IN THE SUPREME COURT OF NIGERIA

ON THURSDAY, THE 24TH DAY OF MARCH 1983

SC 36/1982

BETWEEN

H. R. SANYAOLU ........................................... APPELLANT

AND

MRS SHOLA COKER AND ANOTHER ........................................ RESPONDENT

BEFORE: Sowemimo, Bello, Eso, Aniagolu, Uwais; JJ.S.C

The respondents claimed title to the land in dispute through their deceased father (the estate of whom they were administrators, having been given letters of administration to this effect) whose root of title was traced to the Oloto Chieftaincy family. In their joint capacity as administratrix and administrator of their dead father’s estate, the respondents sold the land in dispute to one Michael Adediran Alatishe. The appellants on his part traced his title to one Amida Kaffo who died intestate, leaving children, who consented to the eldest, Lamidi Kaffo, selling the land in dispute to him (the appellant). By reason of alleged trespass by the appellant, Alatishe the grantee from the respondents, took out a writ of summons against the appellant claiming a declaration of title to the land in dispute. The trial Court dismissed this case because the grantee failed to show that the land which appellant was in possession of was the land conveyed to him by respondents. The appeal by Alatishe and the cross-appeal by the appellant to the Supreme Court was resolved in that court in favour of the appellant.

The respondents took out a writ of summons against the appellant claiming the land in dispute. The High Court at the trial upheld the appellant’s plea of estoppel per rem judicatam and dismissed the case, whereupon the respondents appealed to the Supreme Court which allowed the appeal on the ground that estoppel per rem judicatam was wrongly applied by the trial Court to the facts before it, leading to a miscarriage of justice. Accordingly the court ordered a trial de novo before another judge in the High Court.

At the retrial, the High Court entered judgment for the respondents for a declaration of title, of ownership to the land in dispute and injunction restraining the appellant from taking possession of the land. The appellant’s appeal to the Federal High Court of Appeal was dismissed whereupon he further appealed to the Supreme Court contending that the testimony of the deceased person in the trial held by the Supreme Court to be abortive was wrongly admitted under section 34 (1) of the Evidence Act in the retrial (an admission affirmed by the Federal Court of Appeal) and that the respondents after divesting themselves of the title to the land in dispute by sale and conveyance had no interest left therein on which to issue for a declaration of title and possession.

HELD:

(1) For the evidence of a witness in a previous suit to be admissible in a subsequent suit when the said witness is dead, the conditions laid down in section 34(1)(a)–(c) of the Evidence Act must be complied with and satisfied.

(2) The fact that, as in the instant case, a retrial was ordered will not render abortive the evidence of the witness who testified in the nullified trial where such evidence is admissible; the retrial only renders abortive the judgment of the court in the nullified trial.

(3) While ordinarily a party cannot be allowed to claim a declaration of title to land which he had once owned but which he had divested himself of the ownership of, a sale to a purchaser, each case must be examined against its own peculiar facts, regard being held to

(i) the parties in the case,

(ii) the points which were raised and argued, and

(iii) the findings of the trial Court.

(4) Since the basis on which the appellant succeeded in the earlier suit brought against him by Alatishe was that he (Alatishe) failed to specifically show the land sold to him by the respondents he (the appellant) cannot now be heard to contend that the respondents had conveyed their interest in the portion of the land in dispute to the said Alatishe, that is that the respondents had divested themselves of the title to the land in dispute.

(5) There was neither proof that the respondents were Administratrix and Administrator respectively of the estate of Victor Leapold Coker, deceased, since their letters of administration had not been produced nor that the respondents in conveying to Alatishe did so as the Administratrix and Administrator respectively of the estate of the deceased.

Appeal dismissed

K. O. Tinubu for the Appellant.

Professor A. B. Kasumu, S.A.N. (with S. Lawson) for the Respondents.

Cases referred to:–

(1) Abinabina v. Enyimadu (1953) A.C. 207.

(2) Alade v. Aborishade (1960) 5 F.S.C. 167.

(3) Alatishe v. Sanyaolu (unreported), Lagos High Court, Suit No. LD/161/66.

(4) Coker v. Sanyaolu (unreported), Lagos High Court, Suit No. LD/310/65.

(5) Coker and another v. Sanyaolu (1976) 10 S.C. 203.

(6) Fadiora and another v. Gbadebo and another (1978) 3 S.C. 219.

(7) Idundun v. Okumagba (1976) 9-10 S.C. 124.

(8) Karimu v. Fajule (1968) N.M.L.R. 131.

(9) Kuma v. Kuma (1930) 5 W.A.C.A. 4.

(10) Nahman v. Odutola (1953) 14 W.A.C.A. 381.

(11) Ocean Estates Limited v. Pinder 2 A.C. 19.

(12) Oduola and others v. Coker and others (1981) 5 S.C. 197.

(13) Sanyaolu v. Coker (unreported), Federal Court of Appeal Suit No. F.C.A./L/282/77.

(14) Thomas v. Holder (1946) 12 W.A.C.A. 78.

(15) Wright v. Tatham (1834) 1 Ad and E1 3.

Statute referred to:–

Evidence Act, 1945.

