Daniel Beecroft V. Mr. F. B. Abiola Cudjoe & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

On the 22nd of May, 2000, Naron J, sitting at the High Court of Justice Jos Division, Plateau State of Nigeria delivered a judgment in Suit PLD/J/68/96. In the suit, the respondents herein were the plaintiffs. They claimed against the defendants who are the appellants in this appeal, the following reliefs set out in paragraph 13 of their amended statement of claim:-

“WHEREFORE plaintiffs claim process (sic) that the court distribute and or partition the properties No. 19, 20 and 21c Church Street Jos and No. 69/16 Massallachin Jumma’a Street, Jos, No. 70/7 Sarkin Arab Street, Jos, and other material by the honourable court (sic). Also for an account rents (sic) over the property received (sic).”

Parties to the suit had filed and exchanged pleadings. At the trial, there was no evidence led. There were however three exhibits tendered from the Bar by Mr. Falade learned counsel for the plaintiffs and admitted in evidence as exhibits 1, 2 and 3 without objection by Yusuf Alli Esq, learned counsel for the defendant. Mr. Falade then urged the court to enter judgment for the plaintiffs as per exhibit 3. On his part, Mr. Yusuf Ali said he had seen exhibits 1 – 3 and added, “there is nothing for me to urge in respect of the defendant since the matter is res judicata.”

He entered judgment in terms of exhibit 3. He declared:

“Judgment is therefore entered in favour of the plaintiffs as per the contents of exhibit 3.”

The defendant has appealed to this court against the judgment on 4 grounds by notice of appeal filed on 18/8/2000.

Parties later filed and exchanged briefs of argument. In the appellant’s brief filed on 19/6/2001 his learned counsel distilled the following 4 issues for determination.

(1) “Whether or not exhibits 1, 2 and tendered from the Bar was sufficient proof of issues of res judicata and claim of the plaintiffs in terms of the pleadings before the court.

(2) Whether or not the reliefs sought by the plaintiffs in their pleadings was for the enforcement of judgment of the High Court previously decided.

(3) Whether or not the learned trial Judge had jurisdiction to find on the basis of exhibits 1, 2 and 3 admitted before the Honourable Court.

(4) Whether or not the learned trial Judge properly evaluated the evidence before the Honourable court.”

For the respondents, the following 2 issues were distilled in their brief of argument filed on 16/1/2002, deemed filed on 30/1/2002 by leave of this court granted on the same date.

(1) “Whether the judgment appealed against is not a consent judgment. If the answer to the above is in the affirmative whether there is the need to adduce evidence as pleaded in the respective pleadings of the parties.

(2) Whether the judgment appealed against is contrary to the claim of the plaintiff and whether even if it is contrary to the claim whether the said consent judgment should be set aside.”

The respondents also gave notice of preliminary objection, incorporated into their brief of argument.

In reaction to the said notice, the appellants filed a reply brief on 13/2/2002.

It is important to state at this stage that by a motion filed on 7/5/2002, the appellants sought leave of this court to substitute Daniel Beecroft for Fumilayo Beecroft (deceased) who was said to have died on 22/4/2002 while this appeal was pending. Daniel Beecroft is said to be the deceased’s eldest son on whom his property devolved with his younger sister, being the children of the deceased who died intestate.

At the hearing of the appeal M. A. Ekone Esq appeared for the appellant. Bankole Falade Esq leading Z. M. Rimfa and Ms J. R. Danke appeared for the respondents.

Mr. Ekone adopted his brief and urged the court to allow the appeal. He further relied on the case of Emeka v. Rowson (2001) 10 NWLR (Pt. 722) 73 in urging this court to discountenance the notice of preliminary objection, being, according to him contrary to Order 3 Rule 15 of the Court of Appeal Rules.

Mr. Falade also adopted his brief and the notice of preliminary objection and urged the court to dismiss the appeal, urging further that the notice of objection incorporated in his brief was in substantial compliance with Order 3 Rule 15. For, the appellant having replied to the objection, he is deemed to have due notice of it and has waived whatever irregularity, if any may have existed.

