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WEJINYA & ANOR v. WORDU & ANOR (2021)

WEJINYA & ANOR v. WORDU & ANOR

(2021)LCN/15876(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, May 25, 2021

CA/PH/128/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

1. JOHNBULL WEJINYA 2. CHIKWUERI WOSU (For Themselves And As Representing Orlu-Nu-Wali Sub-Family Of Onyia, Amu-Ikpirikpi Of Isiokpo) APPELANT(S)

And

1. IHEANYI WORDU 2. ISRAEL ELEKWACHI MGBO (For Themselves And On Behalf Of The Rest Of The ONYIA Family Except The Defendants) RESPONDENT(S)

 

RATIO

THE DOCTRINE OF RES JUDICATA

As they relate to the first and third issues, it is important to properly examine the doctrine of Res Judicata and further outline its judicial application in this appeal. After all is said and done, the fundamental principle of public policy is that there must be an end to litigation so that a party will be obliged to litigate his claim diligently and conscientiously. A party will not be permitted to litigate his claim on the same subject matter in a manner that he perpetually harasses or vexes his opponent. A party is not entitled to pursue his remedies to the annoyance of the respondent by splitting them into bits and pieces. See the cases of SAVAGE & OTHERS VS UWECHIA (1972) 3 SC 21, (1972) 1 ALL NLR 255, and DALYOP VS ORADIEGWU (2000) 8 NWLR (PART 669) 421.​
This Court is of the firm opinion too that it is in the public interest to put an end to litigation, notwithstanding the basic constitutional fact that parties have the right to approach the Courts with genuine intention to seek justice, and this is why the Supreme Court in ARO V. FABOLUDE (1983) PG. 75 per Aniagolu, JSC (of blessed memory) laid down the requirements of the plea of res judicata in these words:
“In civil cases, before the principle is applied, the Res (the subject matter) in contention must be the same, the issue and the parties, the same in the new case as in the earlier proceedings where any of the three matters is missing in the new case, a plea of res judicata will ordinarily fail. See further the case of ONYEKWELI V. INEC (2009) 6 NWLR (Pt. 1136) 13.
These requirements for establishing res judicata were further affirmed by the Supreme Court in a more recent decision in the case FALEYE V. OTAPO (1995) 3 NWLR (PT. 331) PG. 1. See further the decision inRAFUKKA V. KURFI (1996) 6 NWLR (PT. 453) PG. 7 or in (1996) LPELR 13863.” Per Uzo Ifeyinwa Ndukwe-Anyanwu, JCA (PP 15 – 16 PARAS E – D) and ODUA V. NWANZE (1934) 2 WACA PG. 98.
It is clear from proper analysis of the position of the law in the above cases, that the three very important requirements must be met before this plea can be sustained. These requirements are that:

The parties must be the same, the subject matter must be the same, and finally, the issues raised must be the same. PER KOLAWOLE, J.C.A.

THE SIGNIFICANCE OF A SUIT BROUGHT IN BY INDIVIDUAL CAPACTY AS AGAUNST SUIT BROUGHT IN BY REPRESENTATIVE CAPACITY

It is crystal clear that the parties before this Court are here in representative capacity and not their individual capacities, and it has long been settled that there is a world of difference in terms of the implications and significance of suits brought in by individual capacity as against suits brought in by representative capacity.
In LADEJOBI V. OGUNTAYO (2005) 7 WRN 22 AT 41, the Supreme Court explained who the plaintiffs are in an action brought in representative capacity. UWAIFO JSC Rtd stated whilst delivering the lead judgment of the Court thus:- “It is right to say that when an action has been instituted by representatives of a family or a ruling house either in land matter or chieftaincy matters as appropriate, and facts are pleaded and reliefs are claimed indicating, that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore not be any confusion as to who is the entity suing.”  PER KOLAWOLE, J.C.A.

