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 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 tried 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 any one 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. Nkemdilem (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 falacy 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 1222 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 uncontroverted 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.-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 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 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-C.A.). 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 incissive 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

(2) SC. 217/1964

(3) Suit No. IK/9/66

(4) SC. 144/1974

(5) Retrial in 1980 of Suit IK/9/66

(6) Court of Appeal Judgment FCA/L/119/81 dated 15/11/82 on IK/9/66

(7) SC/80/1984

Compensation case-Ikeja High Court of the then Western Region of Nigeria, before Adeyinka Morgan, J.;

Appeal Judgment of the Supreme Court on the Morgan J. s judgment in HK/126/60 before Brett, Onyeama and Ajegbo, JJ.S.C.;

Ikeja High Court proceedings of the then Western Region of Nigeria, before Adegboyega Ademola, J.;

Supreme Court proceedings Order and Judgment in IK/9/66 before Elias, C.J.N., Sowemimo and Ibekwe, JJ.S.C.;

Judgment of 18/4/80 at Ikeja High Court, now of Lagos State, by A. Desalu, J. declaring title for the Daniels;

Judgment on appeal on Desalu, J.'s, judgment declaring title for the Daniels;

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 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. SC. 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'.

Nnamani, J.S.C.-I had a preview of the judgment just delivered by my learned brother, Coker, J S.C. I entirely agree with his reasoning and conclusions.

The distance between the parties appears to have started, in 1960. The object of the dispute is a piece and parcel of land lying and being at Kirikiri, Lagos. In that year, Government by Notice No.1764 of 31st August, 1960 acquired a parcel of the said land. A dispute as to who was entitled to compensation in respect of the acquired land arose in Suit HK/126/60 between the Minister of Lagos Affairs, the Federal Administrator General as administrator of the Estate of John St. Daniel and others. In the course of that suit in which both parties in the present action were claimants, the St. Daniel family relied on a Conveyance dated 22nd May, 1939 registered as No.46 at page 46 in Volume 533 at the Land Registry Lagos. The conveyance was between L. A. Cardoso and John Agbeyegbe. It was tendered therein as Exhibit C and is also Exhibit B in the present proceedings. Morgan J. non suited both claimants. Both sides appealed to this Court in SC.217/1964.

The decision of this Court in that appeal has raised the issues which have been canvassed in this appeal. The central issue has been whether due execution of the conveyance of 1939 (Exhibit B) by L. A. Cardoso was proved. In 217/64, Brett, J.S.C. reading the judgment of this Court dismissed the appeal of the Daniel family and allowed that of the Cardoso family. Of the Daniel family's case he concluded-

"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 agree with the trial Judge's finding that the Daniel Estate failed to prove an interest in the land."

It is pertinent to reiterate that it is on that conveyance of 1939 which came to St. Daniel on the public auction of Agbeyegbe's property that the respondents herein based their claim. The contention of Chief Williams, learned Senior Advocate for the appellant has been that the 1966 decision of this Court i.e. in S.C. 217/64 decided the issue of due execution of the 1939 conveyance by L. A. Cardoso between the parties, that Adegboyega Ademola, J. was right in upholding res judicata based on that case, and that notwithstanding the subsequent decision of this Court in S.C. 144/74 ordering a new trial, that issue remains binding on both parties.

Learned Senior Advocate for the respondents, Mr Sofola, on the other hand contends that his clients established their case before Desalu, J. and proved due execution of the 1939 conveyance by Cardoso, that this Court in ordering a new trial on its merits in S.C.144/74 has decided that all matters be tried de novo.

In view of the order of this Court in S.C.144/74 to which I shall make reference later, I do not think it is necessary to consider in any detail whether in fact the decision of the Supreme Court in S.C. 217/64 has settled the issue of due execution of the 1939 Conveyance by L. A. Cardoso, and whether issue estoppel should apply against the respondents. Furthermore, but for the order of this Court in 1975 it would have been necessary to consider whether the decision of this Court in S.C. 217/64 that the St. Daniel family had no interest in the land in dispute (I agree that the two parcels of land must go together although only one was involved in the compensation case) precluded the respondents from raising the issue of title as they subsequently did.

It is necessary, in passing, to point out as Mr Sofola constantly stressed that this Court in S.C. 217/64 never found that L. A. Cardoso did not sign the 1939 conveyance for Agbeyegbe. In that judgment Brett, J.S.C. also said

"In deciding whether to make such a presumption the court must look at the case as a whole, including the question whether the actions of the parties are consistent with there having been a conveyance. The claim of the Daniels estate rests solely on the validity of the conveyance as a document. When it became clear in Court below that the execution of the conveyance was not admitted, counsel for the Daniel estate did not ask for an adjournment to consider his position or for leave to call further evidence, and in this Court Mr Thompson did not suggest that any further evidence was available but relied on his submission that the certified copy of the deed was proof of due execution of the original."

One may also mention that H.K./126/60 was a case concerned with a claim to compensation under the Public Lands Acquisition Act and that title was really not in issue.(See Section 10 thereof). In any case, rightly or wrongly, it is the order of this Court in S.C. 144/74 which must determine the issues in this appeal. There this Court on 28th April,1975 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."

Having ordered a trial de novo on the merits, it would seem to me that this Court intended that all the matters should be open for relitigation and re-adjudication. This Court dealt with the issue of retrial in Fadiora v. Gbadebo 1 L.R.N. 97 at 104. In that case the situation was not too distinct from the one here. There was an unconditional order of retrial by a Court of Appeal and there was the question whether the trial court ought to entertain a decision on a plea of estoppel per rem judicatam based on the Ife Lands Court Suit since according to the counsel for the plaintiffs the parties were precluded by the ruling in the first trial from re-opening the issue. But counsel for the defendant relying on Roe v. R.A. Naylor (1918)87 L.J.K.B. 958 contended that once the order of the Court of Appeal for retrial is unconditional, the court of second trial just like the court of the first trial has the necessary competence to entertain all the issues joined by the parties before it.

Idigbe, J.S.C.-In a lead judgment said in part-

"Put in another form, the question is: what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal on a case on appeal before that Court? We think that in trials de novo the case must be proved anew or rather reproved de novo and therefore the evidence and the verdict given as well as the judge's findings at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issue joined by the parties before it on their pleadings."

See also Pateman v. Higgin 97 C.L.R. 521 and 527.

It was for these reasons and for the more detailed reasons set down in the aforementioned judgment of Coker, J.S.C. that I too would dismiss this appeal. I abide by all the orders made by my learned brother, Coker, J.S.C.

Uwais, J.S.C.-I had a preview of the judgment read by my learned brother, Coker, J.S.C. I agree with it.