Before addressing the respondents’ notice of preliminary objection, set out in their brief of argument, I will first consider the issue raised by Mr. Ekone, learned counsel for the appellant to the notice of preliminary objection of the respondent contained in his brief of argument. It is predicated on the provision in Order 3 Rule 15 of the Court of Appeal Rules. In his view, the respondent has not complied with the provision when he set out his notice of preliminary objection in his brief of argument and did not file a separate notice in court. In his reply, Mr. Falade submitted that his notice incorporated in his brief of argument is sufficient compliance and that the appellant having replied thereto in his reply brief, would be deemed to have waived the irregularity, if any, that might have occurred.

Order 3 Rule 15 (1) and 15(3) of the applicable Court of Appeal Rules provides as follows:-

“A respondent intending to rely on a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with seven copies thereof with the Registrar within the same time.”

Rule 15(3) also provides:-

“If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondents or may make such other order as it think fit.”

The issue now is whether the notice of preliminary objection contained in the respondent’s brief alone and not in a separate notice satisfies the requirement in Order 3 Rule 15 (1) (supra).

When the purpose and essence of the rules in Order 3 Rule 15 are taken into account, as well as their application by the courts, it goes without saying, that the appellant’s counsel’s oral submission at the hearing of the appeal, seeking to demolish the objection in the respondents’ brief of argument, is misconceived.

The import of the above rules is that a respondent who intends to challenge the competence of an appeal must give notice thereof to the appellant not later than 3 clear days before the hearing. It is well settled that the purpose or the rule in Order 3 Rule 15 (1) and (3) of the Court of Appeal Rules (same as Order 2 Rule 9 of the Supreme Court Rules) is to prevent the opposite party, viz the appellant, from being taken by surprise and to give him an opportunity to react to the objection. See Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 at p. 25. Therefore where a preliminary objection is taken orally at the hearing of the appeal, the court has discretion under Rule 15(3) to refuse to listen to it. See Cesare Missini v. Balogun (1968) 1 All NLR 318. OR the court may adjourn the matter with costs to the appellant to afford the respondent an opportunity of giving the required notice to the appellant. See the Supreme Court in Nwajuebo v. Alabua (1974) 1 All NLR (Pt. 2) 445 at 449 per Coker JSC. See also Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 SC.

Notice of preliminary objection raised in the respondent’s brief of argument not necessarily by motion has been held by the courts to satisfy the requirement of notice enacted in Order 3 Rule 5 (1) (supra) and to constitute sufficient notice. See Odu v. Agbor Hemeson (2003) 2 NWLR (Pt. 804) 355. In Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 at 570 – 571, 571 – 572, The Supreme Court, per Ejuiwunmi JSC and Achike JSC once more put to rest the controversy whether the said Rule would only be satisfied by a separate notice of objection. The learned Justices of the Supreme Court – had to address that issue as herein with regard to a similar Rule in Order 2 Rule 9 of the Supreme Court Rules. Their answer is, ‘no’.

What Ejiwunmi JSC said in his leading judgment is at page 570 – 571. In the appeal where the respondent only incorporated his notice of preliminary objection in his brief of argument, he said, (relying on Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 240 per Bello JSC, as he then was, later CJN) that a notice of objection, in the respondent’s brief is not rendered in-effective by failure to give a notice separately under Order 2 Rule 9 of the Supreme Court Rules.

On his part, Achike JSC had this to say:-

“In this appeal, the respondent’s learned counsel gave notice of preliminary objection in the respondent’s brief. This is clearly an approach outside the contemplation of Order 2 Rule 9 of the Rules of this Court which enjoins a preliminary objection to give such notice of a preliminary objection to the hearing of the appeal, not less than three clear days before the hearing of the appeal. Should a notice of preliminary objection included in the respondent’s brief be discountenanced because of failure to comply strictly with the provisions of Order 2 Rule 9? I think not. There is no doubt in my mind that the purpose of Rule 9 is to alert the appellant sufficiently of the attack the respondent has conceived as his strategy to either partially or wholly neutralize the hearing of the appeal. Thus if the objection is sustained the appeal will, as it were, be still-born with its far-reaching consequences. Since the essence of a preliminary objection is to bring the objection to the appellant’s notice before the appeal takes off, once such notice of objection is incorporated in the respondent’s brief the appellant cannot be heard to deny being aware of the notice merely because it did not strictly conform with the specific procedural rule of court. That will be taking refuge under the technical rule of procedure. Suffice it to say that the courts for a long time have shifted emphasis from undue reliance on technicalities to doing substantial justice to the parties, having regard to the circumstances of the case. Respondent’s failure to comply with the procedural provisions under Order 2 Rule 9 will not derogate from the duty on this court to give consideration to the preliminary objection on its merit” (Underlining supplied)

See also the Supreme Court in the case of Agbaka v. Amadu (supra), which preceded the Maigoro case, where Ogwuegbu JSC so succinctly put the matter of the application of Order 3 Rule 15(1) of the Court of Appeal. He stated that where the objection was argued in the respondent’s brief and the brief was served on the appellant who had opportunity to react to it, it would be stretching Order 3 Rule 15 of the Court of Appeal Rules too far to insist on the filing of a notice.