THE SCOPE OF THE DISCRETION OF COURT IN ENTERING CONSENT JUDGEMENT
In STAR PAPER MILL LTD & ANOR V. ADETUNJI & ORS (Supra) the Court explained the scope of the discretion of Court in entering consent judgment. It opined that:
“… the Court has a discretion to enter terms of settlement as its judgment or not, particularly where terms of settlement are not ascertainable or the rights acquired or abandoned not clearly spelt out. This is particularly important in view of the fact that a term of settlement entered as a consent judgment has the force or sanction of a final judgment of the Court.”
The High Court simply exercised its jurisdiction as conferred upon it by law, and refused to adopt the Terms of Settlement before it as its consent judgment as no application was made to that effect from the records, but struck out the suit in the presence of the Defendants’ counsel.
​Consequently, the Terms of Settlement is not binding on the parties and unenforceable as it does not exist in the eyes of the law. It therefore does not add any value to the Appellant’s case, and will most definitely not be able to sustain a plea of res judicata.
PER KOLAWOLE, J.C.A.

A PERVERSE JUDGEMENT

A perverse judgment as defined in the case of ATOLAGBE V SHORUN (1985) LPELR – 592 (SC) (PP 31- 31 PARAS C-D) Per Chukwudifo Akunne Oputa simply means “persistent in error, different from what is reasonable or required, against the weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.”
The Apex Court has also severally furnished us with instances where the decision of a Court would be regarded as perverse.
The Supreme Court graciously obliged us with further details in the recent case of LAGGA V. SARHUNA (2008) LPELR – 1740 (SC) (PP 44 – 44 PARAS D – G) Per Niki Tobi, JSC, Rtd. wherein he opined that: “A perverse finding is one which ignores the facts or evidence led before Court and when considered as a whole, amounts to a miscarriage of Justice… A finding is perverse if it is not borne out of the evidence before the Court. A perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of evidence before it.”
PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness or otherwise of the decision of the Rivers State High Court, Port Harcourt Division (hereinafter addressed as the “the lower Court”), coram judice: E. N. THOMPSON, J., in Suit No. IHC/42/2006.

Before the lower Court, the appellant and the respondents were the defendants and the plaintiffs respectively.

The facts of the case which snowballed into the appeal, are simply and briefly outlined accordingly:
On the 5th day of June 2006, the respondents filed a Writ of Summons, which commenced this suit and wherein they claimed as follows:
1. A declaration that the four parcels of land namely: Egbelu Elua Izor Onyia, Iwheremini Izor Onyia, Nkebi Izor Onyia, and Wali Idei Izor Onyia hereinabove described are farmlands jointly owned by the entire Onyia family and not by any individual or the appellants.
2. A declaration that the appellants have no right whatsoever to sell, lease or alienate any part of the family farmland hereinabove mentioned and described without the consent of the Head and principal members of the Onyia family.
3. A declaration that any such sale or lease of any of the farmlands hereinabove mentioned and described, already made by the appellants is null and void.
4. An order of injunction restraining the appellants, their agents, servants, or associates from leasing, selling, or alienating any part of the lands hereinabove mentioned and described.

In response, the appellants joined issues with the respondents and filed their Statement of Defence and Counter Claim on the 9th day of October 2006, which was amended on the 10th of June 2019.

Both parties filed written addresses alongside their respective processes. The lower Court, duly heard the suit and in a considered judgment delivered on the 1st day of November, 2019, found at pages 966-976 of the records of appeal, the lower Court granted all the respondents’ reliefs.
The appellants, naturally dissatisfied by the decision, obtained the leave of Court and lodged on the 22nd of January, 2020, an 8 – ground notice of appeal, copied at pages 979 – 987 of the record, wherein they claimed for:
An order to allow the appeal in its entirety and upturn the Judgement of the Court below and grant reliefs sought by the Appellants per their Counter-Claim incorporated in their Amended Statement of Defence and Counter Claim filed on 10th June, 2019.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 23rd February 2021.

During its hearing, learned counsel for the appellant, Isah Seidu, Esq. adopted the appellants’ brief of argument filed on the 23rd day of April 2020, and the appellants’ reply brief filed on 29th July 2020 as representing his arguments for the appeal. He urged the Court to allow it.

