OYEDELE (APPELLANT)
v.
OGUN AND ANOR (RESPONDENT)
(1975) All N.L.R. 340
Division: Supreme Court
Date of Judgment: 5th May, 1975
Case Number:
Before: Coker, Fatayi-Williams, JJ.S.C.
APPEAL from the High Court, Lagos State.
The appellant applied to register his land under the Registration of Titles Act but both respondents objected the application, each claiming a different portion of the land. The Registrar of Titles held that appellant failed in his claim in toto, and that the 1st objector also failed in his claim for which he sought registration; but that the second objector should be registered as proprietress of the freehold estate in the land claimed by her.
Appellant appealed to the High Court unsuccessfully, but the case of the first objector was ordered to be re-heard by the learned Registrar of Titles.
The High Court, upheld the case of the second objector because the Limitation Decree vested in her an indefeasible title to the land. Appellant further appealed to the Supreme Court.
HELD:
(1) that the appeal in respect of the order concerning the first objector fails for although the order was made without his asking for it- which should have disqualified making of such an order yet appellants Counsel had consented to the matter being sent back for a re-hearing before the Registrar;
(2) that the appeal succeeds in respect of the second objector, for she had not based her right to registration on the Limitation Decree, and under the provisions of the Registrations of Titles Act, she had no title which could be validly registered under the Act.
Appeal allowed in part.
Cases referred to:
Perry v. Clissold [1907] A.C. 73 at 79
Mrs Gladys Ayodele Smith v. E. A. Shodipe & anor. S.C. 73/68 decided on 29th January, 1971.
Da Costa v. Ikomi [1968] 1 All N.L.R. 394.
Ayodele v. Olumide [1969] 1 All N.L.R. 233.
Agboola v. Abimbola [1969] All N.L.R. 287.
In Re Atkinson & Horsells' Contract [1912] 2 Ch 1 at 9.
Statues referred to:
Registration of Titles Act Cap. 181, SS 6 (a), 8 (1), 9, 38, 52 (h), 62.
Limitation Decree N8 of 1966, SS. 15(2)(a), 20.
APPEAL from the High Court Lagos State.
SUIT NO. S.C. 181/74
Chief F. R. A. Williams (Mr A.L.A.L. Balogun with him) for the Appellant.
Mr K. Sofola for the 1st Respondent.
Chief O. Awolowo (Mr A.O. Sogbesan with him) for the 2nd Respondent.
COKER, J.S.C. (Delivering the Judgment of the court)-The proceedings herein were commenced before the Registrar of Titles, Lagos, where the present appellant was the applicant. The present respondents were described as the objectors to the application of the applicant to be registered as the proprietor of the freehold estate in property situate at and known as plots Nos. 5, 12, 13 and 14 of the Wright's Estate Settlement in Ebute-Metta. Before the learned Registrar of Titles, the applicant gave it in evidence that during the years 1945 and 1946 when he was working as a bricklayer to one Rufus Adekunle Wright (now deceased) he bought the four plots of land Nos. 5, 12, 13 and 14 of the Wright's Estate Settlement. He gave it in evidence that he had paid Rufus Adekunle Wright by instalments for he produced in evidence three purchase receipts received in evidence as Exhibits A, A1 and A2. Adekunle Wright did not give him a conveyance of the land until he died but the Administrator-General who then administered the estate of Rufus Adenkunle Wright gave him a conveyance which he produced in evidence as Exhibit B. Prior to obtaining Exhibit B in 1954, and perhaps he was alarmed at the court's decision that Rufus Adekunle Wright (then deceased) was only a life-tenant of the property, the applicant had approached the Trustees of the Settlement of Wright's Estate and repurchased the same land from them. He obtained from these Trustees a receipt He obtained from these Trustees a receipt produced in evidence as Exhibit A3. It also appeared that some 20 years ago the present applicant had sued the 2nd objector, Mrs Shogbesan, in the High Court, Lagos for trespassing on to plot No. 14 but that in that proceeding the applicant, as the plaintiff, was non-suited. The applicant however agreed before the learned Registrar of Titles that the 2nd objector had had her building standing on plot No. 14 for the best part of 20 years. Furthermore, and as stated before, in 1958, according to the applicant, he had repurchased the land from the Trustees of the Settlement of the Wright's Estate and obtained from them the purchase receipt Exhibit A3 and a conveyance produced in evidence as Exhibit C. The applicant also produced before the learned Registrar of Titles a copy of the Wright's Settlement (Exhibit E), the Order of Court appointing the Trustees of the Settlement (Exhibit D) and a copy of the judgment in the action between himself and the 2nd objector (Exhibit F).