The main contention in this appeal is whether a plea of res judicata would apply where a case is remitted by this Court for re-trial on the merits. Part of the order made by this Court(Elias, C.J.N., Sowemimo, J.S.C. and Ibekwe, J.S.C. as they all then were)on 28th April,1975 was "that there be a new trial on the merits." The order is clear and unequivocal, all the evidence in the case would have to be heard by the trial Judge. A plea of res judicata which has the effect of aborting or stultifying ab initio the trial on the merits could not apply because the order of this Court would have to be given effect. Fadiora v. Gbadebo & Ors.(1978) 1 L.R.N. at p.104. In my opinion the trial Judge was quite right in rejecting the plea and the Court of Appeal acted correctly in upholding his decision.

The fact that summary judgment was given on 28th April, 1975 by this Court and the reasons for the judgment written by Ibekwe, J.S.C. were read by Sowemimo, J.S.C.(as he then was) on 12th December, 1975, when Elias, C.J.N. and Ibekwe, J.S.C. had ceased to be members of the Court has not altered the position. This is because the trial court acted on the order given on 28th April, 1975 when all the members of the panel that made the order had the power to do so. Furthermore, this Court cannot sit on appeal over its own judgment. Its appellate jurisdiction is limited, as per section 213, subsection (2) of the Constitution of the Federal Republic of Nigeria 1979, to hearing appeals from the Court of Appeal only and no more. No matter how defective ex facie the reasons for judgment are, I do not see how a different panel from the original can hold the reasons given on 12th December, 1975 void and of no effect. It is also significant to point out that there is in fact no appeal against the judgment of the Court given on 28th April,1975 to enable argument be advanced on the reasons for judgment. Indeed it is obvious that there could not have been such an appeal even under the provisions of section 117, subsection (1) of the 1963 Constitution whether before or after the amendment to that section by the Constitution (Amendment) (No.2) Act, No.42 of 1976, since its provisions are mutatis mutandi the same as those of section 213(2) of the 1979 Constitution.

It is for these and the detailed reasons given in the judgment of my learned brother, Coker, J.S.C. that I too would dismiss the appeal and adopt the orders made by him.

Karibi Whyte, J.S.C.-I have had the privilege of a preview of the judgment of my brother D. O. Coker, J.S.C. in this appeal. I agree that this appeal should be dismissed. My learned brother D. O. Coker, J.S.C. has dealt exhaustively with the facts of this case. I do not intend to repeat them. I shall however deal with so much of the facts and the arguments of Counsel that are relevant in my consideration for the determination of this appeal.

It is pertinent to point out that the first of this trio of cases each of which has terminated in the Supreme Court was commenced in November 1960 in the High Court as H.K./126/60. This was an action on originating summons to determine between the present appellant and respondent who was entitled to compensation in respect of the land in issue acquired by the Minister for Lagos Affairs. The case was disposed of in the Supreme Court in 1964 on appeal as S.C. 217/1964. The Supreme Court held that respondent having failed to prove due execution of the deed relied upon had failed to show interest in the land. It was held that appellant who relied on a deed of 1939 established his interest and was entitled to compensation. The second case was initiated by the respondent in the present appeal, as the plaintiff in that case, appellant in this case was the defendant. This was I.K./9/1966, the claim was for a declaration of title, trespass and injunction. The second action was disposed of in 1975 in the Supreme Court as S.C. 144/1974. The Supreme Court made an order for retrial. The present action was initiated in compliance with the order for retrial made by the Supreme Court in S.C. 144/1974.

In a summary therefore, the two preceding actions were as follows.

1.      H.K./126/60 Minister of Lagos Affairs v. Federal Administrator-General & 2 Ors. which terminated as S.C. 217/64; Estate of L. A. Cardoso v. Estate of St. Matthew Daniel and Minister for Lagos Affairs decided that appellant had established his interest in respect of the land in dispute, subject matter of compensation and was therefore entitled to compensation. Respondents failed to prove due execution of the deed they relied upon, and accordingly did not establish any interest in the land and therefore their claim for compensation failed. S.C. 217/64 is now reported in (1966) 1 All N.L.R. 25 as Estate of Lawrence A. Cardoso v. Estate of John St. Matthew Daniel & Minister of Lagos Affairs. I shall hereafter refer to these cases with their suit numbers.

2.      In S.C. 144/1974 John Burke Daniel & Ors. v. Paul Cardoso(for himself and on behalf of the estate of L. A. Cardoso) the action for declaration of title, damages for trespasses and injunction with an order by the Supreme Court for a new trial. It was in obedience to this order that respondents and appellants went back to the High Court, filed and served new statements of claim and defence, and have litigated the same issues to this Court.

Plaintiffs who are the children of the late St. Matthew Daniel had brought the action against the defendant in a representative capacity for himself and on behalf of the estate of L. A. Cardoso (Deceased). In their statement of claim plaintiffs averred as follows-

"STATEMENT OF CLAIM

3.      The plaintiffs aver that the land in dispute was purchased by John St. Matthew Daniel at a Public Auction on the 16th day of October 1940 for the sum of One hundred pounds(£100)Sterling as evidence by a receipt dated the 22nd day of October 1940.

4.      The plaintiffs further aver that the aforementioned St. Matthew Daniel died intestate on the 25th day of October, 1948 leaving him surviving the plaintiffs and all real properties belonging to the aforementioned St. Matthew Daniel became vested in the plaintiffs as heirs under Native Law and Custom.

6.      The plaintiffs aver that St. Matthew Daniel deceased's mediate 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.

7.      The plaintiffs aver that they and their predecessors in title have been in undisturbed possession of the land in dispute for over 40 years.

8.      That in 1961 the descendants of one L. A. Cardoso represented in this suit by the defendant laid claim to the land in dispute.

9.      Whereupon the plaintiffs claim

(1)     Declaration of Title under Native Law and Custom to that piece and parcel of land situate lying and being at Kirikiri in the Western Region or Province of Nigeria more particularly described in the plan filed by order of Court in this action.

(2)     Five hundred pounds (£500:-:-d) damages for trespass on the said land and

(3)     Injunction restraining the defendant, his servants and agents from committing further acts of trespass."

In addition to the general denial of paragraphs 3, 4, 6, and 7 in paragraph 3 of the statement of defence, the defendant averred in paragraphs 4, 5, 6, and 7 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 of the Estate of John St. Matthew Daniel (Decd) in Suit No. H.K./126/1960 laid claim to the land in dispute. A copy of the proceeding in H.K./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.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. H.K./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 John St. Matthew Daniel owned the land in dispute and was in possession thereof and issues were tried before Morgan, J. Vide "AA2" upon appeal by the defendant and gross 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.

It could be seen from paragraph 7, that the only defence relied upon is the plea of res judicata, founded on the decisions in H.K./126/50 and S. C.217/64. Defendant was therefore relying on the Supreme Court judgment as conclusive. It must be noted in S.C. 217/64 the Supreme Court had held that appellants were entitled to compensation, the respondents were held not entitled.

