Adebona V Amao (1965)

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BRETT JSC

This is an appeal by the defendant against the judgment of the High Court of Lagos by which the plaintiff was granted a declaration of title according to native law and custom to a piece of land at Ibadan by Odunfa Street, Ebute Metta; and it was further ordered that the Register of Titles maintained under the Registration of Titles Act be amended by the deletion of the name of the defendant as the owner of the fee simple and the substitution of the name of the plaintiff.

According to his Statement of Claim, the plaintiff bought the land in question from the Oloto family in 1927 for a cash payment of £50 and was put into possession of the land. He was given a receipt, produced as Exhibit 2, in which the payment is acknowledged and the vendors state that “we shall be ready to convey unto the said purchaser the land aforesaid at any time that we may be called upon to do so.” The trial judge in the present case has found that a transaction of sale according to customary law was completed in 1927, by the payment of money followed by delivery of possession, but in 1952 the plaintiff brought an action in the former Supreme Court against the head of the Oloto family to enforce the undertaking to convey the land, and in doing so he impliedly admitted that the legal title to the land was still vested in the Oloto family and had not passed to him by virtue of a customary sale. Judgment in that case was given in the plaintiff’s favour in 1954, but the family appealed and in 1955, before the appeal was determined; they conveyed the land to the present defendant. Their appeal was dismissed in May, 1956, and they then proceeded to execute a further conveyance in favour of the plaintiff.

The land is situated within a registration district, and the defendant duly applied to have his conveyance registered under the Registration of Titles Act. The plaintiff made a similar application and the applications were consolidated, with the plaintiff’s application, as the later in time, treated as an objection to the defendant’s application. There was another objection from a person who succeeded in establishing that the land fell within the Glover Settlement, and that his family had the possessory rights conferred by the Glover Settlement Act, with the result that the Registrar of Titles dismissed both applications. All three parties appealed to the High Court, but in that court, to quote from the judgment of De Lestang, C.J., “both objectors withdrew their appeals, and the second objector”, i.e., the present plaintiff, “informed the court that he was no longer opposing the applicant’s appeal.” The appeal was therefore allowed, and the defendant was ordered to be registered as the owner of the land, but with a note of the rights of occupation possessed by the other objector.

The judgment of the High Court on the appeal from the Registrar was given on the 10th November, 1958. At some time in 1958 the plaintiff instituted proceedings against the present defendant and the head of the Oloto family, but he withdrew these proceedings, and the present suit was instituted in 1960 against the defendant alone. In his Defence the defendant pleaded res judicata by virtue of the proceedings under the Registration of Titles Act, and if this plea succeeds that will conclude the matter. In rejecting it the trial judge said-

“Although the second objector withdrew his appeal and `informed the court that he was no longer opposing the applicant’s appeal’, yet there is, in my view, no logic in the proposition that his rights vis-a-vis the defendant had therefore been determined by the judgment on appeal.

To my mind the position was that the matter went back to the Assistant Registrar with a direction that the defendant’s title was registrable. This judgment needless to say, did not confer an indefeasible title on the defendant, nor did it mean that the title of the defendant was any better than the plaintiff’s, nor does it, in my view, create an estoppel against the plaintiff; I think that the decision of the Court of Appeal in Dances Way [1962] 2 All E.R. 42 supports this view.

The relative strength of the titles of the parties has never, in my view, been adjudicated upon, and it now falls for consideration and determination in this suit.”

We do not take this view of the question. The plaintiff’s title was in issue in the proceedings under the Registration of Titles Act and he had the opportunity in those proceedings of resisting the defendant’s application on the ground that he himself had owned the land since 1927. The statement he made in evidence in this case that “I told the appeal court that I had commenced a suit against the defendant and was not pursuing my appeal” is not borne out by the judgment of De Lestang, C.J., but even if he did say anything of that sort it would not have converted the High Court’s decision into the equivalent of an order of nonsuit as regards his objection and application, and we consider that he is bound by the judgment in the defendant’s favour. If this were not so, it would mean that every case of disputed title to land within a registration district might be fought out twice, once on first registration and once in proceedings for rectification of the register, with an appeal to this Court in each case. A litigant cannot defeat a plea of res judicata by putting forward a fresh case which he could have put forward in the former proceedings, and the fact that the plaintiff now relies on a sale at customary law whereas in the former proceedings he relied on his written conveyance does not avail him.

The decision of the Court of Appeal in England in Re Freehold Land in Dances Way [1962] 2 All E.R. 42, to which the trial judge referred does not appear to us to be any authority to the contrary. That case concerned the decision of the Chief Land Registrar to remove from the register a note of an overriding interest, and it is true that Lord Evershed, M.R., and Upjohn, L.J., expressed the view that the Registrar’s decision would not constitute res judicata, but Lord Evershed’s reason was that it was not a final decision, having regard to the course of proceedings between the parties, and Upjohn L.J., said that it had been “conceded on both sides that whether an entry of an overriding interest is or is not made, it does not affect the validity of the overriding interest if such it be.” Diplock, L.J., held that the Registrar’s decision would constitute res judicata. None of the members of the Court of Appeal held or even suggested that a determination of a disputed issue as to title in proceedings under the Land Registration Act, 1925, could never constitute res judicata.

The Registrar of Titles has a duty to act judicially in deciding disputed issues as to title and as he is legally authorised to take evidence under section 91 of the Registration of Titles Act he is a “court” within the definition in section 2 of the Evidence Act. In our view his decision is a judgment within the meaning of section 53 of the Evidence Act, which reads-

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

Chief Coker, for the plaintiff, has drawn attention to section 9 (1) of the Registration of Titles Act, which reads-

“In investigating a title with a view to first registration, the registrar may accept and act on less than legal evidence or less than the evidence ordinarily required by conveyances if he is satisfied of the truth of the facts to be proved, and may act

Other Citation: (1965) LCN/1198(SC)