The 1st objector only laid claim to plots Nos. 5 and 12 which he claimed to have purchased in 1959 from the late Rufus Adekunle Wright and produced in evidence his receipts Exhibits G & G1. He later got a conveyance executed in his favour by the Administrator-General as the administrator of the estate of Rufus Adekunle Wright, who had since died, and these were admitted in evidence as Exhibits K and L. He also supported the story of the applicant that Rufus Adekunle Wright in 1950 sold plots Nos. 4 and 15 to the applicant. In support of the case of the 1st objector, Emmanuel Ayoade Shodipe, one of the Trustees of Wright's Estate Settlement, testified that when Rufus Adekunle Wright started to sell plots of land out of the Wright's Estate Settlement, there was no allotment plan. He however commissioned an allotment plan to be made but died before the lay-out plan was completed. The witness Shodipe testified that both the applicant and the objectors had lands on the Wright's Estate Settlement and that indeed a building had always stood on the land of the 2nd objector and that there was a shed on the land of the 1st objector. When he was re-examined in the course of his evidence before the learned Registrar of Titles, he testified thus:-
"The applicant brought only 2 plots within the Estate, one at Adebiyi Street and one at Adewale Street. The applicant used to be a member of our Association. He had left the Association."
In the same way, the 2nd objector gave evidence before the learned Registrar of Titles. She stated that in 1949 she bought plot No. 13 and plot No. 14 from the late Rufus Adekunle Wright and paid him an amount of N50 for which she obtained a receipt Exhibit M. After the death of Rufus Adekunle Wright she paid the balance of £50 to the Administrator-General, the administrator of his estate and produced the receipt Exhibit M1. She later obtained a conveyance of the land from the Administrator-General. She produced this conveyance and it was admitted in evidence as Exhibit N. She further testified that she started building on her land in 1955 and completed the building in 1959, since when she had let out the house to rent-paying tenants.
We indicated at the beginning of this judgment that the respondents herein were before the Registrar of Titles describe as objectors. We propose in this judgment to keep that designation thereby ascribed to them but it is necessary to point out that apart from objecting to the registration of the applicant as the proprietor of the plots of land claimed by him, each of these objectors has sought as well to be registered as proprietor or proprietress of the plots of land he or she is also claiming. The learned Registrar of Titles only summarised the position thus in the course of his judgment:-
"These four applications-Mo6283, 6918, 6881 and 6873 are consolidated since they all relate to the same subject-matter plots 5, 12, 13 and 14 in Block 11 of the Wright's Allotment.
The applicant in Mo6283, Gabriel Fashoyin Oyedele (hereinafter referred to as the applicant) is seeking to register the four plots. The applicant Mo6879 and 6881 Phillip Banjoko Ogun (hereinafter referred to as the first objector) is seeking to register plots 5 and 12 while the applicant in Mo6918 (hereinafter referred to as the 2nd objector) is seeking to register plots 13 and 14."
