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…

In my view, to come to a judgment on this plea of Res Judicata the Court has to look at Exhibits ABC and D tendered in this case. The learned judge then carefully examined the facts and the law applicable. Finally, he concluded his judgment thus

“In the final analysis, it does seem to me that the Plaintiffs are seeking by this action, to do precisely what the Supreme Court held they could not be allowed to do – that is, to have another opportunity of proving an interest in the land covered by the conveyance Exhibit C in this case.

This Court cannot allow it.

I therefore hold that the plea of Res Judicata raised by the Defence has been conclusively established both as to the conveyance dated 22nd May, 1939 and registered as No. 46 at page 46 in Volume 533 Lands Registry Lagos, and as to the question of the Plaintiffs or their predecessors in title ever being in possession of the land covered by the said conveyance.

The doctrine of res judicata is not a technical doctrine, for it is a fundamental doctrine of all courts that there must be an end of litigation.

The Defendant’s plea in this case is therefore in accord with good law. As this disposes of the question of ownership and possession, the question of trespass or injunction founded on possession cannot now arise.

The action is dismissed.

The plaintiffs being dissatisfied with the decision, appealed to the Supreme Court. The Supreme Court summarily allowed the appeal (Suit No. SC. 144/74) on April 28, 1975.

IT IS ORDERED

(i) that this appeal be allowed;

(ii) that there be a new trial on the merits, and

(iii) that costs be assessed at ninety-nine Naira to the Appellant.’

No ‘Reasons’ were given on that day. But, on the 12th December 1975 Sowemimo, J.S.C. (as he then was) read what was described as ‘Judgment of Court’ stated to have been written by Dan Ibekwe, J.S.C.

On that day, Elias had ceased to be Chief Justice of Nigeria and had been appointed the Attorney-General of the Federation.

The case came before Desalu, J. for re-hearing on the merits on the 28th November, 1978. On that day, learned counsel Mr Sofola for the Plaintiffs did not make any formal opening speech. The learned judge recorded Sofola to have stated:

“The case was on 9/5/66 dismissed on a legal ground. No evidence was led. Supreme Court held Judgment was erroneous and on 12/12/75 the case was sent down for retrial.”

Learned Counsel then proceeded to call witnesses in the presence of Chief Williams. Altogether he called eleven witnesses on behalf of the Plaintiffs, the defendants called no evidence but only addressed the Court. At the end of the trial, Desalu, J. entered judgment in favour of the Plaintiffs declaring title in their favour. The Defendant appealed to the Court of Appeal which, on the 15th November 1982, dismissed the appeal and affirmed the decision of the learned trial judge.

The defendant has appealed to this Court on nine grounds set out in the Notice of Appeal. All the grounds are covered in the three questions in the appellant’s brief:

“1. Whether the Respondents are estopped from alleging or giving evidence or presenting legal arguments to establish that Cardoso had conveyed his title to Agbeyegbe by means of Exhibit B.

2. If the answer to Question 1 is in the negative, whether the Respondents have succeeded in proving the due execution of Exhibit B
3. Whether proof of due execution of Exhibit B is necessary on the facts of this case.” Chief Williams submitted that the important averments in connection with the root of title of the Respondents are contained in paragraphs 5and 6 of the statement of claim. These two paragraphs read as follows
4. That the land in dispute is more particularly described in plan ordered to be filed in this suit which is hereby filed in this suit (which is hereby filed).
5. The Plaintiffs aver that St. Matthew Daniel deceased’s immediate predecessor in title was one Agbeyegbe who became seised of the land in dispute by virtue of conveyance from one L.A. Cardoso dated the 22nd day of May 1939 and registered as No. 46 at page 46 in Volume 533 of the Lands Registry at Lagos.”

Counsel then referred to the judgments in Suit No. HK/126/60 and of the Supreme Court (SC. 217/64) and particularly he drew attention to the judgment (Exhibit B) of Morgan, J. (described as the compensation case), where he stated that:

“The real issue between the second claimant and the first claimant therefore is whether or not L.A. Cardoso (deceased) conveyed the land in dispute to John Ajobo Agbeyegbe. Because in my view, if there is proof that the land conveyed to L.A. Cardoso by Exhibit ‘M’ had been conveyed by J.A. Agbeyegbe then the second claimants claim must fail.” and went further to state-

“In this case, however, I allowed evidence to be given, I think in error, to question the validity of the secondary evidence of the deed. The evidence given shows that the name on the deed was not written by L.A. Cardoso. I have therefore formed the view that I should have given leave to the first claimant to call rebutting evidence when, as in this case, the first claimant, was in my view, taken by surprise, by an attack on secondary evidence to which objection was not taken. See Nwakuche v. Azubuike and Others (1955) 15 W.A.C.A. 47.”