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

By reason of multiplicity of cases, and the appeals thereon, which will come for mention in this judgment and in order to avoid confusion in terminology and in nomenclature, it would, perhaps, be of advantage for me to refer to the plaintiffs as the COKERS and the defendant simply as SANYAOLU (and I hereby do so) instead of the plaintiffs and the defendants, or variously, in the different appeals, as the appellant or the appellants, and the respondent or the respondents, according as to which party was appellant or respondent in the different appeals.

A clear understanding of the issues in dispute must necessarily start with an understanding of the historical account of each party’s derivation of title as contained in each party’s evidence, told over the years successively in the various cases.

The COKERS gave their account through the mouth of VICTOR LADIPO COKER (PW2 in exhibit 1), a civil engineer and one of the administrators of the estate of late VICTOR LEOPOLD COKER who was the father of the COKERS. For the purpose of easy identification of names, I will hereinafter most of the time refer to VICTOR LADIPO COKER as LADIPO and to their father, VICTOR LEOPOLD COKER as LEOPOLD.

Their story is that the land in dispute was a part of a large piece of land situate in Suru-Lere, belonging, from time immemorial, to the Oloto Chieftaincy family, which family made a grant of a piece of land of which the land in dispute was a part to one ALHAJI ALLI FAMU (sometimes referred to in the proceedings as Alhaji FAMU) of 48 Oluwole Street, Lagos, in 1922, who in turn, in the same year, sold the land to LEOPOLD, In his lifetime Leopold sold several plots of the land to purchasers in fee simple, one of whom was one JOSEPH OGUNBAYODE who with the consent of Leopold sold to a sub-purchaser, one ASHINOWU EKUNDAYO ADESHINA of 4, Fajulai Lane, Lagos, evidenced by an indenture dated 22nd February, 1944 (exhibit G).

The COKERS swore that on 31st March, 1950, Leopold died intestate. Up to the moment of his death nobody challenged his ownership of the large area of land. Ladipo and Mrs Shola Coker applied as personal representatives of the deceased (Leopold) for letters for administration. This was granted on 30th June, 1952 (EXHIBIT C).

Armed with letters of administration, the Cokers swore, Ladipo and Mrs Shola Coker sold several portions of the land in dispute to several people, undisturbed and unchallenged, including one Edna Phillips of 91 Agege Motor Road, Idi-oro, on 16th June, 1954 (exhibit H); one Muniratu Towobola of 3 Abeo Street, Surulere on 27th September, 1957 (exhibit J); and Malam Maazu Garubu of 55 Shifau Street, Suru-Lere on 30th October, 1954 (exhibit K).

They also sold a portion to one Michael Adediran Alatishe of 67, Ayilara Street, Suru-Lere on 10th September, 1959 (exhibit M). This grant was the subject of a subsequent dispute which led to the litigation in Suit No. LD/161/60 M. A. Alatishe v. H.R. Sanyaolu which was heard by Dickson, J. and determined in a judgment on 13th January, 1962 (exhibit N). I shall deal with that judgment later in the course of this judgment.

All these and others, the Cokers testified, were acts done by them in exercise of their right of ownership over the land in dispute without let or hindrance from anybody else until Sanyaolu came to disturb their grantee, Michael Adediran Alatishe.

Sanyaolu, on the other hand, traced his title to one AMIDA KAFFO who, he said, “was seised” [of the land in dispute] “in fee simple and sufficiently entitled to the hereditaments hereinafter described” (see: exhibit L). The said Amida Kaffo died in Lagos “some years ago intestate, leaving children his (sic) surviving the eldest of whom is Lamidi Kaffo’ (exhibit L).

With the consent and approval of the other children of Amida Kaffo, the said Lamidi Kaffo sold (exhibit L) the land in dispute to Sanyaolu whose full names were given in the deed (exhibit L) as AKONI HAMODU RUFAI SANYAOLU. I pause here to remark that it does not appear that the grant of letters of administration was ever made to anybody in respect of the estate of Amida Kaffo and that it was not disclosed how, and from whom, Amida Kaffo derived his title before he came, as described in exhibit L, to be “seised in fee simple” of the land in dispute.

The Cokers have therefore traced their title to Oloto Chieftainy Family while Sanyaolu has traced his to Amida Kaffo.

Dispute over the land in dispute erupted about 1960 when, by reason of alleged trespass by Sanyaolu, Alatishe, the grantee from the Cokers, took out a writ of summons in Suit No. LD/161/60 against Sanyaolu. It was the failure of that case before Dickson J. which compelled the Cokers, as Alatishe’s vendors to sue Sanyaolu in LD/310/65 in order to establish their title. I shall take these cases seriatim beginning with the 1960 case:

Suit No. LD/161/60 Alatishe v. Sanyaolu

In Suit No. LD/161/60 M. A. Alatishe v. H. R. Sanyaolu, Alatishe claimed a declaration of title to the land in dispute which was conveyed to him by conveyance registered as No. 23 at page 23 in Volume 114 of the Lands Registry, Lagos. The hearing, as I have said, came before Dickson, J., who dismissed the case by reason of the failure of Alatishe to prove the identity of the land he claimed, that is to say, to show that the land which Sanyaolu was in possession of, was the land conveyed to him by the Cokers in exhibit M.

