AFEMIKHE & ORS v. STANBIC IBTC BANK (2020)

AFEMIKHE & ORS v. STANBIC IBTC BANK

(2020)LCN/14519(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/L/111/2017

Before Our Lordships:

Tijjani Abubakar Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MR SAMUEL SUNDAY AFEMIKHE (Practicing Under The Name And Style Of S. S. Afemikhe & Co (Chartered Accountants) 2. MEGOSA INVESTMENTS LIMITED 3. S. S. AFEMIKHE CONSULTING LIMITED APPELANT(S)

And

STANBIC IBTC BANK PLC RESPONDENT(S)

RATIO

FUNDAMENTAL CONDITION PRECEDENT TO THE APPLICATION OF THE PRINCIPLES OF ESTOPPEL AND OR RES JUDICATA

In Ogbolosingha & Anor vs. Bayelsa State INEC & Ors (2015) 2 S.C (Pt. II) 1;(2015) LPELR-24353 (SC), the apex Court per Ogunbiyi, JSC at pages 27-29 held thus:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of Makun V. F.U.T. Minna (supra) wherein this Court re-iterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in OGBOLOSINGHA & ANOR V. BAYELSA STATE IEC & ORS both the previous and the present proceeding.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain. See also the decisions in Yoye V. Olubode (1974) 10 SC 209; Alashe V. Olori-Ilu (1965) NMLR 66; Fadiora V. Gbadebo (1978) 3 SC 219 and Udo V. Obot (1989) 1 SC (Pt. 1) 64.
Further still, his Lordship Onu, JSC re-affirmed the principle in the case of Dokubo V. Omoni (supra) wherein he held at page 659 and said:-
“It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See Alashe V. Olori Ilu (1964) 1 All NLR 390 at 394; Balogun V. Adejobi (1995) 2 NWLR (Pt. 376) 131, and Faleye V. Otapo (1995) 3 NWLR (Pt. 381) 1.”
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the parties by a Court of competent jurisdiction.”
Similarly in Daniel Tayar Trans. Ent. Nig. Ltd vs. Alhaji Liadi Busari & Anor NSCQR Vol. 45 2011 p.454, the apex Court per Onnoghen, JSC (as he then was) at page 487 held:
“For a successful plea of res judicata, this Court has decided, by a long line of cases that the following conditions must be established by the party relying on it:-
a. that the parties or their privies in both the earlier case and the case in which it is raised are the same;
b. that the judgment relied upon is valid, subsisting and final;
c. that the claim or issue in dispute in the proceedings are the same;
d. that the subject matter of the litigation in both cases is the same; and,
e. that the Court that decided the previous suit is a Court of competent jurisdiction.”
For the plea of estoppel per rem judicata to succeed, all the above criteria must be satisfied. If any is missing the plea will fail. This is so because a successful plea will deprive a Court jurisdiction to handle the matter. I agree that a consent judgment is a valid judgment and if all the other conditions are present and proved, the fact that it is a consent judgment does not make it any less a valid judgment. This is because a consent judgment is an agreement between the parties on how their dispute will be settled. Mostly, the parties abandon their various claims for a compromised position which is acceptable to them. This is as much a valid judgment as one which is the product of a full-blown trial. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This present appeal arose from the judgment of Hon. Justice Adenike J. Coker (Mrs.) sitting in the High Court of Lagos State delivered on 31/5/2016 in Suit No. LD/ADR/1537/2013 – Mr. Samuel S. Afemikhe & 2 Ors vs. Stanbic IBTC Bank Plc. The brief set of facts at the lower Court is that the 1st Appellant (then 1st Claimant), a customer of the Respondent (then Defendant) applied for and was granted a credit facility of N6 Million to finance his firm’s working capital requirements. It was agreed that the facility be secured by a third party legal mortgage over a property known as and situate at No. 9, Jubril Martins Street, Surulere, Lagos. Series of negotiations ensued between 2003 and 2007 with a view to reaching an amicable resolution on how to repay the facility when the Appellants failed to pay back the facility at maturity. Appellants claimed that there was an attempt by the Respondent to surreptitiously register a mortgage over another of their properties situate at Plot 46, Ishawu Adewale Street, Surulere, Lagos and to challenge this, the 1st Claimant and his wife instituted Suit

No. LD/260/2007, which resulted into Terms of Settlement entered as Consent Judgment on 12/11/2009. While the action was still pending, on 29/4/09 the Respondent lodged a bad credit history report with the Central Bank of Nigeria Bureau – CBN-CRMS database in respect of the Appellants. This the Appellants averred to in the amended statement of Defence deprived them the opportunity of securing funds or facilities elsewhere to keep their business afloat and losing most of their competent staff then to other firms. Appellants also claimed that all efforts to get the Respondent to execute a Deed of Release in respect of the property used as collateral, even after fully liquidating their outstanding with the Respondent, has proved abortive. At the lower Court, the Appellants claimed the following reliefs contained on pages 5 and 9 of the Writ and Statement of Claim respectively.
“1. The sum of N1,000,000,000 (One Billion Naira) being general damages in negligence in that sometime on 29th April, 2009 the Defendant maliciously and without due care posted the Claimants’ names at the Central Bank of Nigeria for bad credit history (CBN-CRMS)

thereby scandalizing the Claimants and deprived them of any financial support from the banking industry.
2. An order compelling the Defendant to execute a deed of release of the 2nd Claimant’s property at 9, Jubril Martins Street, Surulere, Lagos which property was mortgaged to secure a N6m facility obtained from the Defendant by the 1st Claimant and which facility with accrued interest has been fully settled.”

The lower Court after the close of trial and listening to the submissions of counsel in its judgment found on pages 335-356 of the record (pages 1-22 of the judgment) held thus:
“As rightly submitted by learned counsel for the Defendant, Mr. Adeleye, both parties had in effect “varied” the terms of their Consent judgment and still agreed to abide by same with the “variation”. In addition, this Court has earlier found above that the issue of the lodging of the disputed report has been overtaken by events anyway.
There is indeed no concrete evidence as rightly submitted, that the Claimants attempts to seek funding elsewhere were thwarted as a result of this report. There is also no evidence

of the actual losses suffered by the Claimants in this regard.
In any event, clearly, this Court has found the outstanding to have now been fully paid and by Exhibit D3, the Report was removed by August, 2011 well before this suit was instituted in March, 2013.
Therefore, contrary to the submissions of the learned Silk, the primary onus which rests on the Claimant must be discharged even where DW1 is not cross-examined on his mere ipse dixit as to alleged losses.
In the light of the foregoing, this Court has no option but to find that the onus which rested on the Claimants in this regard has not be substantially discharged. This Court so finds.
Judgment is therefore entered dismissing the 1st relief for aggravated damages but granting relief 2 in favour of the Claimants accordingly.
This shall be the judgment of this Court.”