The appellant herein was served the respondents brief filed on 16/1/2002. He filed his reply brief on 13/2/2002. The appeal was heard on 9/11/2005, over 2 years after the notice of objection.

Having regard to above, that issue raised by the appellant at the hearing of this appeal can only be described therefore as misconceived in the light of the state of the law.

I cannot help but also identify that it is the appellant who was in breach of the rules when he failed to raise this issue of a separate notice in his reply brief filed after the respondents’ brief was served on him and in reaction thereto. For, a reply brief, as provided by Order 6 Rule 5 of the Court of Appeal Rules is intended to enable the appellant deal with all new points arising from the respondent’s brief of argument. A notice of preliminary objection posted in the respondents’ brief clearly qualifies as point deserving of the appellant’s attention in his reply brief if he was serious in his objection to the practice. Failure to answer thereto only leads to the conclusion that the appellant could not be serious and has conceded the point raised. See Order 6 Rule 10 of Court of Appeal Rules.

Learned counsel for the respondent was on firm grounds in stating that the appellant had sufficient notice of the preliminary objection when he received the respondents’ brief and replied thereto. Failure to raise it when he dealt with other new matters raised in the respondents’ brief would be correctly deemed to be a waiver of his right to deal with this matter. Mr. Falade’s objection to the mode of the notice of preliminary objection of the respondent is hereby over-ruled.

The merits of preliminary objection itself, adjudged properly raised, will now be considered, The objection raised in the respondents’ brief of argument, and adopted at the hearing of the appeal is in the following terms: –

(1) “At the hearing of this appeal the respondent shall by way of preliminary objection urge this Honourable Court to strike out/dismiss this appeal as it is incompetent in that the appeal was filed without leave and in contravention of Section 241(2) (c) of the 1999 Constitution of the Federal Republic of Nigeria the judgment appealed against being a consent judgment.

(2) Judgment was of the lower court was delivered on 22nd May, 2000. The appellant filed notice of appeal on 18th August, 2000. Before filling the notice and ground of appeal, appellant did not apply for nor was he granted leave to appeal. This is contrary to section 241(2) (c) of the 1999 Constitution.”

Learned counsel for the respondents in addressing his objection, set out section 241(2) (c) of the Constitution. He then submitted, that where a party seeks to appeal against a consent judgment, leave must be sought and obtained before the appeal is filed, and that where leave is not obtained, the appeal is rendered incompetent. He relied on the case of Enigbokan v. Baruwa (1998) 1 NWLR (Pt. 560) 96 at 110 paras. D – G. He urged the court to dismiss the appeal.

The appellant had responded to this in his reply brief, filed after he was served the respondent’s brief embodying notice of this objection. He submitted that the judgment appealed against in the peculiar circumstances of the case is not a consent judgment as presented by the respondent, relying on Karim v. Incar (Nigeria) Ltd (1992) 7 SCNJ Pt 2 p. 366 at 377. Further, that evidence was led by the plaintiffs when exhibits 1, 2 and 3 were tendered, though without objection and was admitted in evidence. That the evidence and submission based on the said exhibits 1, 2 and 3 before the judgment now contested cannot be consent judgment.

Counsel referred to the learned defence counsel’s submission in the court below where he stated, “I have seen exhibits 1 – 3 in my respective (sic) view that (sic) is nothing for me to urge in respect of the defendant since the matter is res-judicata.” He argued, that this statement did not depart from the case of the defence that counters the plaintiff’s claim that the properties had not been partitioned at the time of filing the present suit, and that therefore, when the learned trial Judge relied on the exhibits 1 – 3 to deliver judgment in the case, it was not because it was an agreement between the parties but on the strength of the evidence presented before the court.