But the learned trial Judge accepted Alatishe’s evidence that he erected a storey building on his land and therefore was entitled to possession. Yet, by some not easily comprehensible reasoning, the learned trial Judge held that although Alatishe was entitled to possession

“whether or not he is given possession is left to be decided.”

By reason of the judge’s refusal to grant him possession he refused to order an injunction. This was what he held:

“It is my judgment that on this aspect of the case the plaintiff knew of the defendant’s interest in the land either before he commenced building operations or at least during the course of it, but certainly not after.

I have considered the matter, and I think justice will be done that although the defendant is entitled to possession, I refrain from making such an order, but order that plaintiff do pay to the defendant value of the land. The plaintiff’s claim for an injunction fails.”

Accordingly he dismissed all Alatishe’s heads of claim, but ordered that he should pay to Sanyaolu the value of the land which he assessed at £10.

Appeal No. F.S.C. 100/1963

Both Alatishe and Sanyaolu appealed to the Supreme Court (Brett, Onyeama and Ajegbo, JJ.S.C.) in the Supreme Court Appeal No. F.S.C. 100/1963 against the judgment of Dickson, J. The court allowed Sanyaolu’s appeal against the order that Alatishe should pay him £10 as the value of the land, holding that:

“We can find no warrant, or precedent, however, for the order that the party shown not to be entitled to possession pay to the party entitled the value of the land; and presumably, thereafter continue in possession of the land. Although Mr Coker submits that the order was made in the exercise of equitable jurisdiction of the court, he did not suggest what principle of equity covered it.”

Their Lordships continued and said:

“What has happened is that the learned Judge has, in effect, ordered the defendant to sell land of which he is in possession to the plaintiff for a price fixed by the judge.

We do not think the learned trial Judge had jurisdiction to make such an order in this case and that order will be set aside.”

Their Lordships concluded the appeal with the order that:

“It is therefore ordered that the appeal of M. A. Alatishe from the judgment of the High Court, at Lagos in Suit No. LD/161/60–M. A. Alatishe v. H. R. Sanyaolu dated the 13th of January, 1962, be dismissed. It is ordered that the appeal of H. R. Sanyaolu from the judgment in the suit be allowed, judgment on the counter-claim is set aside and in place of it is substituted judgment for H.R. Sanyaolu the defendant for possession of the area edged yellow on the plan No. L. and L/B 2029 marked exhibit “H.””

And so, as between the competing interests of the subordinate grantees–Alatishe and Sanyaolu–victory was, for the meantime, for Sanyaolu.

It was only natural that Alatishe’s grantors, namely, the Cokers, should now brace up to fight the issue. They took out, on 7th June, 1965, in the High Court of Lagos, Suit No. LD/310/65.

LD/310/65 Mrs Shola Coker and Victor Ladipo Coker

v.

H. R. Sanyaolu

The Cokers claimed the land by the 10 conveyance by which the land was vested in them namely, conveyance No. 33 at page 33 in Volume 576 of the Register of Deeds kept at the Lands Registry, Lagos. It was the same land which, by conveyance No. 23 at page 23 in Volume 1144, they sold to Alatishe.

The Suit No. (LD/310/65) came before Kassim, J., who upheld Sanyaolu’s plea of estoppel per rem judicatem and dismissed the case. His reasoning for the dismissal is clearly set ou in the Supreme Court judgment on appeal against the said Kassim, J.’s judgment, to wit, SC.390/75 and reads:

“At the close of evidence, and after the address of Counsel in the case in hand the learned trial Judge in passages in his judgment made the following observations:

“now the crux of the dispute between the parties to this action is whether the plaintiffs are estopped from bringing this action. . . by merely giving evidence in the Alatishe’s case and not joining as a party the second plaintiff stood by and allowed the purchase (sic) from him and the first plaintiff to fight the battle about their title. The plaintiff must be held bound by the result of the fight put up by him with their acquiescence. He knew perfectly well that any order in the Alatishe’s suit affecting the title of Alatishe would equally affect theirs as the self same right and this was substantially in issue. . . I am of opinion that the defendant has shown satisfactorily that the subject matter in dispute in this suit was the same as in the previous suit, that is to say, that everything that is in controversy in this suit as the foundation of the claim for relief was also in controversy or open to controversy in the previous suit, that it came in question before a court of competent jurisdiction, and that the result was conclusive as the bon (sic) bind every other court. . . and. . . there is no doubt that the parties were the same person as the parties of the present proceedings. . . (Italics supplied).”

Appeal No. SC.390/1975

The Cokers went on appeal to the Supreme Court against Kassim’s judgment. The Supreme Court (Fatayi-Williams, Idigbe and Obaseki, JJ.S.C.) in SC.390/1975 allowed the appeal on the ground that estoppel per rem judicatem was wrongly applied by Kassim, J., to the facts before him, leading to a miscarriage of justice. Accordingly, the court ordered a trial de novo before another judge, in the High Court of Lagos.