The Appellant dissatisfied with the judgment of the lower Court has thus filed this appeal vide a notice of appeal filed on 22/7/2016 found on pages 357-358 of the record of appeal and containing four grounds of appeal. The grounds are:
GROUND ONE:
The learned trial Judge erred in law when she

held that the Terms of Settlement entered into by the parties stopped the Claimants from a claim in negligence.
GROUND TWO:
The learned trial Judge erred in law when she descended into the arena of conflict and held that the bad credit history against the Claimants was at any material time removed by the Defendant.
GROUND THREE:
The learned trial Judge erred in law when she considered the case of the Defendant in that the Defendant neither amended its defence nor its witness Statement on Oath when the Claimants amended their Statement of Claim and filed a Further Statement of Claim.”
GROUND FOUR:
The learned trial Judge misconceived the law when she declined to award general damages claimed by the Claimants

The Appellants’ brief dated 8/6/2018 but filed 14/6/2018 was settled by Chief Charles Adogah, SAN. Appellants in their brief raised four issues for determination arising from the grounds of appeal stated above as follows:
1. Whether the Terms of Settlement stopped the Appellants from a claim in negligence.
2. Whether the learned trial Judge descended into the arena of conflict when she held that the

bad credit history had been removed at the material time.
3. Whether the learned trial Judge was right in considering the case of the Respondent who did not join issue with the Appellants.
4. Whether the learned trial Judge was right when she declined to award damages in favour of the Appellants.

On issue one, it is the contention of learned silk that the learned trial Judge by her conduct descended into the arena of conflict by getting directly involved in the case and stating what was never contemplated by the parties when it held that the issue of the Defendant’s original report to the CBN of the credit history of the 1st Claimant has been overtaken by event as admitted by both parties that the removal was on “agreed” added term/condition to the said Consent Judgment. He also contends that the doctrine of estoppel was misapplied in this case. For this position, learned silk cited Chief Iga & Ors vs. Amakiri & Ors (1976) 11 SC 1 @ 12. It is further argued by learned silk that the Terms of Settlement entered as the judgment of Court did not stipulate that the Appellants could not go to any Court to enforce their

right. The lower Court was therefore in error to apply the principle of estoppel, learned silk submitted, and finally urged this Court to resolve issue one in favour of the Appellants.

On issue two, it is the contention of learned silk that the learned trial Judge descended into the arena of conflict when she raised a question, whether the Defendant wrongfully failed to remove the Report notwithstanding that the Claimants complied with the terms of Exhibit C2 by paying the 1st installment of the amount agreed, though delayed, which had no relevance to the case in issue and therefore embarked on a speculation which she ought not to do. What the lower Court did amounted to making a case for the parties, this counsel submitted is not allowed by law. Learned senior counsel relied on Lasisi Kode vs. Suara Yussuf (2001) 84 LRCN 521 @ 549; Alhaji I.A. Onibudo vs. Alhaji A.W. Akibu & Ors (1982) 7 S.C 60 @ 90. On this premise, learned senior counsel urged this Court to hold that the learned trial Judge erred in law in raising an issue that was not raised by the parties and thereby descended into the arena of conflict.

On issue three, it is the contention

of learned silk that after the Appellants amended their statement of claim, there was no consequential amendment done by the Respondent who relied on its statement of defence as it was throughout the trial. Counsel further contends that the amended statement on oath which contains paragraphs 20(a), 21, 22, and 23 were unchallenged by the Respondent, and as such the Appellants’ claim against the Respondent has been proved. It is the position of the learned silk that there was nothing on record for consideration by way of defence for the Respondent and as such the learned trial Judge ought to have treated the Appellants’ case as undefended. He cited Metalimpex vs. A.G Leventis Ltd (1976) 1 All NLR 94 @ 106; Omoregbe vs. Lawani (1980) 3-4 SC 108 @ 117 to the effect that parties to a case are bound by their pleadings and cannot be allowed to setup a case which is at variance with their pleadings.

On issue four, it is the contention of learned silk that the learned trial Judge instead of concluding her argument and awarding damages to the Appellants after holding that the Respondent offered no other evidence of exactly when i.e. what date, the

bad credit report was removed from the CBN Bureau, fell into the grave error of holding that she could not award aggravated damages in the instant case and took so much pain to explain what aggravated damages meant. It is the argument of learned silk that the learned trial Judge having found that the Appellants were entitled to damages refused to award same because in her mistaken view, the Appellants claimed aggravated damages whereas there was nowhere in the Appellants writ or amended statement of claim where the claim is for aggravated damages. The Appellants’ claim was for damages. Learned senior counsel placing reliance on A.C.B vs. Apugo (2001) 84 LRCN 688 @ 710 submitted that the lower Court was wrong on this instant. He also relied on Order 1 Rule 1 of the Court of Appeal Rules, 2016, Section 15 of the Court of Appeal Act, and the case of Ado Ibrahim & Co. Ltd vs. Bendel Cement Co. Ltd (2007) 15 NWLR (Pt. 1058) 538 @ 562 in positing that this Court has ample power to intervene in this case and do justice by considering the evidence and award damages to the Appellants.

The Respondent brief filed on 11/6/2019 but deemed on 4/6/2020 was

settled by Kehinde Aina, Esq. In its brief, Respondent raised four issues for determination to wit:
1. Whether the Consent Judgment in Suit No. LD/260/2007 estopped the claim for negligence in Suit No. LD/ADR/Cs/153/2013?
2. Whether the Appellants’ case before the lower Court was contested by the Respondent?
3. Whether the learned trial Judge descended into the arena of conflict by holding that the Appellants were not entitled to damages for negligence having not complied with their obligation to pay the first installment at its due date.
4. Whether the Appellant is entitled to general damages or any damages at all.

