H. R. Sanyaolu V. Mrs Shola Coker & Anor (1983) LLJR-SC

H. R. Sanyaolu V. Mrs Shola Coker & Anor (1983)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU J.S.C.

The competing parties’ interests,giving rise to opposing claims by the appellant and the respondents, in respect  of a plot of land, described by the plaintiffs as “a corner piece”, along Haastrup Street! Ayilara Street, in Suru-Lere, Lagos, (hereinafter referred to as the land in dispute), have given rise to this appeal from the judgment of the Federal Court of Appeal, Lagos, (Kazeem, Nnaemeka-Agu and Mohammed,JJ .C.A.) delivered in Lagos on 26th September, 1980 dismissing the appeal to that Court lodged by the defendant (Sanyaolu) who had appealed to the Court from the earlier judgment of Dosunmu, J. (as he then was), dated 23rd May,1977, in the High Court of Lagos, in which he entered judgment for the plaintiffs for a declaration of title to the land in dispute and for an injunction restraining the defendant “from taking possession of the land.”

By reason of multiplicity of cases,and the appeals thereon, which will come for mention in this judgment and in order to avoid confusion in terminology and in nomenclature, it would, perhaps,be of advantage for me to refer to the plaintiffs as the COKERS and the defendant simply as SANYAOLU (and I hereby so do) instead of the plaintiffs and the defendants, or variously, in the different appeals, as the appellant or the appellants, and the respondent or the respondents, according as to which party was appellant or respondent in the different appeals. A clear understanding of the issues in dispute must necessarily start with an understanding of the historical account of each party’s derivation of title as contained in each party’s evidence, told over the years successively in the various cases. The COKERS gave their account through the mouth of VICTOR LADIPO COKER (P.W.2 in exhibit 1), a civil engineer and one of the administrators of the estate of late VICTOR LEOPOLD COKER who was the father of the COKERS.

For the purpose of easy identification of names, I will hereinafter most of the time refer to VICTOR LADIPO COKER as LADIPO and to their father, VICTOR LEOPOLD COKER as LEOPOLD. Their story is that the land indispute was a part of a large piece of land situate in Suru-Lere, belonging,from time immemorial, to the Oloto Chieftaincy Family, which family made a grant of a piece of land of which the land in dispute was a part to one ALHAJI ALLI FAMU (sometimes referred to in the proceedings as Alhaji FAHM) of 48,Oluwole Street, Lagos, in 1922, who in turn, in the same year, sold the land to LEOPOLD.

In his lifetime Leopold sold several plots of the land to purchasersin fee simple, one of whom was one JOSEPH OGUNBAYODE who with the consent ofLeopold sold to a sub–purchaser, one ASHINOWU EKUNDAYO ADESHINA of 4, FajulaiLane, Lagos, evidenced by an indenture dated 22nd February, 1944 (exhibit G). The COKERS swore that on 31st March,1950, Leopold died intestate. Up to the moment of his death nobody challengedhis ownership of the large area of land. Ladipo and Mrs. Shola Coker applied,as personal representatives of the deceased (Leopold) for letters ofadministration. This was granted on 30th June 1952 (EXHIBIT C).

Armed with the letters of administration,the Cokers swore, Ladipo and Mrs. Shola Coker sold several portions of the landin dispute to several people, undisturbed and unchallenged, including one Edna Phillips of 91, Agege Motor Road, Idi-Oro, on 16th June 1954 (exhibit H); one Muniratu Towobola of 3 Abeo Street, Surulere on 27th September 1957 (exhibitJ); and Malam Maazu Garuba of 55 Shifau Street, Suru-Lere on 30th October, 1954(exhibit K) They also sold a portion to one Michael Adediran Alatishe of 67, Ayilara Street, Suru-Lere on 10th September,1959 (exhibit M) This grant was the subject of a subsequent dispute which ledto the litigation in Suit LD/161/60 M.A. Alatishe v. H.R. Sanyaolu which was heard by Dickson, J. and determined in a judgment on 13th Janury 1962 (exhibit N). I shall deal with that judgment later in the course of-this judgment.