Trial de novo

That was how the retrial came before Dosunmu, J., in the High Court of Lagos on 4th May, 1977, and on 23rd May, 1977 he entered judgment for the Cokers for a declaration of title of ownership to the land in dispute and injunction restraining Sanyaolu “from taking possession of the land.”

For the retrial the only oral evidence which was received from the Registrar of the High Court in charge of exhibits, one F. Fatai Abayomi Davies, who produced all the documentary evidence (exhibits) of the past proceedings (including the Supreme Court judgments and the conveyances) and the evidence of Ladipo (exhibit 1) (who, it is all agreed died in January 1976) before Kassim, J. These exhibits were numbered as exhibits 1, 2, and 3; A to O, and Q to U–letters which were the ones given to the exhibits when they were tendered in the earlier abortive trial. The other witness who testified was one Isaac Bodylawson, a licensed surveyor.

After the evidence of Mr Bodylawson, Chief Williams, Counsel for the Cokers, closed his case. Mr Osijo, of Counsel, for Sanyaolu did not call any evidence and closed his case also.

Sanyaolu appealed to the Federal Court of Appeal (hereinafter referred to as “the Court of Appeal”) in the Federal Court of Appeal, Appeal No. FCA/L/282/77.

F.C.A. No. FCA/L/282/77

The Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, JJ.C.A.) in a unanimous judgment, dismissed Sanyaolu’s appeal holding, as per the lead judgment of Kazeem, J.C.A.:

“On the whole, I am satisfied that the appeal lacks merit and that it ought to be dismissed, accordingly, I hereby dismiss the appeal and confirm the judgment of the learned trial Judge dated 23rd May 1977. I also award costs against the appellant assessed at N125.00.”

It is from this judgment of the Court of Appeal that Sanyaolu has now appealed to us in this appeal numbered as SC.36/1982. He filed three grounds of appeal as follows:

“(1) The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that the learned trial Judge of the Lagos High Court rightly admitted the evidence of PW1 at the previous trial before the Honourable Mr Justice J. O. Kassim when such evidence is deemed to be null and void and discard (sic) for purposes of trial de novo by virtue of and order of the Supreme Court.

(2) The learned trial (sic) Justices of the Court of Appeal erred in law when they held that the learned trial Judge of the Lagos High Court was right to hold that

‘I accept the plaintiffs’ evidence that the Oloto Chieftaincy family were the original owners of the land of which the area in dispute forms a portion and that the plaintiffs have successfully traced their title to them through subsequent purchasers when’:—

(a) No member of Oloto Chieftaincy family was called in evidence.

(b) None of the subsequent purchasers, as predecessors-in-title to the plaintiffs/respondents were called in evidence nor to identify exhibits E and F and execution thereto.

(c) And the surviving plaintiff/respondent was not called in evidence to:

(i) Identify exhibits E and F.

(ii) Account in evidence for the whereabouts of their predecessors-in-title or their representatives.

(3) The learned Justices of the Court of Appeal erred in law when they held that the learned trial Judge of the Lagos High Court was right when he held that the respondents herein were entitled to a declaration of title to the land in dispute and a Decree of injunction thereto, in spite of documentary evidence in exhibit ‘M’ and evidence on the record before the said trial Court that the aforesaid respondents had admitted to be out of possession since 1959, by their sale and conveyance of the freehold of the said land in dispute to one Michael Adeniran Alatishe.”

His Counsel, K. O. Tinubu, has set out in his brief five-paragraphed questions for determination in this appeal. He wrote:

“It is submitted that the questions which fall for determination at the hearing of the appeal may be summarised as follows:

(i) The admissibility or otherwise of the deposition evidence of a witness in a previous trial, when the matter is sent back to the court of first instance for trial de novo. Particularly, the ratio decidendi in the case of Fadiora v. Gbadebo (1978) 3 S.C. 219.

(ii) In the alternative, can a court trying a matter de novo purporting to act under section 34(1) of the Evidence Act, admit evidence, verdict given as well as judge’s findings adjudged to be inadmissible on the basis that prima facie they have been discarded or got rid of by an order for retrial–de novo?

(iii) The F.C.A. having made so much weather of the failure of the appellant to adduce evidence at the trial and based much of their findings and conclusions on this (sic) premises, what is the effect on the whole decision of the appellate court having regard to the recent decision of the Supreme Court in Alhaji Raji Oduola and others v. John Gbadebo Coker and others (1981) 5 S.C. 197, that a party who offered no evidence at the trial in the trial in the lower court is hereby not precluded from maintaining a ground of appeal that the decision/verdict is against the weight of evidence?

(iv) Proof of ownership in a claim for declaration of title and possession.Proof of due execution of a document as proof of ownership.

Presumption of ancient documents. Section 129 Evidence Law.

The correct interpretation of/and combined effect of:

(i) Johnson v. Lawanson (1971) 1 All NLR 56.

(ii) Idundun v. Okumagba (1976) 9 and 10 S.C.

(iii) Section 129 of the Evidence Law.

(v) Can a party after divesting himself of title to a property by sale and due conveyance, still be deemed to have anymore, interest therein as to bring an action for a declaration of title and possession (at which trial, he unequivocally and on oath, admitted the said sale and due conveyance and that the person he sold to has not reconveyed the land to him) just because the party to whom he sold, lost to a third party?”