In the hearing of the case, plaintiff called eleven witnesses and tendered several Exhibits including the conveyance of the land in dispute and the judgments in the previous litigation involving both parties. The defendant relying on the plea of res judicata did not lead any evidence and called no witnesses. Kehinde Sofola, S.A.N. appeared for the plaintiffs. Chief Williams, S.A.N. appeared for the defendants.

The submissions of Chief Williams in the Court of trial may be summarised as follows-

1.      Plaintiffs rely for their title on the conveyance of the land in dispute by L. A. Cardoso to J. O. Agbeyegbe. Plaintiff can therefore only succeed if they can show a valid conveyance of the land by L. A. Cardoso to J. O. Agbeyegbe.

2.      Plaintiffs rely on the fact that their father bought the land by virtue of an Order of Court. There was no Certificate of Title which was issued for the purchase which under the Supreme Court Rules ought to have been issued. There was no conveyance of the land by Agbeyegbe to St. Matthew Daniel.

3.      The question of the ownership of the land in dispute is now governed by Suit No. S.C. 217/64. The Supreme Court has adjudged the Cardoso Estate to be entitled to compensation in respect of the land in dispute, and plaintiffs not entitled. It was submitted this is a cause of action estoppel.

4.      In H.K./126/60 the trial Court held that Cardoso did not sign the conveyance to Agbeyegbe, and this was affirmed by the Supreme Court in S.C. 217/64. This it was submitted is an issue estoppel.

5.      The Supreme Court judgment in S.C. 144/75 is a nullity and should not be regarded as a judicial authority. In reply, Mr Sofola, S.A.N., submitted as follows-

1.      The plea of res judicata should fail because

(a) the subject matter in the two actions is not the same

(b) the land in the two actions is different

 

(c) the claim in S.C. 217/64 is for compensation, and in S.C. 144/64 is for declaration of title.

The validity of the Conveyance between Cardoso and Agbeyegbe, Exhibit B, has not been pronounced upon by any Court.

3.      Plaintiffs did not succeed in their claim in S.C. 217/64 because they were unable to produce the best evidence. Plaintiff tendered a certified true copy of the deed of conveyance from Cardoso to Agbeyegbe which was held not sufficient to establish interest in the land. This should not deprive plaintiffs of their right to prove in a subsequent case.

4.      Plaintiff has now established by evidence, acts of possession, and signing of the deed, and the practice of the Registry in the registration of a conveyance.

5.      Since the conveyance Exhibit B is regular, this should give rise to the presumption of due execution.

In a well considered judgment Desalu, J. rejected the defence of res judicata, and granted the declaration of title, damages for trespass and injunction asked for by the plaintiffs. The defendant appealed to the Court of Appeal, which dismissed the affirmed the decision of the learned trial Judge. The defendant has further appealed to this Court. There are nine grounds of appeal.

It is not necessary to reproduce the grounds of appeal which have been completely covered in the three questions for determination formulated in Counsel for Appellant's brief as follows-

"1.     Whether the respondents are stopped 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 respondent having succeeded in proving the due execution of Exhibit B?

3.      Whether proof of due execution is necessary on the facts of this case."

The arguments in support of these grounds seem to have taken account of the entire history of the litigation between the parties. The central issue in the contention of the appellant has been the same in the Courts below, namely, whether the decision of the Supreme Court in Suit No. 217/64, did not constitute a bar to the relitigation of the claim in the present action.

In a very detailed brief which he amplified before us Chief Williams, S.A.N. for the appellants, referred to paragraphs 5 and 6 of the statement of claim as to the root of title of the respondents as Exhibit B in these proceedings. He referred to the averment in paragraph 4 of the statement of defence and submitted that by virtue of H.K./126/60 and S.C. 217/64. Respondents are estopped from pleading or proving the sale or conveyance of Exhibit B. Chief Williams referred to the observation of Morgan, J. in H.K./126/60, where the learned trial Judge said.

"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 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. Abgeyegbe, then the second claimants claim must fail."

Counsel then went on to point out Morgan, J.'s lament about what he regard as his error in this case when he said,

"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 & Ors. (1955) 15 W.A.C.A. 47."

In his view, the first claimant "ought to be given a fresh opportunity of establishing his claim." He accordingly entered a non-suit. I agree with the Supreme Court in S.C. 217/64 that a non-suit was not proper especially where the claimant is not a plaintiff. Both claimants appealed to the Supreme Court.

Brett, J.S.C. delivering the judgment of the Court said, that it was necessary for the Daniel Estate to prove due execution of the deed before the Court can treat it as valid. The Court went on to hold that there was no evidence that the late John St. Matthew Daniel entered into possession of the land between 1940 and his death in 1948. The Supreme Court then came to the conclusion that

"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 agree with the trial Judge's finding that the Daniel Estate failed to prove interest in the land."

In the result the appeal of the Cardoso family was allowed and they were adjudged to be entitled to compensation. The appeal of the Daniel family was dismissed. The judgment of non-suit was set aside. It is pertinent to point out that this appeal related to the claims for compensation by both the Daniel family and the Cardoso family, the respondents and appellants in this appeal, against the Minister for Lagos Affairs. The issue was not one for a declaration of title to the land subject matter for acquisition. In a claim for compensation for acquisition of land under section 10 of the Public Lands Acquisition Act it is sufficient to establish a claim where only possession or sufficient interest is proved. With respect to the land, the claim is made against the Minister and not against the other claimants. Hence no pleadings are filed. The claimant is required to file a statement of interest indicating his interest, stricto sensu there is no lis between the claimants inter se. The litis contestation is between the Minister of Lagos Affairs and the claimants.

It is the judgment in S.C. 217/64 that is relied upon in support of the plea of res judicata. The defence of res judicata was successfully pleaded in the subsequent case of I.K./9/66, where E. A. Ademola, J., upheld the submission and dismissed plaintiffs claim. The appeal by the respondents in this case, who were plaintiffs in that case, to the Supreme Court in S.C. 144/1975 was allowed, and a retrial ordered.

In his argument before us Chief Williams has urged us to ignore this part of history of the litigation. His contention was that since the Court in S.C. 144/74 was not properly constituted when the judgment was read, it should be regarded as a nullity. Counsel admitted, as this was clear, that the order for a new trial was made and signed on the 28th April, 1975 when the members of the Court were all present but submitted that since the reasons for the judgment were read on the 12th December 1975 at the time the Court was not properly constituted, there were no valid reasons in support of the order because the questions of law or fact decided in the appeal could not be identified. Counsel cited Fadiora v. Gbadebo (1978) 3 S.C. 219 as his authority.

