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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 20TH DAY OF MARCH 1970

SC 235/1967

BETWEEN

OKONJI NGWO AND ORS ...................................................... APPELLANTS

AND

RAPHAEL MONYE AND ORS ....................................................... RESPONDENTS

BEFORE: Coker, Lewis and Udoma JJ.S.C.

 

Declaration-Title to land-Supreme Court in earlier judgment (1964 judgment) not shown and so unaware of nulification of "1931 judgment"-Decision impugned on the ground that it had been arrived at by court only because court had acted in ignorance or concealment of an authority binding on the court-Decision given per incuriam-Court not bound to apply principle of stare decisis.

Appeal from the High Court (Mid-West).

 

HELD:

(1)     The principle invoked by Counsel for the defendants, that where an issue could have been raised for decision in a case and that issue through negligence or calculation was not canvassed then it was not open to the party that should have raised the issue to re-open the same issue in subsequent proceedings between the same parties, was sound.

(2)     However, the Supreme Court having examined the pleadings in exhibit D1 was satisfied that the plaintiffs in that case clearly pleaded the settlement of 1936 and what they considered were its terms. The defendants themselves in their pleadings did not deny the settlement. At the trial neither of the parties gave evidence touching this issue. The trial Judge did not deal with or make any pronouncements on either the fact of the settlement or its terms and the Supreme Court said only that neither party offered any evidence whatsoever in respect of the terms of the settlement pleaded but did not otherwise deal with the matter. So the issue of settlement was by the plaintiffs canvassed before the High Court but not dealt with by it. The principle referred to by Counsel for the defendants did not therefore apply in this case.

(3)     It was clear that in arriving at its decision, the Supreme Court in exhibit P3 had taken the view that the "1931 judgment" of Mr Pyke-Nott still subsisted; that it constituted res judicata as between the parties and therefore binding on the Supreme Court and that it operated against the claims of the present plaintiffs who had got judgment in the High Court by virtue of exhibit D1.

(4)     The question that arose for consideration in the circumstance was whether the judgment of the Supreme Court, exhibit P3 could be regarded as res judicata so as to estop the present plaintiffs from re-litigating their rights as to the land Akwu-Ulo and, a fortiori, the fact and the terms of the customary settlement of 1936.

(5)     As a matter of logic and sense, if the grounds upon which a decision is predicated are non-existent and the decision had proceeded on the basis of their subsistence, the decision must be demonstrably wrong. Such a decision is however still binding on subordinate courts under the principle of stare decisis which is the foundation on which the consistency of our judicial decisions in this country is based.

(6)     Where a decision is impugned on the ground that it has been arrived at by the court only because the court had acted in ignorance or concealment of an authority, Statutory or otherwise, which is binding on the court, the decision is said to have been given per incuriam and constitutes a special case where the court is not bound to apply the principle of stare decisis.

(7)     Applying the principles above stated to the judgment of the Supreme Court in exhibit P3, the Supreme Court was satisfied that the Supreme Court was, apart from being unaware of the reversal of the "1931 judgment" of Mr Pyke-Nott on which it had based its judgment, in fact also misled into thinking that, that judgment was still subsisting by the Counsel who appeared before the court. Although the Supreme Court had been unable to discern from the proceedings before the court such evidence or indications as could properly constitute fraud or collusion so as to bring the matter within the provisions of section 52 of the Evidence Act, Cap. 62, it could not abdicate its clear duty to declare that the judgment, i.e. exhibit P3 was given per incuriam. If that were so, as indeed it was, then exhibit P3 could not constitute a binding authority on the Supreme Court and the Supreme Court refused to hold that it constituted res judicata as between the parties in the present case.

(8)     Furthermore, in the High Court, Prest, J. had held in effect that the judgment exhibit P3, did not constitute res judicata in respect of the issue in the present proceedings on the ground that the matter of the settlement of 1936, which was the only point for determination for him on the pleadings of the parties, was not decided either by the High Court in exhibit D1 or the Supreme Court in exhibit P3. That on the pleadings in the present case the point for determination was as to the terms of the 1936 settlement, there could be no argument of any substance. The trial Judge so held and he was right in doing so. It was also clear that although the issue was raised in the pleadings of the parties in exhibit D1 neither the trial Judge in that case nor the Supreme Court, determined what were the terms of the settlement.

