BSS ENGINEERING SERVICES LTD & ORS v. FIDELITY BANK (2021)

BSS ENGINEERING SERVICES LTD & ORS v. FIDELITY BANK

(2021)LCN/15141(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/L/954/2012

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

1. BSS ENGINEERING SERVICES LTD 2. ARFO CONSTRUCTION COMPANY LTD 3. ALHAJI BABA SHEHU SHETIMA APPELANT(S)

And

FIDELITY BANK PLC RESPONDENT(S)

RATIO

WHETHER THE APPELLATE COURT IS AT LIBERTY TO EVALUATE DOCUMENTARY EVIDENCE

It is germane to place on record, upfront, that loads of documentary evidence were furnished before the lower Court by the parties. Interestingly, the case-law gives the Courts the liberty to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt.1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. PER OBANDE FESTUS OGBUINYA, J.C.A.

IMPORTANCE OF THE ISSUE OF JURISDICTION IN ADJUDICATION

Issue of jurisdiction is numero uno in adjudication. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law. PER OBANDE FESTUS OGBUINYA, J.C.A.

NATURE AND APPLICATION OF THE PRINCIPLE OF ‘ESTOPPEL PER REM JUDICATAM’

By way of prefatory remarks, the expression ‘estoppel per rem judicatam’, which has acquired the nickname ‘res judicata’, owes its lexical ancestry to the Latin language in the original term as res adjudicata. Res judicata, a commonplace term in our corpus juris, simply connotes: a thing adjudicated. The principle implies that a verdict that was previously rendered in a Court of law would constitute a bar to a subsequent action on the same terms. The doctrine finds anchorage in public policy couched in the two legal maxims: Interest reipublicae utsit finis litium — it is in the interest of the public that there be a limit to litigation, and Nomo debet bis vexari — no man should be troubled twice for one and the same cause. For the principle to apply, it must be shown by its propounder, that: (a) the parties in the previous and present action are the same; (b) the subject matter in the two actions are the same; (c) the issues in the two matters are the same and (d) the decision in the previous action must be final and delivered by a Court of competent jurisdiction, see Cardoso v. Daniel (1986) 1 NSCC 387, (1986) 2 NWLR (Part 20) 1; lgwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495; Abubakar v. B.O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; Ayuya v. Yorin (2011) 10 NWLR (Pt. 1254) 135; Makun v. F.U.T., Minna (2011) 18 NWLR (Pt. 1278) 190; C.P.C. v. Nyako (2011) 17 NWLR (Pt. 1277) 451; Adeyemi – Bero v. L.S.D.P.C. (2013) 8 NWLR (Pt. 1356) 238; lgeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225; Apata v. Olanlokun (2013) 17 NWLR (Pt. 1383) 221; Abiola & Sons co. Ltd. v. 7up-Bottling co. Ltd. (2012) 15 NWLR (Pt. 1322) 184; Abubakar v. B.O. & A. P. Ltd. (supra); Alapo v. Agbokere (2010) 9 NWLR (Pt. 1198) 30; Yusuf v. Adegoke (2009) 11 NWLR (Pt. 1045) 332; D.T.T. Ent. co. (Nig.) Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 25; Apena v. Aileru (2014) 14 NWLR (Pt. 1426) 111; Sylva v. INEC (2015) 16 NWLR (pt. 1486) 576; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Yanaty Petroleum Ltd. v. EFCC (2018) 5 NWLR (Pt. 1611) 97. Indisputably, where a plea of res judicata succeeds, a Court of law is stripped of the requisite jurisdiction to try the matter in which it is raised. Of course, the converse is true, that is, where the plea is a non-starter, a Court will be invested with the vires to hear the matter in question, see Adigun v. Gov., Osun State (1995) 3 SCNJ 1, (1995) 3 NWLR (Pt. 385) 573; Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1271) 22. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHO IS A PARTY; WHETHER PARTIES INCLUDE PRIVIES

A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, seeGreen v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. In law, parties encompass privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115. PER OBANDE FESTUS OGBUINYA, J.C.A.

BURDEN PLACED ON A PARTY SEEKING TO PLEA THE DOCTRINE OF RES JUDICATA AS A DEFENCE TO AN ACTION

For a party who invites the doctrine of res judicata, usually as a defence to an action, to reap from its beneficent vineyard, he must establish all the conditions for its application. Put differently, the conditions must be established conjunctively not disjunctively. All of them must co-exist concurrently. It is a burden which the law imposes on the party who invents it as a defence. Their collective proof is a condition-precedent for the successful invocation of the doctrine. In the eye of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493: A.G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. PER OBANDE FESTUS OGBUINYA, J.C.A.

POSITION OF THE LAW REGARDING WHEN CONTRADICTION IN TESTIMONIES WILL BE FATAL TO ANY CASE

As a preclude, etymologically, contradiction, like most legal terminologies, traces its pedigree to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute any dents on a party’s case, see Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184); Wachukwu v. Owunwanze (2011) 14 NWLR (Pt. 1266) 1; Yakubu v. Jauroyel (2014) 11 NWLR (Pt.1418) 205; Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1593) 181; Pada v. Galadima (2018) 5 NWLR (Pt. 1611) 160; Edosa v. Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1; Nnadike v. Nwachukwu (2019) 16 NWLR (Pt. 1698) 239. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT ARE ADMISSION; WHETHER ADMITTED FACT NEED FURTHER PROOF