On issue one, it is the contention of counsel that a consent judgment is a valid judgment with all the completeness of a judgment and therefore since consent judgment is a valid judgment, the contested issues upon which such consent judgment was delivered cannot subsequently be re-litigated upon as this would not only amount to an abuse of Court processes but also be caught up by the doctrine of res judicata. He relied on Union Homes Savings & Loans Limited vs. CPL Industries Limited (2009) LPELR CA/L/716M/2006;

Haruna vs. Adamu & Anor (2016) LPELR-41157 (CA); S.O Ntuks vs. Nigerian Ports Authority (2007) 13 NWLR (Pt. 1050) 392. Learned counsel argued that in the same vein, where an issue has been determined by a Court of competent jurisdiction and the decision has not been set aside on appeal, such an issue cannot be re-litigated upon. He placed reliance on Ajisegiri & Ors vs. Salami &Ors (2016) LPELR-40567 (CA). In stating the criteria that ought to be proved for the Court to uphold a plea of res judicata, learned counsel cited Fadiora vs. Gbadebo (1978) 3 SC 219; (1978) 1 LRN 106; Ekpese vs. Osito (1978) 6-7 SC 187; Agbogunleri vs. Depo (2008) 3 NWLR (Pt. 1074) 237; Ajisegiri & Ors vs. Salami & Ors (supra).

It is argued by learned counsel to the Respondent that from the pleadings, the complaint contained in Suit No. LD/ADR/153/2013 is the same as that of LD/260/2007 which complaint is about the Respondent’s failure to release title document and Bank’s publication of the bad credit history of Samuel S. Afemikhe, Williams Afemikhe and Mrs. Evelyn Afemikhe which same was brought before the Court and was finally determined by the

consent judgment. Counsel on the strength of the authorities cited submitted that the Court cannot determine the issues a second time and therefore urged this Court to dismiss the appeal. It is the further submission of counsel that the claim of the Appellants not being a claim made on the basis of fresh alleged acts of negligence, the mode that would have been available to the Appellants to ventilate their perceived grievance is “post-judgment enforcement proceedings” to give effect to the consent judgment which had effectively determined the rights of the parties (and their privies) on the issue of negligence in contention. In the light of this, counsel submits that the suit was in actual fact an abuse of Court process. Finally on this issue, it is submitted by counsel that S.S. Afemikhe Consulting, the 3rd Appellant had no cause of action in the pleadings filed before the trial Court.

On issue two, it is the submission of counsel that the Appellant counsel was misconceived when he argued that in view of failure of the Respondent to file an amended statement of defence to the Appellants’ statement of claim, the Respondent did not join

issues with the Appellants and its defence ought not to have been considered by the lower Court. Counsel further submitted that notwithstanding the fact that the Respondent did not file a consequential amended statement of defence, the Respondent had relied on the statement of defence and in paragraphs 8, 9, 10 and 11, expressly denied the averments contained on paragraph 20a, 21, 22 and 23 of the Appellants’ statement of claim. Counsel posited that the Courts are as much bound by pleadings before it, as by evidence tendered before it in the course of trial and any alleged failure to join issues by way of an amendment to existing pleadings does not preclude the Court from considering the evidence before it. Counsel relied on Abdullahi vs. Military Administrator (2003) LPELR-7194 (CA) which was upheld by the Supreme Court as reported in (2009) 15 NWLR (Pt. 1195) 417 SC. Counsel submits that there was sufficient documentary evidence before the Court to enable it exercise its adjudicatory function over the case and the trial Court rightly considered the Respondent’s existing statement of defence. It is further submitted by counsel that the trial Court

did not descend into the arena of conflict as it made its decision on the basis of evidence tendered before the Court.

On issue three, learned counsel to the Respondent submitted that the Appellants’ counsel is misconceived when it argued that the claim was undefended and that the lower Court ought not to have framed a question for determination and same was not relevant and ought not to have been determined by the trial Court. It is the submission of counsel that the Appellants are gravely mistaken and that there is no substantive fact/evidence or legal premise upon which their argument on this issue can be expected to stand. It is argued by counsel that from the records and the evidence adduced at the trial Court, the issue “whether the Respondent wrongfully failed to remove the report notwithstanding that the Appellants complied with the terms of Exhibit C2 by paying the 1st installment of the amount agreed, though delayed” was a live issue, the adjudication of which, was paramount in the case submitted to the trial Court and as such, the trial Court did not import speculation into the adjudication of the case before it, but merely

examined and pronounced on facts and evidence tendered before it by the parties. He relied on Muhammed vs. Abubakar (2008) NWLR (Pt. 1076) 156 in submitting that it is wrong to submit that the lower Court speculated on the issue it decided on as the issue is a live issue. The lower Court could not be accused of raising and resolving issue suo motu when the issue is one that forms part of the litigation.

It is submitted by learned counsel to the Respondent that for the Court to consider the Terms of Settlement, the consent judgment, and every other surrounding question of negligence, it is inevitable to consider how far parties complied with the terms agreed therein. More so, when the question of failure to remove the name of the Appellants in the credit registry cannot be considered without answering the question of “whether the name was published at all and whether the publication subsists at any material time as to found a claim for negligence. Counsel therefore, urged this Court to hold that the trial Court was within its powers, in line with facts and evidence before it to conclude on the question of whether or not there was a publication and

whether same subsists or have been withdrawn in line with the agreement of parties.

It is the further submission of counsel that the referenced paragraphs 22, 23 and 24 of the Appellants amended statement of claim wherein the Appellants alleged that the Respondent did not comply with the terms of the Consent Judgment which imposes an obligation to remove the name of the 1st Appellant from the Credit Bureau upon payment of the agreed first installment and paragraphs 9 (a) – (d) of its statement of defence where the Respondent averred that the Appellants had breached the Terms of Settlement which required them to repay the facility obtained by January 2010, revealed that the issue complained of and alleged to have been wrongly raised by the trial Court was not a speculative issue but a live issue existing between the parties. Counsel called in aid the case of Ikenta Best (Nigeria) Ltd vs. A.G Rivers State (2008) 6 NWLR (Pt. 1084) 642. In the light of the foregoing, counsel urged this Court to hold that the learned trial Judge did not import speculation into the matter and did not descend into the arena of conflict when the trial Court raised a question in

the course of determining the case.