It was further submitted that whether a previous judgment operates as res-judicata is entirely a matter of law, citing Richard Ezeanya & Ors. v. Gabriel Okeke & Ors. (1995) 4 SCNJ 60 at 76 where the Supreme Court held inter-alia that “the question of whether or not exhibit C (and in this case exhibits 1 – 3) operated as estoppel per rem judicatam in the present action is entirely a matter of law”

Learned counsel argued further, that evidence was led though minimal, particularly as the defence raised the issue of res judicata and did not contest the tendering of the said exhibits 1 – 3. Thus, the question whether exhibits 1 – 3 can sustain the claim of the plaintiffs as canvassed at the trial Court is now an issue before this court. He submitted, that the nature of proof in a given case must be dictated by the particular circumstances of the available evidence, and thus, in an uncontested case, a plaintiff may establish his case by minimum proof while a contested case may be established by a balanced of probabilities. The case of Ogunjumo & Ors v. Ademolu & Ors (1995) 4 SCNJ 45 at 54, (1995) 4 NWLR (Pt.389) 254 is relied on.

Learned counsel concluded, that their contention is that the tendering of exhibits 1 – 3 before the trial court amounted to scanty and insufficient evidence to sustain the judgment given, referring to the case of Ogunjumo & Ors v. Ademolu & Ors (supra).

In addressing the issue and considering the submission of learned counsel for the parties, it would appear to me that there is need to first determine the nature of the judgment passed by the court below in this matter, whether it is a consent judgment as submitted for the respondents or it is not, as the appellant urges.

For, if indeed the judgment was a consent judgment, section 241 (2) C of the Constitution specifically requires that leave of the court must be obtained by an intending appellant before appealing. Otherwise the appeal therefrom becomes incompetent.

The section provides as follows: –

Section 241(2): Nothing in this section shall confer any right of appeal –

(a)…

(b)…

(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

The courts have given effect to the above provision in a plethoral of decisions. Such are – Agwaramgbo v. Nakande (2000) 9 NWLR (Pt. 672) 341; Abdulkarim v. Incar (Nig.) Ltd. (1992) 7 NWLR (Pt. 251) 1, SC.; J.C Ltd v. Ezenwa (1996) 4 NWLR (Pt. 443) 391 at 407 per Ogundare JSC, Afegbai v. A.-G. Edo State (2001) 14 NWLR (Pt. 733) 425. Also Enigbokan v. Baruwa (1998) 8 NWLR (Pt 560) 96 at 110 CA.

What amounts to a consent judgment?

It is like in an agreement. The parties need be ad-idem. The consent need not be in writing. It can be inferred from the conduct of the parties. It can also be given at anytime after the action is brought, before trial commences, in the course of trial while evidence is being adduced or after, and/or before conclusion. In that way, the court is prevented from reaching a decision on its own based on the pleadings and evidence before it. In a money judgment, the consent can be in respect of the entire sum claimed or a part thereof. For instance, a plaintiff may agree to accept the amount admitted by the defendant, which is a lesser amount. Or, on the other hand, the defendant may agree to the entire sum claimed. In either case, the parties would be consenting with each other on what they want to become the judgment of the court, exhibiting an intention to curtail litigation, save time and costs by taking the conclusion of the suit into their own hands, rather than leave it with the court to arrive thereto by listening to/taking long drawn evidence considering and judging the case on the pleadings and evidence of the parties and their witnesses placed before it. In a judgment other than a money judgment, parties could agree with each other to accept or forego one or more of the elements or items in the claim or no element at all, as they think fit, and allow the court to enter their agreement as the judgment of the court. Also one of the parties may choose to submit to judgment.

See Abdulkarim v. Incar (Nig) Ltd. (supra).

When in the above case, the Supreme Court gave interpretation to the constitutional provision earlier set out, requiring leave to appeal against a consent judgment, its decision gave a much broader construction to the meaning of the word “consent” than in earlier decisions. The court, (per Uwais JSC, as he then was, now CJN), in the leading judgment, to which Kawu, Nnaemeka-Agu, Wali, Olatawura & Mohammed JJSC concurred, considered the significance of the constitutional provision and held that it “is to limit litigation where some medium of agreement has been reached between the parties.” That the agreement could take any form…in the form of “a consent judgment in its technical sense or submission to judgment.”