In the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanezi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247. PER OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Lagos, holden in Lagos (hereinafter addressed as “the lower Court”), coram judice, K. A. Ajose, J., in Suit No. LD/430/2005, delivered on 23rd January, 2012. Before the lower Court, the appellants and the respondent were the defendants and the claimant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In 2002, at the behest of the first appellant, the respondent, a licensed banking institution, granted a lease facility of N425,000,000.00 to it for a period of 180 days. The facility was guaranteed by the second and third appellants. The facility was to enable the first appellant finance acquisition of equipment for road construction. The parties executed an equipment lease agreement which served as collateral for the facility. The appellants defaulted in repaying the principal sum in the lease facility with accrued interest and other charges which as at 31st May, 2005 stood at N762,611,814.62. The respondent made several demands on them for the repayment but to no

avail. Sequel to that, the respondent beseeched the lower Court, via a writ of summons filed on 11th March, 2005, and tabled against the appellants, jointly and severally, the following reliefs:
(a) The sum of N762,611,814.62 (Seven Hundred and Sixty Two Million, Six Hundred and Eleven Thousand, Eight Hundred and Fourteen Naira, Sixty-Two Kobo) being the principal sum of N425,000,000.99 (Four Hundred Twenty Five Million Naira) and accumulated interest of N337,611,814.62 (Three Hundred Thirty Seven Million, Six Hundred and Eleven Thousand, Eight Hundred and Fourteen Naira, Sixty Two Kobo) owed to the Claimant by the Defendants as at 31/01/2005.
(b) Interest on the said sum at the rate of 38% per annum from 01/02/2005 until judgment and thereafter at the rate of 10% till the final liquidation of the sum aforesaid.
(c) The cost of the action.

In reaction, the appellants joined issue with the respondent and denied liability. They alleged that they executed the lease facility documents, but no money was disbursed to them. They asserted that the respondent unlawfully appointed a receiver to manage the second appellant and another

company affiliated to the third appellant. The second appellant challenged the appointment in Court and got judgment. They claimed that despite the judgment, the respondent defamed their names in advertisements it published in This Day Newspaper. Consequently, they counter-claimed against the respondent as follows:
WHEREFORE the Defendants/Counter- claimants claim against the Claimant/Defendant to Counterclaim the sum of N100,000.00 (One Hundred Million Naira) being damages for the injury suffered by the Defendants as a result of the defamatory statements contained in This Day Newspaper publications of 31st May and 7th June 2004.

Following the competing claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded a witness, PW 1, and tendered tons of documentary evidence exhibits P1-P25. In disproof of the case, the appellants called one witness, DW1, and tendered documentary evidence – exhibits D1 – D5. At the closure of evidence, the parties, through their counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 23rd January, 2012, found at pages

303 -327, the lower Court granted the respondent’s claims and dismissed the appellants’ counter-claim.

The appellants were dissatisfied with the decision. Hence, on 13th February, 2012, the appellants lodged a 3-ground notice of appeal, copied at pages 328 — 330 of the record, wherein they prayed as follows:
(1) That the Court of Appeal allow the appeal and set aside the judgment of the lower Court delivered on the 23rd day of January, 2012.
(2) That the Respondent’s claim be dismissed in their entirety while judgment be entered for the Appellants’ counterclaim.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeal in this Court. The appeal was heard on 14th January, 2021

During its hearing, learned appellants’ counsel, C.I. Igbinedion Esq., adopted the appellants’ brief of argument, filed on 8th February, 2017 but deemed properly filed on 13th June, 2018, and the appellants’ reply brief, filed on 13th September, 2019 but deemed properly filed on 7th December, 2020, as representing his arguments for the appeal.

He urged the Court to allow it. Similarly, learned respondent’s counsel, Ben Onuora, Esq., adopted the respondent’s brief of argument, filed on 13th April, 2017 but deemed properly filed on 13th June, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellants’ brief of argument, learned counsel distilled two issues for determination to wit:
1. Whether the lower Court was right to have granted the Respondent’s claim for the sum of N762,611,814.62 (Seven Hundred and Sixty-Two Million, Six Hundred and Eleven Thousand, Eight and Fourteen Naira, Sixty-Two Kobo), the Respondent having failed to establish (1) how debt arose; (2) that any sum was disbursed to the 1st Appellant and (3) the debt was not the same debt over which Exhibit D5 and Suit No. FHC/L/CS/503/2004 relate.
2. Whether the lower Court did not misdirect itself as to the law and facts when it failed to grant the Counter- Claim of the Appellants.

Admirably, learned respondents counsel adopted No. 1 with minute modifications, the issues crafted by the learned appellants’ counsel.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Arguments on the issues:
Issue one.
Learned appellants’ counsel submitted that the lower Court made a different case from that before it as evidence showed that the facility as paid to the second appellant not the first appellant which applied for it. He added that the respondent failed to prove that it disbursed the money to the first appellant. He maintained that N425,000,000 was never disbursed to the appellants. He stated that the first respondent failed to prove how the loan arose and the lease facility and equipment lease agreement had uncertain conditions. He described the respondent’s evidence as inconsistent/contradictory and the lower Court could not pick and choose between them . He relied on Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297. He claimed that the respondent was debiting and crediting the appellants’ accounts without their instructions and instrument. He asserted that the respondent failed to discharge the burden of proof on it and it could not rely on the appellants’ case. He cited Section 137 of the Evidence Act, 2011; Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 75. He noted that the lower Court failed to properly appraise the evidence

and wrongly misapplied the burden of proof on respondent on the appellants. He referred to Orji v. D.T.M. (Nig.) Ltd. (2009) 18 NWLR (Pt. 1173) 467.