Counsel further submitted that in directing a new trial, the order did not direct that the plea of estoppel be struck out or that the plea should be rejected in the new trial.

On the new trial, before Desalu, J. the defendants, now the appellants still relied on the plea of res judicata arguing that the issue was still alive. But Desalu, J. rejected the submission and held.

"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 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 December, 1975."

After stating that appellant, cognisant of the fact that the judgment was read in December 1975 when two of the justices were no longer in the Supreme Court made no attempt to amend his statement of defence so as to challenge the validity of the judgment of the Supreme Court which was ex facie regular, the learned judge invoked the presumption of regularity in S.149(1) and (II) of the Evidence Law and said,

"Judgment in Suit No. S.C. 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 and argued before the Court of Appeal as was in this Court. All the three judgments in the Court of Appeal agreed with the trial Judge that the plea was not applicable. But their reasoning was not unanimous. Ademola, J.C.A. was of the view that the plea failed because the land in dispute in S.C. 217/64 is different from the land in dispute in the present case represented in S.C. 144/74 merely amounted to "not proven" and accordingly the Daniel Estate ought to have a second chance of calling fresh evidence to prove what they failed to prove in the earlier case. Nnaemeka-Agu, J.C.A. on the other hand rejected the contention that different portions of land were in issue in the two cases since the claim to title to these two pieces of land is the same in each case. Accordingly if title were to be decided upon on one-piece that decision would have been true of the other piece. In his Lordship's view, the whole decision of the Supreme Court in Exhibit P turned on this deed of conveyance. Although there appears to be a conflict between these two views, it seems to me that they could be reconciled. Whereas Ademola, J.C.A. was concerned with the different pieces of land, Nnaemeka-Agu, J.C.A. was concerned with the entire area covered by the title in the conveyance. In actual fact, and it has been claimed that the pieces of land in issue in the two cases are different, because they are in different parts of the land in dispute and cannot be covered by the plea of res judicata. It is claimed that the piece of land now subject matter of declaration of title is clearly not the same as the one subject matter for acquisition in S.C. 217/64. It cannot be disputed that both pieces of land are covered by the same conveyance and held under the same title. It is the title involved in the conveyance that is in issue, and this covers the area including the land in dispute. This is the merit in the view expressed by Nnaemeka-Agu, J.C.A. which I agree with. Whereas in a declaration of title to land proof of title by conveyance or other methods is essential. See Idundun v. Okumagba (1976) 1 N.M.L.R. 200, 210, 211, this is not the case with a successful claim for compensation. The claim before this Court now is for a declaration of title. However, for the plea before the Court, which is one of res judicata, to be applicable and successful, the subject matter of the claim in the two cases should be identical. I do think the subject matter of the claim for compensation in S.C. 217/64 is the same as that for declaration of title in S.C. 144/1974. The claim in S.C. 144/74 is the same as in the instant case. The claim in S.C. 217/64 is for compensation. In the instant case it is for a declaration of title. In both cases however, the issue of due execution of the conveyance fell to be determined.

Chief Williams has argued that the land which formed the subject matter of S.C. 217/64 as well as the land which the Daniel family claims in this action form part of the land shown in Exhibit B. This is admitted on all sides. However Chief Williams has pointed out that the effect of the Supreme Court judgment in S.C. 217/64 is that the Daniel estate had no title to the land in Exhibit B or any portion thereof. He therefore contended that the views of the Court of Appeal in the present appeal that S.C. 144/74 amounted to non-proven was erroneous. I do not think this criticism is justified.

A careful reading of the judgment of Brett, J.S.C. in S.C. 217/64 discloses that the word title and owner were not used in establishing or rejecting the claim of the applicants.

Rather the learned Supreme Court Justice used the word "interest". For instance in dismissing the appeal of the Daniel Estate (the present respondents) Brett, J.S.C. reading the judgment of the Supreme Court said,

"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 ..." (See (1966) 1 All N.L.R. at p. 30)

Thus the claim of the Daniel Estate failed because resting solely on the validity of the conveyance as a document the claimants failed to prove an interest (not title) in the land. As Brett, J.S.C. pointed out,

"The Daniel Estate has made no attempt either in its Statement of Interest or in the evidence to invoke section 21 of the Public Lands and Acquisition Act under which the parties in possession of the land as being owners thereof or in receipt of the rents of the land as being entitled thereto at the time when the land is purchased or taken are to be deemed to be the owners unless the contrary is proved." (See (1966) 1 All N.L.R. at p. 30)

Thus evidence of possession of the land in dispute as owner would be (even if no evidence of title is shown) sufficient interest for a claim to compensation. It seems to me, although the 2nd claimant proved the 1939 conveyance this was what the Supreme Court had in mind in S.C. 217/64 in allowing the appeal of the Cardoso family. This is because as Brett, J.S.C. said,

".... indeed the only evidence as to possession or receipt of rents was given by a member of the Cardoso family who said that the family had a caretaker on the land at least up to 1953 and received cash from him, presumably as rents and that he himself had gone on the land unhindered in 1956 and 1960." ((1966)1 All N.L.R. at p. 30).

This is that evidence of possession (as owner and receipt of rents) is sufficient interest for the purposes of a claim for compensation. Bonne v. Hammond 14 W.A.C.A. See Adjin II v. Obadsen II 14 W.A.C.A. 649. Title may be, but absence of it is not necessarily conclusive of interest. Adjin v. Onano 14 W.A.C.A. 472. See Owusu v. Manche of Labadi 14 W.A.C.A. 278. I think the judgment of the Supreme Court in S.C. 217/64 dismissing the claim of the Daniel family on the ground that they failed to establish their interest in the land acquired is right. It is a well settled principle of the administration of justice that a party who sets out to assert the existence of a claim bears the burden of establishing the claim, and must fail if he does not succeed in establishing what he has undertaken to do. But since what the Daniel family needs do was to establish something less than title, the dismissal of the claim cannot preclude their subsequently establishing a title with respect to that property.

It is well settled that where a plaintiff relies on title by virtue of a conveyance and failed to adduce evidence of the execution of such conveyance, he would be held to have failed to prove the due execution of the conveyance and accordingly failed to have discharged the onus to prove his title-See Jobi v. Oshilaja (1963) 1 All N.L.R. 12, Nwaokafor & Ors. v. Nwankwo Udegbe & Ors. (1963) 1 All N.L.R. 104, 107.