The learned Registrar of Titles was at considerable pains to examine all aspects of the case of the applicant: he came to the conclusion however that he did not establish his title to the land claimed by him and did not prove the execution of his conveyance or conveyances, Exhibit B, from the Administrator-General and Exhibit C from the Trustees of the Wright's Estate Settlement. The learned Registrar of Titles also considered the case of the objectors. He held that apart from having failed to prove the execution of their several conveyances produced by them in evidence as grounding their respective titles to the lands claimed by them, the objectors had produced no evidence whatsoever by which the land sold to them by Rufus Adekunle Wright could be identified under the plot numbers which they now claim since, according to them, there was no lay-out plan of the lands of the Wright's Estate Settlement when Rufus Adekunle Wright sold to them and the lay-out plan was not completed before he died on the 24th December, 1950. The learned Registrar of Titles then dismissed the case of the 1st objector. With respect to the 2nd objector, the learned Registrar of Titles recounted the evidence of her possession of the land and found as a fact that she had a building on the land for some 20 years past and that indeed for 13 years after the case in which he was non-suited, the applicant had done nothing to express his intention to lay claim to the lands comprised in the claim and occupied by the 2nd objector. On this point the learned Registrar observed as follows:-
"From 1955 to date a period of thirteen years the 2nd objector remained on the land exercising the ordinary right of ownership. To my mind, the title of the applicant if any or that of his predecessor-in-title has been extinguished (See Perry vs. Clissold [1970] AC.73 at p.79). For these reasons, I direct that plots 13 and 14 of the Wright Allotment plan to be registered in favour of the 2nd objector. The applications of the applicant and 1st objector are dismissed."
The applicant, i.e. G.F. Oyedele, appealed against the decision of the Registrar to the High Court, Lagos, where his appeal was heard by Taylor, Chief Justice. In the High Court, the learned Chief Justice on appeal dealt extensively with the effect of the Limitation Decree No.88 of 1966 on the titles of the appellant and the 2nd objector as well as with the provisions of sections 38, 52(h) and 62 of the Registration of Titles Act (as amended by the Lagos State Edict No. 17 of 1968) and concluded that the Registrar of Titles was right to order the registration of the 2nd objector as the proprietress of the freehold estate on plots Nos. 13 and 14. The learned Chief Justice concluded his judgment thus:-
"I therefore hold that the learned Registrar was quite in order when he held that the 2nd objector's title should be registered in respect of plots 13 and 14.
As for the other two plots, i.e. 5 and 12 it seems to me that I ought to look further into the order which should be made between the applicant and the 1st objector. Both parties failed because of this rather careless manner in which the application was conducted in the court below without any endeavour being made to call witness to the execution of vital deeds. The Registrar is not specifically vested with the power to non-suit.
He shall register or refuse to do. On appeal however I am of the view that these parties ought to be allowed to prove their title again to those two plots. I therefore order a retrial in respect of those two plots and dismiss the appeal in respect of plots 13 and 14. The second objector is entitled to costs against the appellant."
The present appeal has been brought to this Court by the applicant, now appellant, against the decision of the High Court, Lagos. There is only one appeal for the 1st objector, Mr P.B. Ogun, has not appealed against the order asking that his claims to plots Nos.5 and 12 of the same allotment should be retried before the learned Registrar of Titles. The claims of the appellant however, and as stated before, extended to plots Nos. 5, 12, 13 and 14 so that his eventual success on those plots must of necessity affect the order of the High Court, Lagos, concerning plots Nos. 5 and 12.
Before us on appeal, the argument ranged around the competing interests or rather the competing strengths of the respective claims to title made by the parties. On behalf of the appellant it was submitted, concerning the 2nd objector, that her claim to title should have been dismissed, firstly because her claim to title as against the present appellant had been adjudged worthless in previous proceedings, secondly, because in any case she has not derived her root of title from the admitted owners of the land in question and thirdly because the grounds upon which her claims had been upheld both by the learned Registrar of Titles and the High Court, Lagos, i.e. long possession, acquiescence, limitation acts, etc., are all but competent since these are all merely defences, legal and/or equitable, and could only at best enable her to resist the claims of the appellant but not to found her own claim to registration. With respect to the 1st objector, it was argued on behalf of the appellant that the learned Chief Justice in the High Court was in error to send back the case concerning the title of these lands to the Registrar of Titles since there was no issue concerning the registration or the execution of the respective documents and that in any case that objector had not appealed to the High Court and had not asked for the order made by the learned Chief Justice. Learned Counsel for the appellant however conceded that in the proceedings he had grounded his title on the conveyance Exhibit C and that as that conveyance carries no plan characterising or demarcating with any precision the lands claimed by him, he could only at best in the present proceedings obtain an order for a retrial.