Learned counsel posited that the lower Court failed to consider exhibits D5 and D1 which constituted res judicata against the respondent’s suit. He cited Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1054) 332; Ntuks v. NPA (2007) 3 NWLR (Pt. 1051) 392 where conditions of res judicata were enumerated. He insisted that the debt in exhibit D5 is the same in the respondent’s suit. He described the lower Court’s finding as perverse.

On behalf of the respondent, learned counsel narrated how the lease facility arose and how the sum of N425,000,000.00 was paid to the first appellant and later to the second appellant. He noted that the lower Court did not make a case different from that before it. He opined that the third appellant authorised the respondent to pay the cheques. He stated that the facility sum was disbursed to the first appellant and later N406,000,000.00 to was transferred to the second appellant on the agreement of the parties. He reasoned that the first appellant’s indebtedness was proved through its

statement of account, which it received without objection, and other kinds of evidence. He relied onNagebu Co. Nig. Ltd. v. Unity Bank Plc (2013) FWLR (Pt. 698) 871; Thor Ltd. v. FCMB Ltd. (2005) All FWLR (Pt. 274) 217. He took the view that there was no inconsistency/contradiction in the evidence of the respondent’s witness. He relied on paragraphs 9 – 11 of his statement on oath. He explained that the lease facility was one while the equipment lease agreement secured it. He culled the meaning of contradiction as noted in Agbo v. State (2006) All FWLR (Pt. 309) 1380. He maintained that facility was disbursed to the first appellant. He claimed the appellants admitted the indebtedness through their correspondence and the lower Court rightly gave effect to. it. He referred toBank of the North Ltd. v. Yau (2001) FWLR (Pt. 54) 280; Asaba Textile Mill Plc. v. Bona Textile Ltd. (2007) All FWLR (Pt. 364) 336. He said that the appellant admitted the reception of the equipment and could not approbate and reprobate.

Learned counsel submitted that the debt in exhibit D5 was against Kau International Ltd and not against the appellants. He added that the claims

and parties in the respondent’s suit were different from that in FHC/L/CS/503/2004. He explained that an incorporated company assumes a district corporate personality. He cited Rtoda v. (Tegas) DN Ltd. (2015) All FWLR (Pt. 811) 1369.

On points of law, learned counsel argued that entries and charges must be proved a bank would be entitled to the sum in the debt balance. He cited Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) LPELR – 3461 (SC); Yesufu v. ACB (sic – no year) 1 SC 74; Biezan Exclusive Guest House v. Union Savings and Loans Ltd. (2010) LPELR – 3876 (CA).

Issue two.
Learned appellants’ counsel contended that the respondent admitted the ingredients of defamation and there was no need to prove them. He observed that the lower Court was wrong in holding that there was no evidence of defamation. He asserted that a Court would rely on unchallenged evidence. He cited P.T.F. v. I.F.M.S. Ltd. (2002) 16 NWLR (Pt. 794) 586. He stated that the respondent made the defamatory publication knowing same to be false and it affected the goodwill of the appellants before right thinking members of the society. He urged the Court to reverse the lower

Court’s decision.

For the respondent, learned counsel enumerated what a claimant in defamation (libel) must prove. He relied on Oranezi v. Ngige (2014) All FWLR (Pt. 760) 1350. He stated that the publication was tendered and the parties allegedly defamed were not the appellants but Kau International Ltd and Arfo Group of Companies Limited which had separate legal personality from their owners/directors and the appellants. He cited Octopus Investment and Finance Co. Ltd. v. Sunil S. Vaswani (2015) All FWLR (Pt. 806) 390; New Nigerian Newspapers Ltd. v. Agbomabini (2013) LPELR 20741 (CA); Rtoda v. (Tegas) DN Ltd. (supra); Section 3 of the Companies and Allied Mattes Act (CAMA). He opined that the appellants failed to show that they were the people defamed. He referred to Onu v. Agbese (1985) NSCC vol. 16 (Pt. 1) 712; Service Press Ltd. v. Azikiwe (1951) 13 WACA 301. He noted the publication was not tendered which made the evidence documentary hearsay. He relied on Aromolaran v. Agoro (2015) All FWLR (Pt. 766) 574. He postulated that the appellants called no evidence to show that they were ridiculed or suffered financial distress from the publication. He

cited Ekong v. Otop (2015) All F WLR (Pt. 764) 156.

Resolution of the issues.
It is germane to place on record, upfront, that loads of documentary evidence were furnished before the lower Court by the parties. Interestingly, the case-law gives the Courts the liberty to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt.

1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. I will tap from this co-ordinate jurisdiction in the appraisal of the avalanche of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the two stubborn issues in this appeal.

For the sake of orderliness, I will attend to issue one first. The issue is highly loaded as it warehouses trinity sub-issues that cry for resolution, videlicet: lack of disbursement, contradiction and res judicata. In an abiding loyalty to the injunction of the law, I will settle the last of tripodal sub-issues, id est res judicata. The hut of the sub- issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. Issue of jurisdiction is numero uno in adjudication. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc.

(2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law.

