Mushud O. Bada V. Mrs. H. F. Pereira & Ors (1974)
LawGlobal-Hub Lead Judgment Report
ELIAS, C.J.N.
This is an appeal from the judgment of Lambo, J., in the High Court of Lagos State which was given in favour of the plaintiffs/respondents against the defendant/appellant for a declaration of title in fee simple to all that piece or parcel of land situate lying and being at 136, Griffith Street, Ebute-Metta, damages for trespass and an injunction restraining the defendant/appellant, his servants and or agents from committing further acts of trespass to the said land; there was also granted an order for rectification of the Register of Titles by removing therefore the names of the defendant/appellant and his predecessors in title as registered proprietors and substituting therefore the names of the plaintiffs/respondents.
The plaintiffs’ case is that the land in dispute formed a portion of a larger piece of land granted to one David Adefuyi Thomas on January 11, 1905 and registered as No. 27 at p. 53 of Vol. 46 of the Register of Deeds kept in the Land Registry in Lagos. It is common ground that the identity of the land is not in dispute and that both parties claim through one common ancestor, David Adefuyi Thomas, who was at his death in 1913 survived by two legitimate children, Mary Fanny Oladamade Ajibabi Dekalu and Adenkunle Olusoji Dekalu. Mary died in 1921 intestate and without an issue, and the property thereupon devolved on Adenkunle who, by an Indenture of Mortgage dated January 2, 1926 (Ex. B2), conveyed the said propeny to the executors and trustees of one Michael Daniel Elliott by way of mortgage to secure a loan of 100 (N200). In October 1926, acting with the knowledge and consent of the mortgagor, Mr. Adekunle Dekalu, the mortgagees, sold the land to one J.T. Nelson Caulcrick, the immediate predecessor in title of the plaintiffs.
The defendants, for their part,contended that the conveyance of the land in question by Mr. Adenkunle Dekalu to the executors and trustees of the said Elliott is void by reason of the fact that, when he mortgaged the propeny to secure the aforesaid loan, he had already transferred the legal estate to the mortgagee and had nothing left to sell to Caulcrick in 1926. The averment obviously overlooks the fact that the property was sold by the mortgagees in the exercise of their statutory power of sale. The learned trial judge observed as follows:
“It is to be noted that challenge on the validity of the Mortgage transaction is by both Kehinde Thomas and Modupe Thomas, children of the said mort gagor, Adekunle Olusoji Dekalu Thomas. By what purports to be a Deed of Reconveyance (Exhibit B3) dated 23rd May, 1956, they sought to repay to one Ellen Jane Subulola King the loan of ‘a3100 obtained by their father from the estate of Daniel Elliott. If, as claimed by the Defence, the mortgage of the property by Adekunle Olusoji Thomas is void then “eo ipso” its purported reconveyance to his children is equally void as well. But I do not share the views of the Defence that the mortgage transaction of the 2nd January, 1926, as evidenced by Exhibit B2, is void. It is my opinion that, as the heir-at-law of David Adefuyi Thomas, the mortgagor was well within his rights to deal with the property “in the way he did. It follows from this that the subsequent sale of the property by the Mortgagees is valid and that J. T. Nelson Caulcrick acquired a good title to it.”
Also with regard to the purported reconveyance of the property to Caulcrick, the learned trial judge held as follows:
“In my view, the purported reconveyance of the property by Ellen Jane Subola King is void since the property in question had been sold and conveyed to Caulcrick as far back as October 1926: vide Exhibit J. That being so, all other transactions under and by virtue of the void Deed of Conveyance (Exhibit B3) are ‘ipso facto’ void and of no effect For the same reason, I hold that the Land Certificate (Exhibit K) is spurious and therefore confers no title on the defendant As regards the Plaintiffs’ claim for rectification of the register, S.61(3) of the Registration of Titles Act provides as follows:
“61(3) The Register shall not be rectified, except for the purpose of giving effect to an over-rising interest, so as to effect the title of the owner in possession:
(a)…..
(b) Unless the immediate disposition to him was void or the disposition to any person through whom he claims otherwise than for valuable consideration was void; or
(c) unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him.”
On the facts of this case, I think the Plaintiffs are entitled to a decree of declaration of title in their favour; they are also for the same entitled to have the register rectified by deleting there from the name of the defendant as the registered proprietor of the said land.”
As regards the claim for trespass, the learned trial judge found that there was preponderance of evidence that the plaintiffs were in uninterrupted possession of the land for 43 years from 1926 to 1969 when the defendant wrongfully entered upon the land by virtue of a void Land Certificate (Exhibit K).
From this decision on the present appeal has been brought to this court on the following four grounds:
“1. The learned trial Judge erred in law in making an order “rectifying the Register of Titles No. MOO-840 by removing therefrom the names of the defendant and his predecessors in title”
PARTICULARS OF ERROR
(i) The defendant’s predecessors in title were not parties to the action in which the order was made and in any event their names have already been cancelled at the date of the judgment;
(ii) The Appellant’s estate or interest in the land in dispute is protected by or under the provision of section 53(2) of the Registration of Titles Act;
(iii) The order for rectification is in contravention of the provisions of section 61(3) of the Registration of Titles Act.
