Comfort Adesiyan Oderinlo V John Babafemi Sowande (1965)

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BAIRAMIAN, J.S.C. 

This appeal relates to an application by the above respondent J.B. Sowande before the Registrar of Titles to be registered as owner of freehold property at 18 Kano Street, Ebute-Metta, to which application the appellants objected for reasons which need not be stated. The appellants will be referred to as the objectors, and respondent to this appeal as the applicant.  The Registrar refers in his ruling to the judgment of Johnston, J. of 17th December, 1953 in Suit No. 307/1953, which states:

“I find that the first claimant only is entitled to the use and occupation of the land in question and under section 8(1) of Cap. 80 I direct the Prescribed Officer to issue a Certificate of Title to the first claimant.”

The first claimant is the present applicant, the second and the third are the present objectors; and Cap. 80 of the 1948 Laws is now the Glover Settlement Act Cap. 75 in the 1958 Laws of the Federation etc. The Registrar’s ruling is as follows:

‘The Glover Settlement Act Cap. 75 does not extinguish but preserves under section 13 thereof the reversionary right of the Oloto Chieftaincy Family. The applicant shall therefore be registered as owner of an estate for his life remainders to his children subject to the reversionary right mentioned supra. A restriction shall also be entered prohibiting registration of any disposition affecting the land without consent of both objectors.”

The applicant complained to the High Court of Lagos against that ruling, and that court on 3rd December, 1962 allowed his appeal and decided as follows:

‘The ruling, that ‘a restriction shall also be entered prohibiting registration of any disposition affecting the land without consent of both objectors’ is set aside.”

It is from this decision of the High Court that the objectors have appealed, complaining, in substance, that the learned judge erred in holding that the objectors had “no registrable interest in the property to warrant the exercise by the Registrar of his powers of entering a restriction on the Register.”

At the hearing of this appeal, we thought that the vital question was whether the applicant could be registered under the Registration of Tides Act in accordance with the Registrar’s ruling:  “as owner of an estate for his life remainders to his children subject to the reversionary right mentioned supra.”  viz., of the Oloto Chieftaincy Family and we asked learned counsel to consider this question in the light of the provisions of the Act.  Counsel for the applicant stated that it was not a case within section 75 (which relates to settled land within the meaning of the Settled Land Acts, 1882 to 1889) and that the applicant’s case for registration must, if his application was to be entertained by the Registrar, come under section 6(a) of the Act, which provides that:

“Subject to the provisions of this Ordinance:

(a) any person who has power to sell, or Is entitled at law or in equity, to an estate in fee simple in any land, whether subject or not to incumbrances, may apply to be registered in the registry as the owner of the fee simple of that land; and

(b) [here irrelevant]  Learned counsel for the applicant conceded that the applicant was not entitled to apply for registration, and the Registrar had no power to register him for an estate in the terms of his decision, as it was not an estate in fee simple within the meaning of section 6(a). Although this was not a ground of appeal, the Court cannot allow a registration to stand which is admittedly ultra vires the Registrar to make under the Act. It is unfortunate that this point was not taken in the objectors’ appeal to the High Court. It concludes the matter and no other question need be considered.

The Court orders that the registration of Tide MO 2336 for the property at 18 Kano Street, Ebute-Metta in the applicant’s name be deleted; the applicant shall bear his costs here and below, and so shall the objectors; and if the objectors have paid any costs, the applicant shall refund them.

Other Citation: (1965) LCN/1229(SC)