All these and others, the Cokers testified, were acts done by them in exercise of their right of ownership over the land in dispute without let or hindrance from anybody else until Sanyaolu cameto disturb their grantee, Michael Adediran Alatishe. Sanyaolu, on the other hand, traced his title to one AMIDA KAFFO who, he said, “was seised” (of the land in dispute) “in fee simple and sufficiently entitled to the hereditaments hereinafter described” (see: exhibit L) The said Amida Kaffo died in Lagos“some years ago intestate, leaving children his (sic) surviving the eldest of whom is Lamidi Kaffo” (exhibit (exhibit L) With the consent and approval of the other children of Amida Koffo, the said Iamidi Kaffo sold (exhibit L) the land in dispute to Sanyaolu whose full names were given in the deed (exhibit L) as AKONI HAMODURUFAI SANYAOLU. I pause here to remark that it does not appear that the grant of letters of administration was ever made to anybody in respect of the estate of Amida Kaffo and that it was not disclosed how, and from whom,Amida Kaffo derived his title before he came, as described in exhibit L, to be“seised in fee simple” of the land in dispute. The Cokers have therefore traced their title to Oloto Chieftaincy Family while Sanyaolu has traced his to Amida Kaffo. Dispute over the land in dispute erupted about 1960 when, by reason of alleged trespass by Sanyaolu, Alatishe,the grantee from the Cokers, took out a writ of summons in Suit No. LD/161/60 against Sanyaolou. It was the failure of that case before Dickson j. which compelled the Cokers, as Alatishe’s vendors, to sue Sanyaolu in LD1310165 in order to establish their title. I shall take these cases seriatim beginning with the 1960 case: Suit No. LD/161/60 Alatishe v.Sanyaolu In Suit LD/161/60, Alatishe claimed a declaration of title to the land in dispute which was conveyed to him by conveyance registered as No. 23 at page 23 in Volume 114 of the Lands Registry, Lagos. The hearing, as I have said, came before Dickson, J., who dismissed the case by reason of the failure of Alatishe to prove the identity of the land he claimed, that is to say, to show that the land which Sanyaolu was in possession of, was the land conveyed to him by the Cokers in exhibit M. But the learned trial judge accepted Alatishe’s evidence that he erected a storey building on his land and therefore was entitled to possession. Yet, by some not easily comprehensible reasoning,the learned trial judge held that although Alatishe was entitled to possession “whether or not he is given possession is left to be decided.” By reason of the judge’s refusal to grant him possession he refused to order an injunction. This was what he held: “It is my judgment that on this aspect of the case the plaintiff knew of the defendant’s interest in the land either before he commenced building operations or at least during the course of it, but certainly not after. I have considered the matter, and I think justice will be done that although the defendant is entitled to possession, I refrain from making such an order, but order that plaintiff do pay to the defendant value of the land. The plaintiff’s claim for an injunction fails.” Accordingly he dismissed all Alatishe’s heads of claim, but ordered that he should pay to Sanyaolu the value of the land which he assessed at £10. Appeal No. F.S.C. 100/1963

Both Alatishe and Sanyaolu appealed to the Supreme Court, (Brett, Onyeama and Ajegbo, JJ.S.C.) in the Supreme Court Appeal No. F.S.C. 100/1963 against the judgment of Dickson, J. The Court allowed Sanyaolu’s appeal against the order that Alatishe should pay him 10 as the value of the land, holding that: “We can find no warrant, or precedent,however, for the order that the party shown not to be entitled to possession pay to the party entitled the value of the land; and presumably, thereafter continue in possession of the land. Although Mr. Coker submits that the order was made in the exercise of equitable jurisdiction of the court, he did not suggest what principle of equity covered it.” Their Lordships continued and said: “What has happened is that the learned judge has, in effect, ordered the defendant to sell land of which he is in possession to the plaintiff for a price fixed by the judge. We do not think the learned trial judge had jurisdiction to make such an order in this case and that order will be set aside.” Their Lordships concluded the appeal with the order that: “It is therefore ordered that the appeal of M.A Alatishe from the judgment of the High Court, at Lagos in SuitLD/161/60 – M. A. Alatishe v. H.R. Sanyaolu dated the 13th of January, 1962, be dismissed. It is ordered that the appeal of H.R. Sanyaolu from the judgment in the suit be allowed, judgment on the counter-claim is set aside and in place ofit is substituted judgment for H.R. Sanyaolu the defendant for possession of the area edged yellow on the plan No. L. & L/B 2029 marked exhibit “H”.” And so, as between the competing interests of the subordinate grantees – Alatishe and Sanyaolu – victory was,for the meantime, for Sanyaolu. It was only natural that Alatishe’s grantors, namely, the Cokers, should now brace up to fight the issue. They took out, on 7th June 1965, in the High Court of Lagos, Suit No. LD/310/65 LD/310/65 Mrs. Shola Coker and Victor Ladipo Coker v. H. R. Sanyaolu

The Cokers claimed the land by the conveyance by which the land was vested in them namely, conveyance No. 33 atpage 33 in Volume 576 of the Register of Deeds kept at the Lands Registry,Lagos. It was the same land which, by conveyance No. 23 in Volume 1144, they sold to Alatishe.