Now, the plinth of the appellants’ chief grievance, indeed their foremost trump card of the issue, is the respondent’s suit was caught in the nest of res judicata because its subject-matter/res, debt of N726,000,000.00 had been previously determined in Suit No. FHC/L/CS/503/2004 by another competent Court. In other words, it chastises the lower Court’s finding that the respondent’s suit was not trapped in the net/web of res judicata.

bar to a subsequent action on the same terms. The doctrine finds anchorage in public policy couched in the two legal maxims: Interest reipublicae utsit finis litium — it is in the interest of the public that there be a limit to litigation, and Nomo debet bis vexari — no man should be troubled twice for one and the same cause. For the principle to apply, it must be shown by its propounder, that: (a) the parties in the previous and present action are the same; (b) the subject matter in the two actions are the same; (c) the issues in the two matters are the same and (d) the decision in the previous action must be final and delivered by a Court of competent jurisdiction, see Cardoso v. Daniel (1986) 1 NSCC 387, (1986) 2 NWLR (Part 20) 1; lgwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495; Abubakar v. B.O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; Ayuya v. Yorin (2011) 10 NWLR (Pt. 1254) 135; Makun v. F.U.T., Minna (2011) 18 NWLR (Pt. 1278) 190; C.P.C. v. Nyako (2011) 17 NWLR (Pt. 1277) 451; Adeyemi – Bero v. L.S.D.P.C. (2013) 8 NWLR (Pt. 1356) 238; lgeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225;

Apata v. Olanlokun (2013) 17 NWLR (Pt. 1383) 221; Abiola & Sons co. Ltd. v. 7up-Bottling co. Ltd. (2012) 15 NWLR (Pt. 1322) 184; Abubakar v. B.O. & A. P. Ltd. (supra); Alapo v. Agbokere (2010) 9 NWLR (Pt. 1198) 30; Yusuf v. Adegoke (2009) 11 NWLR (Pt. 1045) 332; D.T.T. Ent. co. (Nig.) Ltd. v. Busari (2011) 8 NWLR (Pt. 1249) 387; Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 25; Apena v. Aileru (2014) 14 NWLR (Pt. 1426) 111; Sylva v. INEC (2015) 16 NWLR (pt. 1486) 576; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Yanaty Petroleum Ltd. v. EFCC (2018) 5 NWLR (Pt. 1611) 97.

Indisputably, where a plea of res judicata succeeds, a Court of law is stripped of the requisite jurisdiction to try the matter in which it is raised. Of course, the converse is true, that is, where the plea is a non-starter, a Court will be invested with the vires to hear the matter in question, see Adigun v. Gov., Osun State (1995) 3 SCNJ 1, (1995) 3 NWLR (Pt. 385) 573; Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1271) 22.

I have, in due fidelity to the desire of the law, married the respondent’s case, which parented this appeal, and that

encased in Suit No. FHC/L/CS/503/2014 (that case) with the conditions for application of res judicata catalogued earlier on. The raison d’etre for the juxtaposition is simple. It is to discover whether they flouted or respected the doctrine of res judicata. Put differently, whether the appellants, who erected the doctrine as a defence, satisfied its conditionalities. I will without much ado, begin with the nomenclature of the parties in the two cases. It is apropros to appreciate the connotation of a party in litigation. A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, seeGreen v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229.

In law, parties encompass privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa

(1998) 12 SCNJ 115.
Interestingly, the parties to the case, which sired the appeal, have been clearly displayed at the cradle of this judgment: the appellants and the respondent. In respect of Suit No. FHC/L/CS/503/2004 (that case), exhibits D1 and D5, the judgment and drawn up order respectively come in handy. They colonise pages 189 — 192 and 193 and 194 of the record respectively. It is decipherable from the documents that the parties in that case were: Kau International Nigeria Limited and Arfo Group of Companies Limited — Plaintiffs and FSB International Bank Limited and Prince Ben C. Onuora — the defendants. The FSB International Bank Limited metamorphosed into the respondent — Fidelity Bank Limited by dint of acquisition — the former transferred/assigned all its assets, real, choses in action and liabilities to the latter. Following the transfiguration, the respondent became a successor-in-title to the FSB International Bank Limited. A successor is one who takes the place of another by succession, see L.S.B.P.C v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. The purchase gave birth to the relationship

of privy in estate between the Intercontinental Bank Limited and the respondent. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. — G., Oyo State (1987) 4 NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v. Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ 115; Abubakar v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; L.S.B.P.C v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. In effect, the law, in its wisdom, has already crowned the respondent with the toga of a party in all the two actions on the footing of privy of estate.
However, it is crystal clear, that the appellants were not parties to the suit as their names were glaring absent from it. By the same token, the plaintiffs and the second defendant, Prince Ben C. Onuora, in that case were not made parties to the respondent’s suit. It stems from the foregoing that, even though the respondent was/is a recurring decimal in both suits, the parties in that case are not in pari materia with those in the respondent’s suit.
In order to determine the

sameness/uniformity of the subject matter and issues in the two cases, the reliefs solicited in both are of note. The reliefs claimed by the respondent against the appellants, jointly and severally, had been set out, verbatim ac littettaim, at the dawn of this judgment. It is pointless to import them by pay of replication and propagation here. The plaintiffs’ claims in that case are housed in exhibit D1 which occupy pages 189-192 of the record: the bedrock of every appeal. It is imperative to pluck them out from where they are domiciled in the record, ipsissima verba, as follows
1. A Declaration that the 1st Plaintiff has liquidated its indebtedness to the 1st Defendant in respect of the Lease Finance facility of N40m granted by it to the 1st Defendant and guaranteed by the 2nd Plaintiff.
2. An Order discharging the 2nd Plaintiff’s assets from the Debenture dated 10th day of June 1997 and a further order that the said deed of debenture had been satisfied and discharged by Arfo Construction Co. (Nig.) Limited by payment of N53,200,000.00 to the 1st Defendant on the 24th day of February, 2000 in full and final liquidation of the lease Finance

