OGBE & ANOR v. ARUMEMI-IKHIDE & ANOR (2021)

OGBE & ANOR v. ARUMEMI-IKHIDE & ANOR

(2021)LCN/15504(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/B/244/2009

RATIO

WORDS AND PHRASES: ESTOPPEL: CAUSE OF ACTION ESTOPPEL AND ISSUE ESTOPPEL

Thus, it is settled that a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither party nor his privy may re – litigate that issue again by bringing a fresh action. The matter is said to be res – judicata. Indeed. there are two kinds of this estoppel, namely; cause of action estoppel and issue estoppel. For ‘cause of action estoppel’, it would occur once it appears that the same cause of action was held to lie or not to lie in a final judgment between the same parties, or their privies, who are litigating in the same capacity and on the same subject matter. Once this occurs, there must be an end to the matter, the parties are thereby precluded from re – litigating the same cause of action. However, for ‘issue estoppel’, it would occur where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This plea is based on the principle of law that a party is not allowed to, that is, he is precluded from contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him by a Court of competent jurisdiction. See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219 per Idigbe J.S.C. @ pp. 228 – 229; Ladega V. Durosimi (1978) 3 SC 91 per Eso J.S.C. pp. 102 – 103. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WORDS AND PHRASES: MEANING OF A CONSENT JUDGMENT

What then is a consent judgment in law and why and when can it be validly entered by the Courts? Whilst at the level of the Court below, consent judgment is a regular feature and fixture in their system of administration of justice. It is not so regular at the level of this Court. Yet, even at the level of this Court, in deserving cases upon a successful mediation program consent judgment can be entered by even this Court. See Order 16 Rule 4 of the Court of Appeal Rules 2016. In Lau Local Government V. Kabiru Umar (2014) LPELR-24142(CA), this Court per Georgewill JCA, had pronounced on the issue of consent judgment inter alia thus:
“In present day litigation, it would appear that so much acrimony goes into it so much so that even at the conclusion of trial and delivery of judgment, the divide and resentment or bitterness between the parties is made more deeper and worse. Thus, it is a welcome development the idea of amicable resolution of disputes by the parties. In such circumstance, the parties are granted the liberty with the leave of Court, to take as it were their own destiny into their own hands to resolve as much as they so desire wholly their differences and disputes by themselves and present same to the Court to put its imprimatur to make it a final binding judgment between them. This procedure in cases where they are successfully employed and applied results into what ardent practitioners and strong believers or apostles of the Alternative Dispute Resolution (ADR) Mechanism refer to as ”Win – Win” situation. Both parties are made and have become winners, none is a loser! This leads to complete reconciliation and thus engender future cordial relationship between the parties to such amicable settlement.”
My Lords, consent judgment is thus a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as a judgment which results from the decision of Court. Generally, and understandably so, it is a rare bird to fly at this altitude, though in deserving cases, it still does fly here too! See Star Paper Mill Ltd & Anor v. Bashiru Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647; Race Auto Supply Company Ltd & Ors V. Akibu (2006) 6 SCNJ 98; Woluchem V. Wokoma (1974) 3 SC 153; Otunba Ojora V. AGIP & Anor (2005) 4 NWLR (Pt. 916) 515.

APPEAL: JURISDICTIONAL COMPETENCE OF AN APPELLATE COURT TO INTERFERE WITH THE FINDING OF A LOWER COURT

In law, the decision or ruling or judgment of a Court of competent jurisdiction remains valid, subsisting and therefore, binding on the parties, as well as the Court. unless and until it is set aside on appeal. In The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors (2014) LPELR-24185(CA), this Court per Georgewill J.C.A. had cause to reiterated on the position of the law on the effect on parties of decisions and or findings of a Court of competent jurisdiction not appealed against inter alia thus:
“It is now well accepted and indeed indisputable that where no grounds of appeal exists challenging finding of the lower Court, the finding is valid and subsisting. It is deemed admitted and undisputed and it will remain binding on the parties. It is thus the law that without a ground of appeal challenging the finding of a lower Court, the appellate Court will lack the jurisdictional competence to interfere with such finding. It remains rightly or wrongly, regrettably though if wrongly, the settlement of the issue as between the parties to the appeal.”
See also Olukoya V. Ashiru (2006) All FWLR (Pt. 322) 1479 @ P. 1484; Institute of Health ABUHMB v. Anyip (2011) All FWLR (Pt. 586) 443; Onafowokan V. Wema Bank Plc. (2011) All FWLR (Pt. 585) 201. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RES JUDICATA: RATIONALE FOR THE DOCTRINE OF RES JUDICATA

Before Our Lordships

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

1. MR. ORITSEWEYINMI OGBE 2. MR. JAMES MEGBULUBA APPELANT(S)

And

1. MR. ARUMEMI 2. LADY J. I. A. ARUMEMI-IKHIDE RESPONDENT(S)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Edo State, Benin Judicial Division (hereinafter referred to as: “the Court below”) Coram: COURAGE OGBEBOR, J., delivered on the 12th day of November, 2007 dismissing the suit of the Appellants in its entirety. The Respondents herein were defendants at the Edo State High Court sitting in Benin City while the Appellants were the Claimants at the Court below. The Claimants by their action at the High Court contested that the property situate, lying and being at No. 7, Delta Crescent formally Plot A40, G.R.A, Benin-City is the property of the 1st Appellant by inheritance pursuant to Exhibit “P2” the will written by his late father.

The Respondents as defendants held the position that by virtue of Exhibit “01” (Terms of Settlement), Exhibit 04 (Consent Judgment), Exhibit “D6” (Deed of Assignment Executed between the Defendants and Mrs. Felicia Egbmaje Ogbe (DW1) who is the wife of the testator, the property belongs to the defendants/now Respondents herein. The case was heard on the merit by the Trial Court. Pleadings were fully exchanged and both Parties called several witnesses and tendered documents in support of their case. The Parties formulated issues for determination and addressed the Court accordingly.

The Court in a well considered judgment dismissed the claim of the Claimants now Appellants herein. Aggrieved by the judgment of the Court below, the Appellants have brought this Appeal to this Court vide its Notice of Appeal dated the 4th of February, 2009 and on the 18th of June, 2013 the Appellants were granted leave by this Honourable Court to file additional grounds 3.2 to 3.8 of the grounds of appeal.

ISSUES FOR DETERMINATION:
The Appellants nominated a total of three (3) issues for the determination of this Appeal, thus:
1. Whether it can be rightly contended that the plaintiffs in Suit No. B/31/69 instituted the said action as executors of the estate of the deceased Gervase Eda Ogbe having regard to Exhibit 03? (Grounds 3.3 and 3.4).
2. Whether this suit is caught by the doctrine of res judicata having regard to the circumstances of this case, (Grounds 3.2, 385 and 3.6).
3. Whether the judgment in this case, particularly on the issue that the 1st Appellant renounced the devise bequeathed to him by his late father in line with the case of JADESIMI vs. EGBE (2003) 10 NWLR (PT. 827) PG 1 AT 36-37, PARAS D-E and the presumption raised in Section 114 (1) (now Section 146) of the Evidence Act, 2011 is against the weight of evidence on record. (Ground 3.1, 3.2 and 3.8).

On the part of the Respondents, three (3) issues were also nominated for the determination of this Appeal, thus;
1. Putting all circumstance into consideration and in the absence of any objection to the capacity of the Plaintiffs in suit No. B/31/69, whether Suit No. B/31/69 finally determined the right of the parties in that suit?
2. Whether this suit is caught by the doctrine of res judicata and/or justiciable and Respondents liable to Appellants?
3. Whether it was established as per the evidence on record that 1st Appellant swapped the property in dispute with another for the benefit of Mrs. Felicia Esemaje Ogbe (DW1)?