The learned Justice of the Supreme Court then concluded his exposition on the issue thus:-

“…The circumstances under which a decision could be reached, ‘with the consent of parties,’ will, indeed, always depend on the peculiar facts or each case.”

We have been guided by these wise words in examining the facts on record in this appeal leading to the judgment appealed against, and in resolving the controversy whether it is a consent judgment or not. It is in my view, a consent judgment.

How did the judgment appealed against come about? What was its form? Was it by consent of parties to be inferred and in the sense that the parties were ad idem with regard to all the elements in the claim before the court or some of them?

The answers in my view, are in the pleadings of the parties and record of the hearing of the suit on the hearing date.

The plaintiffs in their amended statement of claim, averred that they were the children of late Alfred Cudjoe and the grand children of Madam Mary Cudjoe, deceased. Other facts relevant to this appeal are that Madam Mary Cudjoe died intestate. She was seized of the property listed above at the time of her demise survived by her two children, Alfred Cudjoe and Christiana Ashun. The plaintiffs in this suit are the children of Alfred Cudjoe and the grand children of Madam Mary Cudjoe. The defendant is the son of Christiana Ashum whose other son was Henry Libert, deceased and so are also the grandchildren of Madam Mary Cudjoe deceased.

The foregoing is common ground between the parties as their pleadings show.

In his amended statement of claim, the plaintiff also averred thus-

Para. 3. plaintiff aver that Madam Mary Cudjoe died on 4th September, 1972 intestate leaving the property listed below viz:

(a) No. 19, Church Street, Jos

(b) No. 20 Church Street, Jos

(c) No. 21, Church Street, Jos

(d) No. 69/16, Massallaehin Juma’a Street, Jos

(e) No. 70/7, Sarkin Arab Street, Jos

(f) Wearing apparel, Trinket, Cooking Utensils, Chairs, Tables and a Refrigerator

(g) The sum of N275.91 at First Bank of Nigeria Plc, Bank Street, Jos and N160.00 at Union Bank of Nigeria Plc, Bank Street, Jos.

4. Plaintiffs aver that for many years before and after the death of Madam Mary Cudjoe, Alfred A. Cudjoe (hereinafter called Plaintiffs father) was residing at Lagos. Whereas Late Mr. Henry O. Libert (hereinafter called Defendant brother) live in Jos and had assess to the property and money of Madam Mary Cudjoe.
5. Further that in order to inherit and or usurp the intestate property defendant’s brother produced forged which was nullified by the court at the instance of plaintiff’s father on 28th August, 1975.
6. Also on 16th March 1977 defendants brother obtained letters of Administration as Administrator of the intestate and he was acting in that capacity until his death in 1995 without rendering of any account.

Plaintiff will at the trial rely on the files of the property Nos. 19, 20 and 21 with the JMDB, Jos (Jos Metropolitan Development Board, Jos) at the trial.

7. Plaintiff’s father was pricked at the manner of the management of the property by defendant’s brother whereby he was confronted to render account whereby defendant’s brother filed a declaratory action at the High Court, Jos in Suit No. JD/125/75.
8. Plaintiff’s aver that in the said Suit No. JD/125/75 defendant’s brother sought a declaration that they (Libert and defendant) were entitled to half of the estate of Late Madam Mary Cudjoe. The suit was not contested and declaration judgment was entered but the properties were left without partitioning or distribution even till now.
9. Although attempts were made by defendant’s brother and his solicitor Mr. P.D. Akiya on one hand and the plaintiff’s father but by reason of lack of unanimity particularly as to date and mistrust for each other the property was left partitioned/distributed even till today. Plaintiffs will at the trial rely on the letter dated 20th September, 1976 by plaintiff’s father to P.D. Akiya Esq. in proof of the averments above.
10. Plaintiff’s aver that their father never managed or execised any act of ownership over any of the property in this suit until he died in 1992. The property No. 69/16 Massallachin Jumaa’a Street, Jos and No. 70/7, Sarkin Arab Street, Jos were never taken over or did he exercise ownership over them. On the contrary, Madam Elizabeth Cudjoe and Aunt and/or a relation of the parties was managing the property. Plaintiffs will at the trial rely on a letter of authority dated 16th September, 1995 to one Mr. Amos Asaje by the said Madam Elizabeth Cudjoe for the former to manage the property.
11. Plaintiffs aver that the property in the intestate to be distributed are as follows:-

(a) No. 19, church Street, Jos, is a bungalow built of stone and concrete and comprising of 2 two Bedroom flats.