(9)     One of the essentials for the operation of res judicata is that the issue sought to be re-litigated had been the same as had been judicially decided and it was impossible, in these circumstances, to hold that the issue of settlement had been before the present proceedings judicially decided as between the parties.

(10) The reasons given above sufficiently answered the contention that the Supreme Court judgment, exhibit P3, constituted res judicata in the circumstances of this case and the Supreme Court came to the conclusion that it did not.

Appeal dismissed.

 

Cases referred to:

Olawoyin v. The Attorney-General of Northern Region (1960) N.N.L.R. 53.

Kelly v. The National Society of Operative Printers Association (1915) 84 L.J.K.B. 2236.

Young v. the Bristol Aeroplane Co. Limited (1944) K.B. 718.

Bonsor v. Musicians Unions (1954) Ch. 479.

Morelle Limited V. Wakeling (1055) 2 Q.B. 379.

R. v. Northumberland Compensation Appeal Tribunal ex-parte Shaw (1951) 1 K.B. 711.

Nicholas v. Penny (1950) 2 K.B. 466.

 

Act referred to:

Evidence Act Cap. 62. Sections 52; 54.

 

APPEAL from the High Court (Mid-West).

Oshodi for the defendants/appellants.

Chief Williams (with him, Agbamuche) for the plaintiffs/respondents.

 

Coker, J.S.C. (delivering the judgment of the court)-The appellants in this case are the defendants in the High Court, Asaba (Suit No. A/4/65) and were sued as representatives of the Ogbeilo family of Asaba. The respondents, who were the plaintiffs in the court below are representatives of the Idumugbe family of Asaba and had sued as such. In the action the plaintiffs had asked for a declaration that in accordance with there terms of a settlement between them in 1936 the plaintiffs are entitled to exclusive possession of certain lands known and called "Akwu-Ulo" and delineted and verged "pink" on a plan No. GA225/57 without the payment of any tribute to the defendants. The plaintiffs also claim an injunction to restrain the defendants from interfering with the possessory rights of the plaintiffs in accordance with the terms of the settlement. The nature of the claim, i.e. one for a declaration of possessory rights, at once suggests that the issue of title looms in the background and in the context of the present case that issue had been the subject of dispute between the parties for a considerable length of time. As a result of a number of cases involving quite prolonged litigation between them, the plaintiffs and the defendants agreed to settle their dispute out of court. They did so in 1936 and a letter admitted in evidence in the present proceedings as exhibit P2 (dated the 6th August, 1936) was sent by the representatives of both parties to the High Court, Onitsha. That letter reads as follows:-

"At Ogwashi-Uku,

6th August, 1936.

His Honour,

The Assistant Judge, Onitsha.

At Ogwashi-Uku. Your Honour,

Case No. 0/28/1936 Obi Ugboko representing the family of Ogbeilo versus Okocha and Obi Mordi representing the family of Idumugbe.

We the undersigned, plaintiff-defendant, as representing respectively the family of Ogbeilo and the family of Idumugbe of Asaba hereby notify this Honourable Court that we have amicably settled the above case, out of court.

Dated at Ogwashi-Uku the 6th day of August, 1936.

We have the honour to be,

Your honour's obedient Servants

Ogi Ugboko (His thumb impression plaintiff)

Charles Okocha (His thumb impression defendant)