The issues raised by the parties across board are clearly identical going by a careful reading of the issues nominated by both sides of the divide except for reasons of semantics. As a result, this Appeal shall be determined based on the issues nominated by the Appellants due to reasons of comprehensiveness. The Appellants’ brief of Argument dated the 14th day of June, 2016 and filed on the 28th day of June, 2016 on the part of the Respondent. The brief was settled by G. E. EZOMO ESQ., while the brief of the Respondents dated 1st July, 2020 was filed on the 8th day of July, 2020 and deemed filed 23rd day of November, 2020. The brief was settled by HENRY IDAHAGBON ESQ. At the hearing of the Appeal on the 9th day of February, 2021 learned Counsel adopted the briefs of their clients and urged the Court to decide the Appeal in favour of their clients.

SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANTS:
ISSUE ONE:
Whether it can be rightly contended that the plaintiffs in Suit No. B/31/69 instituted the said action as executors of the estate of the deceased Gervase Eda Ogbe having regard to Exhibit 03?

In arguing this issue, learned Counsel contended that the Executors of the Estate of GERVASE EDA OGBE had not obtained the letters of administration as at the time when the action, i.e., Suit No. B/31/69 was instituted, the judgment of which the trial Court relied upon in dismissing the action. Counsel told Court that this issue was raised by the Appellants during the trial of the matter at the Court below, which can be found under Appellants reply to the Joint Statement of Defence of Defendants at pages 19 to 20 of the Record of Appeal and particularly paragraph 2 (d) thereof, which was not controverted by the Respondents and thereby deemed admitted and also at page 32 of the record.

The submission of Counsel here is that this averment having not been controverted by the Respondents in any way, it was therefore a miscarriage of Justice therefore that the learned trial Judge did not act on the said averment. Counsel further submitted that where the material facts pleaded by a plaintiff are not properly traversed, no issue is joined thereby and there is therefore no dispute on the issues, and onus of proof is said to be thereby discharged. Counsel cited the case of ATANDA vs. ILIASU (2013) 6 NWLR (PT. 1351) 529 @ 566, PARAS D-E.

Learned Counsel also contended that it is settled point of law that a person lacks the competence to institute an action in a representative capacity as an administrator of a deceased person when he has not been granted letters of administration. Counsel cited the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. SAMUEL DAVID EKE-SPIFF AND ORS. (2009) NWLR (PT. 1139) 97 AT 126 PARAS B-D.

Flowing from the forgoing, Counsel argued that it is clear that the Plaintiffs in Suit No. B/31/69 instituted the action long before they were granted letters of administration to administer the estate of the deceased Testator and they never sued as such. According to Counsel this is clearly seen at page 44, line 18 of the records wherein it is stated that the letters of administration were dated 26th of May, 1989 which presupposes the fact that the letters of administration were granted about twenty (20) years after the matter was instituted. To this extent, Counsel argued that it cannot be said that this Suit has been litigated upon before as held by the trial Court because in the said Suit the purported Executors were on a frolic of their own and whatever took place in the said Suit amounts to a nullity.

The position of Counsel therefore is that it is therefore erroneous when the learned trial Judge held that the Plaintiffs in Suit No. B/31/69 who sued as Executors of the Will of the late GERVASE OGBE sued on behalf of the beneficiaries of the Will even as the Will had not been proved and letters of probate had not been granted. Counsel referred this Court to page 77 lines 22 to 24 of the records. Counsel therefore submitted that there is no pleading or evidence before the Court that the Plaintiffs sued on behalf of the beneficiaries of the Will and that at any rate, Exhibit D4 which is the Consent Judgment relied upon by the learned trial Judge is clear on the face of it and no extraneous material can be imputed into it.

Counsel also referred this Court to Section 128(1) of the Evidence Act 2011 as amended which states inter alia thus:
“When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself ….”

Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether this Suit is caught by the doctrine of res judicata having regard to the circumstances of this case?

In arguing this issue, Counsel contended that for a party in a present action to be bound by a decision in a previous matter, amongst the conditions that must exist is the fact that the parties must be the same in the present and previous matter. Counsel cited the case of ABUBAKAR vs. B. O. & A. P. LTD (2007) 18 NWLR (PT. 1066) PG 316 AT 368 PARAS. A – B.

It was further contended that it is clear at page 31, lines 23 to 27 of the records, that Suit No. B/31/69 was brought to the 1st Appellant’s knowledge in the course of this matter and also from the records, at page 33 line 26, 1st Appellant was 12 or 13 years and stated that he was not aware of any Suit of such nature. For this reason, Counsel argued that the Appellant cannot therefore be said to be a party in the Suit and that since the 1st Appellant was not a party in the Suit, he cannot be bound by the decision in it. See RE: NDIC (2007) 7 NWLR (PT. 1302) PG 54 AT 67-68 PARAS, H-A.

In assuming but not conceding that the terms of settlement was signed, Counsel argued that the Court still failed to call for the signature of 1st Appellant to prove that he signed as a witness; Counsel cited the case of ADEFARASIN vs. DAYEKH (2007) 11 NWLR (PT. 1044) PG. 89 AT 93. It is for the reason that Counsel contended that it is to that extent a nullity and an act in futility for a Court to make an order affecting a person who is not a party before the Court. See KASIMU vs. N.N.P.C. (2008) 3 NWLR (PT. 1075) PG 569 AT 586- 587, PARAS H-A. Counsel further argued that the suit cannot be said to bind the 1st Appellant, since he was not a party in the matter, because for a party to rely on the plea of res judicata, what needs to be proved is that, the party relying on it has to show that the parties, issues and subject matter in both matters are the same otherwise it is non-starter. See DIM vs. ENEMUO (2009) VOL. 172, LCRN, 2006 AT 235.

The argument of learned Counsel is that from the record of appeal, at page 43, line 2, it is on record that DW1 gave to the Appellant power of Attorney to sell the property at Sapele, but she was not given power of Attorney to sell the one in dispute in spite of the fact that DW1 in her evidence claimed that from the Consent Judgment, the property known as Block 1, Plot 10 Itsekeri Road, Sapele, was given to the 1st Appellant while the property in dispute was given to her, (See page 42, lines 5-10) and as such, the finality of the judgment cannot be attributed to a judicial decision, the terms of which whether declaratory or directory are so uncertain and ambiguous as to leave the parties in doubt as to the exact extent of their respective rights and liabilities or as to the manner in which the decision is to be complied with or enforced. See HONDA PLACE LTD vs. GLOBE MOTOR LTD (2005) 14 NWLR PT 945, PG. 273 AT 306, PARA H. To buttress the point, Counsel also contended that if the Consent Judgment was final, then the PW1 would not have been given a power of attorney to sell the property at Sapele as alleged by the Respondent.

Counsel also brought to the attention of this Court the fact that the Appellants raised the issue of fraud, which was not responded to by the Respondent, as can be seen in the Appellants’ Reply to Joint Statement of Defence of Respondents at page 19 of the Record of Appeal. He contended in addition that it is also on record that DW3 in page 47 line 5 said that Exhibit 04 was certified in 1979 and that he was employed in the High Court in 1985.

Counsel also argued that from the 1st Appellant’s evidence, it shows that he was never aware of any Suit in which Exhibit D4 emerged from where the issue of fraud was raised and particulars supplied to which the Respondent never responded to. Hence the lower Court cannot apply S. 114 (NOW SECTION 146) OF THE EVIDENCE ACT.

According to Counsel, it is settled law that where there is a serious allegation made against a party and he fails to refute it, the Court has no other option than to accept same as true. See ONOCHIE vs. ALAN DICK & CO. LTD (2003) 11 NWLR (PT. 832) PG. 451 AT 458-4-59, PARAS. F-A; DOKUBO-ASARI vs. F.R.N. (2007) VOL. 152, LRCN, PG. 116 AT 145 PU. As far as Counsel is concerned the record, the averment of fraud in the pleadings of the Appellants before the trial Court was not countered and that flowing from the foregoing, the allegation of fraud raised by the Appellants before the trial Court and the fact that 1st Appellant gave evidence that if there was any Consent Judgment as alleged by the Respondents, it amounted to fraud was unchallenged and uncontroverted. See page 31 line 2S to page 32 line 1 of the records.