It is true that the trial Court found that the 1st claimant, who is respondent in this appeal failed to adduce evidence of due execution in respect of Exhibit B which was relied upon as evidence of title for a claim for compensation. However, the Supreme Court on appeal dismissing the claim for compensation held that the evidence was not conclusive that the copy of the conveyance filed in the Lands Registry was signed by L. A. Cardoso. It was unequivocally stated,

".... it does not appear to us that copy retained in the registry can ever be conclusive proof of due execution of the original. It can establish, as the copy now in question, does, that 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." ((1966)1 All N.L.R. at p. 29)

This dictum is too wide and ought to be limited to the facts of this case and the evidence adduced in support of registration of conveyances. In the circumstances where the copy bears the same signature as the original, it will be otherwise. It is pertinent to identify the actual parties to the litigation in S.C. 217/64. The claim in that action was against the Minister for Lagos Affairs, who was the applicant, in the originating summons to determine those entitled to the payment of compensation in respect of the land in dispute being acquired. It was not against the 2nd claimant, who was the appellant and is the appellant in this case. Therefore although the issue as to proof of the conveyance was in issue on S.C. 217/64, the issue was not between the claimants, who are in this appeal, the appellants and respondents. The issue was between the claimants and the applicants in that case.

It is abundantly clear from the judgment in S.C. 217/64 that the issue whether the conveyance relied upon by the Daniel family executed was not decided. What seems to have been decided was the preliminary issue that the Daniel family had not led evidence to show that the original was signed by L. A. Cardoso. This cannot constitute estoppel-See Fadiora v. Gbadebo (1978) 3 S.C. 210. The Court considered the procedure for the certified copy and said,

"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 copy retained in the registry can ever be conclusive at the due execution of the original." (See (1966)1 All N.L.R. 25 at pp. 28-29).

I shall now turn to the plea of res judicata which is the central argument in this appeal. The principles governing the application of res judicata have been enunciated in several decided cases in our Courts. It is now elementary but necessary to state that the principle of res judicata applies only where there is a lis inter partes, to preclude a party from raising again facts directly in issue which were the basis for the judgment in an earlier final proceeding by a competent Court between the same parties or their privies. See Toriola v. Williams (1982) 7 S.C. 27. Esi v. Chief Secretary (1973) 11 S.C. 189, Fadiora v. Gbadebo (1978) 3 S.C. 219, Timitimi v. Amabebe (1954) 14 W.A.C.A.

In determining whether the issue in the judgment relied upon is the same as in the case before the court, it is necessary to consider whether the evidence adduced to prove the issues in the earlier action will be the same to be relied upon in the case before the Court. See Coker v. Sanyaolu (1976) 2-10 S.C. 203. The doctrine of res judicata is based not on the principle of law enunciated in a case but upon the finding of fact made in that case. See Ofunne v. Okoye (1966) 1 All N.L.R. 94, Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587, Asagba v. Ogaje (1972) 11 S.C. 139.

A decision against a person in one capacity, cannot be pleaded against him suing in another distinct capacity-See Coker v. Sanyaolu (1976) 9-10 S.C. 203. The plea of res judicata will fail immediately any of the preconditions for its application is absent. The judgment relied upon for the purposes of estoppel must be subsisting. See Lateje v. Iyanda & Anor. (1959) 4 F.S.C. 257. This now leads me to the examination of the judgment of the Supreme Court in S.C. 144/74 which set aside the successful plea of res judicata made before E. A. Ademola, J. and made an order for a new trial. Chief Williams has urged us to reject that judgment because of its defect which he spelt out lucidly. He further pointed out that since it was impossible to rely on the reasons given in the judgment to determine the application of the doctrine of res judicata it was useless as a judgment. It is pertinent to point out that although emphasis was being laid on the judgment delivered on the 12th December 1975, the Order made on the 28th April, 1975 which was without any defect was an effective Order for a retrial. Although the reasons for the judgment was read on a date when two of the members had ceased to be Justices of that Court, the effective date of the judgment was the 28th April 1975 when the competence of the Justices was not in doubt. See Lawal v. Dawodu & Anor.(1972)1 All N.L.R. (pt. 2) 270, 282. Accordingly for the purposes of the judgment and the Order made under it, the effective date was the 28th April, 1975. I therefore do not share the view that the judgment was a nullity. This case is different from Ogboinyinya v. Okudo (1979) 6-9 S.C. 32 where the judgment was read after the judge had ceased to be a judge of that Court. In this case judgment had been handed down and the order made and costs awarded. What remained were the reasons for the judgment which in my opinion are ancillary and cannot nullify the substantive function which has been discharged properly. It could be observed that rehearing commenced before reasons for the judgment were read. The Order made on April 28, 1975 was

"(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."

It is obvious from the history of this litigation that the issue of res judicata was first raised in I.K./9/1966 which went on appeal to the Supreme Court as S.C. 144/74. In the trial Court, the defendants pleaded res judicata.

The net effect of this plea is that reliance was being placed on the compensation claim H.K./126/1960 and S.C. 217/64 and the finding in those cases that the Daniel Estate having failed to establish any interest in the land in dispute because they were unable to prove due execution of the conveyance relied upon were not entitled to compensation. The contention of appellants in this case in their plea of res judicata is that respondents having been found to have failed to prove due execution of the conveyance are now precluded from doing so. Herein lies the relevance of the order for new trial on the merits of the issues in I.K./9/1966.

I have already held that S.C. 144/1974 is a valid judgment and the order for a new trial also valid. S.C. 144/1974 has neutralised the effect of S.C. 217/64 which was being relied upon for the plea of res judicata. This Court does not ordinarily question its own decision except where there is very good justification for doing so. Bucknor-Maclean v. Inlaks (1980) 8-11 S.C. 1 at p. 35.

It has been held that where there are two inconsistent judgments of a Court with respect to the same case, the later in time is to be preferred-See Seriki v. Solaru (1965) N.M.L.R.I. and Ikeakwu v. Nwamkpa (1967) N.M.L.R. 224. This principle ought to apply with justice to judgments of this Court. This is in the true spirit of the Bucknor-Maclean v. Inlaks (supra) judgment. Following these principles S.C. 144/1974 is to be preferred. Furthermore the order for a new trial was after consideration of the plea of res judicata founded on S.C. 217/1964. Thus the effect of the order directing new trial on the merits is to reject the plea of res judicata which was the issue on appeal. In Abortsi v. Avelete 12 W.A.C.A. 422, it was expressly held that where appellate Court directs that a case on appeal shall be held "de novo" this necessitates the setting aside of the judgment on appeal. Accordingly, the plaintiffs were now required to prove their case in accordance with their pleadings. The judgment of the first trial which relied on res judicata founded on S.C. 217/1964 was now neutralised. The issue having been raised, finally determined and set aside by the Supreme Court could no longer be raised before Desalu, J. at the retrial.

Since the parties and all courts are bound by S.C. 144/1974 being the Order of a properly constituted Court, it follows that the plea of res judicata which it had clearly rejected by its order was not applicable to the case under the new trial.

Chief Williams has submitted that there was no direction that the plea of res judicata should no longer apply. The answer to this criticism is to be found in the fundamental principle of the doctrine of res judicata stated in Fadiora v. Gbadebo (1978) 3 S.C. 219 at p. 230 where it was said.