It is right to point out even at this stage of this judgment that the letter, exhibit P2, was the culmination of a series of events characterising the period of litigation between the parties and admirably summarised by the learned trial Judge in the course of his judgment in this case. Although it is manifest from the proceedings that there were some cases between the parties before then, it is convenient to start with a case in which Mr Pyke-Nott, District Officer, gave judgment in the Provincial Court at Ogwashi-Uku for damages assessed at £14-14.6d against the present plaintiffs. This judgment will be referred to hereafter in this judgment as "the 1931 judgment". The plaintiffs appealed against that judgment to the then Supreme Court, Onitsha and their appeal was heard by Mr Justice Graham-Paul who by order dated the 26th day of February, 1934, allowed the appeal of the plaintiffs formally set aside "the 1931 judgment" and directed that the appeal be remitted "to the court below to be dealt with according to the terms set out in the judgment herein." The order of Mr Justice Graham-Paul was admitted in evidence in the present proceedings as exhibit P5. Mr Justice Graham-Paul had set aside "the 1931 judgment" and directed that the appeal be re-heard. It was so re-heard by Capt. Ninian Scott, magistrate, at Benin City who gave title to the present defendants (see exhibit P6). The plaintiffs then appealed against this judgment and their appeal was heard by Mr Justice Jackson (see exhibit P7) who, on the 23rd day of July, 1935, in the High Court, Warri, held at Ogwashi-Uku, allowed the appeal and set aside the judgment of the magistrate's court on the ground that the magistrate had no jurisdiction to hear the case and that the hearing in that case was a nullity. He also ordered as follows:-

"the suit may be relisted free in the High Court as the original order sending the case for hearing to the magistrate's court was made under a misapprehension of the jurisdiction of that court."

Apparently the parties were up again in litigation against each before Mr Justice John in 1936 when the letter exhibit P2 (already referred to) was present to the court and the case was accordingly struck out. In 1957 in Suit No. W/42/57 the plaintiffs against sued, inter alia, the defendants in the High Court, Benin, for declaration of title, trespass and injunction in respect of this same land and Fatai-Williams, J. (as he then was) giving judgment on the 30th August, 1962, in favour of the plaintiffs for trespass and injunction against the defendants refused their claim for a declaration of title. (See exhibit D1). The defendants appealed against this judgment to the Federal Supreme Court and on the 9th November, 1964, the Supreme Court (as it had then become) allowed the appeal of the defendants and set aside the judgment of the High Court, Benin. (See exhibit P3). Then follows the present proceedings the appeal on which is now before us.

It seems to be common ground, firstly that at least since the judgment of Jackson, Asst. J. in 1935 (see exhibit P7) there was a comparatively long period of quiet during which neither of the parties went to court and, secondly, that although Jackson, Asst. J. ordered that the case might be relisted free of court charges and although it was so relisted it was not in fact re-heard at any time as the parties settled out of court. The period of silence was however disturbed in 1957 when the present plaintiffs instituted an action against the present defendants in the High Court, Benin, claiming a declaration of title to Akwu-Ulo land, damages for trespass and injunction. As stated before, the plaintiffs got judgment for trespass and injunction before Fatai-Williams, J. and the proceedings and judgment in that case were put in evidence in the present proceedings as exhibit D1. The Supreme Court in exhibit P3 had set aside the judgment of Fatayi-Williams, J. But made no formal consequential orders.

In the present action, instituted by writ dated the 5th day of February, 1965, the plaintiffs claim, as stated before, a declaration of possessory rights and an injunction in accordance with the terms of settlement of 1936. Pleadings were ordered and delivered. By their statement of claim the plaintiffs, i.e. the Ogbeilos, aver that there had been many court cases between the parties and indeed enumerated them. They aver as well that in the course of a customary settlement between them and the defendants in 1936 the parties agreed that the defendants should take and accept a parcel of land known as "Akwuose" and that the plaintiffs should be entitled to retain the possession of Akwu-Ulo land without the payment of tribute to the defendants. The plaintiffs also aver, and the defendants by their statement of defence admit, that the parties are both members of the Onaja family of Asaba having both descended from a common progenitor by name Onaja. By their statement of defence the defendants further aver that all the issues raised in the statement of claim are res judicata in that the plaintiffs are estopped by the several cases already referred to and that the judgment of the Supreme Court, i.e. exhibit P3 will be founded upon at the trial in support of the plea of res judicata.