We observe that the concession of learned Counsel for the appellant is of considerable importance and may be of much greater significance than was envisaged in the course of the argument. The 1st objector, P.B. Ogun, had already obtained an order of the High Court of Lagos for a retrial of his claims to be registered and he must of necessity join issue with the appellant at that second trial with respect to plots Nos. 5 and 12. That order subsists as well in favour of the appellant for the retrial of his own claims to those plots. Learned Counsel for the 1st objector supported the judgment of the learned Chief Justice on appeal and indeed pointed out that it was only fair for the competing claims to be retried as no consideration had yet been given as it should have been to the absence of any plan on the appellant's conveyance Exhibit C. On the face of these facts, the appeal of the appellant against the order of the retrial made in favour of the 1st objector must fail and it does fail. For the avoidance of doubt, we would make it clear that the resultant position is that the question of the determination of the title to these plots Nos. 5 and 12 is left at large for it is fair to point out that the learned Registrar of Titles found that neither the appellant nor the 1st objector had made out his claim to title to these two plots on the Wright's Estate Settlement.
It is not in dispute that in the Lagos High Court Suit No. LD/81/55 (Exhibit F) the present appellant as plaintiff therein had sued the 2nd objector as defendant on a writ endorsed as follows:-
"The plaintiff's claim against the defendant is for the sum of £50 being special and general damages for trespass committed by the defendant on the land of the plaintiff at Adebiyi Street, Wright's Estate, Ebute Metta, on the 24th day of
January, 1955. The plaintiff also claims against the defendant an order setting aside a Deed of Conveyance dated the 30th day of June, 1952, and registered as No. 39 at page 39 in Volume 927 of the Registrar of Deeds kept in the office at Lagos."
The Administrator-General who had executed a conveyance to the 1st defendant therein (that is the 2nd objector in the present proceedings) was joined as a 2nd defendant to that action. The land concerned in that action was the same as plots Nos.13 and 14 concerned in the present proceedings and the Deed of Conveyance sought by the plaintiff (i.e. appellant herein) in that action to be set aside is Exhibit N in the present proceedings and one or rather the only one conveyance on which the 2nd objector has based her claim of title to these plots. The plaintiff in Exhibit F failed and his claim to set aside the conveyance Exhibit N was dismissed whilst he was non-suited in his claim for damages for trespass. In the course of the judgment in that case and concerning the competing claims of the parties thereto to the title, the learned trial Judge in Exhibit F observed thus:-
"The plaintiff admitted that the land in question forms part of the Wright's estate and is conveyed by a Deed of Settlement. The defendant admitted that the land originally belonged to the father of the late Mr Adekunle Wright. The plaintiff has not shown a legal title from the Trustees of the Wright's Estate Settlement nor has the defendant shown how the late Adekunle Wright had inherited the land from his own father. The plaintiff's title and the defendant's title apparently rest on the title of Mr Adekunle Wright and it is only possible to deal with the case on the basis that both the plaintiff and the defendant are at best squatters on the land or lands claimed by them."
There has been no improvement on the claims of the 2nd respondent since Exhibit F and it is worthy of note that in the present proceedings the learned Registrar of Titles commenting on the claim of the objectors to titles stated thus:-
"Finally neither of the objectors have called the Administrator-General or any members of his staff to prove the execution of these conveyances and neither of them is up to twenty years old. There has also been no proof as to how the estate of Rufus Adekunle Wright became vested in the Administrator-General. In effect, the recitals in Exhibits 'K', 'L' and 'N' have not been proved and this in my view is fatal to the case of the objectors (See Gbamigbala's case). For these reasons I hold that the 1st and 2nd objectors also failed to establish their root of titles as emanating from the Wright's Estate."