Facility granted the 1st Plaintiff.
3. A perpetual injunction restraining the debentures by themselves, their proxies, servants employees, agents, privies and any other person acting through them or on their behalf from entering the Plaintiff’s Companies disrupting or in any way interfering with their businesses more especially the Plaintiff’s premises at No. 40, Kofo Abayomi Street, Victoria Island, Lagos and branches nationwide pursuant to the Deed of Debentures dated 10th day of June, 1997, the Deed of Appointment of Receiver/Manager date the 2nd March, 2004, the Notice of Appointment of Receiver/Manager or any other document whatsoever.
4. An order of Perpetual Injunction restraining the Debentures from contacting the Plaintiff’s customers and/or bankers and in any way interfering with or threatening the management of the Plaintiff’s Companies.
5. An order of Perpetual Injunction restraining the 2nd Defendant from publishing his purported appointment as a Receiver of the 2nd Plaintiff or in any way publishing the said appointment or taking any steps with regard to the purported appointment as Receiver of the 2nd Plaintiff.

I have matched the two sets of reliefs in both cases. The synopses of the res and issues in that case are: discharge from indebtedness of N40m lease finance facility, discharge from deed of debenture, injunction restraining the defendants’ therein from interfering with the plaintiffs’ business and publishing the second defendant’s appointment as a receiver and execution of his assignment. On the other hand, the kernel of the claims in the respondent’s suit is the recovery of the lease facility debt of N762,611,814.62 alongside the interests it generated, from the appellants. Thus, the res and claims in both cases are diametrically opposed to one another. They are miles apart and mutually exclusive. They appear parallel without any confluence point. In so far as they are not coterminous, they are impotent to arrest the doctrine of res judicata for the benefit of the appellants.
Nota bene, the decision in that case, is wrapped in exhibit D1. It was rendered by a Federal High of Nigeria, Lagos Division, coram judice: Isaac lheozor Ejiofor, J. Incontestably, that Court is a competent Court and the forum competens for the entertainment of that suit. In the eyes of

the law, even if that decision in Suit No. FHC/L/CS/503/2004, is still on its journey to the appellate Courts at a measured millipede speed of Court process, it still comes within the perimeter of res judicata, see Abiola & Sons Co. Ltd. v. 7 up Bottling Co. Ltd. (2012) 15 NWLR (Pt. 1322) 184. In effect, the appellants proved this condition for the application of resjudicata.
Be that as it may, the appellants have only scored a barren victory in their proof of the last condition. The reason is not far-fetched. I had found, after due consultation with the law, that there parties, the subject-matter and issues in the two matters were/are not on all fours, but wholly, incompatible/disharmonious in their configuration and substance. For a party who invites the doctrine of res judicata, usually as a defence to an action, to reap from its beneficent vineyard, he must establish all the conditions for its application. Put differently, the conditions must be established conjunctively not disjunctively. All of them must co-exist concurrently. It is a burden which the law imposes on the party who invents it as a defence. Their collective proof is a

condition-precedent for the successful invocation of the doctrine.

In the eye of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493: A.G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. The appellant having failed woefully to discharge this onus probandi, cumulative proof of all the conditions, the doctrine of res judicata, which they brandished and paraded as a defence, is not available to them. Alas, the defence weaved by the appellant to castrate the suit, is disabled from birth. The lower Court’s finding on the point is an immaculate one. An appellate Court does not tinker with a finding that has not disclosed any hostility to the law. l, therefore endorse in toto, the lower Court’s finding that the suit was not mired in the miasma of the doctrine of res judicata.

That takes me to the treatment of the second sub-issue in the trilogy. It orbits around the allegation

of contradiction in the respondent’s evidence. It was seriously contended by the learned appellants’ counsel that the respondent’s evidence were infested/tainted with contradictions which ought to render them unusable by the lower Court.
As a preclude, etymologically, contradiction, like most legal terminologies, traces its pedigree to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other.

Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute any dents on a party’s case, see Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184); Wachukwu v. Owunwanze (2011) 14 NWLR (Pt. 1266) 1; Yakubu v. Jauroyel (2014) 11 NWLR (Pt.1418) 205;

Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1593) 181; Pada v. Galadima (2018) 5 NWLR (Pt. 1611) 160; Edosa v. Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1; Nnadike v. Nwachukwu (2019) 16 NWLR (Pt. 1698) 239.
The learned appellant’s counsel identified some portions of the evidence of the respondent’s witness, PW1, that were plagued by contradictions to wit: that the witness testified that the debt arose from the loan facility, upon which interest was charged and at the same time that it arose from equipment lease agreement which attracted rentals. I have, in total allegiance to the dictate of the law, situated these highlighted areas in the respondents’ evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if the pieces of evidence are soiled by contradictions.
I have, in order to pacify the law, consulted the record: the spinal cord of the appeal. My port of call is at the residence of the evidence of the PW1, the respondent’s only and star