"(No finding of the Court or of a jury of (sic) a trial which has proved abortive, a new trial having been directed) will give rise to a valid plea of estoppel. And a decision of the Court setting aside a judgment entered pursuant thereto, and directing a new trial, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be resubmitted to the Court for fresh consideration."

It seems therefore to follow that where the appeal is against a plea of res judicata, allowing the appeal and directing on order for a new trial is invariably a rejection of the plea and resubmission of all the issues for a new trial. It was not necessary for the Court to make a specific direction in the manner suggested by counsel for the appellants.

The implication and effect of an unconditional or unqualified order for trial de novo by a Court of Appeal of a case on appeal before it, has been stated with convincing clarity in Fadiora v. Gbadebo (supra) at pages 235-236 as follows-

"We think that in trials de novo cases must be proved anew or rather reproved de novo and therefore, the evidence and verdict given as well as the judge's findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore, is entitled to and, indeed must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings."

The English decisions of Gipps v. Gipps & Hume (1864) 11 H.L. Cas. 1 (1861-73) All E. R. Rep. 138 and Roe v. R. A. Naytor Ltd. (1918) 87 L.J.K.B. 958 were cited in support of the view. Indeed the order for a new trial is an estoppel against raising any plea of estoppel.

I am therefore of the opinion that Mr Sofola was right in his submission that the issue of res judicata was finally settled by the order for a new trial. It was for the parties to go to trial without reference or consideration of the plea which had been discarded or got rid of.

The plea of estoppel having failed the onus is on the plaintiffs to establish their title in compliance with their pleadings. This is the subject matter of the third item in the formulation of issues by counsel for the appellant. The question is "whether proof of due execution of Exhibit B is necessary on the facts of this case."

The evidence of the plaintiff, which remains uncontradicted, because the defendant offered no evidence, was that plaintiff bought the land in dispute at a public auction in 1940 where the land was sold by Order of Court. The land in dispute was alleged to have been bought by one J. A. Agbeyegbe from L. A. Cardoso by virtue of an Indenture dated 22nd May 1939 and registered as No. 46 at page 46 in Volume 533. The defendants have denied generally that L. A. Cardoso made any conveyance of the land in dispute to the predecessor in-title of the plaintiffs. The onus is therefore on the plaintiffs to prove due execution of the conveyance. Mr Sofola has submitted that once that conveyance is established, as valid, as effectually transferring ownership in the land from L. A. Cardoso to Agbeyegbe, then the plaintiffs were bound to succeed.

Chief Williams' contention is that the respondents having failed to prove their root of title, namely, the execution of the deed of conveyance by L. A. Cardoso in favour of Agbeyegbe, the immediate predecessor in title of their late father, judgment ought not to be entered in the favour of the respondents.

The Conveyance was pleaded in paragraph 5 of the Statement of Claim, and is Exhibit B in the proceedings. It was more than 20 years old when it was received in evidence in 1979 in the proceedings. Apart from the general traverse by the defendants, in the statement of defence there was no specific denial of any of the averments in the statement of claim. Accordingly, the defendant did not seem to have joined issues with the averments in the statement of claim and in accordance with the rules of pleading they would be deemed conclusively to have been admitted. Having rejected the plea of res judicata, the trial Judge then went on to state as follows-

"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 a 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 secondary evidence.

Secondary evidence includes certified copies given under the provisions hereinafter contained."

Continuing, the learned judge referred to section 122 of the Evidence Law and quoting the section, he presumed that the original of Exhibit B was duly executed by L. A. Cardoso. He said,

"With the provisions of the law as herein before enumerated and replying on the uncontroverted evidence of Plaintiff Witness (1) (Hyde) and Plaintiff Witness 6 (Ojomo) I am irresistibly 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's interest in the land thereby conveyed had 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.

I have not elaborated on the two cases to which my attention was drawn, regarding parole evidence in respect of a lost document and on presumption of validity of such document."

Finally, the learned trial Judge 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.

The Plaintiffs tendered Exhibit "G" which is a purchase receipt, dated 22nd October, 1940. A purchase receipt being an unregistered instrument, is not admissible to prove title, but is admissible as an acknowledgment of the payment of money and coupled with the Plaintiff being in possession, raised a presumption that he entered into possession under a contract of sale and from this arose an equitable interest capable of being converted into a legal estate by specific performance. See Ogunbambe v. Abowaba. 1951) 13 W.A.C.A. 222 at 244 per Verity Ag. P."

All these findings were accepted by the Court of Appeal. They were not controverted or put in issue in the Court of trial, and counsel for the appellant has not given reasons why this Court should reject these concurrent findings of fact. I accordingly accept the findings and the finding that respondents proved the execution of the conveyance by L. A. Cardoso to Agbeyegbe.

Chief Williams has severely attacked the application of the provisions of sections 122, 129, 113 of the Evidence Act by the learned trial Judge and the Court of Appeal. Counsel, reluctant to accept the effect of SC.144/74 on SC.217/64, contends that the latter is still binding whereas the former is a nullity. I need only say that I have disposed of that contention in this judgment.

Chief Williams whilst conceeding that Exhibit B, the certified copy of the deed, was admissible without any further or other proof, by virtue of section 29(1) of the Lands Instruments Registration Law, contended that that view has been adversely criticised in Cardoso v. Daniel (1966) 1 All NLR 25. Counsel then referred to section 122 of the evidence Act, conceded that the section enables the Court to presume the due execution of Exhibit B, but submitted such power was discretionary. Counsel also relied on the dictum in Cardoso v. Daniel (supra) to submit that the Court ought not to presume due execution in this case. In his view, the language of section 122 of the Evidence Act requires the production of the original of the document presumed. Accordingly the production of a certified copy was incapable of raising the presumption of due execution under section 122 of the Evidence Act.

It is difficult to give to section 122 the construction suggested by learned Senior Counsel. The section which is completely free from ambiguity relates to documents which in the opinion of the Court are produced from proper custody, and documents executed or attested. In the latter case, which is relevant here, the court, if satisfied that the document purports or is proved to be twenty years old and from proper custody may presume that the document was duly executed by the persons by whom it purports to be executed. Counsel has fastened on the fact that in this case what was produced was a copy. With due respect the section did not speak of an original or copy. With due respect the section did not speak of an original or copy. It merely speaks of any document purporting or proved to be twenty years and is produced from proper custody can be presumed that it was duly executed by the persons by whom it purports to be executed. The document produced claims to have been filed at the time of the execution of that which it represents.

A perusal of Exhibit B discloses without difficulty that it qualified for presumption under section 122. The document is clearly more than twenty years old, and is a copy produced by the Lands Registrar. This the learned trial Judge has done in the exercise of his discretion and Court of Appeal affirmed.