(b) No. 20, Church Street, Jos, is a two story building built of stone and concrete comprises 6 two Bedroom flats.

(c) No. 21, Church Street, Jos, is a bungalow built of mud house used as family house and comprises 8 rooms with toilet and kitchen with a boys quarters built of cement block.

(d) No. 69/16, Massallachin Jumaa’a Street, Jos, is a bungalow built of stone and concrete comprises 5 rooms.

(c) No. 70/7, Sarkin Arab Street, Jos is a dilapidated story building built of mud comprises story building built of mud comprises 12 small rooms of which a part has fallen (demolished by rain).

12. Plaintiff’s aver that since the property was never partitioned or distributed for lack of independent and or impartial implore the property stated in paragraph 11 (a-e) be distributed by the cost evenly.”

The defendant in his amended statement of defence and in relevant paragraphs, thereof, averred as follows:-

Para. 2. The defendant states that he is the brother of H.O Libert who died in 1995 and that they were both children of Christiana Ashum (also now deceased).

3. Christiana Ashum was a sister to Alfred cudjoe and they were both Children of Mary Cudjoe (also deceased).
4. The defendant states further that Mary Cudjoe was the original owner of the landed properties at (i) Nos. 19, 20 and 21 all of Church Street, Jos, (ii) No. 69/16 Massalachin Juma’a Street, Jos and (iii) 70/71 Sarki Street, Jos.
5. By the judgment in suit No. JD/125/75 the late H.O. Libert sued Alfred Cudjoe for the share of our Mother, Christiana Ashun, from the estate of Mary Cudjoe which besides the landed properties above, also included wearing apparels, trinkets, cooking utensils, chairs, tables, a refrigerator, N275.91 and N160.00 from First Bank and Union Bank respectively. The said judgment and the statement of claim are hereby pleaded.
6. Further to the said judgment in the proceeding paragraph only the landed properties referred to in the claim were shared about 20th August, 1976 between H. O. Libert and the defendant on the one hand (being the share of their late Mother Christiana Ashun), and Alfred Cudjoe on the other. The defendant shall rely on (i) a letter dated 23/6/24 addressed to plaintiff’s counsel (ii) a letter addressed to Alfred Cudjoe dated 20/8/79 to buttress this point. The said Alfred Cudjoe could not account for the wearing apparels, trinkets, cooking utensils, chairs, tables, a refrigerator, the moneys referred to above in the bank or render account of the rents collected by him in respect of the landed properties aforesaid, and therefore these were not shared.
7. The defendant avers that since 1976 Alfred Cudjoe, father of the plaintiffs agreed to the sharing of the landed properties and therefore exercised ownership rights over the properties at No. 69/16 Massalachin Juma’a Street, Jos and No. 70/7A Sarki Arab Street, Jos, while H.O. Libert also accepted the share of Nos. 19, 20 and 21 Church Street, Jos as belonging to him and the defendant. The Certificates of Occupancy and letters of Administration of these properties are hereby pleaded.
8. The defendant denies paragraph 10 of the claim and puts the plaintiff’s on strict prove of same.
9. The plaintiff’s father Alfred Cudjoe did not complain about the sharing arrangement above and was therefore satisfied with it. The defendant shall lead evidence to prove this and rely on receipts issued by Alfred Cudjoe or Elizabeth Cudjoe his sister to the tenants of the said premises.
10. The defendant states that after the death of Mary Cudjoe and Christiana Ashun who both died at Jos all the properties referred to above were at all material times in the custody and care of Alfred Cudjoe up to the determination of suit No. JD/125/75.
11. The defendant shall show that the plaintiffs have no locus standi to pray the court to grant a new sharing of the said estate which their father Alfred Cudjoe had in the past acceded to in a previous sharing without any rancour.
12. The defendant pleads that this suit is res judicata by the judgment of suit No. JD/125/15 as between the parties therein and their privies.
13. In the premise the plaintiff’s claim is vexatious in law. Without foundation in fact and abuse of the process of court and should be dismissed with substantial cost.”

One common ground in the pleadings, is that parties had earlier litigated over the same properties, subject matter of the suit.

