A. Latunde Johnson And Amusa Onisiwo & Ors (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Real Property—Registration of Title—Unregistered incumbrance– Appeal from Notice—Equities—Estoppel—Registration of Titles Ordinance judgment of(No 13 of 1935) (Nigeria), section 54—Ibid., meaning of Court.
” any unregistered estate “—Rectification of Register, ibid., sec. 61.
Real Property—Partition—All co-owners not parties—Transaction voidable not void.

Facts

The houses Nos. 68 and 70 Martins Street, Lagos, were inherited 54 undivided property by Salimotu, Lawani and Amodu. In 1925, after Amodu’s dieath, Lawani and the first three defendants, Amodu’s children, purported to partition the property, without the participation of Salimotu, and executed cross-conveyances whereby No. 68 was conveyed to the first three defendants. In 1936 the first three defendants leased No. 68 to the fourth defendant. The lease was registered under the Lands Registration Ordinance, 1924, but not under the Registration of Titles Ordinance, 1935. In 1939 Salimotu got judgment against Lawani for her share of the rents of Nos. 68 and 70, and in 1940 she sued Lawani and the first three defendants for a partition of the whole property and by consent No. 70 was given to Salimotu and No. 68 was divided equally between Lawani and the first three defendants. Immediately afterwards Lawani’s share was attached and sold to Chacra, and Chacra’s title was registered under the Registration of Titles Ordinance. Chacra subsequently transferred his interest to the plaintiff.

Plaintiff claimed an order setting aside the lease of 1936, and possession of No. 68 from fourth defendant. The defendants pleaded that whatever interest the plaintiff had was subject to the lease of 1936, and the fourth defendant pleaded estoppel.

It was found as a fact, which wap accepted by the Court of Appeal, that plaintiff had had notice of the lease of 1936, and the trial Court dismissed the action and ordered the rectification of the Register of Titles by registering the lease of 1936 as an incumbrance on plaintiff’s title.

Plaintiff appealed on the grounds, inter (ilia, (i) That the cross-conveyances of 1925 and the lease of 1936 were void as all the co-owners were not parties. (ii) Relying on section 54 of the Registration of Titles Ordinance; that plaintiff, having a registered title, was not affected by notice of the lease of 1936, as it had not been registered. In reply it was submitted by defendants that the registration under the Lands Registration Ordinance was sufficient. (iii) That the order for rectification, of the Register was wrong.

Held

1. The lease of 1936 was not void, but merely voidable, and Salimotu, the only person at whose instance it could have been avoided, had adopted it by suing for and recovering her share of the rents.
2. While registration under the Lands Registration Ordinance was not sufficient to cause the lease of 1936 to cease to be ” unregistered ” within the meaning of section 54 of the Registration of Titles Ordinance, that section was not an answer to fourth defendant’s equitable defence of estoppel.
3. The trial Court was right to order rectification of the Register.

Semble, it would have been open to the Court to consider that it would be unjust to rectify the Register if an innocent third party had meanwhile purchased from the plaintiff.

Appeal dismissed.