…pensions…of any employee, worker…in any part of the Federation and matters incidental thereto” cannot be said to cover the recovery of excess professional fees. This is because there is actually no dispute arising from the payment of the N77,751,737.70 in question in terms of section 254C(1)(k) of the 1999 Constitution, as amended. The sum is originally part of the pensioners fund (see paragraph 22 of the statement of facts) but was ordered to be paid out as fees by a court of competent jurisdiction. If the claimants think that this sum of N77,751,737.70 was wrongly paid out as professional fees instead of for pensions, this is not the Court to ventilate that grievance. Even if this were the Court to ventilate that grievance, in paragraph 17 of the statement of facts, the claimants plead that they became aware through the Punch Newspaper of 24th September 2007 that the payment of entitlements to pensioners will be made less the sum of N77,751,737.70, the sum in issue in the instant case. As argued by the 1st – 4th defendants, between 24th September 2007 and 17th January 2014 over six years have passed, the period permitted for actions by section 8 of the Limitation Law Cap. L67 of the Laws of Lagos State 2003. By Ashimiyu Oduola & ors v. Chief A. B. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509, courts frown on allowing causes of action to be added where, if it were allowed, the defence of the limitation law would be defeated. This is because courts have never treated it as just to deprive a defendant of a legal defence. What I get from this authority is that causes of action can be treated separately so that if one is caught up by the limitation law, it can be expunged and only those not caught up left to be adjudicated upon. Coming to this Court outside of the six year permitted period of limitation in terms of the sum of N77,751,737.70, therefore, means that that cause of action is statute-barred; in which case this Court cannot even entertain it. The argument of the claimants, however, is that because they have relief b) as a claim, the Limitation Law of Lagos state becomes inapplicable given the provision of section 8(1)(d), which provides as follows – The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued – (d) actions to enforce an arbitration award, where the arbitration agreement is not under seal or where the arbitration is under any enactment other than the Arbitration and Conciliation Act. The claimants were quite emphatic in their argument that the arbitral award of 28th May 2007, which relief b) seeks this Court to enforce, was made under the Arbitration and Conciliation Act and so comes within the exemption of section 8(1)(d). The question which arises here is whether an arbitration conducted under the auspices of the Arbitration and Conciliation Act comes within the jurisdictional mandate of this Court. The explanatory note to the Arbitration and Conciliation Act Cap. A18 LFN 2004 provides that it is – An Act to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation; and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting State arising out of international commercial arbitration. Given that in labour jurisprudence labour is not a commodity that is bought and sold, are labour disputes commercial disputes as to bring them within the purview of the Arbitration and Conciliation Act? If, therefore, a labour dispute is resolved under the Arbitration and Conciliation Act, would the arbitral award be legal and valid? The general tenor of the law has been that labour disputes are not resolvable under the Arbitration and Conciliation Act, an Act reserved for commercial disputes. For instance, in terms of trade disputes, section 12(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 provides that “the Arbitration and Conciliation Act shall not apply to any proceedings of an arbitration tribunal appointed under section 9 of this Act or to any award made by such a tribunal”. So if the resolution of labour disputes through arbitration is not contemplated in terms of the Arbitration and Conciliation Act, would such an arbitral award come within the jurisdictional mandate of this Court where it was done under the said Arbitration and Conciliation Act? The mandate given this Court in section 245C(4) of the 1999 Constitution, as amended, “to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry” is specific to arbitral awards pertaining to matters over which the Court has jurisdiction to entertain. The problem is, where the arbitral award was wrongly given as by being given under a law not contemplated such as the Arbitration and Conciliation Act (as the claimants state the arbitral award in issue was so given), would that award be valid so as to activate the jurisdiction of this Court under section 254C(4) of the 1999 Constitution, as amended? In other words, is the arbitral award of 28th May 2007, which was made under the Arbitration and Conciliation Act, even valid as to activate the jurisdiction of this Court? I do not think so. To reinforce their argument, the claimants contended that there is nothing in the reliefs they claim in this suit to suggest that this action is a contractual matter to warrant the invocation