The parties then gave evidence and in a reserved judgment, Prest, J. held that:-

(i) the many cases which the parties referred did not constitute any definite determination of the title to the land in dispute and in particular that the "1931 judgment" on which the defendants relied was in fact set aside on appeal by Graham-Paul, J. as per exhibit P5:-

(ii) that the Supreme Court, in its judgment of the 9th November, 1964 (exhibit P3) was not shown and so was unaware of the nullification of "the 1931 judgment" of Mr Pyke-Nott:-

(iii) the judgment of the Supreme Court (exhibit P3) could not in any case constitute res judicata as the question of the settlement between the parties was not decided therein;

(iv) the judgment exhibit P3 did not take notice of exhibit P5 which had set aside "the 1931 judgment" and

(v) that there was indeed a customary settlement between the parties in 1936 and that the terms of that settlement were that the plaintiffs should occupy Akwu-Ulo land without the payment of tribute.

He ended his judgment as follows:-

"I am satisfied from the evidence that the terms of the settlement were that the plaintiffs should have the exclusive possession of Akwu-Ulo land whilst the defendants should retain Akwu-Ose land. I do not believe that one of the terms of the settlement was that the plaintiffs should pay tribute to the defendants for the use of Akwu-Ulo land. That the latter could not have been a term of the settlement is obvious from the fact that the bone of contention between the parties has always been the refusal of the plaintiff to pay tribute to the defendants for the use of Akwu-Ulo land, on the ground that other families do not pay any tributes."

The defendants have appealed against that judgment to this Court and before us the only point canvassed is that the judge wrongly failed to uphold the plea of res judicata because:-

(i) the Supreme Court had clearly by exhibit P3 set aside the judgment of the High Court (exhibit D1) which had awarded damages for trespass and injunction to the plaintiffs and that judgment of the Supreme Court still subsists; and

(ii) the issue of the customary settlement could and should have been raised in exhibit D1, i.e. the suit in the High Court, Benin, and having failed to do this the plaintiffs are not estopped from raising the issue of the customary settlement in the present proceedings.

To deal first with the second contention, we observe that learned Counsel for the defendants has referred us to a passage in Halsbury's Laws of England, 3rd Edition Vol. 15 p. 186 paragraph 360. So far as is relevant, that passage reads as follows:-

"A party cannot in a subsequent proceeding raise a ground of claim or defence which upon the pleadings or the form of the issue was open to him in the former one."

It is manifest therefore, and indeed conceded by learned Counsel for the plaintiffs, that where an issue could have been raised for decision in a case and that issue through negligence or calculation was not canvassed then it is not open to the party that should have raised the issue to re-open the same issue in subsequent proceedings between the same parties. The principle invoked by learned Counsel for the defendants in sound and section 54 of the Evidence Act, Cap. 62 dealing with the effect of a judgment not pleaded as estoppel by res judicata, seems to have given it statutory force and effect. The principle was argued before us as constituting estoppel by res judicata but it seems better to regard it as estoppel by conduct since the estoppel arises not because it was a matter in the dispute but because the conduct of the party who would advocate it had given the impression that he was disregarding it. Learned Counsel for the plaintiffs, however, submitted that the principle does not apply in the present proceedings since the issue of the settlement of 1936 was in fact raised although not adjudicated upon either by the High Court in exhibit D1 or on appeal therefrom by the Supreme Court in exhibit P3. We have ourselves examined the pleadings in exhibit D1 and are satisfied that the plaintiffs in that case clearly pleaded the settlement of 1936 and what they considered were its terms. The defendants themselves in their pleadings did not deny the settlement. At the trial neither of the parties gave any evidence touching this issue. The learned trial Judge did not deal with or make any pronouncements on either the fact of the settlement or its terms and the Supreme Court said only that neither party offered any evidence whatsoever in respect of the terms of the settlement pleaded but did not otherwise deal with the matter. So, the issue of settlement was by the plaintiffs canvassed before the High Court but not dealt with by it. The principle referred to by learned Counsel for the defendants does not therefore apply in this case.