The suit (LD/310/65) came before M\Kassim, J., who upheld Sanyaolu’s plea of estoppel per rem judicatam and dismissed the case. His reasoning for the dismissal is clearly set out in the Supreme Court judgment on appeal against the said Kassim, J’s judgment, to wit,SC.390/75 and reads: “At the close of evidence, and after the address of counsel in-the case in hand the learned trial judge in passages in his judgment made the following observations: “now the crux of the dispute between the parties to this action is whether the plaintiffs are estopped from bringing this action ……… by merely giving evidence in the Alatishe’s case and not joining as a party the second plaintiff stood by and allowed the purchase (sic)from him and the first plaintiff to fight the battle about their title.

The plaintiff must be held bound by the result of the fight put up by him with their acquiescence. He knew perfectly well that any order in the Alatishe’s suit affecting the title of Alatishe would equally affect theirs as the selfsame right and this was substantially in issue…… I am of opinion that the defendant has shown satisfactorily that the subject-matter in dispute in this suit was the same as in the previous suit, that is to say, that everything thatis in controversy in this suit as the foundation of the claim for relief was also in controversy or open to controversy in the previous suit, that it camein question before a court of competent jurisdiction, and that the result was conclusive as the bon (sic) bind every other court ………… and……..there is no doubt that the parties were the same person as the parties of the present proceedings……… Appeal No. S.C. 390/1975 The Cokers went on appeal to the Supreme Court against Kassim’s judgment. The Supreme Court (Fatayi-Williams,Idigbe and Obaseki, JJ.S.C.) in SC. 390/1975 allowed the appeal on the ground that estoppel per rem judicata was wrongly applied by Kassim, J., to the factsbefore him, leading to a miscarriage of justice.

Accordingly, the Court ordered a trial de novo before another judge, in the High Court of Lagos. Trial de novo.