Similarly, learned counsel for the respondents, Eberechi Adele, SAN adopted the respondents’ brief of argument filed on the 5th of June, 2020 as forming his reactions against the appeal. He urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
In the appellants’ brief of argument, learned counsel distilled five issues for determination to wit:
i. Whether SUIT No. IHC/42/2006 – IHEANYI WORDU & ORS VS. JOHNBULL WEJINYA & ORS, the substratum of this appeal does not constitute a gross abuse of Court and/or judicial processes, having regards to Exhibits D88 and D89 being previous judgments of Courts?
ii. Whether the Order of the High Court of Rivers State, which struck out the suit of the Respondents as contained in Exhibit D90, pursuant to filed Terms of Settlements, entered into by parties to “IZO Onyia” does not constitute a bar to further litigation by the Respondents in this suit, they having waived their right?
iii. Whether having regards to the decisions in Exhibits D88 and D89, the suit, the substratum of this appeal was not caught by the fundamental of Res Judicata and/or issue estoppels to bar the institution of the said suit?
iv. Whether the Respondents, proved that they were biological children of Onyia to be entitled to any status in Onyia family?
v. Whether the decision of the Court below which granted the Respondents status in Onyia’s family, is not rooted in perversity and liable to the sole fate of being upturned?

Consequently, the learned counsel for the respondents concisely formulated the following issues for determination, to wit –
i. Whether the instant dispute is an abuse of judicial process caught by the doctrine of Res Judicata.
ii. Whether the learned trial Judge’s finding that the Claimants are members of Onyia Family is perverse.

SUBMISSIONS OF COUNSEL
On the first and third issues which were jointly argued in the Appellant’s brief, it is submitted on behalf of the Appellants that having regards to Exhibits D88 and D89 – which were a decision of the Rivers State High Court in favour of the appellants and appeal arising from it at the instance of the respondents without further appeal, the suit, the substratum of this appeal constitutes a gross abuse of Court and/or judicial processes.

He further contended that all the respondents are bound by the outcome of the decisions in Exhibits D88 and D89 and to have commenced the suit, the substratum of this appeal was re-litigating settled issues which constitutes a gross abuse of Court process.

The decision of the Supreme Court in the case of The Reg. Trustees Comm. Health Pract &Ors v. Health Workers & Ors. (2008) 4 SCM PG. 134 at 180 was relied upon on the position that the Court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder, settle the whole matter in one action. He further argued that all the Respondents are bound by the outcome of the decisions in Exhibits D88 and D89 and to have commenced the suit, substratum of this appeal was re-litigating settled issues which constitute a gross abuse of Court process.

Appellants’ counsel went on a voyage of justifying the Appellants’ action in this case by citing judicial authorities including NTEYOHO v. UDO (1991) 5 NWLR (Pt. 189) 100 which according to learned counsel held that res judicata as a rule of evidence presupposes a situation whereby a party or his privy is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a Court of competent jurisdiction. The decisions of the Supreme Court in CBN v. ARIBO (2018) 4 NWLR (Pt. 1608) PG. 130 at PARAS. B-H; MAYA v. OSHUNTOKUN (2001) FWLR (Pt. 81) 1777; EBBA v. OGODO (2000) SCNJ 100; OBINECHE v. AKUSOBI & ORS. VOL. 4, L.L.A.C PG 337, at PG 353, PARAS D-E, were relied upon by the Appellants.

On the second issue, it is submitted on behalf of the Appellants that having regards to the fact that the suit with respect to the same subject matter was struck out pursuant to a filed Terms of Settlement, the Respondents herein had waived their rights to re-litigate the issues and subject matters outside the breach of any of the terms. He relied on the Supreme Court’s ruling in MABAMIJE v. OTTO (2016) 13 NWLR (Pt.1529) PG. 171 at 192, PARAS. F-G where according to counsel, the Supreme Court allowed the discontinuance of the suit where parties had amicably resolved their dispute and likened such discontinuance to final settlement of the matter.

On the fourth and fifth issues which appellants counsel in his brief also argued together, he contended on behalf of the Appellants that the judgment of the Court below on its merit is rooted in perversity. He commended the Court to the Supreme Court’s decisions in MISR (NIG) LTD v. IBRAHIM (1974) 5 SC 55; INCAR LTD v. ADEGBOYE (1985) 2 NWLR (Pt.8) 453 on the effect of a perverse finding or conclusion of fact.