Again, Counsel contended that where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. He said in addition that where the evidence of a witness is unchallenged after cross-examination, the Court is not only entitled to act on or accept such evidence, but is bound to do so provided that such evidence is not by its very nature incredible after all, the noble act of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. See IWUNZE vs. F.R.N (2013)1 NWLR (PT. 1334) PG. 119 @ 170 PARAS C-G.

The argument of Counsel here is that since the aforesaid consent judgment is a nullity and has no legal validity, it cannot confer any right nor impose any obligations on anybody, including the Appellants and Respondents in this Appeal. See AJIBOYE vs. ISHOLA (2006) 13 NWLR (PT. 998) PG. 649, PARAS. D-E.

The argument of Counsel that the consent judgment having been established to be fraudulent, the Appellant was right in instituting the Suit before the trial Court. See N. S. ENG. CO. LTD vs. EZENDUKA (2002) 1 NWLR (PT. 748) PG 469 AT 473. Learned Counsel also contended that there is no basis to support the conclusion reached as to Exhibit D4 which was tendered by the Respondents where the Respondent failed to show the signature of the 1st Appellant, since he said he was not aware of the said Suit, which can be found at page 33 from line 25 of the record of appeal.

Counsel submitted that at all times, the onus is on any person who asserts the existence of a fact to prove same. See, S. 133 OF THE EVIDENCE ACT 2011 AS AMENDED and contended that since the Respondents asserted the existence of the plea of res judicata, they bear the burden of proving same. Also see GEGE vs. NANDE (2006) 10 NWLR PT 988. 256 AT PG. 279. PARA G. Counsel argued that the conclusion reached by the Court below in its finding at pages 78-79 of the record, amounted to misplacement of the burden of proof, where the Court found thus:

“Exhibit D4 was tendered by the defendant and pursuant to the section quoted above, I am bound to presume that the content of Exhibit D4 is genuine and the person purported to have signed Exhibit D4. It then behoves on the plaintiffs to prove that the persons did not sign Exhibit D4 including the 1st Plaintiff.”

Counsel further argued that the Court’s finding reproduced above amounted to a misdirection which casts such onus on a wrong party, is bound to lead to a miscarriage of justice. The contention of learned Counsel is that the 1st Appellant told the trial Court at page 33, line 26 of the record of appeal that he was about 12 or 13 years old at the time his father died and that DW1 also told the Court that the 1st Appellant was young and was brought to Court, this can be found at page 41, lines 13 – 14 and also at page 42 line 20, she told the Court that she is not aware of how old the appellant was during the trial before the Court. As far as Counsel is concerned this invariably means that the assertion that the 1st Appellant signed the terms of settlement would not have been true as concluded by the trial Court, because no evidence was led to the effect that the 1st Appellant signed the aforesaid terms of settlement, and also that he was mature as at then.

On account of the conclusion of the Court below that the 1st Appellant signed Exhibit 04 and was a party in Suit No. B/31/69, when the Court said that:
“More so as the 1st Plaintiff gave evidence that he was about 12 or 13 years old in 1969 when his father died. The terms of settlement was signed in 1978 and the 1st Plaintiff would then be about 21 or 22 years old.”

In reaction, learned Counsel submitted that the above finding of the learned trial Judge is no evidence on the printed records to show that 1st Appellant signed Exhibit 04 which he stoutly denied. We submit that this finding of the learned trial Judge amounts to speculation. Counsel also argued that a Judge is not to set up a new case for the parties and base his Judgment on it as was done by the trial Court in this suit. See G.C.M. LTD vs. T.P.H. LTD (2006) 10 NWLR (PT. 989) PG 502 AT 504; IKENTA BEST (NIG) LTD vs. A-G RIVER STATE (2008) 6 NWLR (PT. 1084) 612 AT 653 PARAS F-G.

Finally, Counsel urged this Court to hold that the said Consent Judgment is a nullity, and as such the plea of res judicata cannot hold water, hence the conclusion reached by the trial Court was perverse. Counsel urged this Court to resolve this in favour of the Appellant.

ISSUE THREE:
Whether the judgment in this case, particularly on the issue that the 1st Appellant renounced the devise bequeathed to his late father in line with the case of JADESIMI VS. EGBE (2003) 10 NWLR (PT. 827) PG. 1 AT 36-37. PARAS D-E and the presumption raised in Section 114 (1) (now Section 146) of the Evidence Act 2011, is against the weight of evidence on record?

The contention of learned Appellant’s Counsel is that the deceased 1st Appellant at page 28 line 20 of the records told the trial Court that the property in dispute was bequeathed to him by the father vide a Will dated 4th December, 1967 and that there is no evidence on record that he renounced the benefit bequeathed to him. Learned Counsel further contended that the allegation that deceased 1st Appellant was alleged to have renounced the property in dispute as devised to him by Will by swapping it with another property in Sapele devised to the DW1 has not also been proved conclusively in evidence by the Respondents.

The argument of learned Counsel here is that the Court is bound by the printed Record and cannot go outside it to introduce what is not there, nor are parties allowed to do so. See KWASHI vs. PUSMUT (2010)1 NWLR. (PT. 1176) PG, 518 AT 528. Counsel submitted that the business of the trial Court to put evidence with probative value as adduced by both sides on imaginary scale to ascertain who has the upper hand. See OLODO vs. JOSIAH (2010) 18 NWLR (PT. 1225) PG. 653 @ 671. PARAS E-G and that the learned trial Judge has been unable to show in the Judgment how he preferred the evidence of the Respondent to that of the Appellants in holding that the suit is res judicata.

Counsel further submitted that unlike a mere review of evidence, it’s actual evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other and that there must be an indication on record as to how the Court arrived at the conclusion of preferring one piece of evidence to the other. But that the evaluation and findings of facts do not have to cover numerous pages but rather a substantial portion of the judgment in as much as they are properly done and carried out as required by law. AREGBESOLA vs. OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 458 @ 604 – 605, PARAS H-B.

Learned Counsel also contended that having argued strenuously on this point under issues 1 and 2 and relying on the authority of AJIBOYE. V. ISHOLA (SUPRA), which states that a Judgment that is a nullity has no legal validity and also can confer no right nor impose any obligation on anybody, it then follows that, the learned trial Court could therefore not have been right to have held that 1st Appellant renounced the property as devised to him by the Will, knowing full well that the purported consent Judgment from which he read out the said assertion is null and void and as such cannot be said to have established any right or obligation as stated therein.

Learned Counsel further submitted that where the estate of a deceased is apportioned to a non-beneficiary under a device, the distribution will be tainted with illegality and contrary to the intention of the Testator. See AGUOCHA vs. AGUOCHA (2005) 1 NWLR. PT. 906, PG. 165 AT 194, PARAS A-B. NEED TO INVOKE SECTION 15 OF THE COURT OF APPEAL ACT IN THIS MATTER
Learned Appellants’ Counsel argued at this point that the Respondent at no time at the Court below controvert in any way the case put up by the Appellants but only raised the defence of res judicata on the basis of which the learned trial judge dismissed the case of the Appellants. On this note, Counsel urged this Court to invoke the provisions of Section 15 of the Court of Appeals Act, 2004 to grant the reliefs sought by the Appellants in their amended statement of claim at the lower Court, this Court being seised of all the materials required to invoke the provision of the said section of the Act as it would not need any further evidence before making a finding of fact on the basis of the issues raised. Counsel cited the case ofG & T INVESTMENTS LTD vs. BUSH LTD (2011) 8 NWLR (PT. 1250) PG. 500 @ 527 PARAS A-B. We submit that the powers under Section 15 of the Court of Appeal Act 2004 can only be exercised where the justice of the case requires and in consideration of the necessary factors/conditions. Among these conditions are:

a. Availability of the necessary materials to consider and adjudicate on the matter.
b. The length of time between the disposal of the action at the trial Court and the hearing of the appeal.
c. The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for re-hearing and the hardship such an order would cause on either or both parties in the case. We refer this honourable Court to the case of INAKOJU vs. ADELEKE (2007) 4 NWLR (PT. 1025) PG. 423 @ 691-692 PARAS E-D.