That was how the retrial came before Dosunmu, J., in the High Court of Lagos on 4th May 1977, and on 23rd May 1977 he entered judgment for the Cokers for a declaration of title of ownership tothe land in dispute and injunction restraining Sanyaolu “from taking possession of the land”. For the retrial the only oral evidencewhich was received from the Registrar of the High Court in charge of exhibits,one F. Fatai Abayomi Davies, who produced all the documentary evidence(exhibits) of the past proceedings (including the Supreme Court judgements and the conveyances) and the evidence of Ladipo (exhibit 1) (who, it is all agreed died in January 1976) before Kassim, -J. These exhibits were numbered as exhibits 1, 2, and 3; A to O, and Q to U -letters which were the ones given to the exhibits when they were tendered in the earlier abortive trial. The other witness who testified was one Isaac Body lawson, a licensed surveyor. After the evidence of Mr. Bodylawson,Chief Williams, counsel for the Cokers, closed his case. Mr. Osijo, of counsel,for Sanyaolu did not call any evidence and closed his case also. Sanyaolu appealed to the Federal Court of Appeal (hereinafter referred to as “the court of Appeal”) in the Federal Court of Appeal, Appeal No. FCA/L/282/77 F.C.A. No FCA/L/282/77 The Court of Appeal (Kazeem,Nnaemeka-Agu and Mohammed, JJ.C.A.) in a unanimous judgment, dismissed Sanyaolu’s appeal holding, as per the lead judgment of Kazeem, J.C.A.: “On the whole, I am satisfied that the appeal lacks merit and that it ought to be dismissed, accordingly, I hereby dismiss the appeal and confirm the judgment of the learned trial judge dated 23rd May, 1977. I also award costs against the appellant assessed at N125.00.” It is from this judgment of the Courtof Appeal that Sanyaolu has now appealed to us in this appeal numbered as SC.36/1982. He filed three grounds of appeal as follows:  “(1) The learned justices of the Court of Appeal erred in law and misdirected themselves when they held that the learned trial judge of the Lagos High Court rightly admitted the evidence of PW1 at the previous trial before the Honourable Mr. Justice J. O. Kassim when such evidence is deemed to be null and void and discard (sic) for purposes oftrial de novo by virtue of and order of the Supreme Court. (2) The learned trial (sic) Justices of the Court of Appeal erred in law when they held that the learned trial judge of the Lagos High Court was right to hold that ‘I accept the plaintiffs’ evidence that the Oloto Chieftaincy Family were the original owners of the land of which the area in dispute forms a portion and that the plaintiffs have successfully traced their title to them through subsequent purchasers when’:- (a) No member of Oloto Chieftaincy Family was called in evidence. (b) None of the subsequent purchasers, as predecessors-in -title to the plaintiffs/respondents were called in evidence nor to identify exhibits E and F and execution thereto. (c) And the surviving plaintiff/respondent was not called in evidence to: (i) Identify exhibits E and F. (ii) Account in evidence for the whereabouts of their predecessors-in-title or their representatives. (3) The learned justices of the Court of Appeal erred in law when they held that the learned trial judge of the Lagos High Court was right when he held that the respondents herein were entitled to a declaration of title to the land in dispute and a decree of injunction thereto, in spite of documentary evidence in exhibit ‘M’ and evidence on the record before the said trial court that the aforesaid respondents had admitted to be out of possession since 1959, by their sale and conveyance of the freehold of the said land in dispute to one Michael Adeniran Alatishe.” His counsel, K. O. Tinubu, has set out in his brief five-paragraphed questions for determination in this appeal.He wrote: “It is submitted that the questions which fall for determination at the hearing of the appeal may be summarised as follows: (i) The admissibility or otherwise of the deposition evidence of a witness in a previous trial, when the matter is sent back to the court of first instance for trial de novo. Particularly, the ratio decidendi in the case of Fadiora vs. Gbadebo (1978) 3 S.C. 219. (ii) In the alternative, can a court trying a matter de nova purporting to act under section 34(1) of the Evidence Act, admit evidence, verdict given, as well as judge’s findings adjudged to be inadmissible on the basis that prima facie they have been discarded or got rid of by an order for retrial – de nova? (iii) The F.C.A. having made so much weather of the failure of the appellant to adduce evidence at the trial and based much of their findings and conclusions on this (sic) premises, what is the effect on the whole decision of the appellate court having regard to the recent decision of the Supreme Court in Alhaji Raji Oduola & Ors. vs. John Gbadebo Coker and others (1981) 5 S.C. 197, that a party who offered no evidence at the trial in the trial in the lower court is hereby not precluded from maintaining a ground of appeal that the decision/verdict is against the weight of evidence? (iv) Proof of ownership in a claim for declaration of title and possession. Proof of due execution of a document as proof of ownership. Presumption of ancient documents.Section 129 Evidence Law. The correct interpretation of/and combine effect of: (i) Johnson vs. Lawanson (1971) l AllNLR 56 (ii) Idundun vs. Okumagba (1976)9 and 10 S.C. (iii) Section 129 of the Evidence Law. PAGE|10 (v) Can a party after divesting himself of title to a property by sale and due conveyance, still be deemed to have any more, interest therein as to bring an action for a declaration of title and possession (at which trial, he unequivocally and on oath, admitted the said sale and due conveyance and that the person he sold to has not reconveyed the land to him) just because the party to whom he sold, lost to a third party?” In his oral argument in support of his brief, Mr. Tinubu took up his complaints in a form which can be condensed and narrowed down to two issues (and these are two issues, upon which this appeal is determined), namely: (1) Whether the previous testimony of the deceased Ladipo, before Kassim, J., in a trial held by the Supreme Court in exhibit 2 to be abortive, was rightly admitted, by Dosunmu, J. under S.34(1) of the Evidence Act, in the retrial? (2) Whether the Cokers, after divesting themselves of the title to the land in dispute, by sale and conveyance, had still any more interest left therein on which to issue for a declaration of title and possession, merely because the party to whom they sold, lost to a third party ? Dealing with the first complaint,there can be no doubt that the Victor Coker” referred to in the death certificate, exhibit 3, was Victor Ladipo Coker who had given evidence beforeKassim, J. The purchaser of the land from the Oloto Chieftaincy Family, Victor Leopold Coker, who died on 31st March 1950, could not, obviously, have been the Victor Coker who gave evidence before Kassim, J. on 7th February 1974. And so, exhibit 3 establishes,without the least doubt, that Victor Ladipo Coker, on 4th May 1977 when Dosunmu, J. received in evidence his previous testimony before Kassim, J. as exhibit 1, was already dead. It was precisely for such a situation that s.34 of the Evidence Act, in its sub-section (1), made provision for such testimony to be received in evidence. Sub-section 1 reads: “34. (1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out o£ the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:  Provided – (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” Those conditions laid down in that sub-section must be complied with and satisfied before the evidence given in the previous suit can be received as substantive evidence of the truth of what it states. This has been the attitude of the courts. In NAHMAN v. ODUTOLA (1953)14W.A.C.A. 381 at 384 the West African Court of Appeal (per Coussey, J.A.) ruled against the admission of the previous evidence of a District Officer, one Mr.Simpson, because the conditions laid down in S.34(1) of the Evidence Ordinance had not been satisfied before the admission. The Federal Supreme Court reiterated the principle in ALADE v ABORISHADE (1960)5 F.S.C. 167 at page 173 where the court asserted “that evidence given in a previous case can never be accepted as evidence by the court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case may be used for cross-examination as to credit but it is of no higher value than that.” At common law, depositions and oral testimony given by a witness were admissible in a civil case (WRIGHT v. DOE d.TA THAM (1834)1 Ad & El. 3 at pp 18-19) in a subsequent trial in proof of the facts stated, provided: (i) that the proceedings are between the same parties or their privies; (ii) that the same issues are involved; (iii) that the party against whom, or whose privy, the evidence is tendered had on the former occasion full opportunity of cross-examination; and (iv) that the witness is incapable of being called on the second trial.