Counsel referred to section 129 of the Evidence Act, which is clearly irrelevant in this case and was indeed applied by the trial Judge. As counsel correctly observed, Nnameka-Agu J C A was construing the provision of section 122 of the Evidence Act which is relevant and applicable to the facts of this case. Accordingly the dictum of Brett F.J. in Johnson v. Lawanson (1971) 1 All NLR 57 at p.66 cited which was concerned with construction of the provisions of section 129 of the Evidence Act is not relevant to the case in hand. Section 129 speaks of date of contract. These words are absent in section 122 and are described as the operative words of the section in Johnson v. Lawanson (supra) at p.65.

Counsel has extended the extraordinary interpretation he gave to section 122 to section 113(1). The purport of section 113(1) of the Evidence Act is that where a document is admissible under the law, the law will presume that certified copy of such document is genuine and that it has been regularly certified as a copy of the original by the officers charged with responsibility of doing so. This construction does not lend any support to the view suggested that a copy so admissible will acquire a greater probative value than the original. The copy is merely affirmative of the absent original. This is clearly brought out by the proviso to section 113(1) That 'such document is substantially in the form and purports to be executed in the manner directed by law in that behalf."-See Alhaji Audu Bida v. Commissioner of Revenue (1972) 1 All NLR (pt.1) 191.

Chief Williams has invited us to overrule our recent decision in Jules v. Ajani (1980) 5 SC 113. He contends that it was decided ignorant of Daniel v. Cardoso SC. 217/64 (1966) 1 All NLR 25. I do not consider it necessary on the view of the law and facts I have taken in this appeal to consider Jules v. Ajani in the light of Cardoso v. Daniel (supra). Any such exercise will be academic and hypothetical. In Jules v. Ajani (supra) the defendant expressly denied that the conveyance in issue was executed and went further to allege that the deed relied upon was a forgery. Defendant on whom the onus to prove forgery lay failed to discharge it. Plaintiff was therefore held to have proved due execution on the strength of his case. See Kodilinye v. Odu 2 W A C A 336.

In the circumstances there is sufficient statutory authority rendering proof of Exhibit B unnecessary.

The last question is whether Respondents have succeeded in proving due execution of Exhibit B. It is important in determining this question to advert to the fact that the only defence of the appellants was their plea of res judicata. They did not join issues with the averments of the respondents. It is also relevant to point out that respondents called witnesses to testify in support of their case. Appellant neither gave evidence nor did he call witnesses to testify to rebut the evidence of the respondents.

It is well settled law that the defendant must deny specifically each allegation of fact in the plaintiff's statement of claim. Every allegation if not specifically or generally denied, or by necessary implication stated to be not admitted, shall be taken as established at the hearing. See Ajibade v. mayowa & ano (1978) 9 & 10 S.C. 1,6, Odume v. Nnamchi & Ors (1964) 1 All NLR. 329.

Since appellants did not join issues with the respondents in respect of matters concerning proof of the execution of Exhibit B they would be deemed to have admitted the averments of the respondents, and cannot be heard to contend the contrary-See British India General Insurance Company Nigeria Ltd. v. Thawardes (1978) 3 SC 143. See also section 74 of the Evidence Act.

The learned trial Judge having accepted the uncontroverted evidence led by the respondents especially the two former Lands Officers (P W 1) Mr Hyde, and (P. W 2) Mr Ojomo and (P.W.8) Mr Agbeyegbe the son of J. O. Agbeyegbe properly came to the conclusion that the deed of conveyance Exhibit B is the certified true copy of the original delivered for registration.

For the reasons I have given in this judgment all the grounds of appeal fail.

I accordingly will dismiss this appeal and affirm the judgment of the Courts below.

Appellant will pay the costs of the Respondent which I hereby fix at N300.

Kawu, J.S.C.-I had the advantage of reading in draft the judgement of my learned brother. Coker J.S.C. which has just been delivered. I entirely agree with his reasoning and conclusions, and for the reasons stated in the said judgment, I would also dismiss the appeal. The appeal dismissed with N300.00 to the respondents.

Oputa J.S.C. I have had the advantage and the privilege of reading in draft the lead judgment just delivered by my learned brother Coker, J S C. I am in complete agreement with him that this appeal ought to be dismissed and that the judgment of Desalu, J. dated 18th April 1980 as well as the Appeal Court judgment dated 15th November 1982 should both be affirmed.

This case has had a long and chequered history. The Writ of Summons which started it all was issued in 1966. It then journeyed up to the Supreme Court in 1975 as Suit No. SC 144/74 only to be sent back to the High Court for a New trial on the merits. Perhaps I may start with the Order of the Supreme Court made on the 28th April 1975. The Order reads:-

"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 N99.00 to the Appellant."

The Court then reserved its reasons for judgment to a future date. Since "the Reasons for the judgment" of 28th April 1975 by this Court in SC. 144/74 did not form part of the proceedings in the court below and therefore were not there fully agitated I will conveniently ignore "the Reasons for Judgment" (shown to us in Court) written by Dan Ibekwe, J.S.C. (as he then was) and read by Sowemimi, J.S.C. (as he then was) on the 12th December 1975 especially when on the date "the Reasons for Judgment" were read Dr Elias who presided had ceased to be the Chief Justice of Nigeria and Dan Ibekwe had already been appointed the Attorney-General of the Federation. I am not saying that the exit of Dr Elias from the office of the Chief Justice of the Federation and the appointment of Dan Ibekwe as the Attorney-General of the Federation are valid reasons for not looking at "the Reasons for Judgment" No arguments were addressed to us on that issue. All I am saying is that since those "Reasons for Judgment" were not before the court below for their legal validity to be tested, introducing them now may work or occasion some hardship on the Appellant and may lead to a miscarriage of justice. Having said this much, I must at once emphasise the judgment of the court of 28th April 1975 went back to the High Court as they were ordered to do.

This Court is not now sitting on appeal against its judgment of 1975. No. The duty of the Court is to give effect to that judgment; see Makanjuola v. Hazan Khalil (1958) W.R.N.L.R. 82 and Seriki v. Solaru (1965) R.M.L.R.1. The 1975 Supreme Court judgment is the one that creates an estoppel. This is founded on sound common-sense.

The next important aspect of the case now on appeal is the impact of the order made by this Court on the 28th April 1975 namely that "it is ordered that there be a new trial on the merits." What is the meaning of 'a new trial on the merits'? The merits of a case means the essential issues in the case, the substantive rights arising in and presented by the action; the strict legal rights of the parties to the action as contra-distinguished and is distinguishable from all matters which depend upon the discretion or favour of the court. A person is thus said to have a good cause of action or defence on the merits when his claim or defence is based on the real matters in controversy, and not on any technical ground. A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue either of law or fact, which party is right. An order for a new trial on the merits will therefore imply exactly what it says-a new trial or a trial de novo where the whole case as pleaded by both parties, where all the issues as joined in those pleadings are fairly tried on relevant evidence. Fadiora v. Gbadebo & ors. (1978) 1 L.R.N. 97 at p.108.