On issue four, it is the contention of counsel that it is evident from the decision of the trial Court that the trial Court took into cognizance, not only the kind of damages for which the Appellants claimed to be entitled to, but the trial Court also considered if the Appellants were entitled to any damages whatsoever before reaching its decision. It is the further contention of counsel that the trial Court concluded that the Appellants had failed to provide any concrete evidence of actual losses suffered as a result of the bad credit report and thus failed to discharge their burden to prove entitlement to damages. It is the submission of counsel that the contention of the Appellants that the Court made reference to aggravated damages rather than general damages is a non-issue. It is the further submission of learned counsel that there is no way the Court would have ever considered the issue of aggravated damages without having first considered general damages because aggravated damages are but an extension of general damages. For this, he relied on Eliochin Nig. Ltd vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 @ 67 which the

Court of Appeal in Western Publishing Company Ltd & Anor vs. Fayemi (2015) LPELR-24735 (CA) relied on. Learned counsel relying on Nigerian Dynamic Engineering Construction Ltd vs. Dasso & Ors (2017) LPELR-43206 (CA); FCDA & Anor vs. MTN & Anor (2016) LPELR-41248 (CA); Bouygues (Nig) Ltd vs. O. Marine Services Ltd (2013) 3 NWLR (Pt. 1342) 429 submitted that for a claim of negligence to be sustained, the necessary ingredients ought to be proved. It is the contention of Respondent’s counsel that the trial Court rightly held that the Appellants failed to show any damages accruing from the actions of the Respondent. This is more so as the Appellants themselves were in breach of the terms of settlement in failing to pay the agreed installments as and when due. It is the submission of counsel that the Appellants had failed to prove that there was a breach of duty of care as well as any consequential damages arising from the alleged breach and were thus not entitled to damages claimed. It is the final submission of counsel that there is no reason for this Court to interfere with the decision of the trial Court in this regard and therefore urged

this Court to dismiss the appeal in its entirety and uphold the judgment of the lower Court.

The issues for determination in this appeal as formulated by both parties are the same in substance as they captured the four grounds of appeal. I will however adopt the issues as formulated by the Respondent as it appears to me more direct and simple. I will reproduce them here as my issues for determination since I have adopted same. They are:
1. Whether the Consent Judgment in Suit No. LD/260/2007 estopped the claim for negligence in Suit No. LD/ADR/CS/153/2013?
2. Whether the Appellants’ case before the lower Court was contested by the Respondent?
3. Whether the learned trial Judge descended into the arena of conflict by holding that the Appellants were not entitled to damages for negligence having not complied with their obligation to pay the first installment at its due date.
4. Whether the Appellant is entitled to general damages or any damages at all.

In addressing issue 1, it is important to state that the terms of settlement was on Suit No. LD/260/2007 and not on Suit No. LD/ADR/153/2013. The reason for the institution of

Suit No. LD/260/2007 was to prevent the Respondent from creating a legal mortgage on another property owned by the Appellants for the same facility. The property in the earlier suit is known as Plot 46 Ishawu Adewale Street, Surulere, Lagos while the property covered in the suit leading to this appeal is No. 9 Jubril Martins Street, Surulere, Lagos. The properties involved in both suits are different. The causes of action in both suits are also not materially the same. Even when damages for negligence is claimed in both suits, the basis of the negligence and damages is different. In the earlier suit the damages is for the unlawful presentation of the property therein, that is the Land Certificate No. MO 6840 to the Land Registry in Lagos. The basis of the damages in this appeal is posting of the Appellants’ names to CBN for bad credit history. While the parties are the same, the subject matter is not the same and the cause of action apparently is not the same. In the circumstance, in law, can Suit No. LD/260/2007 be estoppel for Suit No. LD/ADR/153/2013 or can the former suit operate as res judicata for the later suit? To answer this question, a little

excursion into the law on estoppel will not be out of place. In Ogbolosingha & Anor vs. Bayelsa State INEC & Ors (2015) 2 S.C (Pt. II) 1;(2015) LPELR-24353 (SC), the apex Court per Ogunbiyi, JSC at pages 27-29 held thus:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of Makun V. F.U.T. Minna (supra) wherein this Court re-iterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in OGBOLOSINGHA & ANOR V. BAYELSA STATE IEC & ORS both the previous and the present proceeding.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to

support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain. See also the decisions in Yoye V. Olubode (1974) 10 SC 209; Alashe V. Olori-Ilu (1965) NMLR 66; Fadiora V. Gbadebo (1978) 3 SC 219 and Udo V. Obot (1989) 1 SC (Pt. 1) 64.
Further still, his Lordship Onu, JSC re-affirmed the principle in the case of Dokubo V. Omoni (supra) wherein he held at page 659 and said:-
“It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See Alashe V. Olori Ilu (1964) 1 All NLR 390 at 394; Balogun V. Adejobi (1995) 2 NWLR (Pt. 376) 131, and Faleye V. Otapo (1995) 3 NWLR (Pt. 381) 1.”
From the cumulative summary of the

foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the parties by a Court of competent jurisdiction.”
Similarly in Daniel Tayar Trans. Ent. Nig. Ltd vs. Alhaji Liadi Busari & Anor NSCQR Vol. 45 2011 p.454, the apex Court per Onnoghen, JSC (as he then was) at page 487 held:
“For a successful plea of res judicata, this Court has decided, by a long line of cases that the following conditions must be established by the party relying on it:-
a. that the parties or their privies in both the earlier case and the case in which it is raised are the same;
b. that the judgment relied upon is valid, subsisting and final;
c. that the claim or issue in dispute in

the proceedings are the same;
d. that the subject matter of the litigation in both cases is the same; and,
e. that the Court that decided the previous suit is a Court of competent jurisdiction.”
For the plea of estoppel per rem judicata to succeed, all the above criteria must be satisfied. If any is missing the plea will fail. This is so because a successful plea will deprive a Court jurisdiction to handle the matter. I agree that a consent judgment is a valid judgment and if all the other conditions are present and proved, the fact that it is a consent judgment does not make it any less a valid judgment. This is because a consent judgment is an agreement between the parties on how their dispute will be settled. Mostly, the parties abandon their various claims for a compromised position which is acceptable to them. This is as much a valid judgment as one which is the product of a full-blown trial. From the facts I had stated above, it is clear to me that the plea of estoppel per rem judicata cannot avail the Respondent as the subject matter and the causes of action are different in both cases. The clear answer to issue 1 is therefore that

the consent judgment is not estoppel to the suit leading to this appeal. This issue is resolved in favour of the Appellant on the face value. This does not deprive this Court or any Court to rely on same in coming to the conclusion or decision in any case and indeed this case. This means I can rely on it to arrive at a decision in this appeal as the consent judgment is valid and subsisting.

I really do not see the real problem in issue 2. Except I do not understand what the Appellants’ senior counsel is vying to achieve in this ground of appeal. It will be completely out of place to argue that the Respondent did not contest the case of the Appellants in the lower Court simply because the Respondent did not file a consequential amendment when the Appellants filed an amended Statement of Claim. For whatever it is worth, let me state in clear terms that a Defendant to a suit is not obliged to file a consequential amendment to an amended statement of claim. Indeed, if the Defendant is comfortable with his statement of defence that it adequately responded to the amendment statement of claim, he need not file a consequential amendment. This is elementary

law for which I need not cite any case. It is not only elementary law but also common sense. The operative pleading before the Court was therefore, the amended statement of claim and the statement of defence filed before the amended statement of claim.