Arguing the first issue formulated by the Respondents, which learned counsel considers a reply to Issues (i), (ii), and (iii) of the Appellant’s Brief of argument, it is submitted on behalf of the Respondents that the submission of Appellants’ counsel is blatantly false and does not reflect the contents of the Record of Appeal in terms of the pleadings and evidence led at the trial. He referred the Court to pages 799 – 801, pages 833-834, Pages 959 – 961 of the Record of Appeal, and drew the Court’s attention to Exhibits C26, C27, C28, C29, D91-D94, D95 – D98. He strongly posited that in the light of the pleadings and evidence on record, it is most ludicrous and untenable for the Appellants to suggest that all the parties agreed that the subject matter of the suit is “Izor Onyia”. The Respondents’ counsel further disagreed with the position and submissions of Appellants’ counsel that the suit is an abuse of judicial process having been invalidated by the doctrine of res judicata. He relied on the cases of YOYE v. OLUBODE (1974) 1 ALL NLR, PT.2, 118, YANATY PETROCHEMICAL LTD v. EFCC (2018) 5 NWLR, PT.1611, 97

​On the second issue raised and canvassed by the Respondents’ counsel, the Respondents’ learned counsel on behalf of the Respondents begged to differ with Appellants’ counsel submission that the lower Court’s finding on the Claimant’s membership of the Onyia Family is perverse. Relying strongly on the cases of UDOM v. UMANA NO. 1 (2016) 12 NWLR, PT. 1526, 179; OGBU v. STATE (1992) 8 NWLR, PT. 295, 255 he argued that a judgment can only be perverse when it has derailed from the course of justice, and ignored a binding principle of law and procedure, resulting in the miscarriage of justice.

RESOLUTION OF ISSUES
From the Appellant’s brief of argument, issues one and three were argued together, seeing that they are interwoven. I shall thus consider and resolve both similarly.

Before dwelling on the position of the law regarding the issues identified above, I believe it is necessary to set out the facts of this case, which are largely undisputed or in serious contention as narrated by the learned trial Judge at pages 974-975 of the record of appeal.

The case of the Respondents (Claimants) is that the Appellants (defendants) have been acting unilaterally over the land in dispute to the exclusion of other members of the family. They claim to be members of the Onyia family and thus are equally entitled to the land jointly.

The Appellants (defendants) case on the other hand is that as the royal and ruling family of Onyia, legal title and possession of Izor-Onyia, Iwheremini Izor Onyia, Nkebi Izor Onyia, and Wali Idei Izor Onyia is vested in them and that the Respondents (Claimants) not being bona fide descendants of Onyia have no interest in the parcels of land for which they are in Court. They say that the progenitors of the Respondents (Claimants) (Wakpor and Okenkita) were natives of Imo state and that whereas Wakpor was Onyia’s man-servant, Okenkita was Wakpor’s friend who was permitted to reside under Onyia’s authority. The Appellants (defendants) say that having lived with Onyia, Wakpor and Okenkita came to be recognized as part of Onyia’s extended family and so Wakpor was given farming rights over a part of Izor Onyia which has now come to be known as Izor Wakpor. The Appellants (defendants) say that Wakpor is a mere customary tenant and cannot lay claims to owning Izor Wakpor or any of the lands in dispute.
The Respondents (Claimants) on their part say that they are legitimate members of Onyia family and are entitled to the lands in dispute.

