G. A. Odeneye V Oyeyipo Alakata (1977)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
This is an appeal against the judgment of the High Court of Lagos State (Bakare, J.) given on appeal from the Acting Deputy Registrar of Titles (Mr. Olusola Thomas) who dismissed the objection of the appellant to an application for first registration of property at Denton Street, Ebute Metta under title No. M08390 and ordered the registration of the respondent as owner of the freehold estate in fee simple in the property.
The facts which formed the basis of the proceedings are as follows:
The Oloto Chieftaincy family originally owned absolutely under native law and custom the parcel of land referred to in the proceeding as the land in dispute which we will hereafter refer to as the land in respect of which the respondent applied to be registered owner. The Oloto Chieftaincy family on the 5th day of July, 1969 gave receipt Exhibit ‘C’ for 50pounds paid by the respondent as price of this piece or parcel of land (the family) sold to the respondent and on the 20th day of July, 1969 executed a conveyance, Exhibit A, in respect of the land in his favour.
On 2nd day of October, 1969, the respondent made a written application for extension of time to lodge his document for first registration under Registration of Titles Act. He paid 2pounds late fee. There was no formal order and if there was, none (granting extension of time) was exhibited. However, it appears the application was advertised and the appellant filed his objection to it.
The Registrar of Titles heard the matter, dismissed the objection and ordered the applicant to be registered.
The objector’s appeal against the Acting Deputy Registrar’s judgment failed and being aggrieved, the objector has brought this further appeal to this court. The appellant’s case was that he bought the parcel of land in 1967 but only obtained conveyance Exhibit E from the Oloto family on 20th December, 1969, and in February, 1970 made the application for first registration. This application was not taken along with the application of the respondent and after hearing evidence on the objection, the learned Acting Deputy Registrar of Titles in the closing paragraph of his judgment delivered on the 24th day of March, 1972 said:
“Exhibit “A” (applicant’s conveyance) was executed on 20th July, 1969 and application for first registration made on 2nd October, 1969 as shown by the Lands Registry’s stamp on the document. Exhibit E (the objector’s conveyance) was executed on the 20th December, 1969, and application for first registration made on 2nd February, 1970 as stamped thereon on the document. As between these two instruments, it is apparent Exhibit ‘A’ has priority over Exhibit E and the applicant’s title must be preferred.
The objector has testified that he had spent 5000pounds on the building over the land in dispute and claimed to be in possession. He has not proved acquiescence or standing by on the part of the applicant and the applicant has established a superior title to the land (see Da Costa v. Ikomi SC.733/66 (unreported) delivered in the Supreme Court on 20th December, 1968 and Agboola v. Abimbola SC.366/67 (unreported) delivered in the Supreme Court on 4th July, 1969. The objection must be dismissed with costs. I order that the applicant be registered as the owner of the land claimed.”
The appeal lodged by the objector to the High Court was heard and dismissed by Bakare, J., on the 14th day of May, 1974, in the following terms:
“The Registrar in the court below painstakingly considered the issues before him and I am unable to say that his judgment is against the weight of evidence.
Accordingly, the appeal fails and is hereby dismissed.
Finally, I wish to add this point for future guidance of the Registrar of Titles. For the sake of clarity, record of proceedings emanating from his office should indicate where Section 5 of the Registration of Titles Act is relevant, whether extension of time was granted by the High Court or the Registrar.”
It is against this dismissal of the appeal to the High Court that this appeal has been lodged and the most substantial point taken, as we shall see in the course of the judgment, arose from the remark made by the learned appellate Judge by way of advice to the Registrar of Titles on the need to indicate whether extension of time was granted by the High Court or by the Registrar.
Of the 5 grounds validly filed, grounds 1, 2, 3 and 4 were argued before us. These grounds read:
“(1) The learned trial Judge erred in law and on the facts in failing to hold that the Registrar, having rejected the plan attached to Exhibit ‘A’, any evidence adduced to relate Exhibit D to the land conveyed (other than the description contained in the habendum of Exhibit “A”) amounts to Secondary Evidence of the description of the land conveyed in the deed tendered as Exhibit “A” and inadmissible in evidence to show the extent of land conveyed by virtue of the deed of conveyance tendered as Exhibit “A”.
We observe that the learned appellate Judge was erroneously referred to as the learned trial Judge in this ground.
(2) The learned Registrar as well as the learned Judge erred in law and on the facts in dismissing the objection of the objector and holding that the land is registrable as an estate in fee simple absolute in favour of the applicant when:
(a) Having ruled that the plan attached to the Deed of Conveyance Exhibit “A” was inadmissible, there was no plan attached to the said Deed of Conveyance, and the land conveyed by virtue of Exhibit “A” could not be ascertained.