The Respondent’s brief seems to think that the Appellants’ senior counsel submission is along that line, which is that since the Defendant in the lower Court, the Respondent did not file an amended statement of defence, the statement of defence is jettison and therefore there is no defence to the suit. I do not think that is the submission of the Appellants’ counsel. The Appellants counsel’s submission in my understanding is that the Respondent in the statement of defence did not respond to some paragraphs in the amended statement of claim and therefore those facts are to be deemed unchallenged and acted upon by the Court. If my understanding is correct which I think it is, that actually represents the position of the law. A fact deposed to in a statement of claim not challenged in the statement of defence is deemed admitted by the Defendant and a Court will act on same as

unchallenged evidence. See Benard Okoebor vs. Police Council &Ors (2003) 2 NWLR (Pt. 834) 444; Chime &Ors vs. Chime (2001) LPELR-24858 (SC): Cameroon Airlines vs. Mr Mike Otutuizu NSCQR Vol. 45 2011 p. 962.

The Learned silk for the Appellants submitted that the Respondent did not deny the averments in paragraphs 20, 21, 22 & 23 of the amended statement of Claim. The Respondent counsel submitted that the Respondent answered those paragraphs in paragraphs 8,9,10 &11 of the statement of defence. It will not be out of place to reproduce those paragraphs here for completeness. Those paragraphs are contained in the operative pleadings in the lower Court. The Amended Statement of Claim filed on 17/06/2015 is on pages 198-201 of the record of appeal while the Statement of Defence filed on 31/05/2013 is on pages 64-68 of the records. The averments are as follows starting with paragraphs 20, 21, 22 & 23 of the Amended Statement of Claim
“20) The Claimants aver that the bad credit history posted against the Claimants by the Defendant effectively shut all the Claimants out of business when it was only the 1st Claimant that obtained facility

from the Defendant in spite of the fact that the facility obtained by the 1st Claimant was fully secured by a Third party legal mortgage
a) The 3rd Claimant in particular is the consulting arm of the 1st Claimant and the Claimants are interrelated to the extent that the 3rd Claimant source for loans and other bank facilities along with the 1st & 2nd Claimants. The bad credit history posted against the 1st & 2nd Claimants equally adversely affected the 3rd Claimant in the sense that the banks treated them as one and the same.
21) The Claimant in the process lost most of their competent staff to other Firms and Companies and were unable to sustain their growing concern status in spite of their letter dated 16th March 2010 addressed to the Defendant’s Solicitors complaining of the non-remover of the Claimant’s names from the bad credit history of the Central Bank of Nigeria. The Claimants in furtherance of their desire to get their names removed from the history of the Central Bank of Nigeria addressed another letter dated 18th May, 2010 to the Defendant’s Solicitors all to no avail.
22) The 1st Claimant avers that even

after the terms of settlement was entered into on 2nd October 2009 and same was made judgment of the Honourable Court on the 12th November 2009, the Defendant failed and/or refused to remove his name from the bad credit history of the Central Bank of Nigeria, thereby compelling the Claimants to file further processes in Suit LD/260/07; The Defendants despite Suit LD/260/07 and committing to remove the Claimants name from the bad credit history with the Central Bank of Nigeria’s Credit Bureau, it did not do so till the Defendants were compelled by the Claimants following a Complaint of the non-removal of their names from the CBN-CRMS via a letter dated 22nd April 2014 which read thus; “in the course of the conclusion of a loan application which ought to be disbursed by 10am today, 22 April 2014, our banker FCMB have once again, just notified us of the non-removal of our company name – S. S. Afemikhe & Co. from the CBN-CRMs database by your bank” which the Defendant replied on same date via a letter which read thus; “we shall investigate the issue further and revert to you”.
23) The Claimants shall contend at the

trial of this suit that the Defendant in the manner it posted bad credit history against the Claimants acted mala fide, maliciously and negligently with a view to driving the Claimants out of business and existence.
PARTICULARS OF NEGLIGENCE
i) The facility granted to the 1st Claimant was properly secured by third party legal mortgage.
ii) The Defendant posted CBN-CRMS about the Claimants despite the pendency of Suit LD/260/07 and the negotiation to resolve the dispute between the parties.
iii) The Defendant failed, refused and/or neglected to remove the bad credit history against the names of the Claimants after the Claimants paid the 1st installment in line with the terms of settlement and judgment of Court.
iv) The Defendant also failed, refused and/or neglected to remove the bad credit history against the names of the Claimants after the Claimants fully paid the indebtedness of the 1st Claimant.
v) The Defendant in spite of several letters from the Claimants failed, refused and/or neglected to remove the bad credit history against the Claimants.
vi) The Defendant ought to know that the bad credit history posted against

the Claimants’ names kept the Claimants out of business.”

Now to paragraphs 8, 9, 10 & 11 of the Statement of defence.
“8. The Defendant denies paragraphs 9, 10, 11, 12, 13 & 14 of the Statement of Claim and shall contend that all allegations contained in the said paragraphs are caught by the principle of Estoppel per rem judicata having been settled and pronounced upon by this Honourable Court (Coram Justice Oyebanji) in Suit No. LD/260/2007 – S. S. Afemikhe & 2 Ors. V. IBTC Chartered Bank Plc. The Defendant shall at the trial found upon the Statement of Claim, Statement of Defence/Counter-Claim, Terms of Settlement dated October 2, 2009 and Consent Judgment dated November 12, 2009 in respect of the aforesaid Suit No. LD/260/2007 – S. S. Afemikhe & 2 Ors. V. IBTC Chartered Bank Plc and shall thereupon contend that this Honourable Court has become functus officio of the issues arising from the averred facts aforedenied.
9. The Defendant denies paragraphs 16, 17, 18, 19, 20 and 21 of the Statement of Claim and shall at the trial put the Claimants to the strictest proof thereof. In response, the

