Paul Cardoso V John Bankola Daniel & Ors (1986)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C 

The heart of this appeal lies in the correct meaning and effect of the order of this court made on the 28th April 1975 in SC. 144/1974 in relation to the issue of estoppel per rem judicata raised by the defendants in their Statement of Defence.

The Respondents, children of one John St. Mathew Daniel, deceased who died intestate on the 25th day of October, 1948, issued a writ of summons against Paul Cardoso, a representative of the children (Family) of Lawrence Antonio Cardoso deceased. The claim was for declaration of title under native law and custom to a piece of land situate at Kirikiri, then in the Western State but now within the Lagos State, damages for trespass and an order of injunction restraining the defendant, his agents and servants from committing further acts of trespass to the land.

The case of the Plaintiffs/Respondents was that their late father bought the land at a public auction on the 16th day of October, 1940 and that his immediate predecessor was one Agbeyegbe who became seized of the land by virtue of a deed of conveyance dated 22nd day of May 1939 from L.A. Cardoso, the father of the defendants. The said deed of conveyance was registered as No. 46 at page 46 in Volume 533 of the Lands Registry at Lagos.

They pleaded that their predecessors in title were in undisturbed possession of the land for over 40 years, but that in 1961, the descendants of the said L.A. Cardoso laid claim to the land, consequently they instituted this action.

The defendants/appellants denied these averments and in defence pleaded res judicata. Because of its importance in this appeal I reproduce paragraphs 4, 5, 6 and 7 of the statement of defence which read as follows:

4. That in answer to paragraph 5 the defendant avers that the plan attached to the claim showing an area of 169 acres forms only a portion of the land on the plan attached to the conveyance dated 22nd day of May, 1939 and registered as No. 46 at page 46 in Volume 533 of the Lands Registry at Lagos. A copy of the said Conveyance is hereby attached and marked AA1.
5. The defendant admits paragraph 8 of the statement of claim but further says that the plaintiffs then represented by the Federal Administrator General as Administrator of the Estate of John St. Matthew Daniel (Deed.) in Suit No. HK/126/1960 laid claim to the land in dispute. A copy of the proceeding in HK/126/60 is herewith attached and marked AA2.
6. The Defendant further avers that both parties appealed from the judgment of Morgan J. to the Supreme Court in Suit No. SC. 217/64 when judgment was entered in favour of the Defendant on the 14th day of January, 1966. A certified true copy of the said judgment is herewith attached and marked ‘AA3’.
7. The defendant says the Plaintiffs are estopped from alleging that their father John St. Matthew Daniel owned the land in dispute or that he was ever in possession thereof because in Suit No. HK/126/60 the issue raised between the Defendant (The Estate of L. A. Cardoso) and the Plaintiffs (The Estate of John St. Matthew Daniel) was as to whether the said St. John Matthew Daniel owned the land in dispute and was in possession thereof and the issues were tried before Morgan, J. Vide ‘AA2’. Upon appeal by the Defendant and cross, appeal by the Plaintiffs from the judgment of Morgan, J. The Supreme Court of Nigeria in attachment ‘AA3′ did enter judgment for the Defendant on the said issues and the said judgment of the Supreme Court still remains in force.

Wherefore the Defendant pleads Res Judicata and further will contend at the trial that this is a most flagrant abuse of the processes of this honourable Court and should be dismissed with substantial costs.’

When the suit came before Adegboyega Ademola, J. (as he then was) on the 27th April, 1966, Chief Oladipo Moore, learned Counsel for the defendant raised as a preliminary issue, the plea of estopped. On Monday the 9th May 1966, the learned Justice (Adegboyega Ademola) delivered, a decision on the issue upheld the plea and dismissed the plaintiffs case. Part of the judgment reads as follows:

On the 27th April, 1966, the case came up for trial. The plea of Res Judicata was immediately raised by Chief Moore, Counsel for the Defendant. At the trial of this issue, the parties, by consent, put in the following documents as exhibits:

(1) Exhibit A – the proceedings in Suit HK/126/60.

(2) Exhibit B – Supreme Court Judgment in SC 217/64.

(3) Exhibit C – Conveyance No. 46 at page 46 in Volume 533 dated 22nd May 1939.

(4) Exhibit D – Plan ASA 254/61 filed by the Plaintiffs showing the land now in dispute.

Chief Moore then submitted that the Plaintiffs were estopped from alleging that their father St. Matthew Daniel owned the land in dispute or that he or the Plaintiffs, was ever in possession of it, because the land in dispute is covered by the same conveyance which was the subject-matter adjudicated upon in Suits HK/126/60 and SC 217/64. To succeed, the Plaintiffs will have to prove that the conveyance is good, which they could not really be allowed to do in view of the judgment in SC. 217/64. Further, in SC. 217/64 the Supreme Court had held that the Plaintiffs could not be given another chance to lay claim to the land and to proceed to adjudicate on it now would be against the judgment of the Supreme Court. And finally that these cases concluded the issue of possession in Defendant’s favour…