In the course of his argument before us, learned Counsel for the 2nd objector conceded indeed that the 2nd objector had no valid title to the land in dispute but he maintained that she had unquestionably been in possession of plots Nos. 13 and 14 since at least 1950 during which period she ostensibly exercised dominion over the said land as owner thereof and during which period she defeated the appellant in the proceedings produced in evidence as Exhibit F. Learned Counsel for the 2nd objector also argued that plots Nos. 13 and 14 were allocated to the 2nd objector by the Association of Wright's Estate Owners of Land of which the appellant was (at any rate at the time of such allocation) the moving spirit and that she had been in possession thereof ever since. Learned Counsel for the 2nd objector further argued that the claims of the appellant, insofar as they are grounded on conveyance Exhibit B and the conveyance Exhibit C, that the conveyance Exhibit B has been adjudged to be worthless inasmuch as that conveyance did not originate from the rightful owners and with respect to Exhibit C that that conveyance does not contain a plan or map of the land purported to be assured thereby; learned Counsel submitted therefore that in these circumstances and taking into consideration that the little of both the Trustees of Wright's Estate Settlement and of the appellant to the property had been extinguished in virtue of the provisions of section 20 of the Limitation Decree No. 88 of 1966, the possession of the 2nd objector should entitle her to be registered as the proprietress of the freehold estate in the land in question.
Both the learned Registrar of Titles and the Chief Justice of the High Court of Lagos on appeal had found that the appellant proved no title whatsoever to the land concerned. The appellant at the time of the proceedings Exhibit F, i.e. 1958, based his claim to the land on the conveyance produced then and in that proceedings as Exhibit C but produced in the present proceedings as Exhibit B. The recital of title in that conveyance expressed to be made "between the Administrator-General of Nigeria as Administrator of the Estate of Rufus Adekunle Wright (deceased) (hereinafter called the grantor) of the one part and Gabriel Fasoyin Oyedele of No.14, Berkelay Street, Ebute-Metta in the Mainland of Lagos, Nigeria (hereinafter called the grantee) of the other part", reads as follows:-
"WHERE an estate and interest in the property described and herein intended to be hereby conveyed was vested in one Rufus Adekunle Wright AND WHEREAS the said Rufus Adekunle Wright on the 30th day of April, 1948, did sell the said property to the grantee for the sum of £30:thirty pounds sterling but died intestate at Lagos on the 24th day of December, 1950, and before he could execute a deed of conveyance to the grantee AND WHEREAS the grantor was granted Letters of Administration of the estate of the said Rufus Adekunle Wright by the Supreme Court of Nigeria on the 6th day of April, 1951, AND WHEREAS by an Order dated the 24th day of March, 1953, the Supreme Court, Lagos, did order that the grantor should execute this conveyance to the grantee . . ."
Manifestly, these recitals describe no valid title and the judgment in Exhibit F given on the 7th February, 1958, said that much. In the meantime, however, and by order of the old Supreme Court dated the 17th September, 1956, i.e. Exhibit D, Trustees of the Wright's Estate Settlement were appointed. The Deed of Settlement itself was produced in evidence in the present proceedings as Exhibit E and it is clear from it, as well as from the judgment of the Supreme Court in SC.73/68, Mrs Gladys Adoyele Smith v. E.A. Shodipe & anor.(unreported but decided on the 29th January, 1971) that Rufus Adekunle Wright claimed by the appellant in Exhibit E to be the owner of the land concerned (and as well as the 2nd objector in Exhibit N) was not absolute owner and not in any position to convey any absolute title in the lands concerned to the appellant or anyone else. In the judgment of the Supreme Court in SC.73/68, supra, the Supreme Court observed thus:-
"The effect of this judgment and Order, to our mind is to clear any doubt which anyone might have entertained about the efficacy of the Deed of Settlement of 1859; in other words, the settlement still exists. It is from this standpoint we approach the judgment of the High Court now before us on appeal. The order of this Court as stated above is a beacon upon which any court in Nigeria must draw its light in matters relating to Rufus Alexander Wright's Deed of Settlement . . ."