- The learned trial Judge erred in law failing to observe that the Appellants being registered owners are vested by law with estate in fee simple and accordingly the claims for declaration of title, trespass and injunction are misconceived and are not claims which the court ought to have entertained or have power to grant.
- The learned trial Judge erred in law in holding that the defendant’s title is void when a purchaser of land registered under the Registration of Titles Act is not required to inquire into any evidence of title other than those specified in section 31 of the Act aforesaid.
- Judgment is against the weight of evidence.
Learned counsel for the appellant submitted that the question to be decided on this appeal could really be reduced to one point, namely; What are the rights of a holder of a Land Certificate issued under the Registration of Titles Act Cap. 181 to a person other than the first registered owner, i.e. to a subsequent owner it was learned counsel’s submission that the first registered owner has a more vulnerable title than a subsequent owner, that the Land Certificate is required by the Act to be issued by the Registrar only after the most thorough investigation, that once the Land Certificate has been issued to a registered owner he is entitled to all the benefits conferred upon him by section 48 of the Registration of Titles Act, and that such a registered owner has an indefeasible title. He further submitted that any intending purchaser of land the title to which is registered does not have to look beyond the register in order to satisfy himself about the validity of the title he wishes to purchase: Rehawi v. Aromashodun 14 W.A.C.A. 204 at p. 207; N.I.P.C. v. Bank of West Africa (1962) 1 ALL N.L.R. 556, at p. 560. It was learned counsel’s final submission that any defect in the title of the first registered owner does not affect the title of the second registered owner. As regards the rectification ordered by the learned trial judge, learned counsel submitted that section 61(3)(c) does not apply to the appellants because the section only relates to owners in possession.
Mr. Sikuade, learned counsel for the respondents, replied that the subsequent registered owner of land must not be allowed to use the Registration of Titles Act as an engine of fraud and that, contrary to Chief Williams’s argument that the evidence dealing with title of the land prior to the issue of the Land Certificate should not be looked into, learned counsel contended that the antecedents of the Land Certificate should be gone into in order to ascertain whether the appellant had acquired any title at all. It was his view that if the seller to the appellant had no title, then the appellant could have none. The issues are to be found in the pleadings as to whether or not both appellants and respondents were claiming title from the same source. The seller to the appellant was doing so by virtue of a Deed of Reconveyance (Exhibit B4) which attempted to reconvey what had already been conveyed to another by Exhibit J. It was alleged and established by evidence before the court that, at the time when the application for registration was made by the predecessors in title of the appellant, it was fraudulently stated therein that the land was vacant, that is, that there was no building upon it at all. There was evidence that the appellant did not make sufficient inquiries before he purchased the land.
Learned counsel further submitted that, if the appellant were in possession at all, they are mere trespassers and that section 61 (3)(c) of the Registration of Titles Act refers only to owners in possession according to law. He pointed out that the learned trial judge found the respondents to be in possession before giving them judgment against the appellants as trespassers, and that the respondents’ possession had been disturbed. His final submission is that the respondents have an ‘over-riding interest’ in terms of section 52(1) of the Act, and that they are entitled to claim the protection of section 61(1)(d), section 61(2) and section 61(3).
We think that the appellant’s submission cannot be accepted in view of our decision in Mohammed Lababedi v. Lagos Metal Industries Ltd. (1973) 1 S.C. 1 in which we held as follows:
“It cannot be too strongly emphasised that proof of fraud or forgery is fatal to any claim that a plaintiff may seek to establish under section 53, no matter at what stage this is shown to have occurred in the chain of transactions leading to the plaintiff’s dealing in registered land. It is as well to point out that the reference to the “registered owner” in section 53(1) does not necessarily mean the first registered owner; equally, the reference to “the subsequent registered owner” in section 53(2) does not necessarily mean the second registered owner. In both cases the registered owner could be the third and fourth or indeed any other combination of registered owners.”
We added a little further on the following observation:
“The result of this amalgam is to make section 53 as a whole not only inelegant in its drafting but also liable to misunderstanding unless its true import is grasped. It is, accordingly, incorrect to assume that fraud or forgery can under section 53 of the Act vitiate only the title of the first registered owner and not that of a second or subsequent registered owner.”
With regard to the argument of learned counsel for the appellant that section 48 of the Registration of Titles Act is conclusive proof of the title of the registered owner who need not make inquiries before the purchase, it is sufficient to draw attention to the following remark which we made in the same case:
“It seems to us that, in order to invoke section 53 of the Registration of Titles Act successfully, a plaintiff must prove that he is a purchaser for value of the registered land in question. We have said that, although the appellant in this appeal has expressly pleaded that he was a purchaser for value, he did not give any evidence at all at the trial. We are of the view that the mere production of the land certificate (Exhibit F) could not be regarded as conclusive that he was a purchaser for value.”
In the result, the appeal fails and it is hereby dismissed. The judgment of Lambo J. in Suit No. LD/6/1970 delivered on February 8, 1971, is hereby affirmed, together with the order for costs. Costs assessed at N120 are awarded to the respondents in this court against the appellant.
Other Citation: (1974) LCN/1849(SC)