This case was pending for long. After several adjournments spanning between July J997 to May 2000, interlaced with some interlocutory proceedings, the case finally came up for hearing on 22/5/2000. What occurred on that date was significant, viewed now against this appeal and the notice of preliminary objection before the court. Counsel nor both parties, Bankole Falade Esq and Yusuf Alli Esq were in court.

The records show that learned counsel for the plaintiffs, Mr. Falade, in what would, under the rules of court, have been the opening of the plaintiff’s case, addressed to court from the Bar.

The proceedings ran thus: –

“Mr. Falade: The matter is for hearing, we are ready. The issue is within the narrow compass, we pleaded in our amended statement of claim paragraph 8, the existence of the judgment of the Court in suit No. JD/J125/75. The said judgment is conceded by the defendant I have a copy of the judgment. I wish to tender it from the Bar.

Mr. Alli: I have no objection.

Court: Judgment in Suit No. PLD/125/75 dated 28/5/76 is admitted in exhibit I (taken as read).

(SGD)

JUSTICE T.D. NARON

JUDGE, 22/5/2000

Mr. Falade: The said judgment gave half of the property in question to the two parties. The S.C. filed by the said plaintiff in that suit is also before the court. I wish to tender it in evidence.

Mr. Alli: I have no objection.

Court: The statement of claim in suit No. PLD/125/75 is admitted as exhibit 2 (taken as read).

(SGD)

JUSTICE T.D. NARON

JUDGE, 22/5/2000.

Mr. Falade: Following the said judgment, the counsel to the plaintiff & defendant in that suit, Mr. O. O. Akiya of blessed memory, filed the pattern of sharing of the property in court. It was dated 2/9/76. The certified copy of the sharing is in court. I apply to tender it in evidence.

Mr. Alli: I am not opposing.

Court: The certification of sharing of the properly in suit No. JD/125/75 is admitted in exhibit 3 (SGD)

JUSTICE T.D. NARON

JUDGE 22/5/2000.

Mr. Falade: The basis (sic) issue in the matter is the fact that the half of No. 20 Church Street, Jos, which the defendant claims to have shared to the father of the plaintiff in the case was not surrendered to them.

I ask that the judgment be entered as per exhibit 3. Whereby all the properties listed as belonging to the plaintiff be given to them.

Mr. Alli: I have seen exhibit 1-3 in my respective (sic) view, that is nothing for me to argue in respect of the defendant since the matter is res-judicata.

However, I urge the court to look at paragraph 2, of Exhibit 3. Sentence No.3.

Court: Judgment at 12 noon.

(SGD)

JUSTICE T.D. NARON

JUDGE, 22/5/2000.”

Thus, apart from tendering the 3 exhibits from the Bar by counsel for the plaintiff, which were admitted without, objection from the defence counsel, no other evidence was adduced by the parties. As a result, of what seemed clearly understood by parties and the court, on the same day, the learned trial Judge delivered his short judgment in the following terms: –

“In their amended statement of claim dated the 26th day of February, 1997, Paragraph 13 thereof, the plaintiff’s claim from the defendant distribution and or partition of the properties Nos. 19, 20, 21 Church Street, Jos and No. 69/16 Massallachin Juma’a Street, Jos and No. 70/7 Sarkin Arab Street, Jos and other material by the court. They also asked for an account or rents over the property received by the defendant since 1976.

Pleadings were filed, exchanged and amended on the date fixed for hearing Mr. Bankole informed the court that by their paragraph 8 of the amended claim the issue was within narrow comparts (sic). He tendered:-

(a) A certified copy of judgment in suit no. JD/125/15

(b) A certified copy of the statement of claim in the said suit no. JD/125/75 and

(c) Certification of the sharing of the properties in the said suit in evidence which were at (sic) objected to by Me Yusuf Alli. The documents were admitted as exhibit 1-3.

Mr. Bankole Falade thereafter urged the court to enter Judgment as per exhibit 3 where by all the properties listed therein are said to belong to the plaintiffs.

In reply Mr. Yusuf Alli told the court that having seen exhibits 1-3, there is nothing for him to urge in respect of the defendant since the matter is res judicata. He however urged the court to look at paragraph 2 of exhibit 3, sentence No.3.

The court has carefully presented (sic) the exhibit before it and gone through paragraph 2 of exhibit 3, sentence No.3 which states that 1/2 of plot No. 20 Church Street Jos facing Langtang Street in Plateau State. “The document speaks for itself.

