OLIKO AND ANOR. V. OKONKWO AND ORS

• Pages: 78-82

78

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

stated before, had made no formal consequential orders even though the judg-

ment of the High Court was set aside; on the basis even that an order of dismiss-

al of the plaintiffs case had been made by the Supreme Court, the implication is

that the plaintiffs has failed to prove their case and we do not see that any special

rights have been vested in the defendants thereby. The real point to be under-

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5

stood is that no adjudication had ever been made in respect of the issue of the

settlement of 1936. This may be because neither party gave evidence touching

and concerning it at the trial in exhibit D1. Nevertheless, that which possesses a

binding force in

res judicata

is the judgment and not the evidence on which it is

based.

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10

The reasons given above in our view sufficiently answer the contention that the

Supreme Court judgment, exhibit P3, constitute

res judicata

in the circumstances

of this case and we come to the conclusion that it does not.

This was the main point argued before us. The learned trial Judge accepted

the evidence of the plaintiffs concerning the fact and the terms of the settlement in

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preference to that of the defendants. His findings are supported by the plethora of

evidence which the plaintiffs had adduced and the defendants have not before us

sought to disparage those findings.

The appeal must be dismissed and it is so dismissed. The appellants will pay

the costs of the respondents fixed at 46 guineas.

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Appeal dismissed.

OLIKO AND ANOR. V. OKONKWO AND ORS.

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25

NWOKOLO OLIKC AND ANOR

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APPELLANTS

V

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30

OFILI OKONKWO AND OTHERS

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RESPONDENTS

SUIT NO. SC 254/1967

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

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35

UDOMA,

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J.S.C.

20th March, 1970

Land Law - Declaration - Title to land - Appeal - Almost at the end of the

case Plaintiffs' counsel raising estoppel per rein judicatam - Settlement by

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40

1710Si

senior member

of

family - No opportunity given in the counsel on

the other side to reply - Trial Magistrate upholding suln

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on the ground

that the settlement was arbitration which created estoppel per rem judicatam

between the parties - Trial Judge on appeal setting aside judgment of trial

Magistrate and non-suiting plaintiff

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45

ISSUES:

1.

Whether a settlement by the most senior member of family constitutes a judicial

decision?

2.

Whether a Judge, on appeal, can pronounce on grounds which were unargued

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50

in the lower court.