In his oral argument in support of his brief, Mr Tinubu took up his complaints in a form which can be condensed and narrowed down to two issues (and these are two issues, upon which this appeal is determined), namely:

(1) Whether the previous testimony of the deceased Ladipo, before Kassim, J., in a trial held by the Supreme Court in exhibit 2 to be abortive, was rightly admitted, by Dosunmu, J. under section 34(1) of the Evidence Act, in the retrial?

(2) Whether the Cokers, after divesting themselves of the title to the land in dispute, by sale and conveyance, had still any more interest left therein on which to issue for a declaration of title and possession, merely because the party to whom they sold, lost to a third party?

Dealing with the first complaint, there can be no doubt that the “Victor Coker” referred to in the death certificate, exhibit 3, was Victor Ladipo Coker who had given evidence before Kassim, J. The purchaser of the land from the Oloto Chieftaincy family, Victor Leopold Coker, who died on 31st March, 1950, could not, obviously, have been the Victor Coker who gave evidence before Kassim, J. on 7th February, 1974.

And so, exhibit 3 establishes, without the least doubt, that Victor Ladipo Coker, on 4th May, 1977, when Dosunmu, J. received in evidence his previous testimony before Kassim, J. as exhibit 1, was already dead. It was precisely for such a situation that section 34 of the Evidence Act, in its subsection 1, made provision for such testimony to be received in evidence. Subsection 1 reads:

“34.

(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided—

(a) that the proceeding was between the same parties or their representatives in interest;

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.” (Italics supplied for emphasis).

Those conditions laid down in that subsection must be complied with and satisfied before the evidence given in the previous suit can be received as substantive evidence of the truth of what it states. This has been the attitude of the courts.

In NAHMAN v. ODUTOLA (1953) 14 W.A.C.A. 381 at 384 the West African Court of Appeal (per Coussey, J.A.) ruled against the admission of the previous evidence of a District Officer, one Mr Simpson, because the conditions laid down in section 34(1) of the Evidence Ordinance had not been satisfied before the admission.

The Federal Supreme Court reiterated the principle in ALADE v. ABORISHADE (1960) 5 F.S.C. 167 at page 173 where the court asserted

“that evidence given in a previous case can never be accepted as evidence by the court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case may be used for cross-examination as to credit but it is of no higher value than that.”

At common law, depositions and oral testimony given by a witness were admissible in a civil case (WRIGHT v. DOE d. TATHAM (1834) 1 Ad. and El. 3 at pp. 18-19) in a subsequent trial in proof of the facts stated, provided:

(i) that the proceedings are between the same parties or their privies;

(ii) that the same issues are involved;

(iii) that the party against whom, of whose privy, the evidence is tendered had on the former occasion full opportunity of cross-examination; and

(iv) that the witness is incapable of being called on the second trial.

The general rules of evidence contain the best evidence rule by which it said that the best evidence must be given and that no evidence will be given in substitution of the best evidence unless strictly under some laid down exception. Ordinarily, the opposing party is at a disadvantage in having evidence of a witness received against him whom he cannot see and cannot question in the current proceedings even though he had the opportunity of cross-examining the witness in the earlier proceedings.

It is not, therefore, asking too much for the law to require the party who is taking the advantage of the evidence of his witness being received as true without the witness appearing physically to testify, to strictly comply with the provisions of the section of the law bestowing upon him that advantage.

Once, however, the section has been complied with, the evidence is admissible. The fact that a retrial was ordered would render abortive not the evidence of the witness who testified in the abortive trial, where such evidence is admissible, but the judgment of the court in the said abortive trial. The judgment of the court cannot be used in support of a plea of res judicata since the judgment was nullified.

Obviously, since a retrial has been ordered and the case is to be heard de novo, the plaintiff must reprove his case as if there had been no earlier trial, but in doing this, he is not precluded from taking advantage of whatever the provisions of any law have for him, for example, he can use the previous evidence of a witness for the defence in the abortive trial to discredit that witness in cross-examination in the new trial; and, he can take advantage of section 34(1) of the Evidence Act to get the evidence of his witness in the abortive trial who has since died, or whose circumstances come under the rest of the provisions of section 34(1) of the said Act, admitted in the new trial.

Counsel for the appellant in this appeal, Mr Tinubu, in making his submissions, assumed that because the judgment of Kassim, J., was set aside by the Supreme Court and retrial ordered, the entire proceedings, or any parts thereof, before him, were of no effect and could not be made use of for any purposes whatever. It is in this context that one must read FADIORA v. GBADEBO (1978) 3 S.C. 219 at 236 with qualification.

Delivering the judgment of the court in the appeal, Idigbe, J.S.C., said inter alia:

“. . . therefore, the evidence and verdict given as well as the judges findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”

One specific instance where part of such proceedings can be made use of is in respect of section 34(1) of the Evidence Act where it is applicable. In view of the foregoing I am clearly of the view that the evidence of Victor Ladipo Coker was properly admitted in evidence.