Defendant avers as follows:
a. The CRSM report filed by the Defendant against the 1st and 2nd Claimants at the Credit Registry was done in good faith and in accordance with the standard practice in the Banking Industry. The Claimant shall contend that it is mandatory for Banks in Nigeria to file such report at the Credit Registry regarding any accounts in respect of which there has been default in meeting obligations for repayment of a loan granted by a Bank. The Defendant emphatically denies filing any Credit Report relating to the 3rd Claimant as it has never had any loan transaction or any other dealing whatsoever with the said 3rd Claimant.
b. The Defendant aver that at the time of filing the CRSM report at the Credit Registry concerning the 1st and 2nd Claimants in April 2009, the 1st and 2nd Claimants had defaulted in meeting their obligations to the Defendant in respect of the facilities granted to them by the Defendant.
c. The Defendant further avers that the essence of the Credit Registry is to enable stakeholders in the Banking and financial sector of the economy have relevant information to properly evaluate and mitigate the risks

associated with granting credit facilities to customers who already have bad loans or are defaulting in meeting their obligations under existing loans from other Banks. The Defendant states that Banks in Nigeria are under obligation to obtain Credit Reports on their Customers before granting loans to them they can appropriately assess the risk involved.
d. The Defendant emphatically denies that the filing of CRSM Report at the Credit Registry caused any hardship to the Claimants or shut them out of business or cause competent staff to leave and the Claimants are hereby put to the strictest proof. The Defendant hereby pleads the Credit Report of the 1st and 2nd Claimants and shall rely on same at the trial of this Suit.
10. The Defendant denies paragraph 22 of the Statement of Claim and puts the Claimants to the strictest proof. In response, the Defendant states as follows:
a. By the Terms of Settlement dated October 2, 2009 with respect to Suit No. LD/260/2007 – S. S. Afemikhe & 2 Ors. V. IBTC Chartered Bank Plc, the 1st and 2nd Claimants are under strict obligation to pay the Defendant “the sum of N7.5m (Seven Million, Five

Hundred Thousand Naira) immediately upon execution of the terms of settlement”, while the Defendant was under an obligation to remove the name of the 1st and 2nd Claimants from the Credit Registry “the moment the first installment was paid”.
b. The Claimants herein did not effect the payment of N7,500,000.00 (Seven Million, Five Hundred Thousand Naira) until several months after the said payment was due and this was sometime in January 2010 which was in clear violation of the Terms of Settlement executed on October 2, 2009.
c. The Defendant states that they have thereafter complied with the Terms of Settlement by removing the names of the 1st and 2nd Claimants upon payment of the agreed sum. The Defendant shall further contend that the 1st and 2nd Claimants have by their conduct varied the respective timelines for complying with the said Terms of Settlement and such mutual variation cannot confer a right of action on the Claimants against the Defendant.
11. The Defendant denies paragraph 23 of the Statement of Claim and puts the Claimant to the strictest proof. The Defendant states that the filing of the report at the Central

Bank Credit Registry Bureau was done in good faith, without malice and in accordance with the laid down laws and procedures.”

From the above paragraphs, I do not really see direct and specific joining of issues with what the Appellants averred that they suffered as a result of the Respondent’s action of posting the bad credit report to the CBN. All the Respondent tried to show in those paragraphs is not a denial of what the Appellants said they suffered as a result of the action of the Respondent but rather the Respondent is justifying its action. That is fine. The reasonable deduction one can arrive at is that should the justification fail then I will agree with the Appellants that the Respondent did not join issues with the Appellants of what they suffered. If however, the justification succeeds, there will be no negligence on the part of the Respondent. The Respondent’s major justification for the action of posting to CBN the bad credit report of the Appellants is that it is the requirement of the law and that the consent judgment has put an end to any purported negligent action of the Respondent in posting that report to the CBN. It

is also the Respondent’s case that the Appellants’ inability to respect the consent judgment by paying the agreed amount as at when due clearly makes the claim for damages against the Respondent untenable. I will be returning to this later in this judgment when I address issue 4 but for now, suffice it to say that the Appellants’ case was contested by the Respondent in the lower Court. I resolve this issue in favour of the Respondent as there was contestation of the Appellants’ case by the Respondent at the lower Court.

I will now turn to issue 3, which is whether the lower Court went into the arena in deciding the case between the parties in arriving at its decision. The Appellant while addressing issue 2 delved into what I consider as matters that can properly be discussed under issue 3. I will therefore, discuss same under issue 3. The Appellants’ senior counsel is of the view that the lower Court in arriving at the decision delved into areas and matters that were not before the Court and by so doing was making a case for the Respondent. The Appellants’ senior counsel submission that the question which the trial

judge posed and answered on pages 350-351 of the record in coming to the decision is outside the purview of the case before the lower Court is not correct in my view. Raising that question and answering same with due respect to learned silk does not amount to assisting any of the parties or going outside the purview of the case or the matter before the lower Court. In this respect, I find the case of Ikenta Best (Nigeria) Ltd vs. Attorney General River State (supra) cited by Respondent counsel very instructive. The apex Court held:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
The question is whether the Respondent failed to remove the

report to the CBN standing against the Appellants. This is the basis of the action against the Respondent in this suit. It is the failure to execute the deed of release over the property and the alleged damages the Appellants suffered for the bad credit history made by the Respondent against the Appellants to CBN that led to the institution of this action. It therefore, stands to reason that any issue that relates to the cause of action cannot be said to be an issue raised suo motu by the Court. While the principle of the law that a Court cannot raise and resolve an issue suo moto but a Court need to look closely at what issues in an action can be said to be raised suo moto. Where counsel to a case either based on his strategy in the case decides not to deal with an issue which naturally arising from the cause of action and a Court while writing the judgment delve into that issue, it will not in my opinion on the authority of the case cited above amount to the Court raising the issue suo moto. This is because, a Court in its judgment should not be limited only to the argument of counsel or to the cases cited by counsel. A Court has the right to go to cases and

statutes not provided by the counsel to the parties and even expand the argument on issues arising from the cause of action. I make bold to say that the lower Court did nothing wrong in my view in raising the question and determining same. This is more so that the parties in their pleadings recognized the issue of the report made to the CBN as a major issue in this case. I resolve issue 3 in favour of the Respondent.

Now to the fourth and final issue which is the most important issue in this appeal. The issue is whether the Appellants are entitled to the general damages. The lower Court in its judgment did not grant the relief of the Appellants for damages because according to the Court the Appellants did not lead evidence to show they suffered any loss and also that the Appellants did not comply with the consent judgment by paying the 1st installment as at when due and therefore the claim for damages failed. This is where I will need to return to the Consent Judgment. In addressing this issue as to whether the lower Court was right in the judgment, I will need to be specific on some dates. The relationship between the Appellants specifically the 1st