ISSUES ONE AND THREE
As they relate to the first and third issues, it is important to properly examine the doctrine of Res Judicata and further outline its judicial application in this appeal. After all is said and done, the fundamental principle of public policy is that there must be an end to litigation so that a party will be obliged to litigate his claim diligently and conscientiously. A party will not be permitted to litigate his claim on the same subject matter in a manner that he perpetually harasses or vexes his opponent. A party is not entitled to pursue his remedies to the annoyance of the respondent by splitting them into bits and pieces. See the cases of SAVAGE & OTHERS VS UWECHIA (1972) 3 SC 21, (1972) 1 ALL NLR 255, and DALYOP VS ORADIEGWU (2000) 8 NWLR (PART 669) 421.​
This Court is of the firm opinion too that it is in the public interest to put an end to litigation, notwithstanding the basic constitutional fact that parties have the right to approach the Courts with genuine intention to seek justice, and this is why the Supreme Court in ARO V. FABOLUDE (1983) PG. 75 per Aniagolu, JSC (of blessed memory) laid down the requirements of the plea of res judicata in these words:
“In civil cases, before the principle is applied, the Res (the subject matter) in contention must be the same, the issue and the parties, the same in the new case as in the earlier proceedings where any of the three matters is missing in the new case, a plea of res judicata will ordinarily fail. See further the case of ONYEKWELI V. INEC (2009) 6 NWLR (Pt. 1136) 13.
These requirements for establishing res judicata were further affirmed by the Supreme Court in a more recent decision in the case FALEYE V. OTAPO (1995) 3 NWLR (PT. 331) PG. 1. See further the decision inRAFUKKA V. KURFI (1996) 6 NWLR (PT. 453) PG. 7 or in (1996) LPELR 13863.” Per Uzo Ifeyinwa Ndukwe-Anyanwu, JCA (PP 15 – 16 PARAS E – D) and ODUA V. NWANZE (1934) 2 WACA PG. 98.
It is clear from proper analysis of the position of the law in the above cases, that the three very important requirements must be met before this plea can be sustained. These requirements are that:

The parties must be the same, the subject matter must be the same, and finally, the issues raised must be the same.

As I considered the position of the Appellants’ learned counsel stating that having regards to Exhibits D88 and D89 – which was a decision of the Rivers State High Court in favour of the appellants and appeal arising from it at the instance of the respondents without further appeal, the suit, the substratum of this appeal constitutes a gross abuse of Court and/or judicial processes, and after a thorough examination of Exhibits D88 and D89, it is crystal clear, that the parties are not the same, the subject matter is equally very different and of course, the issues canvassed are totally different from the ones raised in the new case.

In Exhibit D88 which contains the Record of Proceedings of Isiokpo Customary Court in Suit No. ICC/24/90, the parties herein named were Iheanyi Wordu (Plaintiff) vs Chief Saturday Wjinya and 3 Ors. (Defendants)

This is noteworthy as the Plaintiff and Defendants came to Court in their individual capacities.

But on the contrary, the parties on record in this suit before the Lower Court read thus:
IHEANYI WORDU and ISRAEL ELEKWACHI MGBO (For themselves and on behalf of the Rest of the ONYIA family except the Defendants) as the Claimants,
JOHNBULL WEJINYA and CHIKWUERI WOSU (For themselves and as representing Orlu-nu-WaliSub-Family of Onyia, Amu-Ikpirikpi of Isiokpo) as the Defendants.

It is crystal clear that the parties before this Court are here in representative capacity and not their individual capacities, and it has long been settled that there is a world of difference in terms of the implications and significance of suits brought in by individual capacity as against suits brought in by representative capacity.
In LADEJOBI V. OGUNTAYO (2005) 7 WRN 22 AT 41, the Supreme Court explained who the plaintiffs are in an action brought in representative capacity. UWAIFO JSC Rtd stated whilst delivering the lead judgment of the Court thus:- “It is right to say that when an action has been instituted by representatives of a family or a ruling house either in land matter or chieftaincy matters as appropriate, and facts are pleaded and reliefs are claimed indicating, that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore not be any confusion as to who is the entity suing.”

It is beyond doubt at this point and equally safe to declare that the parties in this suit are not the same as the parties named in Exhibit D88.

Furthermore, the issues raised in Exhibit D88 are totally different from the issues canvassed in this suit. From a proper perusal of Exhibit D88, I find that the issues bother on the Plaintiff’s claim against the defendants for a declaration that the plaintiff is entitled to the customary right of occupancy of and over the piece of land called and known as IZONKU WALERU WORDU. This is obviously not similar to the issues raised in the extant case.