witness, which monopolise pages 118-120 and 283-288 of the record for his evidence-in-chief and cross-examination respectively. I have perused them with the finery of a tooth. Admirably, they are rebellious to ambiguity. I am unable to locate, even with prying eagle-eye of an appellate Court, where the PW1 gave such a testimony. In point of fact in paragraphs 9-11 of his evidence-in-chief, the witness drew a clear dichotomy between the lease facility and the lease equipment agreement. He was unwavering in the distinctions even in the cross-fire of cross-examination. Put bluntly, the witness never prevaricated or mixed up the two contracts between the feuding parties. It is a phoney charge against his clear testimony and ipso facto, merits the agnomen of being uncharitable and unsustainable.
In the spirit of ex abundanti cautela, those highlighted excepts, to my mind, are pockets of infinitesimal differences in evidence which do not, in the least, qualify as material contradictions. They are rather discrepancies that are impotent to ruin the pungent evidence of the respondents professed by PW1. The law embraces discrepancies in evidence of witnesses in

that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”. See Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 665, per Fabiyi, JSC; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v State (2018) 8 NWLR (Pt. 1621) 346. It follows that minute differences in the narration of evidence attest to the veracity of the witnesses on the point.
In any event, the law gives witnesses the nod to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-a-vis events. Where witnesses give evidence on the same matter to the exact minutes details, their testimonies will be treated with circumspection as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phantom or non- existent contradictions. Thus, the

lower Court did not offend the law when it did not expel the evidence of the PW1, on the footing of contradictions. In effect, I welcome the evidence for utilisation in the appeal. All the structures, which the appellants lavished against the evidence, peter into insignificance. The defence of evidential contradiction is, with due deference, lame. It cannot fly.

It remains to handle the last of the sub-issues in the triumvirate: it appertains to the appellants’ grudge anchored on want of disbursement of the money for the lease facility. The appellants conceded to the execution of the documents relating to the lease facility, but denied disbursement of the loan sum to them. In this wise, I have, in total obeisance to the law, revisited the record, the touchstone of the appeal, at the abode of exhibits P 15 and P 16 which occupy pages 89-95 and 150-165 of the record respectively. They are the respective statements of account of the first and second appellants with the respondent. I have given a clinical examination to statements of account of both. They are catholic documents, but harbour no ambiguity. On 11th November, 2002, there is a fund transfer of

N406,600,000 to the account of the first appellant as revealed at page 89 of the record. On that same date, there was a corresponding transfer of the same sum to the account of the second respondent as manifest in page 161 of the record. In the crucible of cross-examination, which spans pages 290-295 of the record, the appellants’ only witness, DW1, admitted receiving those statements of account. Incidentally, they never greeted them with any protestation. In the sight of the law, they accepted the interest rates and their agitation comes with the firmament of afterthought, see Thor Ltd. v. FCMB Ltd. (2005) All FWLR (Pt. 274) 217 at 233. There is incontrovertible evidence that the third appellant utilised the balance of the sum that made up the sum to N425,000.000. Thus, exhibits P15 and P16 are concrete evidence which showcase that the first and second appellants’ accounts were fed with the sum of the lease facility. Indubitably, exhibits P15 and P16 come within the four walls of documentary evidence. Documentary evidence is permanent, invincible, indelible and incorruptible. It is more reliable/dependable than the viva voce testimony that oozes out from

the vocal cord of man and susceptible to distortions by its author. Exhibits P 15 and P 16 solidify the respondent’s case as well as emasculate the appellants’ denial of want of disbursement of the lease facility sum.
That is not all. There exist exhibits P19, P23 and P80 which are encased in pages 77, 79 and 80 of the record respectively. They are letters from the first and second appellants to the respondent and signed by the third appellant, their alter ego. In exhibit P19, the second appellant, through the third appellant; promised to service their account with the respondent and live up to their responsibility. In exhibit P23, the first appellant, through the third appellant, stated “…we appreciate your understanding so far concerning this indebtedness….” In exhibit P24, the second appellant, through the third appellant, undertook: “We will deposit the funds in our account to reduce the outstanding liability”.
There is no gainsaying the fact that a holistic communal reading of exhibits P19, P23 and P24, especially the extracts scooped up above, reveals that they are a classific exemplification of admission of the loan facility

of N425,000,000. In the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the

stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanezi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
It is discernible from the appellants’ undiluted admission in those documents that there was a loan facility granted to the first appellant by the respondent. A loan signifies a sum of money lent to a borrower with interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343. The total admission is also, an impregnable documentary evidence of their indebtedness to the

respondent. Indebtedness denotes a state of owing money, or something owed, or debt to another person, see Barbedos and Ventures Ltd. v. FBN Plc (2018) 4 NWLR (Pt. 1609) 241.

In law, admission binds a party who has made it. On this score, what the lower Court did was to, ex debito justitiae endorse the appellants’ wholesale admission of the loan facility and indebtedness. The admission, with due reverence, punctures and exposes the poverty of the appellants’ scintillating argument on the point. In essence, the lower Court did not, in the least, fracture the law in its finding on disbursement of the loan sum to the appellants and their liability thereto.

For the avoidance of doubt, I have given a microscopic examination to the judgment of the lower Court which is in heat of expunction. It is reflected at pages 303-327 of the record. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It

found that the respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-lkpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found rightly in my view, that the evidence of the respondent, based on his qualitative nature, preponderated over those of the appellant’s. The net effect is that the respondent clearly proved its case against the appellants.

Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011;Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474, APC v. Karfi (2018) 6 NWLR (Pt. 1616)

479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.

The appellant stigmatised the finding/decision of the lower Court as being perverse. Since perversion is the cynosure of the point, it is germane to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136, Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189;

Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. lhedioha (2020) 5 NWLR (Pt. 1718) 529.