I now turn to the second complaint, namely, whether the Cokers had any interest left (after they had sold and conveyed to Alatishe) upon which they could maintain an action for a declaration of title and possession, without a reconveyance to them. Put in another way, in the words of the appellant’s brief:

“Can a party after divesting himself of title to a property by sale and due conveyance, still be deemed to have any more, interest therein as to bring an action for declaration of title and possession (at which trial, he unequivocally and on oath, admitted the said sale and due conveyance and that the person he sold to has not reconveyed the land to him) just because the party to whom he sold, lost to a third party?”

To answer this question, one has to remember that there was a finding of fact by the High Court (Dosunmu, J.) that the Cokers (Victor Leopold Coker) bought a piece of land of which the land in dispute was a part, from Alhaji Famu, who in turn bought from Oloto Chieftaincy family who are the adjudged original owners of a large tract of land in Suru-Lere of which the land sold to the Cokers was only a part. Sanyaolu having sworn that he bought the land in dispute from Kaffo family, the competing titles, as was found by the Supreme Court when determining the earlier appeal in this case (Coker and Another v. Sanyaolu (1976) 10 S.C.203 at 219), were those of Oloto Chieftaincy family and Kaffo family.

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

“It is quite plain to me that, not only has there been no evidence identifying the land conveyed by exhibit “A” with that in exhibits “B” and “C”; but the plaintiff failed to take such steps, to produce in evidence what was available if he wished.”

Again, the learned trial Judge (Dickson, J.) also held that there was no proof of the letters of administration alleged granted to Mrs Shola and Ladipo Cokers; nor was there any evidence that Mrs Shola and Ladipo Cokers, in conveying to Alatishe, did so as the administratrix and administrator, respectively, of the estate of Victor Leopold Coker.

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

The answer to the second complaint of the appellant is that the Cokers are not precluded from maintaining the present action, even in the face of the evidence they had given that they had sold the land to Alatishe and conveyed to him without a re-conveyance to them, because of the findings made by the learned trial Judge, Dickson, J.

A person cannot, obviously, eat his cake and have it. This is simple common sense. And so, one cannot dispute the statement made by Ademola C.J., Western Nigeria (as he then was), in Ibadan High Court Suit No. 1/120/49 cited in Alhaji Raji Oduola and others v. John Gbadebo Coker and others (1981) 5 S.C.197 at 220, and referred to by the appellant in his brief, in respect of the land claimed in that case by Ibikunle family, namely, that a plaintiff cannot have what he himself says he has given away. A plaintiff who says he has sold his land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he has sold. But in the instant appeal, in respect of Alatishe v. Sanyaolu, the trial Judge (Dickson, J.) found that

(a) there was no proof by Alatishe that the land in dispute, which was in possession of Sanyaolu, was the land, or part of the land, which the Cokers conveyed to Alatishe; and

(b) that there was no proof that they (Mrs Shola Coker and Victor Ladipo Coker) were administratrix and administrator, respectively, of the estate of Victor Leopold Coker; deceased, since their letters of administration had not been produced.

Surely, by these findings, it had not been proved by Alatishe that the Cokers sold the land in dispute to him.

It now remains for me, on this second head of the complaints, to deal with Abudu Karimu v. Daniel Fajule (1968) N.M.L.R. 151–a case referred to by the Court of Appeal; relied on by the Cokers before that Court, and attacked by Sanyaolu in his brief before this Court.

The defendant in that case had argued, before the High Court, on appeal from the Ilesha Grade ‘A’ Customary Court, that the plaintiff who got judgment from the Customary Court, did not show the precise area of land he was claiming since his plan included some portions of land which he had sold to third parties and no longer owned. For the plaintiff it was explained that those portions were included only for the purpose of proving acts of ownership. The Supreme Court (per Bairamian, J.S.C.) gave its decision saying that:

“We do not think it is a good ground for setting aside the judgment of the trial Court when viewed only as a judgment between the parties in the case.”

The Court of Appeal after referring to the case (Karimu v. Fajule) in the present appeal, stated its view (per Kazeem J.C.A.) as follows:—

“I think it will suffice in this case to say that the submission of learned Counsel for the respondents is well founded. It would have been a different matter if Alatishe to whom the respondents have sold the land, was a party to the present suit. These grounds of appeal also fail.”

The principle to be derived from all this is that while ordinarily a person cannot be allowed to claim a declaration of title to land which he once owned but which he had divested himself of the ownership of, by a sale to a purchaser, each case must be examined against its own peculiar facts regard being had

(i) to the parties in the case;

(ii) the points which were raised and argued; and

(iii) the findings of the trial Court.

An examination of all these will show whether a party has stripped himself of the proprietary interest he has in the land by a sale of the land to a third party, bearing in mind always that a judgment between the parties in a case, binds the parties only except in those cases where the judgment binds privies, or the ancillary parties are caught by the principle of estoppel.

The High Court, in the instant case, was bound to enter judgment for the Cokers if on the relative strength of the evidence of titles adduced by them and Sanyaolu, they presented a stronger case for a better title than Sanyaolu.