RESPONDENTS:
ISSUE 1:
Putting all circumstance into consideration and in the absence of any objection to the capacity of the Plaintiffs in suit No. B/31/69 whether Suit No: B/31/69 finally determined the right of the parties in that suit?

In arguing this issue, learned Counsel submitted that the judgment in Suit No. B/31/69, though a consent judgment was a final judgment that decided the rights of the Parties thereto and that it is important to note that there was no Appeal against the judgment and there is no evidence before the trial Court that there was an Appeal against the judgment. Counsel therefore argued that the judgment therefore subsists and remains valid. It is further submitted by Counsel that by the totality of the evidence led, both the 1st plaintiff and PW4 attempted to deny any knowledge of the existence of Suit No. B/31/69. And that their denials collapsed in the face of Exhibits 01, 04 and 09 as they confirmed the existence of the said suit.

Counsel contended that Exhibit 09 clearly showed the pictures of PW1 and that there is conflict of his oral evidence on the one hand and documentary evidence on the other. Counsel contended that documentary evidence is used as a hanger to test the truthfulness of the oral testimony. He cited the case of ABATAU vs. AWUDU (2004) 17 NWLR (PT. 902) 430 AT 437 and further submitted that from the overwhelming documentary evidence, this Court should hold that the Suit NO. 8/31/69 existed.

Learned Counsel contended further that the receipt for the Exhibit 01 was paid for and obtained by one FREDERICK A. OGBE, as an executor of the Will of the late Ogbe and that the 2nd plaintiff/Appellant, who was said to be alive was never called as a witness in this suit. According to Counsel, he was the 2nd plaintiff in the Suit No. B/31/69 in his capacity as Executor. The argument of Counsel is that the failure of the 2nd plaintiff to testify in this case is fatal to the case of the Appellants. Counsel cited the case of AWURE vs. ILEDU (2008) 12 NWLR (PT. 1098) 249 AT 245 and also on Section 149(d) Evidence Act, See OKUNZUA vs. AMOSU (1992) 6 NWLR (PT. 248) 416 AT 420. RA. 8- 10.

Learned Counsel also submitted that Exhibits 04, 08 and 09 state clearly and unambiguously that Suit No. 8/31/69 dealt with the property now in dispute and that in essence Suit No. B/31/69 finally determined the rights of the parties thereto. In order words, there was a final judgment in that suit and that there is no dispute as to the fact that the Suit No: B/31/68 was filed at the High Court of Justice Benin City in 1969 with one Fredrick O. Ogbe and Megbuluba, who is the 2nd Plaintiff herein as Plaintiffs (as Executors of the Late GERVASE OGBE) and one Mrs. Felicia Esimaje Ogbe (who was DW1 in this suit) as Defendant as shown in Exhibit D4 and the evidence of DW1 and DW3.

Counsel argued that there is no evidence that any of the beneficiaries including the 1st Appellant objected to the capacity of the Plaintiffs in Suit No: B/31/69. Counsel said that the 1st Appellant by his role as a witness in Exhibit 01 (Terms of settlement) consented to the action of the Plaintiffs in suit No: B/31/69 and cannot approbate and reprobate after consenting to it. Counsel added that 1st Appellant signed Exhibit 01 when he was around 22 years in 1978. Learned Counsel cited the case of THE HONDA PLACE LTD vs. GLOBE MOTORS LTD (2005) 14 NWLR (PT. 945) AT 306 on the finality of consent judgment until set aside. Counsel also cited the case of AGUOCHA vs. AGUOCHA (2005) 1 NWLR (PT. 806) 165 AT 186 and also relied on Section 54 of the Evidence Act and contended that every judgment is conclusive proof as against the parties and privies of facts directly in issue in the case actually decided by the Court appearing from the judgment itself to be ground on which it was based unless evidence was admitted in the case which excluded the judgment.

ISSUE 2:
Whether this suit is caught by the doctrine of res judicata and/or justiciable and Respondents liable to Appellants?

On the question of whether this Suit was caught by the doctrine of Res Judicata and/or Justiciable and Respondents liable to Appellants, Counsel submitted that the Parties in this suit/Appeal are the same as in Suit No: B/31/69. He argued further that Defendants/Respondents in this suit are assigns or privies of the Defendants in 8/31/69. Counsel further contended that whatever the Executors did on behalf of the beneficiaries of the Will is binding more so where the Beneficiaries who are aware of the of the Suit No: B/31/69 did not object to the capacity of the Executors to so do. Counsel contended that the 1st Appellant could haven through his next friend or Guardian in 1969 when the suit was instituted or in 1978 by himself when he witnessed the terms of settlement. Counsel cited the case of JADESIMI vs. EGBE (Supra), AGBOBU vs. AGBOBU (1995) 1 NWLR (PT. 372) 411 AT 413. Learned Counsel therefore submitted the Plaintiffs/Appellants herein are hereby stopped from filing this suit.

It was further contended that this Court is not sitting on Appeal in respect of suit No: B/31/69 and that for this reason, the argument of Appellant’s Counsel calling on this Court to declare suit No: B/31/69 a nullity does not arise and it call that is misplaced as this Court cannot pronounce on this matter more so when the Reliefs claimed by the Appellants at the Court below does not contain such a prayer. Learned Counsel also argued that the 1st Appellant, having been divested of whatever interest he may have vied Exhibit P2, Exhibit D4, the 1st Appellant no longer have any legal interest to protect as against the Legal Owner of the property (Respondents). Counsel cited the of AKPAN vs. REG. TRUSTEES OF QUA IBOE CHURCH OF NIGERIA (2001) 15 NWLR (PT. 1049) 552 AT 559. Learned Counsel also contended that Exhibit D4 cannot be wished away as the 1st Appellant is not a witness of truth, even when he said that he took immediate possession of No. 66 Boundary Road as soon as his Father died, but later stated under cross examination that the documents of the were not handed over to him as the Administrator General was administering the estate of the Father. Counsel submitted that the Appellant contradicted himself. Counsel also said that the 1st Appellant further said that the DW1 lived there with his late Father and that upon the demise of his Father, before she now sold the place. But Counsel said that the DW1 had unbroken claim of possession of the place.

Counsel further submitted that the 1st Appellant also attempted to mislead the Trial Court when he said he had nervous breakdown as a result of the demolition and under cross examination he said he was admitted in Ogbe Nursing Home on the 16th of July, 2006 under Dr. Ekhator, but that Dr. Ekhator came to the Trial Court in his evidence to state that it was June that 1st Appellant was rushed to hospital. Again, Counsel said that PW4 came to contradict the evidence of PW2 and state that it was the month of June, the 19th of June, 2006, while the pleading states that the 1st Appellant discovered the demolition in April 2007. Counsel once again told the Court that the 1st Appellant is not a witness of truth and ought not be believed as such material contradiction are fatal to the Appellants’ case.

Learned Counsel relied on the case of AUDU vs. GUTA (2004) 4 NWLR (PT. 864) 463 AT 467 and submitted the 1st Appellant’s breakdown was way back before the Respondents bought and that the PW2 stated several things could have been responsible for his breakdown in health, Counsel urged this Court not to rely on the evidence of the 1st Appellant because it is full of inconsistencies and contradictions. See ARTRA INDUSTRIES LTD vs. NBCI (1994) 1 NWLR (PT. 483) 574 AT 580.

It was contended as well by learned Respondent’s Counsel that a wrong suffered in the exercise of a legal right is not actionable. He contended that the demolition was an exercise of a legal right. See ADENE vs. DANTUNBU (1994) 2 NWLR (PT. 328) 509 AT 514. Counsel urged this Court not to place any evidential value on the PW2’s evidence, who gave evidence as an expert in the field of medical science, but did not state his credential and he did not state his experience and area of specialist Counsel relied on Section 57(1)(b) (c) of the Evidence Act, 2011 as amended.