I have, in total obedience to the desire of the law, matched the judgment, sought to be decimated, with the elements of perverse decision adumbrated above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is mired in the intractable nest of the elements of perversion chronicled above. The judgment of the lower Court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant. In effect, the decision of the lower Court is not marooned in the murky ocean of perversion to magnet the intervention of this Court.

At the bottom/foot of page 325 of the record, the lower Court, in the succinct judgment,

declared:
I must therefore hold that the contentions of the Defendants have not availed them as a good defence to their indebtedness to the claimant.

Flowing from the above juridical survey, done in consonance with the law, the lower Court’s ultimate and solemn finding is an immaculate one. It did, in the least, fracture the law to render its faultless finding guilty of the accusation of perfunctory evaluation of evidence hurled against it by the appellants. In fact, the allegation is a pseudo-one that merit discountenance. On this premise, l, with due respect, dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on the clear proof of the claim, on the underserved altar of improper evidential evaluation. In the end, I have no option than to resolve the issue one against the appellants and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The focus of the issue is simple and canalised within a narrow compass. It castigates the lower Court’s finding that the appellants failed to prove their counter-claim against the respondent.

The appellants’ cause of

action, in their counter-claim, was rooted in the tort of defamation. Defamation has been judicially defined to embrace imputations which tend to lower a person’s dignity in the estimation of the right thinking members of the society and expose him, the person so disparaged, to hatred opprobrium, odium, contempt or ridicule, see Oruwari V. Osler (2013) 5 NWLR (Pt. 1348) 535. There are two species of defamation: libel and slander. Libel is any publication in print, writing, pictures or signs that injures the reputation of somebody. Slander, on the other hand, means a defamatory statement made/conveyed by spoken words, sounds, looks, signs and gestures which injure the reputation of somebody, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Oruwari v. Osler (supra); C.S.S. & D.F. Ltd. v. Schlumberger (Nig.) Ltd. (2018) 15 NWLR (Pt. 1642) 238.

To succeed in an action for defamation, which is actionable per se, the defamed person must conjunctively prove. (1) Publication of the offending words. (2) That the offending words refer to him. (3) That the offending words are defamatory of him. (4) That the offending words were published to a

third party. (5) That they are false or lack accuracy and (6) That there are no justifiable legal grounds for the publication of the defamatory words, see Dalumo v. Sketch Publication Co. Ltd. (1972) SSC 308; Ezomo v. Oyakhire (1985) 2 SC221; Onu v. Agbese (1985) 1 NWLR (Pt. 4) 704/(1985) LPELR – 2698 (SC); Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 255; Dumbo v. Idugboe (1983) NSCC 22, Offoboche v. Ogoja L.G. (2001) 16 NWLR (Pt. 739) 458; Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695; Sketch Publishing co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678/(1989) 1 NSCC 346; Amorc v. Awoniyi (1994) 7-8 SCNJ (Pt. 11) 390; Newspapers Corporation v. Oni (1995) 1 SCNJ 218; Emeagwara Star Printing and Publishing Co. Ltd. (2000) 2 SCNQR (Pt. 2) 910; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478; Peterside v. Fubara (2013) 6 NWLR (Pt. 1349) 156; Ologe v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449; Ekong v. Otop (2014) 11 NWLR (Pt. 1419) 549; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316; C.S.S. & D.F. Ltd. v. Schlumberger (Nig.) Ltd. (supra); Onah v. Schlumberger (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 84; Sule v. Orisajimi

(2019) 10 NWLR (Pt. 1681) 513.

The appellants’ PW1’s evidence are located at pages 178-186 and 289-295 of the record for examination-in-chief and cross-examination respectively. In due obeisance to the injunction of the law, I have compared the appellants’ evidence, which are comprehension- friendly, with the elements of tort of defamation (libel) x-rayed above. The mission of the comparison is not a moot point. It is to ascertain if the evidence established the conjoined elements of defamation (libel). The marrow of the appellants’ case is hinged/staked on the alleged publications in This Day Newspaper of 31st May, 2004 and 7th June, 2004. Incidentally, the two publications could not pass through the litmus test for their admissibility in the bowel of the lower Court. They were rejected as inadmissible evidence. Curiously, the appellants failed to appeal against the ruling that ousted the publications from the four walls of admissibility. The failure is a costly one. It constitutes a serious coup de grace to the appellants’ case. They ceased to acquire the enviable status of an exhibit with the adjudicatory gains attendant to it. An exhibit denotes a

document, record or other tangible objects formally introduced as evidence in Court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128.

A Court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374.

In the wide realm of adjectival law, a rejected document cannot be relied on by the Court, see Nigerian Ports Plc. v. B.P. PTE Ltd. (2012) 18 NWLR (Pt. 1333) 454, Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108.