We now have to consider the lands contained in the Settlement in so far as they affect the defendants/respondents in this case. It cannot be denied that Rufus Adekunle Wright had dealt with all landed properties in the Settlement as if he was the only beneficiary under the Settlement. The respondents in this appeal cannot say they were unaware of the Deed of Settlement and the claim put up by the Trustees and the appellant since 1947. Evidence abounds on record that they knew everything. The 1st respondent did not start to build on the land till 1952. The title conveyed to the respondents by Rufus Adekunle Wright was no more than his rights, title and interest. All these have ceased and are at an end on his death."
The appellant knew about all this and saw the trend of events. On the 1st June, 1959, he went to the Trustees of the Settlement and obtained the conveyance which he produced in evidence in the present proceedings as Exhibit C. The new conveyance acknowledges the existence of the Deed of Settlement, Exhibit E, and the exclusive right of the Trustees thereunder to sell the land and convey a valid title. But, the conveyance Exhibit C, although stated in the habendum to contain a plan of the land conveyed by it, did not so carry a plan and in view of the intractable mix-up in the demarcation of the respective lands held by competing claimants due to the several and conflicting lay-out plans over the whole area, the conveyance Exhibit C without a plan must be and is indeed as described by the learned Registrar of Titles and the Chief Justice of Lagos State worthless. Thus, in virtue of both Exhibits B and C the appellant had and has now again failed to make a good title to the land in dispute, that is plots Nos. 13 and 14. After the judgment in Exhibit F, and since the 17th February, 1958, when that judgment was delivered, he did nothing to assert his claims of trespass against the 2nd objector even though he was only non-suited on that claim. It was only by the present proceedings begun on the 3rd June, 1966, that he had sought again to assert those rights.
The learned Registrar of Titles took the view that by his long acquiescence in the continued possession of the 2nd objector, the appellant must be considered as having abandoned his claims to the land. We do not think so. He obtained the conveyance Exhibit B in 1954 and in 1955 he instituted the proceedings Exhibit F against the 2nd objector, which proceedings ended on the 17th February,1958. On the 1st June 1959, he obtained Exhibit C from the Trustees of the Settlement of Wright's Estate and on the 3rd June, 1966, he applied to be registered as the proprietor of the freehold estate in the land by virtue of Exhibit C. The application was in respect of plots Nos. 5, 12, 13 and 14 of the lay-out and there is some evidence that with respect to the plots other than those claimed or occupied by the 2nd objector, the appellant did claim to have let out portions of them to rent-paying tenants.
Both the learned Registrar of Titles and the Chief Justice in the High Court however held that the title of the appellant to the lands in question, as well as the claim of his vendors in Exhibit C, had been extinguished by the Limitation Decree No.88 of 1966. Section 20 of that Decree reads as follows:-
"20. On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shall be extinguished."
In view of the provisions of section 20, it is necessary to look at the provisions of other sections of that Decree. Section 15(2) (a) prescribes that no action could be brought to recover land after the expiration of twelve years of adverse possession in the defendant and if that is read into section 20, it means that after the expiration of twelve years of adverse possession the title of the person who could have brought an action to recover land shall be extinguished. It far from clear when it was reckoned that the adverse possession of the 2nd objector herein commenced but in the course of her evidence before the learned Registrar of Titles, she stated that she built a house on the land between the years 1955 and 1959. She obtained her conveyance Exhibit N on the 30th June, 1952, and that conveyance states that Rufus Adekunle Wright had sold the land to her as far back as the 7th May, 1949. The appellant himself claimed to have bought from Rufus Adekunle Wright on the 9th May, 1949 (see his Purchase Receipt from Rufus Adekunle Wright, Exhibit G). Truly, the 2nd objector also obtained a Purchase Receipt from Rufus Adekunle Wright which is recited in her conveyance Exhibit N. The Purchase Receipt was produced in evidence as Exhibit H and is dated the 7th May, 1949. There was therefore only a difference of some two days between the respective dates of their purchases from Rufus Adekunle Wright but their vendor Rufus Adekunle Wright never a