The other contention for the defendants is of greater importance to this case as, if it is sustained, the judgment appealed from must be set aside. The judgment of the Supreme Court, exhibit P3, which it is contended constitutes res judicata, reads in part as follows:-

"We think that in the contest between the Idumugbes and the Ogbeilos the 1931 case is of considerable importance. This appears to be recognised by the parties for they refer to the case in their pleadings.

...The 1931 judgment was between the same parties and in respect of the same land and decided that the established right of the head of the Ogbeilos to exercise "the control of ownership in accordance with native law and custom over Akwu-Ulo" must be recognised. It also ordered that individual Idumugbes wishing to farm on the land had to pay him a tribute of ten yams for the "privilege of farming on this land," and that he was not to withhold permission unreasonably and could not lease the land to non-Asabas if the Idumugbes wished to exercise their prior right.

The learned trial Judge nowhere considers this judgment which has not been shown to have been set aside or abandoned, and which is inconsistent with the case made by the Idumugbes at the trial...

The position of the parties in relation to the land in dispute was crystallised in the 1931 case and the fact that the Idumugbes may have no other land on which to farm cannot weaken the force and effect of the judgment in that case."

Thus, it is crystal clear that in arriving at its decision, the Supreme Court in exhibit P3 had taken the view that "the 1931 judgment" of Mr Pyke-Nott still subsisted; that it constituted res judicata as between the parties and therefore binding on the Supreme Court and that it operated against the claims of the present plaintiffs who had got judgment in the High Court by virtue of exhibit D1. For his part learned Counsel for the plaintiffs contends that section 53 of the Evidence Act should apply. The section reads as follows:-

"53. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the section in which that judgment is intended to be proved."

And learned Counsel further contended that the words "is excluded" should be construed to embrace cases in which the questioned evidence is that which not only "is excluded" but that which also "is to be excluded." No authority was cited to us in justification of such an exercise and no legal necessity has been shown for injecting a new situation into the plain words of a simple provision. Besides, the exclusionary portion of the section deals with "evidence" either admitted or excluded whereas what is questioned here is a judgment which should have been, but was not, produced before and dealt with by the High Court in exhibit D1 and in the Federal Supreme Court in exhibit P3. That judgment is contained in the order of Graham Paul, J. (exhibit P5).

That however is not the end of the matter. We have already referred to the prolonged litigation between the parties and have pointed out, as Prest, J. had done, that the "1931 judgment" of Mr Pyke-Nott was set aside by Graham-Paul, J. on the 20th day of February, 1934 (exhibit P5) and the case was sent back for rehearing. Although the case thereafter went before Captain Scott, magistrate, at Warri (exhibit P6) who gave judgment for the defendants, that judgment was again set aside by Jackson, Asst. J. on the 23rd July, 1935. (See exhibit P7). We have also adverted to the fact that although Jackson, Asst. J. gave liberty for the case to be relisted free of fees in the High Court, no other order has been made on the case except that of Mr Justice John striking out the case. We have as well referred to the portion of the judgment of the Supreme Court, exhibit P3 where the court had clearly rested the case of the defendants on the basis that "the 1931 judgment" of Mr Pyke-Nott subsisted in their favour. It is manifest now, as it should have been, that "the 1931 judgment" was not subsisting when the Supreme Court took the view that it was and that it was binding on the court as res judicata as between the parties to this case.

The question that now arises for consideration is whether in this circumstance the judgment of the Supreme Court, exhibit P3, could be regarded as res judicata so as to estop the present plaintiffs from re-litigating their rights as to the land Akwu-Ulo and, a fortiori, the fact and the terms of the customary settlement of 1936. As a matter of logic and sense, if the grounds upon which a decision is predicated are non-existent and the decision had proceeded on the basis of their subsistence, the decision must be demonstrably wrong. Such a decision is however still binding on subordinate courts under the principle of stare decisis which is the foundation on which the consistency of our judicial decisions in this country is based. This point was considered in the case of Olawoyin v. The Attorney-General of Northern Region (1960) N.N.L.R. 53. See also Kelly v. The National Society of Operative Printers Association (1915) 84 L.J.K.B. 2236. The principles involved in the application of stare decisis are commonplace and it is inconceivable that the question whether or not a subordinate court is bound by the decision of a super ordinate court of record is open to argument. It is however a different matter when the consideration involves a court of appeal. In Young v. The Bristol Aeroplane Co. Limited [1944] K.B. 718 at p. 725, Lord Greene, M.R., stated the principle as follows:-

"In considering the question whether or not this Court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or a court of co-ordinate jurisdiction which covers the question before it and there is no conflicting decision of this Court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) in where this Court comes to the conclusion that a previous decision was given per incuriam."