The general rules of evidence contain the best evidence rule by which it said that the best evidence must be given and that no evidence will be given in substitution of the best evidence unless strictly under some laid exception. Ordinarily, the opposing party is at a disadvantage in having evidence of a witness received against him whom he cannot see and cannot question in the current proceedings even though he had the opportunity of cross-examining the witness in the earlier proceedings. It is not, therefore, asking too much for the law to require the party who is taking the advantage of the evidence of his witness being received as true without the witness appearing physically to testify, to strictly comply with the provisions of the section of the law bestowing upon him that advantage.

Once, however, the section has been complied with, the evidence is admissible. The fact that a retrial was ordered would render abortive not the evidence of the witness who testified in the abortive trial, where such evidence is admissible, but the judgment of the court it, the said abortive trial. The judgment of the court cannot be used in support of a plea of res judicata since the judgment was nullified. Obviously, since a retrial has been ordered and the case is to be heard de novo, the plaintiff must re-prove his case as if there had been no earlier trial, but in doing this, he is not precluded from taking advantage of whatever the provisions of any law have for him, for example, he can use the previous evidence of a witness for the defence in the abortive trial to discredit that witness in cross-examination in the new trial; and, he can take advantage of S. 34(1) of the Evidence Act to get to the evidence of his witness in the abortive trial who has since died, or whose circumstances come under the rest of the provisions of S.34(1) of the said Act,admitted in the new trial. Counsel for the appellant in this appeal, Mr. Tinubu, in making his submissions, assumed that because the judgment of Kassim, J., was set aside by the Supreme Court and retrial ordered,the entire proceedings, or any parts thereof, before him, were of no effect and could not be made use of for any purposes whatever.

It is in this context that one must read FADIORA v. GBADEBO (1978)3 S.C.219 at 236 with qualification. Delivering the judgment of the Court in the appeal, Idigbe, J.S.C., said inter alia: PAGE|13 “…therefore, the evidence and verdict given as well as the judges findings at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of.” One specific instance where part of such proceedings can be made use of is in respect of S. 34(1) of the Evidence Act where it is applicable.

In view of the foregoing I am clearly of the view that the evidence of Victor Ladipo Coker was properly admitted in evidence. I now turn to the second complaint,namely, whether the Cokers had any interest left (after they had sold and conveyed to Alatishe) upon which they could maintain an action for a declaration of title and possession, without a reconveyance to them. Put in another way, in the words of the appellant’s brief: “Can a party after divesting himself of title to a property by sale and due conveyance, still be deemed to have anymore, interest therein as to bring an action for declaration of title and possession (at which trial, he unequivocally and on oath, admitted the said sale and due conveyance and that the person he sold to has not reconveyed the land to him) just because the party to whom he sold, lost to a third party?” To answer this question, one has to remember that there was a finding of fact by the High Court (Dosunmu, J.) that the Cokers (Victor Leopold Coker) bought a piece of land of which the land in dispute was a part, from Alhaji Fahm, who in turn bought- from OlotoChieftaincy family who are the adjudged original owners of a large tract ofland in Suru-Lere of which the land sold to the Cokers was only a part. Sanyaolu having sworn that he bought the land in dispute from Kaffo family, thecompeting titles, as was found by the Supreme Court when determining theearlier appeal in this case Coker & Another v. Sanyaolu (1960)10 S.C. 203at 219), were those of Oloto Chieftaincy family and Kaffo family.

