The resume of the facts of this case as appear from the record is that the 2nd defendant married one Brown Egbuna Agbogu (deceased) in 1942 under native and law and custom and in 1943 under the marriage Act. They had four children including the first son, born in 1945. Sometime in 1958, the 3rd respondent was employed as a housemaid in the deceased's matrimonial home. The 3rd respondent later had two children. They are the first and second respondents herein. Brown Egbuna Agbogu died intestate in 1966.

Following the death of Brown Egbuna Agbogu, the 3rd respondent applied for letters of administration of the estate of the said Brown Egbuna Agbogu without informing the 2nd appellant. The latter then entered a caveat. An action was instituted by the appellants against the 3rd respondent before the Benue State High court in Suit No.JD/4/71. The Court held that the appellants herein had beneficial interest in the estate. It was also held that the 3rd respondent was not married to the deceased and she was accordingly perpetually restrained from interfering with the said estate in so far as it may be under the jurisdiction of the court. There was no appeal against it.

In 1987, the 1st and 2nd respondent commenced an action in pari materia to this one at hand against the appellants in suit no. PLD/J/30/87. Based on the judgment in suit No. JD/4/71, a preliminary objection was raised by these appellants in Suit NO. PLD J30/87. Justice Soluade heard argument on it and dismissed the action on the ground that they had no locus standi and that it was res judicata. The 1st-3rd respondents never appealed against the ruling. Instead, they commenced this action which necessitated the same preliminary objection before Justice Ahinche.

The trial judge over-ruled the preliminary objection. Appellant went on appeal