Judgment is therefore entered in favour of the plaintiff as per the contents of exhibit 3.”

Viewing the pleadings of the parties, with what transpired on the hearing date and the subsequent judgment of the court below and the law as identified above, it can be said that the answer to the questions I posed is that this was a consent judgment. Clearly parties were agreed to some element in the claim and the pleadings of the parties, that the matter in issue in the claim is “res judicata” having regard to the decision of the High Court in a previous litigation between the same parties and/or their privies – in suit JD/125/75 which each of the parties pleaded in their statement of claim and defence, respectively.

It is inferable that they thus waived their right to lead evidence and rested their cases on the 3 exhibits put in from the Bar without objection. The defence till now is not complaining about the mode of tendering the exhibits from the Bar. Indeed it was with their consent. It is indeed worthy of note that in the defendant/appellant’s brief of argument in this appeal in paragraph 3.06 under his” “facts of the case” it was admitted in the following words that: – “The plaintiff’s and defendant’s counsel by consent admitted exhs 1, 2 and 3 tendered from the Bar and made short submission.”

The parties are not complaining that the court below preceded to deliver judgment as it did at the stage defence counsel in obvious agreement with what counsel for the plaintiff said, had nothing “further to urge.” The plaintiffs on their part, in effect, inspite of what might have been their claim, also submitted to judgment in terms of the contents of exhibits 1, 2 and 3.

Counsel for the appellant in his reply brief submitted that the judgment is not a consent judgment. This is not supported by the facts on record. His submission tends to limit and curtail the meaning of “consent judgment”. This is against the decision in Abdulkarim v. Incar (Nig.) Ltd (supra) also reported in (1992) 7 SCNJ (pt 2) page 360 at 377 which he relied on. As can be seen from the dictum of Uwais JSC, as he then was, quoted earlier in this judgment, the meaning goes beyond the “technical” sense of the words. Submission to judgment and consent can be inferred depending on peculiar facts of each case.

The position here is that in the circumstances of this case, the defence submitted to judgment in terms of what plaintiffs counsel submitted contained in exhibits 1 – 3. The judgment was a consent judgment.

Applying the meaning of consent judgment earlier, to the facts which have now emerged, it is my view that what transpired on the hearing date in the court below, was undoubtedly a case of “submission to judgment” by the defendant, to borrow the words of the Supreme court in Abdulkarim v. Incar (Nig) Ltd (supra).

It occurred after Mr. Falade, learned counsel for the plaintiff showed that the matter before the court was on a narrow wicket, having been adjudged in an earlier suit, JD/125/75 between the parties and/or their privies, which suit the defendant also relied on in his pleadings. The matter was res-judicata as shown in exhibits 1 and 2 tendered from the Bar without objection from Mr. Yusuf Alli, learned counsel for the defendant. Exhibit 3, also similarly tendered from the Bar without objection sealed the case. Reading it with exhs. 1 and 2, parties were showed what property each party was entitled to. And, to this end, learned counsel for the defendant Yusuf Alli Esq submitted, (as the documents speak for themselves) that he had nothing further to urge for the defendants.

In my view, both counsel had waived the parties intention and right to follow the usual procedure and system of trial of calling, witnesses examining, cross-examining etc.

The learned trial Judge comprehended all that, leading to his immediate – judgment in their mutual terms – shown in the three exhibits 1, 2 and 3.

I should add that a party who after the opposite party has urged matters on the court, has “nothing to urge” is deemed to submit to the case as the opposite party presented it. Both parties would be deemed to accept the case as presented. So it is in this case.

The judgment was in its terms based on what the plaintiffs counsel stated and the defendant’s counsel accepted to be in existence and binding. They were “ad-idem” and the court entered judgment accordingly without the rigours of trial known to our adversary system.

In the premises, any party seeking to appeal against the judgment is required, by virtue of the provisions of Section 241(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria and Section 15(1) of the Court of Appeal Act, to obtain leave of the court below or the Court of Appeal, to appeal. Failure to do so renders the appeal incompetent. See Enigbokan v Baruwa (supra).

As the appellant herein failed to seek and obtain leave, this appeal is adjudged incompetent. It is hereby struck out.

I make no order as to costs.

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Other Citations: (2006)LCN/1879(CA)