In addition, the subject matter of the suit in Exhibits D88 and D89 was the grove called IZONKU WALERU WORDU and not the same as the subject matter in this suit which are four family farmlands jointly owned by the Onyia family namely:
Egbelu Elua Izor Onyia, Iwheremini Izor Onyia, Nkebi Izo Onyia and Wali Idei Izor Onyia.

This was attested to by the Respondents in their amended Statement of Claim, wherein they further pleaded four distinct survey plans to distinguish each of the four parcels of land.

Amazingly, it can be learned from the Appellants’ Amended Statement of Defence, and Counter-Claim as contained in pages 833-834 of the records of appeal, that they equally pleaded four different parcels of land, and even further pleaded four different survey plans delineating each of these parcels of land.

Also, in Exhibit D89, the parties were named thus: Ferdinand Wordu (Applicant) vs F.J Uchendu, Chief G.C Ihunwo, Chief S.O.W Ogundu-Wali (Chairman and Members of Customary Court, Isiokpo) –(Respondents) vs Mr. Saturday Wejinya, Mr. Monday Wosu, Mr. Peter Amadi and Mrs. Agbandu Amadi (2nd set of Respondents).

Evidently the parties, issues joined and subject matters in Exhibits D88 and D89 are not in sync with what is found in the current suit.

It is shocking to see that the learned appellant’s counsel expended such amount of time and effort to embark on what appears for all intents and purposes to be an unhelpful, perhaps futile task of trying to raise the plea of Res Judicata in this appeal. This is clearly not only a wild goose chase, but an insufferable and needless journey which in my view, is like one beating the winds.

The Appellants’ learned counsel has failed to prove to this Court, and will most probably find it difficult to prove to any other Court well seised of the facts and the applicable laws that the instant dispute constitutes an abuse of judicial process and or that it is caught by the doctrine of Res Judicata.

Consequently, from the backing of the relevance of case law at my disposal and from the facts available on the face of the Exhibits D88 and D89, so pleaded by the appellants’ counsel, I find this issue destitute of any merit as it lacks evidential foundation and substance, and I hold and resolve the issue one in favour of the respondents and against the appellants.

ISSUE TWO
On the second issue, I have carefully studied the contents of Exhibit D90, and nothing on the face of it suggests that it is a “consent judgment” of the Court.
The apex Court had on several occasions examined cases as to when the terms of settlement will crystalize into a “consent judgment”. In the case of STAR PAPER MILL LTD & ANOR V. ADETUNJI & ORS (2009) LPELR – 3113 (SC), the Court was of the opinion that “…terms of settlement does not on its own crystalize into consent judgment until the Court enters it as its judgment.”
The Terms of Settlement which seems to me to be of no probative value whatsoever for good reasons to wit:
Exhibit D90 is not a judgment of Court and cannot be construed to constitute estoppels or res judicata.
From the face of Exhibit D90, it is clear that the Terms of settlement which was apparently filed on the 6th of May, 1997 was only brought to the Court’s attention by Chief Nwogu, who was the defendant’s counsel at the time on the 4th of March, 1999. He told the judge that: “parties have settled this matter out of Court, and filed a terms of settlement on 6/5/97.”
​The Court in response to counsel’s information said: “I have seen the said terms of settlement, and since the Plaintiffs are not in Court, this case is struck out.” There was no application made by the said counsel that the said Terms of Settlement be adopted and pronounced as a consent judgment by the Court.
In the case of RAS PALGAZI CONSTRUCTION CO. LTD V. FCDA (2001) LPELR – 2941 (SC) the Court posited rather succinctly thus:
“I must point out here that unless and until the Court makes the terms of the settlement a judgment of the Court, it is not binding and cannot therefore be enforced. It is a rule of practice that parties may settle their disputes by consent in the course of the trial. Such settlement is a compromise and in order to have a binding and enforceable effect on the parties, it is imperative that it should have the blessing of the Court. So, when the Court adopts the terms of settlement and makes it its judgment, then the settlement assumes the status of a consent judgment binding upon the parties and its enforceable by any of the parties who takes benefit under the said Terms of Settlement. See also WOLUCHEM V. WOKOMA (1974) 1 ALL NLR 605 AT 617
​The so-called Terms of Settlement not being adopted by the Court in the due exercise of its judicial discretion has no legal force or probative value and is therefore no different in worth from an ordinary piece of paper as far this appeal is concerned.

