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ANSAH, JA:
This appeal was brought
against the ruling of the High Court, Tema given on 1st
August 2000. I have decided to narrate the facts, in a
brief form that led to the ruling against which this
appeal has been brought. They are as follows:
On 6th September 1996,
the plaintiffs issued out a writ of summons claiming
certain declarations, orders and damages against the
defendants. Hearing of the suit was in progress when the
parties agreed to settle the matter out of court. They
were successful and the terms of settlement were duly
filed with the court. By those terms, certain
obligations were imposed on the parties. That was on
25th January 1999, On 29th January 1999, the court
accepted the terms as its judgment.
Then on 6th June 2000,
the court granted an ex parte application by the
plaintiffs restraining the defendants from “excavating
the land…” over a distance specified in the order. When
the ex parte order expired, another application
followed, this time on notice to the defendants. The
orders sought were to the effect that the plaintiffs had
defaulted in complying with the terms of the settlement,
and they were to be restrained from excavating a portion
of the land. The court granted both orders as prayed
for. The fourth defendant felt aggrieved by the ruling
of the court and has brought this appeal against it.
The grounds proffered were that: -
(i) The learned Judge
erred in law by assuming jurisdiction and re-opening the
consent judgment delivered on 29th January 1999.
(ii) That the learned
Judge erred in making the orders she did in the said
Ruling.
(iii) That the learned
Judge misdirected herself in law by failing to properly
and adequately consider the affidavit of the appellant
which led her to hold that the said affidavit had no
merits.
(iv) That the ruling
was against the weight of evidence”.
I shall hereinafter
refer to the fourth defendant, who alone apparently
decided to launch the present appeal, as the appellant,
and the plaintiffs as the respondents. In support of the
first ground of appeal, it was submitted that after the
court had delivered the consent judgment, it became
functus officio and therefore had no jurisdiction to
re-open the matter and vary the terms of the judgment,
upon a motion by the plaintiffs all alone. In the view
of counsel for the appellant, what the court did
amounted to setting aside the consent judgment and
giving another judgment that the 4th defendant had not
consented to. Counsel cited Guardian Assurance Company
Limited v. Bridi [1972] 2 GLR 387 and Anima v. Ahyeye
[1955] WALR 40 P.C. in support of his contention. The
reply by counsel for the respondents was that the judge
did not become bereft of her jurisdiction and this was
because the terms of the consent judgment imposed some
conditions on both parties which the appellant failed to
comply with. This entitled the respondents to go back
to the court to seek further orders on the matter. The
reason in the view of counsel was that the breaches by
the appellant amounted to a waiver or an abandonment of
the judgment in so far as it was beneficial to him, the
appellant. Counsel also found support for this
submission in terms of Order 42, rule 2 of the High
Court Rules 1954, (L.N. 140A). What was more, the
application to the court was not to set aside the
consent judgment on grounds of mistake of fact or fraud
which would have required the joint consent of both
parties to set aside. Rather, when the appellants
breached the terms of the consent judgment, and as
stated already, were deemed to waived or abandoned their
rights under the consent judgment, Order 42r2 of L.N.
140A allowed the respondents to go back to the court to
seek what order they deemed fit under the circumstances.
In this case they thought the court restoring them to
the status quo ante was the best option left to them,
which they did.
The parties did not
dispute the facts of this case. If anything at all, it
was on what should be done when a party to a consent
judgment fails to comply with the terms of the judgment
that counsel differed. This was largely a matter of law
that must be stated as follows: a judgment by consent
was binding on the parties until set aside. An appeal
may lie against it only with the leave of the court. The
law was settled that once a consent judgment was passed
and entered, such as was done in this case, then the
court cannot set it aside unless a fresh action was
brought for that purpose. The grounds for setting aside
the judgment may be fraud, mistake, or generally, any
other ground upon which an agreement may be invalidated.
A refusal or failure to discharge an obligation under
the consent judgment was one of those grounds known to
or recognized by the law. Also, a court has no power to
vary a consent order previously made in that court and
the only means open to a party to set aside a consent
judgment or order on the ground of mistake or fraud is
to bring a fresh action for that purpose. In the
Guardian Assurance case (supra), it was clear that there
was a mistake on the period of time of a temporary
disablement. The mistake was common to the parties. In
the present case however, there was no such mistake of
any sort and to that extent Guardian Assurance must be
distinguished from the present. However, in that case,
reference was made to a passage in Halsbury’s Laws of
England, (3rd ed.) Vol. 22 where it was stated that:
“A judgment given or an
order may, in a fresh action brought for the purpose, be
set aside on any ground which would invalidate a
compromise not contained in a judgment or order … Unless
all the parties agree, a consent order, when entered,
can only be set aside by a fresh action, and an
application cannot be made to the court of first
instance in the original action to set aside the
judgment or order, except, apparently, in the case of an
interlocutory order, nor can it be done by way of
appeal”.