Morgan, J. therefore entered a verdict of non-suit. The two claimants then appealed to this court. The appeal was No. SC. 217/64 (Exhibit P). The Court allowed the appeal of the Cardoso Family but dismissed that of the Daniels. Brett, J.S.C., delivering the judgment of the Court stated inter alia (See (1966) 1 All N.L.R. pp. 28-29).

“The question is, what, in the circumstances of this case, the certified copy proves. Except as provided in Section 8, the Land Registration Act does not make it the duty of the officers of the registry to satisfy themselves that the original was executed by the persons whose names it bears, and Section 25 of the Act provides that registration shall not confer on any instrument any effect or validity which it would not otherwise have had. This being the procedure, no adverse inference is to be drawn from the fact that L.A. Cardoso did not sign the duplicate of the deed in question. At the same time, it is clear that the Daniel estate cannot invoke Section 104 (1)(b) of the Evidence Act, which deals with the case where a public officer is bound by law to procure the due execution of a document, and it does not appear to us that the copy retained in the registry can ever be conclusive proof of the due execution of the original. It can establish, as the copy now in question does, that the original bore one or more signatures or seals but not who affixed them.”

Chief Williams, in his closing address after declaring his intention not to call evidence on behalf of the defence, argued that the issue of res judicata was still alive.

The learned trial judge in his judgment stated inter alia-

It was also submitted by Chief Williams that although the Supreme Court in Suit No. SC. 144/74, in April 1975 set aside the decision of Adegboyega Ademola J. in this case on the plea of res judicata raised, yet the Judgment should not ‘be regarded as Judicial authority in that the Court was not properly constituted.’

Later he stated-

“For the avoidance of doubt .the appeal on the plea of Res Judicata was allowed on Monday 28th April 1975 and signed by Dr Elias as Chief Justice of Nigeria at a time when he and Dan Ibekwe Judge of the Supreme Court were very much in office in the Supreme Court of Nigeria.

Reasons for the judgment were read by Sowemimo Judge of the Supreme Court on the 12th day of December 1975.’

The learned trial judge then came to the conclusion that-

‘Judgment in Suit No. SC. 144/74 binds this Court and it having decided against the applicability of Res Judicata I hold, with respect that Res Judicata does not apply in this case.’

The issue of Res Judicata was again raised before the three justices of appeal who all agreed with the trial judge that the plea could not be sustained.

Ademola, J.C.A. was of the view that the plea failed because the land in the compensation case is different from the land in dispute in the present case. Nnaemeka-Agu, J.C.A. whose view I prefer to those of Kazeem and Ademola, JJ.C.A. stated-

“I do not agree with Mr Sofola that the land the subject matter of the compensation case is a different portion of land from the land in dispute in this case for purposes of the plea, both pieces of land are comprised in the same title Exhibit B and so if title were decided upon on one piece that decision would have been true of the other piece.”

I am of the view that he is right, then he said

“In fact, it does appear that the whole decision of the Supreme Court in Exhibit P turned on this deed of conveyance.”

But Nnaemeka-Agu like Kazeem, was of the view that the finding of the Supreme Court in SC. 217/64 merely amounted to “non proven” and for that reason the Daniel Estate have a second chance of calling fresh evidence to prove what they failed to prove in the earlier case. I disagree. I have earlier observed that the so called Judgment of the Court written by Dan. Ibekwe and read by Sowemimo, J.S.C. was not in evidence before the Court. The principle is well established and is beyond argument, that in a case for declaration of title, if the plaintiff failed to prove his case, the proper verdict is one of dismissal.

In Abraham Oguneye Jobi v. Peter Adewumi Oshilaja (1963) 1 All N.L.R. 12 the Plaintiff and the defendants claimed title to a piece of land from the same root. The plaintiff did not adduce any evidence as to the execution of his own deed of conveyance. The Defendants denied that the deed was duly executed and called T B who admitted his signature on the defendants conveyance, but denied what purported to be his signature on that of the Plaintiff. The trial judge dismissed the plaintiff’s case and held that the Plaintiff failed to prove his vendor’s signature. This Court upheld the decision holding that the onus was on the plaintiff to prove the due execution of his title. See also Kwokafor & Ors v. Nwankwo Udegbe & Ors. (1963) 1 All N.L.R. 104 p. 107, where this Court re-affirmed the principle- “The decision in Kodilinye v. Odu (1935) 2 W.A.C.A. 336 – is authority for saying that the proper judgment when a plaintiff claiming a declaration of title fails to prove his case is one dismissing the claim.”