The root of title of the Cokers had been traced to the original owners, namely, the Oloto Chieftaincy family, which family, was found by the trial Judge to be the original owners. The judge (Dosunmu, J.) held:

“I accept the plaintiff’s evidence that the Oloto Chieftaincy family were the original owners of the land of which the area now in dispute forms a portion, and that the plaintiffs have successfully traced their title to them through subsequent purchases.”

In land suits for declaration of title of ownership, it is the accepted law that where a plaintiff traces his title to one whose title to ownership has been established, the onus is on the defendant to show that his own possession is of such a nature as to oust that of the original owner: THOMAS v. HOLDER (1946) 12 W.A.C.A. 78. In that case (HOLDER-supra) like in the instant case on appeal, the appellant traced his title to Chief Oloto, the owner by native Law and Custom, while the respondent claimed to have bought the land from one Amida Bakare who in turn had purchased from one Lawani Ajakere whose title had not been proved.

And so, possession of a disputed piece of land by a defendant, although important for proof of title, is not always conclusive evidence of defendant’s title.

Thus, in ABINABINA v. ENYIMADU (1953) A.C. 207, the decision in Kuma v. Kuma (1956) 5 W.A.C.A. 4 was adopted and a plaintiff whose traditional history was preferred to that of the defendant’s was granted a declaration of title, as against the defendant who might have been in occupation of parts of the land in question for some considerable time without paying tribute to the plaintiff or his predecessor.

Again, a plaintiff whose root of title was traced to a conveyance in fee simple of the land in dispute was, in OCEAN ESTATES LIMITED v. PINDER (1969) 2 A.C. 19, granted title as against the defendant who made no attempt to prove any documentary title in himself, or in any third party, by which authority he was in occupation of the land.

Finally, Sanyaolu did not give evidence or call witnesses. He relied upon the evidence called by the Cokers. By a preponderance of evidence, based upon the strength of their case, the Cokers were undoubtedly entitled to succeed. The High Court and the Court of Appeal, by concurrent findings, adjudged the land in dispute in favour of the Cokers. Nothing which has been urged before us, in my view, would justify an interference by this Court of those findings. It was for this reason that Professor Kasunmu, Counsel for the Cokers, was not called upon to reply to the points made by Mr Tinubu, for Sanyaolu, the appellant.

Accordingly, this appeal must be, and is hereby dismissed with N300.00 costs to the Cokers, the respondents.

Sowemimo J.S.C. The first of the two points raised in this appeal concerned the admissibility of the evidence of a witness, in a previous trial which was abortive, being tendered in a second or subsequent trial under section 34(1) of the Evidence Act, the witness having died before the subsequent trial. The second point raised was whether the person who had conveyed a property to another can subsequently institute an action for declaration of title to that land when he had already been divested of such title.

With regard to the first point raised, the deposition of the deceased witness that is, Victor Ladipo Coker, 1st plaintiff, who gave evidence in the first trial, which was abortive, was exhibit 1. Learned Counsel for the appellant did not dispute that under section 34(1) of the Evidence Act the deposition was admissible, but his contention seems to be that the proper thing to do was to call another witness–second plaintiff–instead of tendering the deposition Ex.1. He also submitted in the alternative (rather feebly and without merit), that since the deposition was made in an abortive trial, it is therefore inadmissible on the basis of the decision in Fadiora’s case. He had to be reminded as my learned brother Aniagolu has done in his judgment, which I agree with, that his submission is misconceived. During the argument of learned Counsel for appellant, I requested him to relate the facts of the case in Fadiora to the principles in the ratio decidendi on which he relied. He cleverly ignored this request. If he had done so, he would have realised that Fadiora’s case dealt wholly with a preliminary ruling on a plea of res judicata. May I at this stage, refer to a portion of the judgment in Fadiora’s case (1976) 3 S.C. 219 at page 232, which reads inter alia:

“in the course of their submissions considerable use was made by learned Counsel of both sides of the case of Fidelitas (supra) and we think that, in the circumstance, we ought to set out succinctly the facts in that case and take a closer look at the case as a whole. From the manner in which Counsel have used this case, we get the impression that if a little care was given to the understanding of the facts of the case, there will be little misunderstanding of the principles. . .”

I wish to adopt the reasonings of the court as a reply to the argument of learned Counsel for the appellant before us, and say that if he had read the facts of the case cited by him with understanding, he would have appreciated the restrictive nature of the ratio decidendi in the case. The court did not, in that case (Fadiora), intend to give a comprehensive statement of the principles of the law dealing with the resulting consequences of an abortive trial, in subsequent proceedings. I have had to make this explanation in consideration of the judgments of my learned brothers Bello, Eso and Uwais, J.J.S.C., and say that in my opinion the ratio decidendi, cited by learned Counsel for the appellant, must be restricted to that case, and his reference to it as a general principle must be regarded as a statement made obiter dictum.

On the second point the judgment in Coker and another v. Sanyaolu (1976) 10 S.C. 203 decided that the land purported to be conveyed was uncertain and therefore the argument of learned Counsel for the appellant, that the Cokers had been divested of title to that land, is unsustainable.

The appeal therefore fails and it is hereby dismissed. The judgment of the Federal Court of Appeal is hereby upheld. Costs of N300.00 are hereby awarded to the respondent.