Learned Counsel cited the case of OKPOSIN vs. ASSAM (2005) Vol. 131 LRCN 2561 at 2570 and reeled out what conditions the apex Court had held that could sustain a successful plea of “res judicata” by the party pleading it. Against the backdrop of the foregoing, Counsel argued that in Suit No. B/31/69, the Plaintiffs were Frederick O. Ogbe and James Megbuluba who were the executors in the will of the Late Gervase Eda Ogbe and they sued in their capacities as executors; that the Defendant in that suit was Mrs. Felicia Esimaje Ogbe who was DW1 in this present suit at the Trial Court. According to Counsel, the Beneficiaries of the Will of the late Gervase Eda Ogbe affected by that suit were Mrs. Felicia Esimaje Ogbe and Mr. Michael Temisaren Ogbe as garnered from the Exhibit D4, at paragraph 5 of the terms of settlement.

Counsel contended in addition, that in the case of OKPOSIN vs. ASSAM (Supra), it was held that parties included: “privies”. Furthermore, it is contended that in AGBOGUNLERI vs. DEPO (2008) 3 NWLR (PT. 1074) 217 AT 236 TO 237, the apex Court referring to the case of ABABIO vs. KANGA (1932) 1 WACA 253 defines privy as that person whose title is derived from and who claims through a party and that it may also imply identity of successive interests or persons having interest in property.

The contention of learned Counsel is that the Plaintiffs in Suit No. B/31/69 who sued as executors of the Will of the late Gervase Ogbe sued on behalf of the beneficiaries of the Will even as the Will had not been proved and letters of Probate had not been granted and the Beneficiaries never objected to it. Order 11 rule 14 of the High Court (Civil Procedure) Rules provided that executors may sue or be sued on behalf of or as representing the property of estate of which they are trustees or representatives without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons. Even 2nd Plaintiff therein is also 2nd Plaintiff in this suit/Appeal.

Counsel opined that the DW1 in this suit/Appeal was the Defendant in that suit and that she sold the property in dispute in this suit to the Respondents in the present suit/Appeal and the Defendants/Respondents being her assignees are her Privies as regards suit No. B/31/69. We submit therefore that the parties in this suit are the same as the parties in the previous suit No. B/31/69. The parties in this Appeal are bound by the judgment in Suit No. B/31/69 and that Respondents can rely on the plea of res judicata.

ISSUE 3:
Whether it was established as per the evidence on record that 1st Appellant swapped the property in dispute with another for the benefit of Mrs. Felicia Esemaje Ogbe (DW1)?

The contention of Counsel here is that Exhibit D4 which is the crux of this matter is the judgment of the Court in Suit No. B/31/69, while Exhibit 01 is a Certified True Copy of the terms of settlement dated 12/12/1978 signed and filed by the Parties to the Suit. The submission of Counsel is that Exhibit D4 is a duly certified true copy of a judgment of the Court. Counsel cited the case of SHELL PETROLEUM DEVT vs. JACK (1998) 4 NWLR (PT. 545) 249 AT 259. According to learned Counsel, once a document has been certified it authenticates the content and there is a presumption of its genuineness by virtue of Section 116 of the Evidence Act. Counsel argued that Exhibit D9 was not tendered to prove the truth of the content but to show that the suit existed and contended that Section 123 of the Evidence Act is in favour of Exhibit D9 in that it is over 20 years old.

According to Counsel, the Plaintiffs/Appellants have argued that the 1st plaintiff/Appellant was not a party in that suit and that it has not been proved by the Defendant/Respondents that 1st Plaintiff/Appellant signed the terms of settlement in Exhibit D4, but Counsel opined that Exhibit D4 is a Certified True Copy of the consent Judgment in Suit No. B/31/69 and it contained the terms of settlement signed by all the parties in the suit; that is, the Plaintiffs and the Defendants and their Counsel in that Suit.

Learned Counsel submitted that there is a column where the name Michael Temisaren Ogbe (who is now 1st Plaintiff/Appellant in this suit/Appeal) signed as a Witness to the Terms of settlement. Counsel referred Court to Section 114(1) of the Evidence Act, which provides that “the Court shall presume every document purporting to be certificate, Certified True Copy of other document, which is by Law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized thereto as genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. Furthermore, Counsel submitted that Section 114(2) states that the Court shall also presume that any officer whom any such document purports to be signed or certified, held when he signed it, the official character which he claims is such paper.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Against the backdrop of the foregoing, Counsel further submitted that Exhibit D4 was tendered by the Defendants/Respondents at the trial Court and pursuant to the section quoted above the Court is bound to presume that the content of Exhibit D4 is genuine and the persons purported to have signed the document including the Learned Trial Judge, who signed Exhibit D4. With this at the background, Counsel submitted that it then behoves on the Plaintiffs/Appellants to prove that these persons did not sign Exhibit D4, including the 1st Plaintiff/Appellant.

The contention of Counsel here is that the Plaintiffs/Appellants having therefore failed to provide such evidence to rebut the presumption, then it becomes concluded that the 1st Plaintiff/Appellant therefore signed the terms of settlement. More so as the 1st Plaintiff/Appellant gave evidence that he was about 12 or 13 years old 1969 when his father died; the terms of settlement were signed in 1978 at what time the 1st Plaintiff/Appellant would then be about 21 or 22 years old. Counsel contended that the 1st Plaintiff/Appellant was well of age to be aware of the happenings in 1978 and he signed the terms of settlement as a witness, which stated at its paragraph (v) that he consented to it as a beneficiary.

Learned Counsel next picked on the argument of the Learned Counsel for the Appellants that the signature or mark of the 1st Plaintiff/Appellant having not appeared in Exhibit D4 which is a Certified True Copy of the records of proceeding and judgment in Suit No. B/31/69, then that the Defendant/Respondent failed to prove that the 1st Appellant signed Exhibit D4. Counsel contended that this argument is misplaced.

Counsel argued that Exhibit D4 is a Certified True Copy and its genuineness and correctness of the content is presumed and deemed proved until rebutted and that 1st Plaintiff/Appellant was aware of the previous suit and he signed as a witness to the terms of settlement which was made the judgment of Court and that 2nd Plaintiff was the 2nd Plaintiff in the previous suit and the Plaintiffs in that Suit as Executors of the Will of the late Gervase Eda Ogbe which is the same Will under which the Plaintiffs are claiming in this suit and the beneficiaries are privies of the said executors.

It was contended that the evidence led before Court that the Defendants/Respondents in this suit are privies in estate of the Defendant in that previous suit is correct. Counsel urged this Court to so hold as the parties in this suit/Appeal are bound by the judgment of the previous suit. It was further contended by Counsel that any attempt by this Court to answer the questions raised by the learned Counsel for the Plaintiffs in this Appeal would mean sitting on Appeal on the decision of the High Court in that suit, which is not before this Court.

On the call by learned Appellant’s Counsel urging this Court to declare the proceedings of the said suit a nullity, learned Counsel contended that although the issue of nullity of the proceeding of the said suit, was not one of the Plaintiffs reliefs, a Court can only set aside a proceeding which is a nullity. Counsel cited the case of AMORI vs. IYANDA (2008) 3 NWLR (PT. 1074) 250 AT 280, where the Court held that a consent judgment may be set aside in the following circumstances: –
a. Where it was obtained by fraud.
b. Where it was obtained by misrepresentation or non-disclosure of a material fact which there was an obligation to disclose.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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c. Where it was obtained by duress.
d. Where it was concluded under a mutual mistake of fact.
e. Where it was obtained without proper authority.

The contention of Counsel here is that there is no relief claimed by the Plaintiffs in this Court asking for the proceedings and the consent judgment in that suit to be set aside. On the Plaintiff’s argument that the Will of a testator is testamentary and cannot be altered more so as the late Gervase Eda Ogbe had stressed in the will that this Will must not be altered or varied by anyone. But learned Counsel cited the case of JADESIMI vs. EBGE (Supra) where the Court held that a beneficiary under a Will can renounce a testamentary property devised or bequeathed to him by Will.