In the 1966 compensation case in which the Cardosos and the Daniels were parties, Brett, J.S.C (at p. 30 (1966) 1 All N.L.R. said

“In the circumstances we do not consider that the Court ought to presume that the conveyance was executed by the late L. A. Cardoso, and we agreed with the trial judge’s finding that the Daniel estate failed to prove an interest in the land.”…And the judgment continued:

“Having regard to our reasons for arriving at this conclusion, we cannot consistently hold that there is any justification for allowing the Daniel estate another opportunity of proving an interest in the land.”

The question therefore is whether that decision of the Supreme Court covers not only the area of the land acquired but the entire parcel of land covered by the deed of conveyance by L.A. Cardoso to Agbeyegbe through whom the Daniel claimed title. It is my view that it does. Earlier in its judgment, Brett, F.J., said clearly “the point at issue between the parties to this appeal was whether the Daniel estate could establish that the land had been conveyed to Agbeyegbe by L.A. Cardoso.’

The trial Court and the Supreme Court were both of the view that the Daniel estate failed to prove the very root of their title, that is, the conveyance dated 22nd May 1939 to their predecessor in title, Agbeyegbe. It was part of that land that was the subject matter of acquisition in suit No. HK/126/60 and on appeal to the Supreme Court in SC/217/64 (Exhibit P). See Amos O. Aro v. Salami Fabolude (1983) 1 SCNLR.59 p. 70 (1983) 2 SC. 75, pp. 105-106 per Aniagolu, J.S.C.

“It is true that the earlier 1972 proceedings, exhibit B was said by the plaintiff to concern only the area verged yellow in the plan, exhibit A while the respondent claimed that it concerned the entire land verged pink, it is equally true that the respondent had no plan for the 1972 case and therefore could not categorically assert that the entire area verged pink was the subject of the 1972 litigation; and finally, although it is impossible for one to say what portions (if any) of the area verged pink were affected by the 1972 litigation, yet, since the basis of the plaintiffs claim in respect of any land at Aratun was his assertion that he was the son of Aro Orija, then it does not matter the extent of land at Aratun which the plaintiff is claiming, for, so long as he is basing his claim upon his being the son of Aro Orija, his claim would be discredited, as indeed it was discredited, in this case on appeal. Deservedly, the claim should be dismissed whether in respect of the area verged yellow only on the principle of res judicata, or in respect of the balance of the area verged pink on the principle of issue estoppel.”

If the basis of the instant appeal had rested solely on the earlier decision in HK/126/60 and SC/217/1964, I would have allowed the appeal and dismissed the plaintiffs case.

But as I observed earlier in this judgment, the key to this appeal lies in the order of this Court of April 28, 1975 in SC. 144/74 from the judgment of Ademola, J. on April 27, 1966. I have already set out the relevant portions of the decision of the trial judge and the order of this court. The Reasons for the decision of the Court are irrelevant. This Court is not concerned with whether it was founded on correct legal principle. See Chief D. A. Ibuluya and Others v. T. B. Dikibo and Others (1976) 6 SC. 97 at p. 104.

This Court does not sit on appeal over its own decision. Whether or not it is right or wrong, the Order made on April 28, 1975 is a binding order. What is binding is the order itself and not the reason.

The Court was duly constituted on the 28th April 1975, when it made the order for re-trial on the merits. See Lawal v. Chief Dawodu and Anor. (1972) 1 All N.L.R. (Pt. 2) 270 at p. 282.

Chief Williams forcefully argued that as the reasons for the judgment of the Supreme Court in SC. 144/74 are not before the Court, it is not right to speculate on the basis for its order.

For this submission reliance was placed on the decision of this Court in Fadiora v. Gbadebo, 1 L.R.N. 97 at pp. 106-107. He argued that this Court did not specifically decide the issue of estoppel, nor was the High Court directed to reject the plea at the re-trial. He finally submitted “that the issue of res judicata determined by Adegboyega Ademola, J. (as he then was) is open to relitigation and not re-adjudication in the second trial”. With due respect, the submission does not accord with common sense and the sequence and issue in the proceedings leading to the order of this court. The preliminary point raised in limine was to determine he issue raised in paragraph 7 of the statement of defence, namely that:

“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 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 and the said issues and the said judgment of the Supreme Court still remains in force.

Whereupon the Defendant pleads Res Judicata and further will contend at the trial that this is the most flagrant abuse of the process of this Honourable Court and should be dismissed with substantial costs.”

This was the preliminary point which Adegboyega Ademola J. was called upon to decide and which he decided in favour of the defence. On appeal to the Supreme Court, his judgment on the issue was set aside and it was ordered that the Plaintiffs case should be heard on the merits. In other words, the issue of res judicata having been disposed of, plaintiffs should now be allowed to prove their case in accordance with the pleadings. The Fadiora case supra is therefore irrelevant in this case. The decision of the Supreme Court had the effect of setting aside the judgment of the first trial based on the plea of estoppel. That issue, having been raised and finally determined by the Supreme Court, could no longer be raised before Desalu J, at the re-trial. I entirely agree with Desalu J. where he said –

For the avoidance of doubt the appeal on the plea of Res Judicata was allowed on Monday 28th April, 1975 and signed by Elias as Chief Justice of Nigeria at a time when he and Dan Ibekwe Judge of the Supreme Court were very much in office in the Supreme Court of Nigeria…Judgment in Suit No. SC. 144/74 binds this Court and it having decided against the applicability of Res Judicata, I hold, with respect that Res Judicata does not apply to this case.”

It follows therefore that all the parties and indeed all courts are bound by the order of the properly constituted Supreme Court of 28th April, 1975.

Sofola has argued that the issue of res judicata had been finally settled and the case should be heard without any further reference or consideration to the plea. I agree with him. The law is correctly stated by Denning, L.J. in Fedelites Shipping Company Limited v. V/D Exportchild (1966) 1 QB 630 at p. 640.

“The rule is that once an issue has been raised and distinctly decided between the parties, then as a general rule neither party can be allowed to fight the issue all over again. The same issue cannot be raised by either of them in the same or subsequent proceedings.”

Diplock, L.J. at p. 642 further explained

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provisions enabling one or more question (whether of fact or law) in an action to be tend before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.”

The above ratio was applied by this court in Y. A. Lawal v. Chief Yakuba Dawodu & Anor. (1972) 1 All N.L.R. (Pt. 2) 270 at 280, and Fadiora v. Gbadebo (1978) 1 L.R.N. p. 106. The two cases on which Chief Williams relies for his submission therefore, in my view, do not support his argument. I have come to the decision that the contention of Chief Williams must fail.

The procedure adopted by Chief Moore before Ademola, J. on the 27th April 1966 was as provided by the then relevant Rules of Court of the High Court of Lagos: Order XXXIX Rule 2 of the then Supreme Court (Civil Procedure) Rules Cap 211, Vol. X, Laws of Nigeria Revised Edition 1948; The rule provided that.

“2. If the Court considers it conducive to justice, it may direct that anyone or more issues of fact or law arising in any suit may be tried before any other issue or issues.”

See Lasisi Fadare & Ors. v. Attorney-General of Oyo State (1982) 4 SC. 1. At the commencement of the trial of the suit before Ayoola, J. in the High Court of Oyo State, some preliminary points of law were set down for hearing on the application of the Defendant, the Attorney General of the State. The points in issue were pleaded in the statement of Defence, the effect of which was to show that the plaintiffs’ claim per the writ of summons was not maintainable. The objections were upheld and the plaintiffs’ claim was dismissed. The procedure adopted by the trial judge was Order 22, Rule 2 of the High Court Civil Procedure Rules of the Western Region of Nigeria. The plaintiffs appealed against the decision of the trial judge. Nnamani, J.S.C., delivering the leading judgment of this court explained the procedure. He stated:

“a preliminary point of law could be raised after both the statement of claim and defence had been filed. Such an application may lead to a dismissal of the suit as happened in the instant case. If on the other hand it fails, the action will proceed to trial, issues having already been joined in pleadings.”

In other words, the merits of the case must be gone into by hearing of evidence to be adduced parties on any other outstanding issues in the pleadings.

Acceptance of Chief Williams argument will lead to ridiculous result. It would mean the same point which Ademola, J. had decided but which was set aside would proceed again before Desalu J. as a preliminary point and a ruling given by him. In other words, he will be sitting on appeal over the judgment of this court. In my view trial of the case on the merits means the hearing of the case on all the issues raised on the pleadings save on the issue of estoppel which had earlier in the same proceedings been raised and finally decided by the order of this court given on 28th April, 1975 vide the decision of the Supreme Court in SC. 144/74.

If the contention is right, why then did he not raise the issue of estoppel in limine as Moore did in the compensation case And why did he not object but allowed the plaintiffs to call witnesses and adduce evidence on the issues of fact raised in the pleadings

In conclusion, it is my view that the effect of a retrial on the merits is to allow the plaintiffs the liberty to adduce evidence to prove their case on the pleadings and for the defendant to challenge that case by evidence, if necessary and or on the law, other than on the issue of res judicata which had earlier been raised and finally decided. In short, a re-trial on the merits means that the plaintiffs are free to prove their case and are not barred from doing so by the plea of res judicata.

By the order of 28th April 1975, the issue of Res Judicata was validly and finally decided and no longer in issue. It is futile to speculate what were the reasons for the decision. If the Court is competent it is irrelevant if it made a mistake. The judgment is valid even though it may be wrong. See Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587, p. 594.

The next point of importance is whether the children of Daniel proved their case as postulated in their statement of claim. The learned trial judge found that they did and the learned justices of appeal upheld the decision. It is the contention of Chief Williams that on the merits of the case, judgment ought not to have been entered in their favour. He argued that they failed to prove the root of their title, that is, the execution of the deed of conveyance by L.A. Cardoso in favour of Agbeyegbe the immediate predecessor in title of their late father. The conveyance (Exhibit B) was pleaded in paragraph 5 of the statement of claim. It is dated 22nd May 1939 and registered as No. 46 at page 46 in Volume 533 of the Lands Registry, Lagos. It was more than 20 years old in 1979 when it was received in evidence before Desalu J.

In his brief and argument, Chief Williams seems to have equated the provisions of Section 122 with Section 129 of the Evidence Act. His brief speaks as if the two sections are identical. This is not correct. The fallacy is demonstrated in his own brief where it is stated.

“4.4 Section 129 Evidence Act: The section of the Evidence Act now under consideration reads as follows.-

“Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

The underlining is supplied for reasons which will appear hereafter. It was Nnaemeka-Agu, J.C.A., who dealt with this point succinctly at p. 419 lines 19-23 of his judgment where he said as follows:-

“The document, Exhibit B the original of which, on the fact of it was executed in 1940, is more than 20 years old and will qualify for presumption of due execution under Section 122 of the Evidence Act.”

It will be seen that the learned Justice of Appeal had chosen the date of the execution of the deed Exhibit B as the date when the 20 years begin to run. He has also chosen the date of the proceedings in the High Court as the date by reference to which the document becomes qualified to attract the presumption. But this is not what the Section says and it is evident that the learned Justices of Appeal had overlooked the decision of this court in Johnson v. Lawanson (1971) 1 All N.L.R. 57. At page 66 lines 37 to page 67 line 4, this court held.

“We find that we must and we do come to the conclusion that the decisions which had equated the ‘date of the contract’ appearing in Section 129 of the Evidence Act, Cap. 62 with the date of the proceedings in hand are manifestly unsupportable for even if there be no other reason they have failed not only to give the material words of the statute their ordinary and natural meaning and import but also to explain why those plain and unambiguous words of the statute should be discarded.”

The truth of the matter is that the Section only apply to cases (such as those between vendors and purchasers) where documents of title have to be proved to satisfy the obligations of a party under a contract to the other party under that contract. In the words of this court in Johnson v. Lawanson at page 62 lines 22-32 of the Report.

“We entertain no doubt whatsoever about the real meaning of the section and are equally without any doubt that the deeds, instruments, etc. postulated by the section must be 20 years old ‘at the date of the Contract’. It may of course bewilder a lawyer that in order to secure the benefit conferred by the section he has to relate his deed or instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute ‘present legal proceedings’ for the word ‘contract’ which manifestly dominates the section, seems to us perverse.”

The learned trial judge did not refer to or rely on Section 129 in his judgment. The provision is completely irrelevant as no question of contract arose in this case. It was that of execution of a deed of conveyance for which the relevant provisions is Section 122 and not Section 129 of Evidence Act.

At the trial, Plaintiffs called witnesses to testify in support of their case. It is pertinent that the defendants did not give any evidence nor was any witness called to rebut the evidence given by the plaintiffs. Indeed, the statement of defence apart from the general traverse, did not specifically deny any of the averments. In his judgment, the trial judge stated.-

“The only evidence adduced in this case is that of the plaintiffs and their witnesses. The plaintiffs were unable to produce in evidence the original deed of conveyance in favour of Agbeyegbe which they claim had been stolen. I believe the evidence of Plaintiff Witness 8 on this point.

I also believe the evidence of both Plaintiff Witness 1 (Hyde) and Plaintiff Witness 6 (Ojomo) as to the procedure followed in the Lands Registry in the registration of documents. This no doubt is in accord with the provisions of Section 17 of the Land Instruments Registration Law Cap. 64 Laws of Lagos State.

Section 92 of the Evidence Law allows proof of documents either by primary or by secondary evidence.

Secondary evidence includes certified copies given under the provisions hereinafter contained.” And the judgment continued:

Lastly, I shall refer to Section 122 of the Evidence Law which reads in part:

“Where any document purporting or proved to be twenty years old, is produced from any custody, which the Court in the particular case considers proper, the Court may presume . . . in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested.

With the provisions of the law as hereinbefore enumerated and relying on the uncontroverted evidence of Plaintiff Witness 1 (Hyde) and Plaintiff Witness 6 (Ojomo) I am irrestibly inclined to presume that the original of Exhibit ‘B’ was duly executed by L. A. Cardoso.”

I believe that EXHIBIT “B” is the certified true copy of its original delivered for registration on the 20th day of May, 1939, duly checked and registered as such.

There is no evidence before me to rebut the presumption of regularity or legality of Exhibit “B”.

I therefore believe and hold that the property described in Exhibit “B” was alienated and conveyed by L.A. Cardoso to John Ojobo Agbeyegbe. The necessary inference therefore is that L.A. Cardoso’s interest in the land thereby conveyed had here thereby become vested in Agbeyegbe named therein.

Having been so divested of his interest in the land, all or any of the children of Cardoso, cannot therefore claim any further interest in that, the landed property of their late father.”

Further at p. 154/30 he said:

“I believe from the evidence before me that Plaintiff Witness 8 Joseph Agbeyegbe is the son of the late Agbeyegbe. I believe also the evidence of the witness that the land described and delineated in Exhibit ‘B’ was sold to satisfy the judgment debt of Agbeyegbe and that the land was bought by John St. Matthew Daniel

Plaintiff Witness 8, gave evidence in favour of the Plaintiffs and made no claim to the land in dispute.”

These findings were approved by the learned justices of Appeal. Chief Williams was unable to persuade me that the above findings could be faulted or that the plaintiffs failed to prove the execution of the conveyance by L.A. Cardoso to Agbeyegbe. He concedes that the certified true copy of the deed is admissible by virtue of Section 29 (1) of the Land Instrument Registration Law, but he contends that the Court is bound by the previous decision of this court in SC. 217/64 Cardoso v. St. Matthew Daniel (1966) 1 All N.L.R. 25 on the principle of stare decisis. And that the execution of the conveyance was still not proved. This he contends is because the plaintiffs cannot invoke Section 104 (1) (b) of the Evidence Act which deals with the case where a public officer is bound by law to procure the due execution of the deed and a copy retained in the Lands Registry. Such copy can, he contends, never be conclusive proof of due execution of the original. He further contends that the decision of the court in Jules v. Ajayi (1980) 5-7 SC. 96 should be overruled as it was given per incurium of Cardoso v. Daniel supra. While I see the force in this argument it is my view that it is unnecessary to decide the point in the present appeal in view of the undisputed evidence in this case and the findings of the trial judge. He found that the certified true copy of the deed was admissible under Section 108 of the Evidence Act, that it was a public record of a private document and that under Section 96 (1)(c) and (f) secondary evidence of the contents was admissible since the original is lost or destroyed and all possible search had been unsuccessfully made. And finally, the learned trial judge considered the combine effect of Sections 100, 111, 113, 122 and 149 (1) of the Evidence Act.

The argument of the learned Counsel for the Appellants seems to suggest that Section 122 is same as Section 129 of the Evidence Act. What the learned trial judge applied and which the learned justice of appeal upheld is Section 122 (not Section 129) which does not speak of date of contract. Section 122 speaks of the date or age of the document – 20 years. Learned Counsel further submits that Section 122 applies only if the original and not the ‘certified’ true copy is produced before the Court. I find myself unable to accept the contention, having regard to the provision of Section 123 which defines the meaning of the expression ‘proper custody’ within the meaning of Section 115, 122 of the Evidence Act.

The trial judge, having accepted the uncontroversial evidence of two former Lands Officers, Hyde (P.W.1) and P.W.2 (Ojomo) as to the procedure for registering deeds, came to the conclusion that the deed of conveyance, Exhibit B, is the certified true copy of the original delivered for registration and that there is no evidence before him to rebut any of the presumptions provided by law.

In the final result, I find that all the grounds of appeal must fail and I so find. I will dismiss the appeal and affirm the decisions of the courts below. The Appellant will pay the Respondents costs of this appeal which I fix at N300.00.

ANIAGOLU, J.S.C.(Presiding): I agree that this appeal should be dismissed. In thus concurring with the judgment just read by my learned brother, Coker, J.S.C., the draft of which I have the privilege of reading before now, I have been spared, by my said learned brother, the tedium of recapitulating the rather elaborate facts of this case on appeal, by his careful trace of the history and the journey of the land dispute between the Cardosos and the Daniels since that fateful purchase, by John St. Matthew Daniel, of a piece of land at Kirikiri Lagos (now in dispute), at a Public Auction, with a sum of 100 (one hundred pounds) on the 16th day of October, 1940, evidenced by a receipt (Exhibit F) issued by the licensed Auctioneers, Messrs. James T. Ogun and Co. pursuant to the order of the then Supreme Court (as the High Court was then called), per His Honour, William Butler Lloyd, in suit No. 81/1940 between Amodu Tijani (Chief Oluwa) and John Ajobo Agbeyegbe, on 23rd September 1940.

What has been perplexing in this case is why the then Supreme Court (the High Court) had not taken steps to perfect the title of the purchaser from Court (John St. Matthew Daniel) under the Public Auction sale, by issue of a Certificate of Title to the purchaser who, from then on, would have the Certificate as his root of title, making it unnecessary for him to go beyond the Certificate in grounding his title and making it impossible for any subsequent claimant/challenger, who not interpleaded before the Court, to succeed in disturbing the purchaser.

In 1940 when the auction sale was made, the High Court (Supreme Court) could have granted a Certificate of Title under the applicable Law (see the County Courts Act 1934, 24-25 George 5 Cap. 53) in much the same way as was later done under Section 49 of the Sheriffs and Enforcement of Judgments and Orders Ordinance, No. 30 of 1945; Section 49 of the Sheriffs and Enforcement of Judgments and Orders Ordinance Cap. 205 Volume 6 Laws of Nigeria 1948, and Section 50 of the Sheriffs and Civil Process Act, Cap. 189, Laws of the Federation of Nigeria and Lagos, 1958. That unfortunately was not done, resulting in the present and earlier proceedings between the Cardosos and the Daniels in which the validity of the title of John Ajobo Agbeyegbe to the land was called into question, necessitating all these wasteful arguments on whether Laurenco Antonio Cardoso sold the land to John Ajobo Agbeyegbe in 1939 for 400 pounds and whether the Indenture dated 22nd May 1939 registered as No. 46 at page 46 in Volume 533 of the Lands Registry at Lagos was indeed signed by Laurenco Antonio Cardoso in favour of John Ajobo Agbeyegbe.

Be that as it may, the Courts had to be saddled with the task of making these investigations, leading to these proceedings. In the end the investigation narrowed itself to a re-assertion of the principles of binding force of precedents, often called stare decisis principles which have been maintained over the years, being held salutary for the certainty of the law, (see Davis v. Johnson (1978) 2 W.L.R. 553 at 577 H.L.; (1978) 2 W.L.R. 182 – CA.). The Courts are jealous of these principles and would not lightly tolerate interference with them. (See Board of Customs & Excise v. J.B. Bolarinwa (1968) N.M.L.R. 350, Young v. Bristol Aeroplane Co. (1944) 2 All E.R. 293; Osumanu v. Amadi 12 W.A.C.A. 437; Cassel & Co. Ltd. v. Broome & Another (1972) 2 W.L.R. 645 at 653. The words of Lord Hailsham of St. Marylebone, L.C. in Cassel v. Broome (supra) are sufficiently incisive and sharp enough to remind all Courts of the necessity of keeping rigidly to the rules of stare decisis. He had this pointed rebuke for the Court of Appeal when that Court (per Lord Denning, M.R., Salmon and Phillimore) dared to criticize the decision of the House of Lords in Rookway v. Barnard (1964) A.C 1129 as being wrongly decided. He said at page 653:

“The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of Courts which exists in this country, it is necessary for each.

‘lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.’

With respect, I entirely agree that this rebuke was well deserved. Nothing but anarchy and chaos will emerge where a lower court chooses to ignore the decision of a higher court or refuses to follow the decision. It is this spirit that Jibowu, Ag. F.C.J., held, in Jalo Isamiya v. Bauchi Native Authority (1957) N.R.N.L.R. 73 that a High Court must follow the decision of the West African Court of Appeal even if it considers the decision to be given per incuriam.

The cases involved in this seemingly intractable, and apparently confusing, dispute are:

(1) Suit No. HK/126/60 Compensation case –

Ikeja High Court

of the then Western Region of Nigeria,

before Adeyinka Morgan, J.;

(2) SC. 217/1964

Appeal Judgment of the Supreme Court on

the Morgan J.s judgement in HK/126/60

before Brett, Onyeama and Ajegbo,

JJ.S.C

(3) Suit No. IK/9/66

Ikeja High Court proceedings

of the then Western

Western Region of Nigeria, before

Adegboyega Ademola, J.;

(4) SC. 144/1974

Supreme Court proceedings Order and

Jugdement in IK/9/66 before Elias, C.J.N

Sowemimo and lbekwe, JJ.S.C

(5) Retrial in 1980 of Suit

Judgment of 18/4/80 at Ikeja High Court

IK/9/66

now of Lagos State, by A. Desalu, J

declaring title for the Daniels;

(6) Court of Appeal

Judgment on appeal on Desalu, J.’s,

Jugdement

judgment declaring title for the Daniels;

FCA/L/119/81 dated

(7) SC/80/1984

The present proceedings of the Supreme

Court on appeal over Desalu J.’s judgment

declaring title for the Daniels

SUIT No. HK/126/1960 was the compensation case at the Ikeja High Court of the then Western Region of Nigeria before Adeyinka Morgan, J. The remaining suit numbers, apart from SC 217/1964, in the above list, all concern Suit No. IK/9/66. It must be noted that the Record of Proceedings in this case, running into 432 pages, could have been better and more carefully compiled. Documents assembled for the record were repeated in several places and those not necessary for the determination of this appeal were included in the record resulting in this voluminous record of proceedings. Having said so I now deal with Suit No. IK/9/66.

IK/9/66

In order to avoid confusion in terminology as to plaintiffs or defendants and appellants or respondents I prefer to call the appellants “the Cardosos” and the respondents “the Daniels”. In Suit IK/9/66 the Daniels sued for a declaration of title to the land in dispute, 500 pounds general damages for trespass and an injunction to restrain the Cardosos from committing further trespass. The suit was heard by Ademola, J., who upon the plea of res judicata by the Cardosos upheld the plea, and dismissed the claim. There was an appeal on that judgment to the Supreme Court in suit Sc. 144/1974 before Elias, C.J.N., Sowemimo and Ibekwe, JJ.S.C. Apparently, the Court made an order there and then, after hearing the appeal, reserving reasons for judgment later. It ordered

“(i) that this appeal be allowed,

(ii) that there be a new trial on the merits, and

(iii) that costs be assessed at N99.00 to the appellant.’

That was on Monday, April 28th 1975. The reasons for judgment were not given by the Court until Friday the 12th December 1975. It was headed ‘Judgment of the Court’ but properly it should have been headed ‘Reasons for Judgment’ because the judgment of the court had been given on 28th April 1975. These reasons for judgment, as shown in the document, were written by Ibekwe, J.S.C. and read by Sowemimo, J.S.C. But as has been stated in the lead judgment with which I agree, Elias, C.J.N. and Ibekwe, J.S.C., were no more on the Bench and had no jurisdiction on that day to deliver the said ‘Reasons for Judgment’.

Having validly ordered on 28th April 1975 that the appeal be allowed; that there should be a new trial on the merits, and that costs be awarded to the Daniels, the re-trial came before Desalu, J. who, after hearing, on 18th April 1980, delivered judgment granting declaration of title, damages for trespass and injunction in favour of the Daniels.

The Caradosos appealed to the Court of Appeal against the said judgment. The Court of Appeal on 15th November 1982 dismissed the appeal and affirmed the judgment of Desalu, J. in favour of the Daniels.

The Caradosos by a notice of appeal dated 24th January 1983 appealed to this Court, giving rise to these proceedings.

SC.217/1964

It is necessary, in order to complete the account, to mention that the compensation case, HK/126/1960, went on a cross appeal to the Supreme Court under Suit No. Sc. 217/1964 before Brett, Onyeama and Ajegbo, JJ.S.C., which Court dismissed the appeal of the Daniels and allowed the appeal of the Cardosos.

The argument before us, of Chief Williams, S.A.N. for the Cardosos and Mr Sofola, S.A.N. for the Daniels have been carefully set out in the lead judgment. I need not repeat them here.

It has to be noted that the only defence of the Cardosos was a plea of res judicata. But rightly or wrongly, the April 28th 1975 order by the Supreme Court was a valid judgment delivered by a court of competent jurisdiction, namely, the Supreme Court of Nigeria. It had decreed a new trial and unless that judgment was somehow set aside, it was a valid judgment which must be implemented. No amount of argument will allow an escape from that conclusion.

All valid argument must start off from a recognition of that judgment of 28th April 1975. For the appellants – the Cardosos – to require this Court to go back to 1966 and uphold the res judicata judgment of Ademola, J. would therefore be untenable. It would amount to a re-opening of the res judicata issue already settled and closed by the Supreme Court order of 28th April 1975. That that, on principle, could not be allowed, is settled, through a long line of decisions including the recent Amos Gbesusi Aro v. Salami Fabolude (1983) 2 SC. 75 at 95-105 in which the authorities on issue estoppel were gone into.

The High Court (Desalu, J.) as one of the Courts in the lower tier, under the Supreme Court, was bound by the decision of the Supreme Court of 28th April 1975. It could neither ignore it nor refuse to follow it. Desalu, J. was therefore bound to refuse the plea of res judicata raised before him. He could not question that order of the Supreme Court of 28th April, 1975. For him to question it would have been for him to put himself in much the same position as did the Court of Appeal in England in Cassel v. Broome (supra). Equally, the Court of Appeal – another court in the lower tier – was bound by the decision and bound to enforce it. Therefore, it was bound to uphold on appeal, the decision of Desalu, J. refusing the plea of res judicata raised by the Cardosos. This appeal against that judgment of the Court of Appeal must therefore fail.

Having regard to the foregoing and to the wider reasoning of my learned brother, Coker, J.S.C., in the lead judgment with which I am in agreement, I too, would dismiss this appeal and hereby dismiss it, affirming the dismissal judgment of the Court of Appeal, with N300.00 costs to the Respondents ‘The Daniels’.

---

SC.80/1984