Certain principles
emerge from this statement of the law quoted above. They
are that it is only by a fresh action that a consent
judgment can be set aside once the court has entered a
consent judgment. Again one does not apply to the court
of first instance (i.e. the court where the consent
judgment was entered), to set aside the consent
judgment. Apparently the reason is that the Judge who
entered the judgment was thereafter functus officio. It
is not by an appeal that a consent judgment can be set
aside. But all the parties can agree to set aside the
consent judgment by any other method. I have read
Guardian Assurance and come to the conclusion that it
was decided that way for the reason that there was
incontroverted evidence that there was a genuine mistake
in stating the period of the temporary disablement. In
the present case however, there has not been any such
mistake. To that extend then, Guardian Assurance must be
distinguished from the facts of this case. I must state
however that the authorities cited in that case are very
useful in resolving the issues raised in this appeal.
The question posed by the first ground of appeal is
this. When the trial judge entered the consent
judgment, what legal effect did it have on the parties?
The answers are many. In the first place as shown above,
the judgment was binding on the parties until set aside.
But it was in Yardom v. Minta III (1926) F.C. ’26-29’,
76 that the legal effect of a consent judgment was
considered. Howes J, said:-
“This judgment by
consent is a contract of record, which contract is
technically of the highest nature of all contracts. Even
so, regarded in the light of a contract, a judgment does
no more than give, to one party, rights of the strongest
possible character against the other party”
The parties to this
kind of judgment are not only bound by the terms of the
judgment, they are required by law to perform their side
of the bargain. What happens then when a party refuses,
fails or neglects to discharge his obligations under the
judgment? In law, the other side is entitled to bring
the contract to an end by any of the modes recognized by
law. Counsel for the respondents referred to Order 42r2
of L.N. 140A and submitted that by virtue of that rule
they were entitled to go back to the court to seek
remedy the sort of what they did. Order 42r2 says that:-
“2. Where any person
who has obtained any judgment or order upon condition
does not perform or comply with such condition, he shall
be considered to have waived or abandoned such judgment
or order so far as the same is beneficial to himself,
and any other person interested in the matter may on
breach or non-performance of the condition take either
such proceedings as the judgment or order may in such
case warrant, or such proceedings might have been taken
if no such judgment or order had been made, unless the
Court or a Judge shall otherwise direct”.
The true meaning of
this rule is that where the entitlement to a relief was
made subject to the fulfillment of a condition, then
until that condition had been fulfilled, the order fell
to the ground, and the position was the same as though
no order had been made: see Talbot v. Blindell [1908]
2K.B. 114. In that case, it was said that where an order
granting relief against the forfeiture of a lease was
expressed to be made upon the defendants performing
certain conditions and the defendants, having performed
part of the conditions declined to perform the remainder
desired to waive the relief, it was held that there was
no power to compel the defendants to perform the
conditions and that the order for relief must therefore
be treated as abandoned. Upjohn K.C. appearing for the
defendants, submitted that the order granted by the
court was conditional and the conditions were not
mandatory at all and if the defendants declined to
perform the conditions, the order for relief fell to the
ground. Walton J upheld this submission. In such a
situation, any party interested in the matter may take
such steps as he may think if and legally permissible
under the circumstances. A party to a consent judgment
may set it aside on any legal ground. But as seen from
the authorities, this can only be done by way of a fresh
action brought for that purpose. In other words, it was
not open to a party who complains of non-compliance of a
condition or, all or some of the conditions in a
judgment, to go back to the same court and seek orders
of the court to vary the terms of that consent judgment,
on an application. It appears from the record that after
judgment had been entered on the terms agreed upon by
the parties, on 29th January 1999, on 6th June 2000 an
ex-parte application was brought for orders to restrain
the fourth defendant appellant from entering the land.
The application having succeeded, it was as expected
repeated on notice, and subsequently granted. I hold
that on the authorities, the procedure that the
respondents adopted in the circumstances of this case
was wrong. The respondents should have rather brought a
fresh action to set aside the consent judgment. The
application before the court was incompetent in law and
the court should have refused it. By granting it, the
court erred in law.
In the result, this
court expresses the opinion that the application before
the trial judge to vary the terms of the consent
judgment for the reason that the appellant refused to
perform the condition(s) upon which it was based was
incompetent as the judge was, after entering the consent
judgment, functus officio. By law, a fresh action should
have been brought to set the consent judgment aside.
The appeal is therefore allowed on this ground clear by
this conclusion, this is not necessary to course the
other party for Applicant.
J. ANSAH
JUSTICE OF APPEAL
ESSLIFIE-BONDZIE, JA:
I agree.
A. ESSLIFIE-BONDZIE
JUSTICE OF APPEAL
AMONOO-MONNEY, J.A:
I also agree.
J. C. AMONOO-MONNEY
JUSTICE OF APPEAL
COUNSEL
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