See also Bonsor v. Musicians Union [1954] Ch. D. 479. The present case is concerned with the fourth special case in the dictum of Lord Greene, i.e. judgments given per incuriam. When a decision is impugned on the ground that it has been arrived at by the court only because the court had acted in ignorance or concealment of an authority, statutory or otherwise, which is binding on the court, the decision is said to have been given per incuriam and constitutes a special case where the court is not bound to apply the principle of stare decisis. Dealing with this aspect of the law, Lord Evershed, M.R. in Moralle Limited v. Wakeling [1955] 2 Q.B. 379 observed at p.406 as follows:-

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned..."

See also in this connection R. v. Northumberland Compensation Appeal Trubunal ex-parte Shaw [1951] 1 K.B. 711. Where a decision is given per incuriam it does not possess for this Court any binding effect and this Court is entitled to disregard it. See Young v. Bristol Aeroplane Co. Limited (supra); also the Divisional Court in Nicholas v. Penny [1950] 2 K.B. 466, where at p.473 Lord Goddard, C.J. said-

"that where material cases or statutory provisions, which show that a court had decided a case wrongly, were not brought to its attention the court is not bound by that decision in a subsequent case."

We have given the judgment of the Supreme Court in exhibit P3 the most careful consideration and at the same time have applied to it, in the events that have now happened, the principles above-stated. We have also read the notes of the arguments of Counsel before the Supreme Court in the appeal culminating in the judgment, exhibit P3. We are satisfied that the Supreme Court was, apart from being unaware of the reversal of "the 1931 judgment" of Mr Pyke-Nott on which it had based it judgment, in fact also misled into thinking that that judgment was still subsisting by the Counsel who appeared before the court. Although we have been unable to discern from the proceedings before the court such evidence or indications as can properly constitute fraud or collusion so as to bring the matter within the provisions of section 52 of the Evidence Act, Cap. 62, we cannot abdicate our clear duty to declare that that judgment, i.e. exhibit P3 was given per incuriam. If that is so, as indeed we held it was, then exhibit P3 cannot constitute a binding authority on this Court and we refuse to hold that it constituted res judicata as between the parties in the present case.

Furthermore, in the High Court, Prest, J. had held in effect that the judgment, exhibit P3, did not constitute res judicata in respect of the issue in the present proceedings on the ground that the matter of the settlement of 1936, which is the only point for determination for him on the pleadings of the parties, was not decided either by the High Court in exhibit D1 or the Supreme Court in exhibit P3. That on the pleadings in the present case the point for determination was as to the terms of the 1936 settlement, there can be no argument of any substance. The learned trial Judge so held and we think that he was right in doing so. It is also clear that although the issues were raised in the pleadings of the parties in exhibit D1 neither the learned trial Judge in that case, nor the Supreme Court, determined what were the terms of the settlement. One of the essentials for the operation of res judicata is that the issue sought to be re-litigated had been the same as had been judicially decided and it is impossible, in these circumstances, to hold that the issue of settlement had been before the present proceedings judicially decided as between the parties.

Learned Counsel for the defendants before us has complained that to allow the plaintiffs to re-litigate that issue is to abrogate the rights conferred to them by exhibit P3. We cannot see the wood for the trees in this argument. They were the defendants in that case and had not asked for any relief's. The Supreme Court, as stated before, had made no formal consequential orders even though the judgment of the High Court was set aside; on the basis even that an order of dismissal of the plaintiffs' case had been made by the Supreme Court, the implication is that the plaintiffs had 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 understood 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.

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 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.

Appeal dismissed.