of section 8 of the Limitation Law of Lagos State. I do not know whether the claimants considered case law authorities, which are quite clear that a consent judgment is first and foremost a contractual agreement between the parties whereby rights are created between them in substitution for, and in consideration of the abandonment of the claims pending before the Court, and which no Court is allowed to re-write. See Star Paper Mill Ltd v. Adetunji & 3 ors [2009] 6 – 7 SC (Pt. II) 68, Daniel Teyar Trans Ent. Co. Ltd v.Alhaji Liadi Busari & anor [2011] 1 – 2 SC (Pt. II) 140, Abel O. Woluchem v. Dr Charles Inko-Tariah Wokoma [1974] 3 SC 115 and Race Auto Supply Company Limited & ors v. Alhaja Faosat Akib [2006] 6 SCNJ 98. After all, as rightly argued by the 1st – 4th defendants it is clear from prayer b) of the claimants in their complaint and statement of facts that their claim is actually to enforce a recognizance, which by section 8(1)(c) is caught up by the Lagos State Limitation Law 2003. Either way, the matter is caught up by the limitation law; and I so find and hold. The claimants argued that the consent judgment, which ordered that the N77,751,737.70 be paid as professional fees was given without jurisdiction and so it amounts to a nullity, hence the prayer that this Court should set it aside. The question then becomes whether when the consent judgment was delivered, the High Court did not have the jurisdiction to give it. My answer is that it had the jurisdiction so to do. As I indicated earlier, Obiuweubi v. CBN decided that the law for determining jurisdiction is the law as at the time trial commenced. So, there is no doubt that the Lagos State High Court had jurisdiction to give the consent judgment it gave; and I so find and hold. Even if Suit No. LD/906/2007 were to have been decided without jurisdiction, I do not think that that is the kind of nullity that would entitle another court of coordinate jurisdiction to hear and declare it as a nullity for the purpose of setting it aside. That is appropriately the function of an appellate court, the Court of Appeal in the present instance. The kind of nullity envisaged by the authorities cited by the claimants is that which require the proof of facts that make the judgment a nullity such as fraud. A verdict simply required so as to brand a judgment as one given without jurisdiction and hence a nullity requires more of a review of the law, not of the facts as such; and that function is appropriately that of an appellate court, not one with coordinate jurisdiction. My position is reinforced by paragraph 29 of the statement of facts where the claimants pleaded that the 1st defendant’s claim for 30% out of the amount recovered for the pensioners at the arbitral tribunal was overruled by the arbitral tribunal as there was no provision for the said 30% in the Trust Deed and the Rules made thereto; and that the 1st defendant never challenged the arbitral tribunal’s decision on his claim for the said 30%. Now, if the 1st defendant’s claim for 30% was overruled by the arbitral tribunal but given by the Lagos State High Court via a consent judgment, is it open for a Court of coordinate jurisdiction or an appellate court to canvass the wrongness of such a decision? My thinking is that it is more appropriately the function of an appellate court, the Court of Appeal in our case; and I so hold. This then leads to argument of the claimants that the consent judgment was procured as a result of fraud and misrepresentation. But are there actually prima facie incidents of fraud, misrepresentation and the like as to warrant this action in the first place? I carefully looked at the incidents/particulars of fraud and misrepresentation given by the claimants in paragraph 40(a) – (o) of their statement of facts. A look at those incidents/particulars of fraud and misrepresentation shows that they do not raise any prima facie case of fraud or misrepresentation to warrant this Court taking a second look at them via a trial. All the claimants are complaining of is that the 2nd – 4th defendants in the High Court had no authority to draw up the terms of settlement or draw up the contingency agreement or represent the pensioners they said they represented. Additionally, in paragraph 19 of the statement of facts, the claimants pleaded that the contingency agreement upon which the consent judgment was based was fraudulently executed by the 2nd – 4th defendants without the consent, knowledge and authority of other pensioners. Here, the claimants must, however, note that other than on the face of their complaint, there is no proof either in the instant case that they are actually representing those they say they represent – the resolution of the pensioners dated 18th August 2007 and the minutes of meeting of the pensioners dated 25th August 2007 frontloaded by the claimants merely have handwritten names, telephone numbers and signatures without any nexus to the said documents attached thus raising the question whether the said names and signatures are actually part of the two documents. More fundamentally, even if it is correct that the 2nd – 4th defendants had no authority to represent the pensioners as they did, they at