Counsel submitted that in that case, it was stated that in order to create harmony and peace in the family, the beneficiaries under a Will may agree to a scheme of distribution which was outside the provisions of the Will of the testator and the Supreme Court in EBOSIE vs. EBOSIE (1976) 7 SC 119 have said that such renunciation and redistribution is valid. Based on the foregoing, Counsel stated that in Exhibit D4 some of the beneficiaries in the Will of late Gervase Eda Ogbe that is Exhibit P1 namely Michael Termisaren Ogbe and Mrs. Felicia Esimaje Ogbe agreed to swap their inheritance in the Will.

Learned Counsel referred Court to Paragraph (iii) of the terms of settlement in Exhibit D4, which states thus:
“That the defendant Mrs. Felicia Ogbe shall have and possess absolutely all the testator’s interest in the property known and called Plot A40, Government Reservation Area, Benin City which said property was given and bequeathed by the deceased to Michael Temisaren Ogbe vide Paragraph 11 of the said Will.
“That the said Michael Temisaren Ogbe shall have and possess absolutely all the testator’s interest in the property known and called Block 1 Plot 10, Itsekiri Road Sapele, which said property was given and devised by the testator to the Defendant Mrs. Felicia Ogbe vide Paragraph 9 of the said Will.”

Counsel opined that this agreement in the terms of settlement was made judgment of the Court, which is still subsisting and that this Court cannot allow the Court to sit on Appeal over the said judgment of a High Court, as there will be no basis for allowing the Plaintiffs in this case to resile form the consent given and agreement entered into in Exhibit D4.

On the Counsel for the Plaintiffs urging the Court to do substantial justice instead of technical justice and not to allow the Defendants to use Exhibit D4 as an engine of fraud on the 1st Plaintiff, Counsel submitted that it would be mischievous not to give a fair and just interpretation to Exhibit D4 as the Court will not be doing substantial justice if a different interpretation is given to Exhibit D4.

Learned Counsel also submitted that the Trial Court lacks the jurisdiction to entertain this Suit from the total of evidence led. He added that the issue of jurisdiction being a threshold matter can be raised at any time and that one of the several ways the issue of jurisdiction can be raised is on the basis of the evidence that was been led. Counsel cited the case of NNONYE vs. ANYICHIE (2005) 2 NWLR (PT. 910) 623 AT 633. Counsel contended that the grounds upon which the Respondents are challenging the issue of jurisdiction are: –
1. The property in dispute has been litigated upon before by the same parties in a competent Court in suit No. B/31/69.
2. The parties in this suit are bound by the judgment of Court entered in the said Suit No. B/31/69, being either parties themselves or privies of the suit.
3. That the Beneficiaries of the will consented to Exhibit D4 and the action of the Executors in suit No. B/31/69.
4. The Appellants were caught by issue estoppel.
5. That the Trial Court could not have sat as an Appellate Court to review, alter or set aside the judgment that was entered in the said suit. The ancillary reliefs of the plaintiffs/Appellants in this suit/Appeal stand or collapse with the success of the main relief. The issue this Court would resolve are;
a. Whether or not Suit No. 8/31/69 ever existed.
b. Whether the suit relates to the property now in dispute in this suit.
c. Whether the parties in that suit can be said to be the same and therefore bound by the judgment in the said suit.
d. Whether if the above are resolved in the affirmative, whether this Honourable Court can entertain and make any declaration in respect of the property now in dispute same having been previously pronounce upon by the Court in Suit No. B/31/69 and was never appealed against.
Counsel therefore urged this Court to discountenance the submissions of the Appellants and disallow this Appeal with cost in the overriding interest of justice.

RESOLUTION OF APPEAL
The facts of this case is that the late Mr. GERVASE AJUEBITSI EDA OGBE (hereinafter referred to as the Testator) in his lifetime had among other properties, the property lying and situate at Block 1 Plot 10 Itsekiri Road, Sapele Delta State and another, his dwelling house lying and situate at No. 7 Delta Crescent, formerly Plot A40 G.R.A Benin City and Registered as No. 17 Page 17, Vol. 47 in the Land’s Registry at Benin City. The Testator in his Will bequeathed his property at Block 1 Plot 10 Itsekiri Road, Sapele Delta State to his wife, Mrs. Felicia Esemaje Ogbe (who was DW1 in the proceedings), while his dwelling House at Plot A40 G.R.A Benin City was bequeathed to his eldest son, Mr. Michael Temisaren Ogbe (now deceased and was substituted by the 1st Appellant).

At the trial, the Will was tendered and was admitted as Exhibit P2. According to the Respondents on the death of the Testator, Messrs. Fredrick O. Ogbe and James Megbuluba, the Executors named in the Will, filed an action in Suit No. B/13/69 against the Testator’s wife, Mrs. Felicia Esemaje Ogbe in respect of the Testator’s Estate. This action was later settled out of Court and terms of settlement filed, which terms was later entered as Consent Judgment in the said Suit. This Consent Judgment was tendered as Exhibit D4 in the lower Court.

The highlight of the Consent Judgment is that the property bequeathed to the 1st Appellant and Mrs. Felicia Esemaje Ogbe (DW1) were swapped. The Appellant has denied knowledge of the swap and has also contended that he gave no consent to the swap. Trouble actually started when the DW1, Mrs. Felicia Esemaje armed with Exhibit D4 sold the property at Plot A40 G.R.A. Benin to the Respondents who ostensibly ordered the demolition of the property. The 1st Appellant approached the Court below for a redress claiming that he is oblivious of so many things, one of which is the Consent Judgment in Exhibit D4.

The Court below, in delivering its judgment against the Appellants and in favour of the Respondents relied heavily on the doctrine of Res Judicata in view of the Consent judgment in Exhibit D4.

Before carrying out the analysis required of this Court in this judgment, this Court finds a compelling need to reproduce the Evidence of the DW1, Mrs. Felicia Esemaje Ogbe, which can be found at pages 65 to 67 of the Lower Court’s judgment as reproduced in the printed records of this Court. (See also pages 40 to 41 of the records for her evidence). The evidence reads, thus:
“DW1 is Mrs. Felicia Esemaje. She knew 1st Plaintiff and she knew him when he was young and he was being brought to Court when her husband died. She also knew 2nd Plaintiff who was their Family friend and an Executor of her husband Will. The late Gervase Eda Ogbe was her husband. DW1 stated that she also knew 1st Defendant to whom she sold her property No. 40, Delta Crescent, GRA Benin City. She stated that she was living in the house before she sold it. She said it was not a secret that the Executors of her husband’s Will took her to Court after her husband’s death. She was the legal wife of the late Gervase Eda Ogbe and she was aware of the Will of her late husband. There was dispute after the reading of the Will and so the Executors took her to Court in 1969. The case was a celebrated case. The case was thereafter settled out of Court and the settlement was put in writing and filed in Court. The terms of settlement in Suit No. B/31/69 was tendered by DW1 as Exhibit D1. DW1 continued that the property known as Plot 10 Iteskiri Road Sapele was given to the 1st Plaintiff and she retained her matrimonial home which is now the property in dispute. She stated further that the 1st Plaintiff sold the property in Sapele. She said that there was no Appeal against the Consent Judgment. She said that she had always stayed in the property in dispute and she was doing her Poultry business there and she was the one maintaining the property. She stated further that 1st Plaintiff was aware of the settlement. She stated that she did not know PW4 very well and it was only 1st Plaintiff that used to come to the house. She said that it was not true that PW4 brought an Estate valuer to the house in 2004 to value the property as PW4 would not dare to come to the house. She said that she sold the house in 2006 and the person she sold it to demolished it. She was aware that letters of probate were issued to the Executors.