Alas, the publications, which would have assisted the appellants to prove the offending words, became documents ex facie curiae to the benefit of the respondent. Publication is the main anchor of defamation. There must be clear evidence of publication of the offensive publication to ground the tort of defamation. Thus, publication is the bedrock/foundation in the pyramid of ingredients of defamations. In the glaring absence of

those publications, the appellants failed woefully to establish the first ingredient of defamation.
In paragraph 44 of the PW1’s evidence-in-chief, the witness reproduced part of the advertisement, at page 155 of the record, which they alleged constituted defamatory to them. Being the cynosure of the second ingredient, I will cull it out from the record thus:
The general public is hereby notified that FSB International Plc has appointed Prince Ben Chidi Onuora as Receiver/ Manager over all the assets and undertaking of Arfo Group of Companies Limited pursuant to a Tripartite Deed of Fixed and Floating Defenture between Arfo Group of Companies Limited as guarantors to KAU International Nigeria Limited and FSB International Bank Plc registered at the Corporate Affairs Commission on the 15th July, 1997.
The above action was due to the failure of Arfo Group of Companies Limited and Kau International Limited to liquidate granted to it by the bank
WE THEREFORE WARN that any person that seeks to acquire or deal in any part of the asset, undertaking or receivables of Arfo Group of Companies Limited and Kau International Limited before the

resolution of the above suit and the Receivership does so at his or her own peril.
An indepth study of the excerpt, which is submissive to clarity, amply, reveals that the companies referred to were: Arfo Group of Companies and Kau International Nigeria Limited. The publication is wholly bereft of the names of the appellants. The learned appellants’ counsel, in paragraph 5.4 page 12 of the appellants’ brief of argument, canvassed the view that: “The evidence is clear that the name Arfo and Arfo Group of Companies Ltd and the appellants, particularly, the 3rd appellant are associated and intertwined “In a word, his contention is that the companies mentioned in the publication are the same as the appellants. This seemingly dazzling argument, with due respect, flies in the face of the law. The companies listed in the publication and the first and second appellants are incorporated companies under the relevant laws in Nigeria. The third appellant is their alter ego. A company is an artificial person with rights and liabilities. The concept of corporate personality owes its paternity to the ancient English case of Salomon v. Salomon & Co. Ltd (1897) AC 22.

An incorporated limited liability company is persona ficta that enjoys a separate juristic personality. A subsidiary company has its own separate legal personality that is distinct from the legal entity of its parent company. The acts of a subsidiary company cannot be ascribed to its parent company. The converse is also true, that is, the conducts of a parent company cannot be attributed to its subsidiary company, see Union Beverages Ltd. v. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt. 330) 1; Bulet Int’l (Nig.) Ltd. V. Olaniyi (2017) 17 NWLR (Pt. 1594) 260; FBN PLC v. A-G., Fed. (2018) 7 NWLR (Pt. 1617) 121.
It stems from the legal personality distinction, that the appellants were totally divorced from the companies mentioned in the publication. The alleged defamatory publication cannot, under any guise, be imputed to or inherited by the appellants; a fortiori their ventilation of the grievances germinating from it. This is so even if the first and second appellants are the parent/holding companies or subsidiary companies of those outlined in the publication and vice versa. No matter the nature of the pecuniary/fiduciary correlation, or

interwoven relationship, between the companies, the first and second appellants cannot be subrogated for the companies allegedly libelled in the publication. l therefore, decline the appellants’ inviting supplication to treat the appellants and the allegedly defamed companies, in the publication, on the footing of juristic personality differential. In effect, the appellants failed to prove that the alleged defamatory publication was referable to them. The lower Court was firma terra in law when it refused similar invitation that is a serious affront to the law. It will smell of a serious judicial sacrilege to interfere in a finding that has not occasioned any enmity with law. In the result, I will not hesitate to resolve the issue two against the appellants and in favour of the respondent.

On the whole, having resolved the two issues against the appellants, the destiny of the appeal is obvious. It is devoid of any bubble of merit and merits the deserved penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother OBANDE FESTUS OGBUINYA, JCA. I agree and I have nothing useful to add.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Obande Festus Ogbuinya, JCA, made available to me a draft copy of the lead Judgment in this appeal. The appeal was adjudged to be without merit and dismissed. I completely agree and adopt the reasoning and conclusions therein as mine. I will only make few comments in support.

Res judicata is a legal doctrine meant to bar or preclude re-litigation of a claim between the same parties in a case where there has been a final judgment. For a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or pre – conditions –
(a) That the parties or their privies are the same in both the previous and the present proceedings
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of the 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.
Unless all the above constituent elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained. In Ranking Udo & Ors v. Mbiam Obot & Ors (1989) LPELR-3297(SC), the Supreme Court held:
“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a filial judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter partes.”
See also Makun v Federal University of Technology, Minna (2011) LPELR-15514(SC); Fadiora & Anor v. Gbadebo & Anor (1978) 3 SC 219, (1978) LPELR-1224(SC); Ogbolosingha & Anor v. Bayelsa State Independent Electoral Commission & Ors (2015) LPELR- 24353(SC); Cole v. Jibunoh & Ors (2016) LPELR-40662(SC).
As explained by the above judicial pronouncements, the purpose for the

doctrine is two pronged:
(i) Interest reipublicae ut sit finis litium – It is for the common good that there should be an end to litigation.
(ii) Nemo debet bis vexari pro una et eadem causa – No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause.
The res is an object, a subject matter, or a status against which legal proceedings have been instituted; Ogbogu v. Ndiribe (1992) LPELR- 2283(SC). Although several issues can arise over the same res, to constitute estoppel, the issues distinctly decided in earlier litigation and canvassed in the subsequent litigation must be identical, not merely similar; Ranking Udo & Ors v. Mbiam Obot & Ors (supra); Fadiora & Anor v. Gbadebo & Anor (supra). The Appellant did not establish that the conjunctive existence of the conditions for the application of res judicata.

For this reason and for the more comprehensive reasons given in the lead Judgement, I also dismiss the appeal and affirm the judgment of the lower Court.

Appearances:

I. Igbinedion, Esq. For Appellant(s)

Ben Onuora, Esq. For Respondent(s)