In STAR PAPER MILL LTD & ANOR V. ADETUNJI & ORS (Supra) the Court explained the scope of the discretion of Court in entering consent judgment. It opined that:
“… the Court has a discretion to enter terms of settlement as its judgment or not, particularly where terms of settlement are not ascertainable or the rights acquired or abandoned not clearly spelt out. This is particularly important in view of the fact that a term of settlement entered as a consent judgment has the force or sanction of a final judgment of the Court.”
The High Court simply exercised its jurisdiction as conferred upon it by law, and refused to adopt the Terms of Settlement before it as its consent judgment as no application was made to that effect from the records, but struck out the suit in the presence of the Defendants’ counsel.
​Consequently, the Terms of Settlement is not binding on the parties and unenforceable as it does not exist in the eyes of the law. It therefore does not add any value to the Appellant’s case, and will most definitely not be able to sustain a plea of res judicata.

ISSUES FOUR (4) AND FIVE (5)
On these issues, the Learned Counsel for the Appellants argued that the judgment of the Court below is on its merit rooted patently in perversity.

He further contended that the Respondents did not establish by credible evidence the fundamental fact that they are the descendants of the biological children of the progenitor of the Appellants in this appeal (Onyia) to entitle them to any status in Onyia’s property and/or family.

By way of rebuttal, Respondent’s counsel differed with the position of the Appellants, stating that according to law, a judgment can only be perverse, when it has apparently derailed from the course of justice. He further maintained that the lower Court was right to hold as it so did with respect to issue 2.

In resolving this issue, this Court will examine what a perverse judgment is.
A perverse judgment as defined in the case of ATOLAGBE V SHORUN (1985) LPELR – 592 (SC) (PP 31- 31 PARAS C-D) Per Chukwudifo Akunne Oputa simply means “persistent in error, different from what is reasonable or required, against the weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.”
The Apex Court has also severally furnished us with instances where the decision of a Court would be regarded as perverse.
The Supreme Court graciously obliged us with further details in the recent case of LAGGA V. SARHUNA (2008) LPELR – 1740 (SC) (PP 44 – 44 PARAS D – G) Per Niki Tobi, JSC, Rtd. wherein he opined that: “A perverse finding is one which ignores the facts or evidence led before Court and when considered as a whole, amounts to a miscarriage of Justice… A finding is perverse if it is not borne out of the evidence before the Court. A perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of evidence before it.”

After a painstaking examination of the records of appeal and the exhibits tendered in the lower Court, I find that the Appellants’ Counsel’s contention that the Respondents at trial were unable to lead credible evidence to the effect that they are biological descendants of the Progenitor of the family, Onyia is lacking in substance.

Indeed, the records are replete with abundant evidence that bear bold testaments to the bona fide membership of the Respondents to the Onyia family.

I observed with keen amazement and perhaps, bewilderment, the evidence of DW6 under cross-examination, where he acknowledged the Respondents to be members of the Onyia family. His mere employment of the term “servant family” remains at best a derogatory assertion of a personal opinion, as no credible or irrefutable evidence was adduced by the Appellants at the trial to support this claim.

Furthermore, sufficient documentary evidence abounds in the records, and these have helped guide my mind to determine whose position holds more credibility. In Exhibit C5 for example, the Respondents joined the Appellant to transfer title of a portion of the family land to the Trustees and Board members of Christ Apostolic Church on the 20th day of July, 2000.

Exhibit “A” also, being a (Deed of Grant) attached as Exhibit C19 was clear evidence of a joint alienation of family land to a Grantee.

The above evidence shows that the Respondents have in time past participated in the selling of family land, which responsibility according to Isiokpo law and custom, is and remains the exclusive preserve of only bona fide members of the family. This fact and evidence leaves us to wonder on a few questions, to wit: Why did the Appellants allow the Respondents partake in the sale of family land, if according to them now, they are mere “servants” and “customary tenants”?