Appellant and the Respondent started in relation to the matter involved in this appeal in 2001 when the Respondent advanced a loan facility to the 1st Appellant wherein the property of the 2nd & 3rd Appellants located at No. 9 Jubril Martins Street, Surulere, Lagos, covered by Land Certificate Title No. M07307 was used as security upon which a legal mortgage is to be created. The loan was not paid back and interest had grown. Negotiations took place between the parties for the amount to be paid as final settlement. Within this period of the negotiation, the Respondent wanted to take over another property belonging to the Appellants. This property is Plot 46 Ishawu Adewale Street, Surulere, Lagos covered by Land Certificate Title No. MO6840. This led to the filing of Suit No. LD/260/07 in 2007. This case was finally settled between the parties on 12/11/2009 after the terms of settlement was signed on 2/10/2009. While the suit was still in Court the Respondent in line with the directive of the CBN submitted a report called ‘Bad Credit History’ of the Appellants on 29/4/2009. The consequence of this report on the Appellants’ business was

brought out clearly in paragraphs 20,21,22 & 23 of the amended statement of claim. These include refusal of credit facility by other banks which affected their business and loss of their competent staff to other companies. The report made to CBN was after suit No. LD/260/2007 but before the terms of settlement signed on 2/10/2009 and when it was finally entered as judgment on 12/11/2009. The terms of settlement reads in part thus:
“The Claimant agree with the defendant to settle the aforementioned civil matter out of Court on the following terms;
1. The claimant agree with the defendant to pay the sum of N25m (Twenty Five Million) as full and final settlement of their indebtedness arising from the said civil matter as follows;
i. …
ii. The defendant shall remove the claimant’s company names from CBN-CRMS the moment the said first installment is paid…”

The implication of this terms of settlement is that all matters in relation to the removal of the Appellants’ name from the CBN is governed by the terms therein. This means that after the first installment is paid, the Respondent shall remove the

Appellants’ name. The terms of settlement stated that the first installment is to be paid on the execution of the terms of settlement. This means it should be paid on 2/10/2009. It was however paid on 21/1/2010. By the terms of the terms of settlement, the Respondent should have removed the Appellants’ name from CBN on 21/1/2010. The name was however removed in August 2011. This is about 1 year 7 months after the 1st installment was made. Indeed, the Appellants only paid the 1st installment a few days before the final payment ought to have been done. The suit that led to this appeal was filed on 14/3/2013. This is filed about 1 year and 6 months after the name was removed. I have gone into all this so that we can appreciate the decision of this Court.

The first point that must be made is that the Respondent was not at fault in making that report to the CBN. This is a requirement of the law. The CBN is the bank to other banks and has supervisory powers over other banks. The Respondent as a bank in Nigeria has an obligation to submit reports on all issues including non-performing loans to the CBN. This Court can take judicial notice of that.

See Adegboyega vs. Igbinosun (1969) LPELR-25549 (SC).

The Respondent therefore, has an obligation to submit the report it did on 29/4/2009 because as at that time, the loan granted to the Appellants has not been repaid. By the terms of settlement, it is implied that the Appellants recognized and appreciated the fact of the report and are fine with the report being there until the 1st installment is paid. Going by the terms of settlement, it would appear the Appellants have no cause of action against the Respondent until the 1st installment is paid. The relevant date here is 21/1/2010. The Respondent should have removed the Appellants’ name from CBN on that date. The Respondent did not do so but rather waited till August 2011. If the Appellants have any cause of action for damages against the Respondent, it will be from 21/1/2010 to August 2011, and not before then as by the terms of settlement, the Respondent has no obligation to remove Appellants’ name before 21/1/2010. The Appellants’ argument is that they lost staff and credibility to obtain loan from other banks because of the report. I had mentioned above that the Respondent did not

join issues with the Appellants on this issue as I make bold to say that paragraphs 8,9,10 & 11 of the Statement of defence is not response to paragraphs 20,21,22 & 23 of the amended statement of claim. In the absence of any such challenge, I do not agree with the Respondent and indeed the lower Court that the Appellants have not proved that they suffered anything as a result of the report. The law is clear that a Court will act on unchallenged evidence. The Respondent did not challenge the evidence before the lower Court and so it is deemed proved as it does not require further proof. See Achilihu & Ors vs. Anyatonwu (2013) LPELR-20622 (SC); DIN vs. African Newspapers of (Nig) Ltd (1990) LPELR-947 (SC).

On the face value it would appear the Appellants are entitled to damages. The law on general damages is clear and settled. All a party who is seeking general damages needs to show is that he suffered some wrong because of the action of the other party. Sounding more specific, the Appellants ordinarily will be entitled to general damages since there is evidence that they suffered some back turn in their business because of the report made to

the CBN. General damages are damages based on what the Appellants suffered which flow naturally from the action of the Respondent. The Appellants need not specifically show item by item what they suffered. This is the difference between general and special damages. All a Court requires to award general damages is that the Appellant suffered some injury arising from the action of the Respondent. I must say that I agree with the Appellants that there was no need for the lower Court to bring in the concept of aggravated damages. That was completely out of place as the Appellants did not ask for aggravated damages. To focus on aggravated damages as the basis to refuse a claim for general damages will be out of place as the law relating to both damages are different both in name and legal consequence. In Elf Petroleum Nigeria Limited vs. Daniel C. Umah & Ors (2018) 10 NWLR (Pt. 1628) 428, the apex Court on general damages held:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and

contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.
Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance Ltd V. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and WASA V. Kalla (1978) 3 SC 21.”
Similarly, in UBN Plc vs. Ajabule & Anor (2011) LPELR-8239 (SC), the Supreme Court held thus:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.”
Aggravated damages are those granted when

the injury is aggravated but not necessarily flowing from the natural consequence of the injury. Aggravated damages are damages of some special class where what is involved is the injury affecting the feelings of the person affected. The apex Court defined aggravated damages in these words in MMA Inc vs. NMA (2012) 12 S.C. 11;
“The Court may take into account the Defendants motives, conduct and manner, and where they have aggravated the plaintiff damages may be awarded. The Defendant may have acted with malevolence or spite or behaved in a high handed, malicious insulting, aggressive manner. Aggravated damages are designed to compensate the plaintiff for his wounded feelings. See paragraph 1189 of the Halsbury Laws of England 4th Ed. Vol. 12 and the case of KOUNO v. CHIEKWE (1991) 2 NWLR (Pt. 173) 316.”
On the face value, it would appear that the Appellants are only entitled to general damages and not aggravated damages for the period the 1st installment was paid, that is 13/1/2010 and the period the report was removed that is August 2011. This ordinarily should have been the case but the Respondent is making an issue of the fact that the

