A consent judgment is basically a judgment entered by the Court following the agreement of the parties to an action/suit.

There has been debate among legal practitioners as to whether or not a judgment of a Court in a criminal matter following the plea of guilty by an accused person can be considered a consent judgment. This issue was brought to the fore in the decision of the Court of Appeal in NWUDE V. F.R.N. (2016) 5 NWLR (PT. 1506) 471.

In Nwude’s case, the Appellant and 4 others were arraigned before the High Court of Lagos State for the offence of obtaining by false pretence contrary to Section 419 of the Criminal Code and conspiracy contrary to Section 516 of the Criminal Code. Eventually, the Appellant reached a plea deal with the prosecution. Following the plea deal, the Appellant pleaded guilty to the charge and he was sentenced to 5 years in prison. In addition to the sentence of imprisonment, he was ordered to forfeit the sum of $110, 000, 000.00 (One Hundred and Ten Million Dollars).

Dissatisfied with the order of forfeiture, the Appellant appealed against same to the Court of Appeal. The Respondent raised a preliminary objection on the ground that considering the fact that the forfeiture order having been entered based on the agreement of the Appellant and Respondent, same constitutes a consent judgment. Accordingly, the Appellant ought to have sought and obtained the leave of the High Court of Lagos State or Court of Appeal before filing the instant appeal by virtue of Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

In dismissing the objection, the Court of Appeal took the position that even though the forfeiture order having been entered based on the agreement of parties gave the impression that same constitutes a consent judgment, that a consent judgment is not envisaged and applicable in a criminal trial. In essence, the position of the Court of Appeal was that judgment entered and orders made following a plea of guilty by an accused person does not and cannot amount to a consent judgment. Accordingly, the Appellant need not seek the leave of the High Court of Lagos State or Court of Appeal before filing the instant appeal. Please see PG. 499, PARAS C-H of the judgment, where the Court of Appeal held that:

“Even though it would appear as if parties had consented to the outcome of the judgment and orders, it is a criminal case. In criminal cases, the accused has a right to plead ‘’guilty’’ or ‘’not guilty’’. When accused pleads guilty it will not be taken as a consent judgment simpliciter. It only means that the accused, after due consultation with his legal team, has decided to throw in the towel. It reduces the time frame for the trial. There is no longer need to call witnesses to prove the charge against the accused. Consent judgment is strictly envisaged in civil matters where the Defendants have no defence to the claims of the Claimant. If at that time he has no defence and consents to the judgment, it binds the parties…

I do not think that consent judgment was envisaged of stricto senso in criminal cases. The accused may bargain with the prosecutor in cases of this nature for lighter sentence in return for information or any other thing like forfeiture. For a plea of ‘’guilty’’ the accused had drastically reduced the time for trial. This may be used as a bargaining chip for a reduced sentence… I therefore hold that the Appellant does not require leave to appeal.’’

Interestingly, in the recent decision of the Supreme Court in ADAMU V. F.R.N. (2020) 2 NWLR (PT. 1707) 129, his Lordship Eko, JSC of the Apex Court took a contrary position to the above-stated position of the Court of Appeal.

In that case, the Appellants were arraigned at the Federal High Court, Abuja for the offence of conspiracy to transport 42 kilograms of cannabis sativa contrary to Section 14(6) of the National Drug Law Enforcement Agency Act, 2004. Upon arraignment, the Appellants pleaded guilty to the charge. Thereafter, they were each sentenced to 15 years imprisonment.

Dissatisfied with the decision of the Federal High Court, they appealed to the Court of Appeal. Their appeal was dismissed. Still dissatisfied they brought a further appeal to the Supreme Court.

In dismissing the appeal, his Lordship Eko, JSC took the view that the decision of the Federal Court which was entered following the plea of guilty by the Appellants amounts to a consent judgment and that by virtue of Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Appellants ought to have sought for and obtained the leave of the Federal High Court, Abuja or the Court of Appeal before filing their initial appeal at the Court of Appeal. Accordingly, the failure of the Appellants to obtain the requisite leave before filing their initial appeal at the Court of Appeal rendered their appeal at the Court of Appeal incompetent and an abuse of Court process which robbed the Court of Appeal of jurisdiction to have even heard the appeal in the first place. Consequently, the present appeal to the Supreme Court from the said decision of the Court of Appeal was also incompetent and an abuse of Court process having been based on a judgment delivered without jurisdiction. Please see PG. 163, PARAS B-G of the judgment, where his Lordship held that:

“It appears from page 19 of the record that they appealed their convictions as of right to the Court of Appeal, notwithstanding that it was apparently a consent judgment. Section 241(2)(c) of the 1999 Constitution, as amended, has expressly prohibited this type of appeal to the Court of Appeal in the following provisions-

241(2) Nothing in this section shall confer any right of appeal-

(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

The Appellants appeal to the Court of Appeal was, in the first place, incompetent and an abuse of Court’s process by dint of Section 241(2)(c) of the Constitution. The judgment of the Court of Appeal, delivered on 31st May, 2017, from which the Appellants purportedly further appealed to this Court was similarly incompetent, ultra vires and a nullity. This appeal is a further abuse of the Court’s process…

The lower Court, upon due diligence, should have suo motu invoked Section 241(2)(c) of the Constitution and terminated the appeal in limine on grounds of its incompetence and the Court lacking jurisdiction to entertain it.’’

It is doubtful at this stage whether the above-quoted portion of the decision of his Lordship, Eko, JSC in ADAMU V. F.R.N. (SUPRA) could be considered a binding precedent as same did not arise from the issues canvassed by the parties before the Supreme Court. Also, his Lordship wrote a concurring judgment and the issue as to whether or not judgment entered following a guilty plea can be considered a consent judgment was not pronounced upon in the lead judgment. In that sense, his Lordship’s decision was an obiter dictum.

However, his Lordship’s position on this issue gives us an insight into his Lordship’s judicial mind on the issue of whether or not judgment entered following a guilty plea can be considered a consent judgment and perhaps the future direction/position of the Supreme Court on this issue.

If the Apex Court adopts the position of his Lordship, Eko JSC on this issue, it would have far far-reaching effect. It would for example mean that the Supreme Court would lack the jurisdiction to entertain all pending criminal appeals wherein the Appellant had pleaded guilty at the trial Court and failed to seek the requisite leave before appealing to the Court of Appeal contrary to Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). It may also mean that an Appellant who intends to persuade the Court to set aside any judgment entered following his guilty plea has to in addition to showing that the said judgment was wrong establish that the said judgment was obtained by fraud, misrepresentation, under duress, under a mutual mistake of fact or without proper authority (the general conditions upon which the Court may set aside a consent judgment).