Under cross-examination by G. E. EZOMO, learned Counsel for the Plaintiffs, DW1 stated that she did not know how old the 1st Plaintiff was during the Court case. She said it was not true that she sold the house for N60 Million (Sixty Million Naira). She said also that her late husband was an Itsekiri man like herself and she was familiar with the Itsekiri custom regarding inheritance of property. She said the property was registered in the name of her husband at the Land’s Registry and she could not remember registering the property in her name. The 1st Plaintiff did not give her power of attorney to sell the land now in dispute but she gave the 1st Plaintiff power of attorney to sell the one in Sapele, which 1st Plaintiff sold to one Atseyokun though she did not know for how much.”

Upon a careful and calm perusal of the evidence of the DW1, which was largely and for the better part gone unchallenged, it may be appropriate to state here that where evidence before a trial Court is unchallenged, it is the duty of the Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. See: ARTRA INDUSTRIES NIGERIA LTD vs. THE NIGERIAN BANK FOR COMMERCE & INDUSTRY (1988) 3 SCNJ 97 @ PAGE 203 KP; OTUEDON & ANOR vs. OLUGHOR & ORS (1997) 7 SCNJ 411. It is rather interesting that the Appellant sought to throw bricks at validity of the Consent judgment in Suit No. B/31/69 whereas the judgment appealed against is not the Suit No: B/31/69 but the instant B/155/2007 decided by the Court below on the 30th day of January, 2009. The question to perhaps address is here is whether this Court is any position to set aside the Suit No. B/31/69 not appealed against? The answer here can only be rendered in the negative.

It is important to state by way of emphasis that the evidence of the DW1 shows the existence of a Consent judgment which emanated from the Suit No: B/31/69 and that the said Consent Judgment is still valid and subsisting until it is set aside and that as long as the validity of that Consent judgment has not been challenged before this Court, there is nothing this Court can do about it. To make matters rather worse for the Appellant here, Exhibit 09 is unequivocal in exposing the conflict in the oral evidence of the PW1 on the one hand and the documentary exhibits tendered by him on the other.

Apart from these, Exhibits 04, 08 and 09 state clearly and unambiguously that Suit No. B/31/69 dealt with the property now in dispute and that in essence Suit No. B/31/69 finally determined the rights of the parties thereto. In order words, there was a final judgment in that suit and that there is no dispute as to the fact that the Suit No: B/31/68 was filed at the High Court of Justice Benin City in 1969 with one Fredrick O. Ogbe and Megbuluba, who is the 2nd Plaintiff herein as Plaintiffs (as Executors of the Late GERVASE OGBE) and one Mrs. Felicia Esimaje Ogbe (who was DW1 in this suit) as Defendant as shown in Exhibit D4 and the evidence of DW1 and DW3.

This Court is unable to find an iota of evidence showing that any of the beneficiaries including the 1st Appellant objected to the capacity of the Plaintiffs in Suit No: B/31/69. The 1st Appellant by his role as a witness in Exhibit 01 (Terms of settlement) is shown to have consented to the action of the Plaintiffs in suit No: B/31/69 and cannot approbate and reprobate after consenting to it. It is shown by the Exhibit 01 that the 1st Appellant signed the document when he was around 22 years in 1978. The settled position of the law is that every judgment is conclusive proof as against the parties and privies of facts directly in issue in the case actually decided by the Court appearing from the judgment itself to be ground on which it was based unless evidence was admitted in the case which excluded the judgment. See the case of STAR PAPER MILL LTD & ANOR vs. ADETUNJI & ORS (2009) LPELR-3113 (SC) where the apex Court per MUNTAKA-COOMASSIE, J.S.C. had this to say on the subject:
“…consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the Court. In the recent decision of this Court in Race Auto Supply Company Limited & Ors v. Akib (2006) 6 SCNJ 98 or (2006) 6 S.C p. 1, His Lordship Ogbuagu, J.S.C., at pg. 17, defined what a consent judgment is as follows: – “It is a judgment entered, pursuant to an agreement between the parties. See Woluchem v. Wokoma (1974) 3 SC 153 at 166. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the Court and it is only appealable with the leave of the Court. See Otunba Ojora v. Agip Oil Plc & Anor. (2005) 4 NWLR (Pt. 916) p. 515. Mohammed, J.S.C., in Race Auto Supply Company Ltd v. Akib (supra) stated the position beyond any doubt thus: – “In line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that a judgment be entered, the product is a consent judgment. In this regard, it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are herein settled as any other judgment or order arrived at after the matters are fully fought out, to the end in a full trial. As Lord Herschel L.C. explained in the case of IN RE SOUTH AMERICA AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND (1885) 1 CH. 37 at 50: “The truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is judgment which result from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved to the action to be fought over again in a subsequent action.”

On the question of whether this Suit is caught by the doctrine of Res Judicata, it is perhaps important to state that case law is replete with definitions of what the doctrine of Res Judicata estoppel connotes. See Ezeanya v. Okeke (1995) 4 NWLR (PT.288) 142 and Balogun v. Adejobi (1995) 2 NWLR (PT. 370) 131 on the subject. The doctrine ordinarily is suggestive of a situation where a final judicial decision has been pronounced on the merits by a Court clothed with requisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits.
The position remains that once it is a final decision on the same question and between the same parties, the decision remains binding until upset on appeal. Res judicata gives effect to the policy of the Law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is predicated on the fact that a Court of law is not infallible and indeed has the jurisdiction to decide wrongly as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal. The reason for the doctrine is basically public policy, which ordains that there must be an end to all litigation coupled also with the fact that the public interest deserves termination of disputes and that the individual ought to be protected from vexations multiplicity of suits.
In the case of OKPOSIN vs. ASSAM (Supra) cited by learned Respondent’s Counsel, the law is settled that to sustain a plea of “res judicata” the party pleading it must satisfy the following conditions to wit: –
1. The parties (or their privies as the case maybe) are the same in the present case as in the previous case.
2. That the issue and subject matter are the same in the previous suit as in the present suit.
3. That the adjudication in the previous case must have been given by Court of competent jurisdiction and
4. That the decision must have finally decided the issues between the parties. Failure to satisfy any of these conditions means failure of the plea in its entirety.”
The question to perhaps address at this stage is whether these conditions are satisfied in the instant Appeal? Firstly, it is glaring that in Suit No. B/31/69, the Plaintiffs were Frederick O. Ogbe and James Megbuluba who were the Executors in the will of the Late Gervase Eda Ogbe and they sued in their capacities as Executors. Secondly, it is also clear that the Defendant in that suit was Mrs. Felicia Esimaje Ogbe who was DW1 in the present suit at the Court below. In agreement with learned Respondents’ Counsel, the Beneficiaries of the Will of the late Gervase Eda Ogbe affected by that suit were Mrs. Felicia Esimaje Ogbe and Mr. Michael Temisaren Ogbe as can be discerned from Exhibit D4, at paragraph 5 of the terms of settlement.
In the case of OKPOSIN vs. ASSAM (Supra) cited by learned Respondents’ Counsel, “Parties” included: “privies”. See also the case of ABABIO vs. KANGA (1932) 1 WACA 253 which defines “privy” as that person whose title is derived from and who claims through a party and that it may also imply identity of successive interests or persons having interest in property. See COKER vs. SANYAOLU (1976) 9-10 SC 203 and OYEROGBA vs. OLAOPA (1998) 13 NWLR (PT. 583) 509 where there are said three kinds of privies, namely:
a. Privies in blood, such as ancestor and heir
b. Privies in law such as testator and executor or in the case of intestate succession, a successor and administrator.
c. Privies in estate, such as vendor and purchasers, lessors and lessee, testator and devisee assignor and assignee.
This Court is therefore in agreement with learned Respondent’s Counsel that the Plaintiffs in Suit No. B/31/69 who sued as Executors of the Will of the late Gervase Ogbe sued on behalf of the beneficiaries of the Will even as the Will had not been proved and letters of Probate had not been granted and the Beneficiaries never objected to it. See Order 11 Rule 14 of the High Court (Civil Procedure) Rules of 1988 of Bendel State, which provided that Executors may sue or be sued on behalf of or as representing the property of estate of which they are trustees or representatives without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons.
It is not surprising that even the 2nd Plaintiff therein is also 2nd Plaintiff in this suit/Appeal and that the DW1 in this suit/Appeal was the Defendant in that suit and that she sold the property in dispute in this suit to the Respondents in the present suit/Appeal and the Defendants/Respondents being her assignees are her Privies as regards suit No. B/31/69. To this extent, to accept that the parties in this suit are the same as the parties in the previous suit No: B/31/69 will be to stand logic and legal reasoning on its head. This Court therefore has no other option than to find and to hold that the parties in this Appeal are bound by the judgment in Suit No: B/31/69 and that the Respondents are clearly entitled to rely on the plea of res judicata. To decide otherwise would be a reverse of legal plausibility.