least had the authority to represent themselves; in which case, all the other pensioners need to do is to simply sue in their own rights denouncing the 2nd – 4th defendants and urging that their individual cases be heard on merit. But because this may entail suing out of the limitation period, their counsel decided to be ingenious by claiming fraud and misrepresentation and urging this Court to set aside the consent judgment and then grant reliefs b) and c), which to me are actually the kernel of the claims of the claimants. The claimants also claim that the 1st defendant colluded with 2nd – 4th defendants and their counsel to draw up the terms of settlement that culminated in the consent judgment. There are no details given in the statement of facts as to the acts that amounted to the collusion referable here. The claimants also complained that the 1st defendant was paid N2,500,000.00 in full and final settlement of his professional fees. The details of how this amounts to fraud or misrepresentation were not disclosed in the statement of facts. Furthermore, how the fact of not challenging the decision of the joint Actuaries amounts to fraud or misrepresentation was not disclosed in the statement of facts. And how not joining the 5th defendant in the court action or submitting to the jurisdiction of the arbitral tribunal and not challenging the arbitral award amounted to fraud or misrepresentation was not disclosed in the statement of facts. The claimants also made an issue out of the fact that none of the parties in the Suit No: LD/906/2007 gave evidence in the Court before the said consent judgment was handed down. I really wonder whether such an issue can actually go to making any judgment for that matter a nullity as the claimants would want the Court to believe. Whether or not evidence is called and used in a case is entirely at the discretion of the parties. On the whole, I do not see how the statement of facts especially as summarized in paragraph 40(a) – (o) amount to incidents of fraud or misrepresentation to warrant this Court taking a second look at them. In any case, even if they were, I am mindful of Arowolo v. Ifabiyi [2002] 4 NWLR (Pt. 757) 356 at 380 – 381 where His Lordship Iguh, JSC stated as follows – I need perhaps add in the above regard that where a strong language is employed to describe one’s conduct or motive in a transaction as was done in the present case by the use of the word “fraudulently” that does not ipso facto convert the basis of a claim to a crime. The argument of the claimants that the Court lacked the jurisdiction to make the consent judgment against the 5th defendant who was not a party to the suit in question is equally not helpful to the claimants. It is the 5th defendant who should complain, not the claimants. If a party is not a party to an action and an order is made against him by the Court in that action and the said party chooses to abide by the judgment, who should complain – that party or some other? Are the claimants saying that they can cry more than the bereaved or be more catholic than the Pope? The 5th defendant is not complaining in this Court; why should the claimants complain on their behalf? When SMB Alomasojo v. Elsie Ibru [1973] 4 SC 9 held that a consent judgment is binding only on the actual parties to it and Vulcan Gases Ltd v. Okunola [1993] 2 NWLR (Pt. 274) 139 at 154 per Muhammed, JCA held that no consent judgment can bind in any form a party who is not shown to have consented to it, they did not say that thereby the consent judgment is a nullity – the consent judgment is simply binding only on parties who consent to it. The consent judgment will be a nullity if it is discovered that the consent judgment had been obtained by fraud or misrepresentation, in which case the judgment can be set aside by a fresh action. So, I will repeat it once again: the 5th defendant is not complaining about the consent judgment, why should the claimants use that as a yardstick to render the consent judgment a nullity? The claimants made much of an issue of the fact that this Court has the power to set aside the consent judgment of 27th July 2007 in Suit No. LD/906/2007 and cited a host of judicial authorities in the process. A review of the authorities indicates the following principles regarding consent judgments. For instance, terms of settlement mutually agreed to by parties in an action and embodied in the record of the Court constitute what is called a consent judgment. It binds the parties thereto as any other lawful judgment of a Court of competent jurisdiction. See Ann O.Mmenakaya v. Menakaya [1996] 9 NWLR (Pt. 472) 256 and Vulcan Gases Ltd v. Okunola [1993] 2 NWLR (Pt. 274) 139. Consent judgment is of a class of its own. It can be challenged on appeal or by a fresh action and not by motion (Vulcan Gases Ltd v. Okunola at page 156). For it to be a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of the settlement must be filed in Court (Taiye Oshoboja v. Amuda & ors [1992] 6 NWLR (Pt. 250) 690). Where in a trial, the trial judge merely acts as a conduit pipe by entering judgment on the terms agreed upon by the parties, this is a judgment with consent of the parties regardless of whether or