If the assertions of the Appellants are anything to go by, then it must mean that the Appellants have slept on their right for too long and have thus conceded the status of family membership to the Respondents.

The law is settled on what the doctrine of acquiescence entails.
This Court has given essence to the meaning of acquiescence in the case of OLALEYE V. TRUSTEES OF ECWA (2010) LPELR – 4743(CA) (PP 38-38 PARAS D-F), where it stated succinctly that: “Acquiescence occurs when a person abstains from interfering when his legal rights are violated. He will therefore, given a normal situation, be forbidden, from asserting that legal right. The law aids those who are vigilant not those who sleep upon their right. “Vigilantibus et non dormientibus jura subvenniunt”. See also the case of ADEDEJI V OLOSO (2007) 5 NWLR (PT.1026) 133.

The evidence in Exhibit C5 remains unimpeached and it speaks for itself.
It is beyond conjecture that “the most reliable if not the best evidence in most cases is documentary evidence. I say so because it is, in most instances, more reliable than oral or parole evidence…” AKINBISADE V. STATE (2006) LPELR – 342 (SC).
Documentary evidence when admitted is generally proof of their contents therein. SKYE BANK PLC & ANOR V. AKINPELU (2010) LPELR-SC. 38/2003.

The Appellants at the Court below did not oppose the admission of Exhibit C5 until it was admitted in evidence. The Court is by all means minded to rely on the evidence adduced therein.

This notwithstanding, in the absence of anything to the contrary, the consistent and continuous assertion of the Appellants to the effect of the inferiority status of the membership of the Respondents in relation to the Onyia family, offends the sacrosanct provision of the Constitution of the Federal Republic of Nigeria 1999. See Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 that provides without mincing words that: “No citizen of Nigeria, shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

This in my view, renders the argument as to the alleged inferior status of the Respondents’ Family Membership of the Onyia ineffective, null and void.

The overwhelming and incontestable evidence the Court below was furnished with by the Respondents, especially the tendering of Exhibits C1, C2, C3, C4, and C5, makes it most difficult to ignore and indeed impossible to agree that the Respondents’ claims are not only meritorious and are probably more plausible.

It is on the strength of the above, that I disagree with the Counsel to the Appellants that the finding of the Court below to the effect that the Respondents are bona fide members of the Onyia family is perverse.

This leaves me with no choice but to resolve issue two in favour of the Respondents.

On the whole, having tackled the pertinent questions raised by issues one and two, and resolving same against Appellants, the fate of this appeal is even more obvious. It is fickle, lacking in substance, and deserves the fitting penalty of dismissal. Consequently, I dismiss this appeal. I affirm the judgment of the lower Court delivered on the 1st November 2019.

The Appeal is dismissed. Costs of N200,000.00 is awarded in favour of the Respondents against the Appellants.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother G. O. Kolawole, JCA had availed me in advance the draft of the Judgment just delivered. I agree with the reasoning contained therein and conclusion arrived thereat.

The resolution of the dispute before the trial Court, rested mainly, on the competency of the Suit instituted before the Court. This is because the strength of the defence was founded on the plea of res judicata. The principles applicable for the success of a plea of res judicata have been fairly established by the Supreme Court and dutifully followed by this Court. My learned brother comprehensively considered the principles applicable to a plea of res judicata based on the admissible evidence on record. I adopt the resolution of the issues and the conclusion arrived thereat.

On that note, I agree with my learned brother that this appeal lacks merit. It is hereby dismissed. I also agree with the order on costs.

PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Gabriel Omoniyi Kolawole, JCA, in this matter.

I agree with the reasoning and conclusion of his Lordship that this appeal lacks merit and ought to be dismissed.

I too adopt the said conclusion and also dismiss the appeal as lacking in merit.

Also, I abide by the consequential order that parties shall bear their respective costs expended in this appeal.
Appeal dismissed.

Appearances:

Isah Seidu, Esq., with him, M. F. Awaji, Esq. For Appellant(s)

Eberechi Adele, SAN, with him, C. A. Ijinda, Esq. For Respondent(s)