In respect of the issue three dealing with the question of whether the judgment in this case, particularly on the issue that the 1st Appellant renounced the devise bequeathed to his late father is not against the weight of evidence on record, Learned Appellant’s Counsel contended that the deceased 1st Appellant at page 28 line 20 of the records told the trial Court that the property in dispute was bequeathed to him by the father vide a Will dated 4th December, 1967 and that there is no evidence on record that he renounced the benefit bequeathed to him. Counsel therefore further contended that the allegation that deceased 1st Appellant was alleged to have renounced the property in dispute as devised to him by Will by swapping it with another property in Sapele devised to the DW1 has not also been proved conclusively in evidence by the Respondents.

In nut-shell, the question raised by learned Appellant’s Counsel by the nomination of this issue, is simply whether it was established as per the evidence on record that 1st Appellant swapped the property in dispute with another for the benefit of Mrs. Felicia Esemaje Ogbe (DW1). To begin with, Exhibit D4 is the judgment of the Court in Suit No. B/31/69, while Exhibit 01 is a Certified True Copy of the terms of settlement dated 12/12/1978 signed and filed by the Parties to the Suit. It is clear that Exhibit D4 is a duly certified true copy of a judgment of the Court. The position of the law is that once a document has been certified it authenticates the content and there is a presumption of its genuineness by virtue of Section 116 of the Evidence Act. See the case of SHELL PETROLEUM DEVT vs. JACK (Supra) cited by learned Respondents Counsel on the issue and who equally opined that Exhibit D9 was not tendered to prove the truth of the content but to show that the suit existed and contended that Section 123 of the Evidence Act is in favour of Exhibit D9 in that it is over 20 years old.

However, based on the contents of Exhibit D4, it is clear that some of the beneficiaries in the Will of late Gervase Eda Ogbe that is Exhibit P1 namely Michael Termisaren Ogbe and Mrs. Felicia Esimaje Ogbe agreed to swap their inheritance in the Will. See Paragraph (iii) of the terms of settlement in Exhibit D4, which states thus:
“That the defendant Mrs. Felicia Ogbe shall have and possess absolutely all the testator’s interest in the property known and called Plot A40, Government Reservation Area, Benin City which said property was given and bequeathed by the deceased to Michael Temisaren Ogbe vide Paragraph 11 of the said Will.
“That the said Michael Temisaren Ogbe shall have and possess absolutely all the testator’s interest in the property known and called Block 1 Plot 10, Itsekiri Road Sapele, which said property was given and devised by the testator to the Defendant Mrs. Felicia Ogbe vide Paragraph 9 of the said Will.”

It would be recalled that this agreement in the terms of settlement as depicted by the contents of Exhibit D4 was made judgment of the Court, which is still valid and subsisting. Against the backdrop of the foregoing, this Appeal is without merit and it is accordingly dismissed. The parties are to bear their respective costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother DR. FREDERICK OZIAKPONO OHO, JCA and agree that the appeal is devoid of merits. I also dismiss the appeal accordingly.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lords, two of the crucial issues of law thrown up for consideration and resolution are the effect of a consent judgment not appealed against and the applicability or otherwise of the solemn doctrine of res – judicata.

In the lead judgment, a copy of which I have been privileged to read before now, just delivered by my Lord, DR. FREDERICK OZIAKPONO OHO, JCA, these issues as well as the issues arising for determination in this appeal have been duly and fully considered and impeccable conclusions reached thereon to the effect that the appeal lacks merit and is thus liable to be dismissed and I am in agreement with both the reasons and conclusions therein.

Now, Exhibit D4 is a consent judgment obtained in Suit No. B/31/1969 against which, it would appear as in the printed Record of Appeal, there is no appeal. In law, the decision or ruling or judgment of a Court of competent jurisdiction remains valid, subsisting and therefore, binding on the parties, as well as the Court. unless and until it is set aside on appeal. In The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors (2014) LPELR-24185(CA), this Court per Georgewill J.C.A. had cause to reiterated on the position of the law on the effect on parties of decisions and or findings of a Court of competent jurisdiction not appealed against inter alia thus:
“It is now well accepted and indeed indisputable that where no grounds of appeal exists challenging finding of the lower Court, the finding is valid and subsisting. It is deemed admitted and undisputed and it will remain binding on the parties. It is thus the law that without a ground of appeal challenging the finding of a lower Court, the appellate Court will lack the jurisdictional competence to interfere with such finding. It remains rightly or wrongly, regrettably though if wrongly, the settlement of the issue as between the parties to the appeal.”
See also Olukoya V. Ashiru (2006) All FWLR (Pt. 322) 1479 @ P. 1484; Institute of Health ABUHMB v. Anyip (2011) All FWLR (Pt. 586) 443; Onafowokan V. Wema Bank Plc. (2011) All FWLR (Pt. 585) 201.
In law therefore, in the absence of any appeal against the consent judgment in Suit No: B/31/1969, both the parties on record in that Suit as well as their privies and indeed the Court below was bound by it and to apply it if it relates to the subject matter of the Suit before the Court below.

So in law, can a consent judgment such as Exhibit D4 operates as res judicata? Yes, it can if all the pre-conditions for the operation of res – judicata are present in the present appeal. Thus, for the principles of res judicata to apply in any given proceedings, all the pre – conditions to a valid plea of issue estoppel must be shown to exist namely: (1) the same question must be for decision in both proceedings. (2) the decision relied upon to support the plea of res – judicata must be final, and (3) the parties must be the same or their privies. See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219; Ladega V. Durosimi (1978) 3 SC 91.
Thus, it is settled that a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither party nor his privy may re – litigate that issue again by bringing a fresh action. The matter is said to be res – judicata. Indeed. there are two kinds of this estoppel, namely; cause of action estoppel and issue estoppel. For ‘cause of action estoppel’, it would occur once it appears that the same cause of action was held to lie or not to lie in a final judgment between the same parties, or their privies, who are litigating in the same capacity and on the same subject matter. Once this occurs, there must be an end to the matter, the parties are thereby precluded from re – litigating the same cause of action. However, for ‘issue estoppel’, it would occur where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This plea is based on the principle of law that a party is not allowed to, that is, he is precluded from contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him by a Court of competent jurisdiction. See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219 per Idigbe J.S.C. @ pp. 228 – 229; Ladega V. Durosimi (1978) 3 SC 91 per Eso J.S.C. pp. 102 – 103.
Having set out the principles of law on res-judicata, did Exhibit D4 operated as res – judicata as between the parties to this appeal as found by the Court below? In the lead judgment, this poser has most brilliantly been considered and answered in the positive against the Appellants in favor of the Respondents. I accept this conclusion and I so hold too!

It is for the above few words of mine in adumbration of and for the fuller lucid reasoning so adroitly marshaled out in the lead judgment that I too hold that this appeal is bereft of any iota of merit and therefore liable to be dismissed. I too hereby dismiss it. I shall abide by the consequential Orders made in the lead judgment, including the Order as to no cost.

Appearances:

G. E. EZOMO, ESQ. For Appellant(s)

HENRY IDAHAGBON, ESQ. For Respondent(s)