not the word ‘judgment’ was employed (Oladiti v. Sungas Co. Ltd [1994] 1 NWLR (Pt. 321) 433 at 451). Where it is clear that the purported consent judgment fails to represent the terms of the agreement reached by the parties, an action can be taken to set it aside. In other words, a consent judgment lacking in mutuality or riddled with fraud or misrepresentation is ineffectual and can be set aside by a fresh action taken in that regard (Vulcan Gases Ltd v. Okunola at 156 and Woluchem v. Wokoma [1974] 3 SC 115). The authorities continue as follows. An order obtained by consent of the parties can only be set aside on appeal and not by a motion to amend pleadings (Oladiti v. Sungas Co. Ltd [1994] 1 NWLR (Pt. 321) 433). By First Bank Nig. Ltd v. Khaladu [1993] 9 NWLR (Pt. 315) 44 and UTC Nig. Ltd v. Pamotei [1989] 2 NWLR (Pt. 103) 244 at 299, a consent judgment cannot be set aside once it is passed and entered save on appeal. This is so even if it was entered under mistake. Where the Court validly enters consent judgment the parties could appeal only by leave of Court (Vulcan Gases Ltd v. GF Industrial AG [2001] 9 NWLR (Pt. 719) 610 CA and Ahamefula v. Imperial Medical Centre [2005] 5 NWLR (Pt. 917) 51 CA). A consent judgment constitutes a final judgment of the court and it is only appealable with the leave of the court. See Race Auto Supply Company Limited & ors v. Alhaja Faosat Akib [2006] 6 SCNJ 98, which further held that a consent judgment may be set aside either by the court that gave/made it or a court of competent jurisdiction on the ground for which a contractual agreement could be voided or rescinded. And by Star Paper Mill Ltd v. Adetunji & 3 ors [2009] 6 – 7 SC (Pt. II) 68, when a consent judgment is given, none of the parties has the right of appeal except with the leave of court. My understanding of these authorities is that a consent judgment riddled with fraud or misrepresentation can be set aside. The question is: by which Court? Some decisions like Vulcan Gases Ltd v. Okunola talk of in a fresh action presupposing a trial court or on appeal. Race Auto Supply Company Limited & ors v. Alhaja Faosat Akib in talking of the consent judgment being set aside either by the court that gave/made it or a court of competent jurisdiction on the ground for which a contractual agreement could be voided or rescinded also presuppose a trial court. For Oladiti v. Sungas Co. Ltd, First Bank Nig. Ltd v. Khaladu and UTC Nig. Ltd v. Pamotei, a consent judgment cannot be set aside once it is passed and entered save on appeal. Vulcan Gases Ltd v. GF Industrial AG, Ahamefula v. Imperial Medical Centre and Star Paper Mill Ltd v. Adetunji & 3 ors talk of seeking leave to appeal. From all these authorities, can it be said that they authorize the kind of action instantly before this Court? Is the NIC the court of competent jurisdiction talked of in cases such as Race Auto Supply Company Limited & ors v. Alhaja Faosat Akib? A careful perusal of the authorities will indicate that they generally lean more on and talk of the court that gave the consent judgment or the appellate court being the appropriate court to set aside a consent judgment that is a nullity. I had actually wondered in open court why the claimants refused to pursue an appeal against the consent judgment they say was procured as a result of fraud and misrepresentation and so is a nullity. Instead, the claimants chose to come to this Court in respect of claims that disguise what their real claim is, namely, a complaint that professional fees of N77,751,737.70 was wrongly paid. In all, I really do not think that the claimants are in the right court praying for the reliefs they claim. And here, I must repeat even if for emphasis. Even if Suit No. LD/906/2007 were to have been decided wrongly and without jurisdiction, I do not think that the nullity complained of by the claimants is the kind that would entitle another court of coordinate jurisdiction to hear and declare it as a nullity for the purpose of setting it aside. That, to my mind, is appropriately the function of an appellate court, the Court of Appeal in the present instance. The kind of nullity envisaged by the authorities cited by the claimants is that which require the proof of facts that make the judgment a nullity such as fraud. Even at this, that the authorities state that an appellate court can be approached can only mean that the appellate court is more appropriately the court to approach. In my opinion, a verdict required so as to brand a judgment as one given without jurisdiction and hence a nullity requires more of a review of the law, not of the facts as such; and that function is appropriately that of an appellate court, not one with coordinate jurisdiction. For all the reasons I have given, I do not think that this Court is the competent court for the reliefs the claimants claim. My take in all is that the claimants ought to approach the Court of Appeal to have the consent judgment of 27th July 2007 regarding Suit No. LD/906/2007 set aside, a relief that I really do not even think is the claimants’ main relief. The claimants’ case is accordingly incompetent and as such is hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip