PAUL CARDOSO v JOHN BANKOLA DANIEL AND Others (SC.80/1984) [1986] NGSC 17 (28 February 1986)
PAUL CARDOSO v JOHN BANKOLA DANIEL AND Others (SC.80/1984) [1986] NGSC 17 (28 February 1986)
PAUL CARDOSO (APPELLANT)
v.
JOHN BANKOLA DANIEL AND ORS (RESPONDENT)
(1986) All N.L.R. 317
Division: Supreme Court of Nigeria
Date of Judgment: 28th February, 1986
Case Number: (SC.80/1984)
Before: Aniagolu, Nnamani, Uwais, Coker, Karibi-Whyte, Kawu, Oputa, JJ.S.C.
The respondents, children of one St. Mattew Daniel, deceased, who died intestate on the 25th day of October, 1984 issued a writ of summons against Paul Cardoso, as representative of the children of Lawrence Antonia 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, damages for trespass and an order for injunction restraining the defendant, his agents and servants from committing further acts of trespass to the land.
The plaintiffs/respondents claimed 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 Adeyegbe who became seized of the land by virtue of a deed of conveyance dated 22nd of May, 1939 from L. A. Cardoso, the father of the defendants. The plaintiffs/respondents also pleaded that their predecessors in title were in undisturbed possession of the land for over 40 years, but than in 1961, the descendants of the said L. A. Cardoso laid claim to the land, consequently, the plaintiffs/respondents instituted this action.
The defendants/appellants denied these averments and in defence pleaded res judicata as a preliminary issue for determination by the trial court. The trial court upheld the plea and dismissed the plaintiffs case. The plaintiffs being dissatisfied with the decision, appealed to the Supreme Court. The Supreme Court summarily allowed the appeal and ordered a new trial on the merits on the 28th April, 1975.
The case came before another judge for rehearsing on the merits on 28th November, 1978. The plaintiffs called eleven witnesses, the defendants called no evidence but only addressed the court. The trial Judge entered judgment in favour of the plaintiffs. The appellants appealed to the court of Appeal which dismissed the appeal and
affirmed the decision of the trial court. The appellants further appealed to the Supreme Court and the heart of the appeal lies in the correct meaning and effect of the order of the Supreme Court made on the 28th April, 1975 in relation to the issue of estoppel-per rem judicatam raised by the appellants in their statement of defence.
HELD:
(1) 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 when it made the order for retrial on merits.
(2) It is my view that the effect of a retrial 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, rather than on the issue of res judicata which had earlier been raised and finally decided. In short, a retrial on merits means that the plaintiffs are free to prove their case and are not barred from doing so by the plea of res judicata.
Appeal dismissed.
Chief F.R.A. William, SAN (with him F.R.A. Williams Jnr.) for the Appellants.
K. Sofola, SAN (with him A. O. Aniagolu) for the Respondents.
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 judicatam 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 AAI.
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 (Decd.) 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 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 SC217/64.
(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 A B C 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 Plaintiff's 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 italics are mine for emphasis.)
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 cam 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 5 and 6 of the statement of claim. These two paragraphs read as follows-
5. 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).
6. 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 or 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 plaintiff's 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 the 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