As stated in the respondents’ brief -a statement with which I am in agreement – it would no more; lie in the mouth of Sanyaolu to contend that the Coker had conveyed their interest in the portion of the land in dispute to Alatishe by reason of the fact that one of the grounds upon which he (Sanyaolu) succeeded against Alatishe before Dickson,J., was that Alatishe failed to prove that the land sold to him by the Cokers covered the land in dispute or any portion thereof.

The judge, in his judgment(exhibit N) found:  “It is quite plain to me that, not only has there been no evidence identifying the land conveyed by exhibit “A”with that in exhibits “B” and “C”; but the plaintiff failed to take such steps,to produce in evidence what was available if he wished.” Again, the learned trial judge(Dickson, J.) also held that there was no proof of the letters of administration alleged granted to Mrs. Shola and Ladipo Cokers; nor was thereany evidence that Mrs. Shola and Ladipo Cokers, in conveying to Alatishe, didso as the administratrix and administrator, respectively, of the estate of Victor Leopold Coker.

Therefore, in the circumstances, the estate of Leopold Coker cannot be bound by the decision in exhibit N in order to debar the staking and asserting, in the present suit, of the root of titleof the Oloto Chieftaincy family (as privies) in a declaratory action, at theinstance of one of their purchasers, namely, the COKERS It would, therefore, beidle to argue that the Cokers are precluded from taking out this action against Sanyaolu either by reason of the dismissal of the case brought by Alatishe against Sanyaolu or by reason of the evidence of the Cokers that they had soldthe land to Alatishe. The title paramount, now at stake, is that of the Oloto Chieftaincy family as against the Kaffo family.

The answer to the second complaint of the appellant is that the Cokers are not precluded from maintaining the present action, in the face of the evidence they had given that they had sold the land to Alatishe and conveyed to him without a re-conveyance to them, because of the findings made by the learned trial judge, Dickson, J. A person cannot, obviously, eat hiscake and have it. This is simply common sense. And so, one cannot dispute the statement made by Ademola C.J., Western Nigeria (as he then was), in Ibadan High Court Suit No. 1/120/49 cited in Alhaji Raji Oduola and others v John Gbadebo Coker and others (1981)5 S.C. 197 at p. 220, and referred to by the appellant in his brief, in respect of the land claimed in that case by Ibikunle family, namely, that a plaintiff cannot have what he himself says he has given away.

A plaintiff who says he has sold his land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he has sold. But inthe instant appeal, in respect of Alatishe v. Sanyaolu, the trial judge(Dickson, J.) found that (a) there was no proof by Alatishethat the land in dispute, which was in possession of Sanyaolu, was the land, or part of the land, which the Cokers conveyed to Alatishe; and PAGE|15 (b) that there was no proof that they(Mrs. Shola Coker and Victor Ladipo Coker) were administratrix and administrator,respectively, of the estate of Victor Leopold Coker; deceased, since their letters of administration had not been produced. Surely, by these findings, it had not been proved by Alatishe that the Cokers sold the land in dispute to him.

It now remains for me, on this second head of the complaints, to deal with Abdu Karimu v. Daniel Fajule (1968)N.M.L.R., 151 – a case referred to by the Court of Appeal; relied on by the Cokers before that Court, and attacked by Sanyaolu in his brief before this Court. The defendant in that case had argued, before the High Court, on appeal from the Ilesha Grade ‘A’ Customary Court, that the plaintiff who got judgment from the Customary Court, did not show the precise area of land he was claiming since his plan included some portions of land which he had sold to third parties and no longer owned.

For the plaintiff it was explained that those portions were included only for the purpose of proving acts of ownership. The Supreme Court (per Bairamian, J.S.C.)gave its decision saying that: “We do not think it is a good ground for setting aside the judgment of the trial court when viewed only as ajudgment between the parties in the case.”

The Court of Appeal after referring to the case (Karimu v. Fajule) in the present appeal, stated its view (per Kazeem J.C.A.) as follows:- “I think it will suffice in this case to say that the submission of learned counsel for the respondents is well founded.It would have been a different

Other Citation: (1983) LCN/2174(SC)