Appellants breached the terms of settlement and therefore they should not be entitled to damages. Should this Court close its eyes to the attitude of the Appellants in not obeying the order of a competent Court? The Appellants are relying on the terms of settlement that they have breached to seek for an order for damages. The Appellants only paid the 1st installment on 12/1/2010, a few days before the Appellants should have paid the whole money. The attitude of the Appellants has much to be desired and can make any reasonable man to be careful before taking an action that may take the Appellants off the hook. This is not only a Court of law but also a Court of justice. The duty of the Court is to do justice between the parties before it. The apex Court made this position clear in Owuru & Anor vs. Adigwu & Anor (2017) 6-7 S.C. (Pt. 111) 67 when the Court held:
“The powers granted the Courts in Section 6 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) are meant to be used to do Justice to all manner of persons. Therefore, at all times, the Courts must be vigilant to make sure that every person who comes to the Temple

of justice receives his due share.”
Justice must not be seen from the angle of any of the parties alone but also from the perspective of the state or the society. Justice is properly served when the interest of all the parties are taken into consideration and that of the society also. The Court is to balance all this conflicting interest in doing justice. A Court should not look at the interest of the Claimant alone to arrive at justice. In such a situation, the Court will see justice as only addressing the wrong made to the Claimant for which he wants redress. Justice from this perspective will only be served if the claim of the Claimant is granted. If the Court otherwise holds, the Claimant will say he did not get justice. The Court should also not see justice from the perspective of the Defendant alone. As to the Defendant justice is served only when the case of the Claimant is dismissed. Anything short of that will not be justice from the perspective of the Defendant. To the Defendant justice is served if he is let off the hook. The Court cannot satisfy both of the parties at the same time. The Court will therefore also look at justice from the

perspective of the wider society whose norms are to be protected. To therefore, serve justice there must be a balance of all these. This Court per Abiru, JCA puts this beautifully in these words in the case of Salisu & Ors vs. Abubakar & Ors (2014) LPELR-23075 (CA):
“Now, the task before any Court in all disputes brought before it for adjudication is to ensure the doing of substantial justice to all the parties involved in the disputes.
The theory of justice enjoins a Court of law to hold an even balance between the parties as one sided justice will amount to injustice. It postulates that justice is a three-way traffic – (i) justice for the plaintiff who is crying for redress of the alleged wrong to him; (ii) justice for the defendant who is pleading that he should be heard and his defence considered before any order is made against him; and (iii) justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of the word has been seen to have been done by the Court

– Okomu Oil Palm Ltd Vs Okpame (2007) 3 NWLR (Pt. 1020) 71.”

The question now is, will justice be served if damages is granted to the Appellants who breached the terms of settlement. The terms of settlement is to the effect that once the 1st installment is paid on 2/10/2009, the report should be removed from CBN-CRMS. The total payment was to be made on 31/1/2010. The 1st installment was paid on 12/1/2010 precisely 29 days from when all the five installments ought to have been paid. The Respondent cannot in the circumstance be held liable for breaching the terms of the settlement which the Appellants also violated and breached. The tenet of justice will not be served for a Court to allow a party who breached the terms of a contract to enjoy any benefit under that same law. The Appellants cannot benefit from the terms of settlement that they also breached. In Adedeji vs. Obajimi (2018) LPELR-44360 (SC) the apex Court held thus:
“I find it pertinent here to ask in the interest of equity and good conscience, howbeit that the Appellant who has willy-nilly refused (and with no lawful excuse) to perform a contract he has willingly signed

and deliberately held the Respondent to ransom by refusing to pay up without word of his loss of interest or otherwise to the Respondent, be made to benefit from his breach. It is trite that a party should not benefit from his own wrong and I am of the firm view that the decision of the trial Court amounts to allowing a party reap benefits from his wrong. See: ENEKWE VS I.M.B (NIG) LTD (2007) All FWLR (Pt. 349) page 1053 at 1081. The trial Court’s attempt to bail the Respondent out on the equitable doctrine of part performance shall not be allowed to stand, it is my firm view that equity must be done to both parties and not just the Appellant. I affirm the finding of the Court below as follows: “It must be stated here that the doctrine on part-performance arose by sheer intervention of equity. Equity intervened to mitigate the losses that may arise by rigid application of contracts that by law ought to be in writing but were made orally. The doctrine is based on estoppel that a defendant who plainly indicated by his conduct the existence of a contract could not be allowed to give himself the lie and take shelter under a statute. It is designed to prevent fraud

from being perpetrated on the other side who has altered his position on the faith of the contract… Exhibit 7 is a written contract between the parties. They did not enter into any oral contract in which the appellant made the respondent alter his position adversely on the faith of the contract. So, the doctrine of part-performance imported into the judgment did not hold any water. The learned trial judge with respect to her, talked about interest of justice to the respondent who was in breach of a fundamental term. I am afraid; interest of justice must be to the appellant as well and I dare say even to the Court itself. The respondent did not pay the purchase price on 30-4-99 as agreed. Within 30-4-99 and 29-10-99, the respondent put the appellant in limbo; to use the language of the trial judge. The respondent failed to pay up on scheduled date. For about six months, the respondent put the appellant in suspense and had the audacity to say that the appellant was negotiating with others for the sale of his concern.” I absolutely agree with this position and do believe that if anything, that the wand of interest of justice and equity being waved in favour of

the Appellant at the trial Court should have been directed at the Respondent too, luckily for the Respondent, posterity has smiled on him through the decision of the Court below and I do not intend to overturn that decision, in fact, I endorse it.”
See also Teriba vs. Adeyemo (2010) LPELR-3143 (SC); PDP & Ors vs. Ezeonwuka & Anor (2017) LPELR-42563 (SC).
Damages is an equitable relief and therefore the maxim of equity that says he who comes to equity must come with clean hands and do equity, will come into play here. See Alhaji Mohammed Karaye vs. Levi Wike (2019) LPELR-49382 (SC). This issue I resolve in favour of the Respondent.

In addressing all the issues above, it is clear that issue 1 is resolved in favour of the Appellants which is that suit No. LD/260/2007 cannot operate as estoppel to suit No. LD/ADR/153/2013 but that does not mean that the terms of settlement arrived at therein is not useful for the case in this appeal. Resolving issue 1 in favour of the Appellants is not sufficient to allow this appeal as the most important issue, that is issue 4 is resolved in favour of the Respondent. Having resolved issues 2,3 & 4

in favour of the Respondent, there is no way this appeal will succeed and be allowed. This appeal fails and it is hereby dismissed. The judgment of Hon. Justice Adenike J. Coker (Mrs) of the Lagos State High Court delivered on 31/5/2016 is hereby affirmed and upheld.
Parties are to bear their own cost.

TIJJANI ABUBAKAR, J.C.A.: I read the leading Judgment prepared and rendered in this appeal by my learned brother Ebiowei Tobi JCA. I am in agreement and have nothing extra to add. I adopt the Judgment as my own.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

EFOSA EWEE ESQ. For Appellant(s)

KEHINDE AINA ESQ. For Respondent(s)