Having thus disposed of the meaning of the order made by this Court in Suit SC/144/74 on 28th April 1975, the next question to consider is the overall effect of that order on the previous litigations between the parties, litigations which ultimately led to the making of the order. The Plaintiffs (the present Respondents) brought this action in 1966 claiming declaration of title, damages for trespass and an injunction. In paragraph 3 of their Statement of Claim, the Plaintiffs averred that:

"3.     The land in dispute was purchased by John St. Matthew Daniel at a Public Auction on the 16th day of October 1940 for the sum of One hundred pounds (£100) Sterling as evidenced by a receipt dated the 22nd day of October 1940."

Not contended with this root of title, the Plaintiffs further averred in paragraph 6 of their Statement of Claim that.-

6.      St Matthew Daniel deceased's mediate predecessor in title was one Agbeyegbe who became seized of the land in dispute by virtue of conveyance from one L. A. Cardoso dated the 22nd day of May 1930 and registered as No.46 at page 46 in volume 533 of the Lands Registry at Lagos."

By paragraph 7 of their Statement of Claim, the Plaintiffs firmly anchored their case on "the undisturbed possession of the land in dispute for over 40 years" by their predecessor in title Agbeyegbe; Thus a case which should have been fought on sale by order of court at a Public Auction became unnecessarily complicated by the introduction of Agbeyegbe and the conveyance to him by L.A. Cardoso. What should have been a two-cornered fight thus became a protracted three-cornered fight with the Deed of Conveyance registered as No.46 as its most contentious issue.

In reply, the Defendant (now Appellant) raised in paragraph 7 of his Statement of Defence a plea of estoppel per rem judicatam relying on Suit No HK/126/60 where the issue was whether the Estate of St. John Matthew Daniel or the Estate of L.A. Cardoso was entitled to compensation for land acquired by the Minister for Lagos Affairs. Morgan, J. gave judgment in favour of the Cardoso Estate and against the St. John Matthew Dainel Estate. The judgment of Morgan, J, for the Defendant was affirmed by the Supreme Court in SC/217/64.

The next important landmark in the legal tussle between the two Estates was Suit No. HK/9/66 before Agbeyegbe Ademola, J. (as he then was) where the learned trial Judge dismissed the Plaintiff's claim in limine on a preliminary objection that both suits HK/126/60 and SC. 216/64 operated as estoppel per rem judicatam. The Plaintiffs apparently dissatisfied appealed against the judgment of Agbeyegbe Ademola, J. to the Supreme Court. It was at this juncture that the Supreme Court made its order of 28th April 1975 allowing the appeal and ordering a new trial on the merits. It is most desirable to have "Reasons for Judgment" delivered especially if there is a possibility of an appeal. But the Supreme Court being our last Court of Appeal the possibility of an appeal against its order of 28th April 1975 would not and could not arise. So whether the "Reasons for judgment" were constitutionally valid or not, the Order for a retrial on the merits could not be questioned and was in fact not questioned.

As I observed earlier on, the order was obeyed and the case was tried denovo by Desalu, J. reviewed the evidence led and the legal submission of counsel on both sides and entered judgment for the Plaintiffs. The Defendant appealed to the Court of Appeal against the judgment of Desalu, J. His appeal was dismissed on 15th November 1982. The defendant having lost in the two courts below has now appealed to this Court. The stand of the Supreme Court against appeals of this nature is very well-known. This Court will not interfere unless it is shown that there has been some miscarriage or justice or a serious violation of some principle of law or procedure.-Engang. v. Adu (1981) 11-12 SC.25 at p.42: Ojomu v.Olajo (1983) 9 SC.22 at p.5.

Chief Williams, S.A.N. has all along relied on Estoppel per rem judicatam. His 1st Question for Determination in his Brief was:

"1.     Whether the Respondents are not estopped from alleging or giving evidence or presenting legal arguments to establish that Cardoso had convenyed his title to Agbeyegbe by means of Ex. B."

The question now is what is it that thus estopped the Respondents? The answer is obvious, Suit HK/126/60 and its Supreme Court counterpart SC.217/64. What were these suits all about? In Suit HK/126/60 the Cardoso Estate and the Daniel Estate were claimants for compensation by the Minister for Lagos Affairs in respect of land acquired by the government. In those compensation cases, the rival Estates did not contest the cases as Plaintiffs or Defendants. The issue in those cases was not the radical title to the land. There must be some distinction between a claim for a declaration of title and one for compensation for land acquired by Government. The onus of proof is definitely not the same, the quantum of proof is also not the same, in one, possessory title will suffice, in the other, acts of possession may constitute only one of the means of establishing title. I agree, however, that the payment of compensation can operate in a future battle for title as an act of possession.

Now what does res judicata imply? It implies a final adjudication between the same parties or their privies on the same question Coke on Littleton rightly stated:-(D, 50, 17, 207 Cs. Litt 103a).

'Res judicata pro venitate accipitur'.

This means that a judicial decision is conclusive until reversed, and its verity cannot be contradicted. But where there are conflicting judgments between the parties or their privies, the last in point of time creates an estoppel. Even if the compensation cases can be regarded as creating an estoppel (a view I do not subscribe to) then the 28th April 1975 judgment of this Court ordering a retrial on the merits considerably watered down and diluted the impact of the earlier judgments. Makanjuola's case supra and Seriki's case supra both refer. This has to be so because res judicata presupposes a final judgment rendered upon the merits. The only case inter partes tried and judgment rendered upon the merits was that before Desalu, J. where the Plaintiffs won. They also won on appeal to the Court of Appeal. Also a judgment of a court of competent jurisdiction has a binding effect if it is inter partes. The compensation cases were not, in this sense, inter partes. They were between the Cardoso Estate and the Daniel

Estate as claimants on the one side against the Minister for Lagos Affairs on the other side. Res judicata has been said to be not only pro obligation habetur but also pro veritate. If what in HK/126/60 and SC/217/64 was for the court verities but in SC/144/74 was no longer verities, then the principle of res judicata cannot apply. Then again the test of immutability and consistency (which is of the essence of res judicata) is dangerously absent. Desalu J was therefore right in rejecting the Appellants arguments based on res judicata and so were the Justices of the court of Appeal.

In the final result, it is for these reasons and for the fuller reasons in the lead judgment of my learned brother, Coker, J.S.C., which I now adopt as mine that I too will dismiss this appeal. I also adopt all the consequential orders made in the lead judgment.