Bello, J.S.C. I had the advantage of reading in draft the judgment delivered by my learned brother, Aniagolu J.S.C. For the reasons stated by him, I agree the appeal should be dismissed with N300.00 costs to the respondents.

I think it is pertinent to say a few words on the submission of learned Counsel for the appellant based on the decision of this Court in Fadiora v. Gbadebo (1978) 3 S.C. 219 that the previous testimony of a witness in a trial which was subsequently held to be abortive would be inadmissible at the trial of the case de novo. The passage of the judgment of the court on which learned Counsel relied is at 236. It reads:

“We think, that in trials de novo the case must be proved anew or rather re-proved 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.”

I think, with respect, the main issue for determination in Fadiora’s case was whether a decision on res judicata made in limine of a trial which (the trial) was rendered abortive on appeal would give rise to a valid plea of estoppel in a trial de novo. The court held that it was a fundamental principle of the doctrine of res judicata that no finding of the court or of a jury which has proved abortive would give rise to such plea at a trial de novo. I think the court went too far in stating that the evidence of a witness at the abortive trial was inadmissible in the new trial. I consider that statement of the law to be an obiter dictum and therefore not binding as precedent. The evidence of such a witness is admissible under section 34(1) of the Evidence Act.

Eso, J.S.C. I agree with the conclusion reached in the judgment just delivered by my learned brother Aniagolu J.S.C. My learned brother very kindly gave me a preview of it in draft. I agree that the appeal be dismissed and it is hereby dismissed in the terms set out in the said judgment.

My learned brother has set out in admirable detail the facts of the case. The only point I would like to deal with is what my learned brother has correctly referred to as the first issue, to wit:

whether the previous testimony of the deceased Ladipo, before Kassim, J., in a trial, held by this Court to be abortive, was rightly admitted at the trial in the instant case before Dosumu J.

The issue really is the interpretation to be placed upon section 34(1) of the Evidence Act. Learned Counsel for the appellant, Mr K. O. Tinubu, has relied on the decision of this Court in Fadiora v. Gbadebo 1978 3 S.C. 219 as his authority for the proposition that the previous testimony of a witness in a trial held subsequently to be abortive could not be admitted in a later trial under section 34(1) of the Evidence Act.

I think, with respect, there is a confusion as to the true ratio of that case in this regard. What this Court dealt with in the Fadiora’s case, as per Idigbe J.S.C. is the issue of res judicata. In other words as Idigbe J.S.C. said (see p.235 of the report)—

“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 of a case on appeal before that Court.”

The court answered the question thus—

“We think that in trials de novo the case must be proved anew or rather re-proved 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. This is the reason why it is a fundamental principle of the doctrine of res judicata that no finding of the court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel and over the years this principle has been hallowed by a number of important decisions.”

I respectfully agree fully with this statement of the law without reserve. It has nothing to do with section 34 of the Evidence Act. I am of the firm view that the scope of section 34(1) of the Evidence Act is absolutely different from what was enquired into in the Fadiora case. Section 34(1) of the Evidence Act provides—

34.

(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided—

(a) that the proceeding was between the same parties or their representatives in interest;

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) That the questions in issue were substantially the same in the first as in the second proceeding.” (Italics mine.)

When a witness who has given evidence in a previous proceeding is dead, or he cannot be found, that is, his where about, are unknown, or the witness is no longer capable of giving evidence after the evidence in the aforesaid previous proceedings, or where the other party to the dispute has kept him out of the way or it would entail unreasonable expense or delay to obtain him, then the evidence he had given in that previous proceedings, subject however to the conditions given in the subsection, that is (a), (b) and (s) (supra), is admissible in a subsequent proceedings on the ground of relevancy.

It will then not matter whether or not the subsequent proceedings is completely unconnected with the previous proceeding, [again this is subject to conditions (a), (b) and (c) (supra)] or it is a trial de novo of a previous trial which has been aborted. Section 34(1) of the Evidence Act therefore has nothing to do with the decision of this Court in the Fadiora case.

I agree with the way my learned brother has dealt with the second issue in this case in his judgment.

It is for all these reasons and the reasons given by my learned brother in the lead judgment that I will dismiss this appeal, and it is hereby dismissed.

Uwais, J.S.C. I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. I entirely agree with the judgment.

I only wish to add that when in Samuel Fadiora and another v. Festus Gbadebo and another (1978) 3 S.C.219 at 235; (1978) 1 LRN 97 at 104 this Court said—

“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 cause must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given 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. . . This is the reason why it is a fundamental principle of the doctrine of res judicata that ‘no finding of the court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel;’ ”

It was clearly, not expressly concerned with the admission of evidence previously given in an abortive trial vis-a-vis section 34 subsection (1) of the Evidence Act. The observation insofar as it applies, by implication, to the admissibility of the evidence of a dead witness, who testified in a previous trial which has been declared a nullity, must, in my view and with profound respect, be regarded as made per incuriam. I therefore agree with my learned brother Aniagolu J.S.C. that the evidence of late Victor Ladipo Coker was properly admitted during the trial de novo.

For these and the reasons contained in the lead judgment the appeal is hereby dismissed with N300.00 costs to the respondents.