(b) The bearing and distances of the boundaries of the land to be registered, and the co-ordinates of the beacon marking the boundaries of the said land were not set out in the Deed of Conveyance and also there was no definite description of the land in the habendum of the conveyance to enable the land to be located by survey at any time.
(c) There is no evidence on record to show that the land is sufficiently located on a general map provided by the Director of Surveys.
(d) No Deed of Conveyance had been tendered in evidence in the proceedings.
(3)The court erred in law in failing to hold that on the facts accepted by him, the respondent’s Conveyance Exhibit “A” was void in so far as regards the grant or conveyance of the legal estate in the property sought to be registered on the following grounds:
(a)The application for the registration of the Conveyance was not made within the time limited under Section 5 of the Registration of Titles Act.
(b)There was no admissible evidence that any extension of time for the registration of the conveyance was granted by the Registrar (even if there was evidence that application was made for such an extension of time).
(c)The Registrar had no power to grant the extension of time purported to have been granted in the present case and as such the extension of time so granted (if any) is void and of no effect.
(d)The objector had no notice of the application for the extension of time within which to apply for registration and was not aware of the grant of an extension of time (if any) in favour of the applicant.
(4)The learned Judge having upheld the rejection in evidence by the Registrar of the plan attached to Exhibit “A” (not being a plan countersigned by the Surveyor-General) erred in law in holding that extrinsic evidence of the said plan was admissible to identify the land conveyed by Exhibit “A”.
PARTICULARS OF ERROR
(a)A plan which is not a part of a Conveyance and which is not referred to in the Conveyance is not admissible in evidence and will not be admissible with reference to a conveyance which is void for uncertainty as to the land conveyed thereby.
(b)The conveyance Exhibit “A” was void for uncertainty as to the land conveyed and accordingly no extrinsic evidence is admissible to identify the land so conveyed.”
These 4 grounds were not argued separately by counsel. Grounds, 1, 2 and 4 were argued together while ground 3 was dealt with separately. Ground 5 had been struck out and ground 6 which was the omnibus ground and complained of the judgment being against the weight of evidence was abandoned.
Chief Obafemi Awolowo, learned counsel for the objector/appellant, submitted in support of grounds 1, 2 and 4 that the learned Deputy Registrar of Titles having rejected the plan drawn at the foot of the conveyance Exhibit A which plan was referred to in the habendum as or “describing more particularly the land conveyed” ought to have held that there was no description of the land conveyed. He further submitted that Exhibit D the plan of the land to be registered, signed by the Licensed Surveyor and countersigned by the Surveyor-General which was submitted along with the application and the Deed Exhibit A was secondary and extrinsic evidence which ought to have been rejected on the ground that it tended to add to the contents of Exhibit A and was therefore inadmissible.
To buttress his arguments, learned counsel referred us to Sections 131 and 132 of the Evidence Act and subsections 1 and 2 of Section 65 of the Registration of Titles Act, Cap. 181 Vol. 5 Laws of the Federation of Nigeria 1958. He concluded his submissions in support of this ground by emphasising that the intention behind the production of Exhibit D was to add to the contents of Exhibit A.
In reply, Mr. G.O.K. Ajayi, learned counsel for the respondent submitted that the Registrar of Titles has power under Section 65 of the Registration of Titles Act to admit the plan Exhibit D which does not seek to contradict, vary or alter the contents of the Deed Exhibit A but only to identify the land referred to in the Conveyance Exhibit A for the purposes of registration.
The main question raised by the three grounds (grounds 1,2 and 4) is the question of admissibility of the plan Exhibit D. This plan, although made before the execution of Exhibit A was not countersigned by the Director of Surveys till after the execution of the conveyance.
Mr. Abolade Coker, P.W.3 who prepared the plan gave evidence at the hearing that when he was instructed to prepare Exhibit D, he was told by the applicant (who is respondent in this appeal) that it was to be a proper survey for registrable instrument. He further stated that the pillar numbers shown in Exhibit D are all shown in the plan attached to Exhibit E (the appellant’s/objector’s conveyance). He explained this to be due to the fact the plan Exhibit D was earlier in point of time than the plan attached to Exhibit E.
We find ourselves unable to accept the submission of learned counsel for the appellant.
The question raised leads us to an examination of the habendum of the deed Exhibit A in order to ascertain whether the plan Exhibit D was tendered to add to or vary the contents of Exhibit A. The portion of the habendum reads:
“The “Vendor” as original owner and with the knowledge, consent and approval of the Oloto Chieftaincy family and Beneficial owner hereby grant and convey unto the purchaser all piece or parcel of land situate lying and being at Denton Street by Market Street in the Mainland of Lagos Nigeria and which are more particularly described and delineated with its dimensions and abuttals on the plan drawn below these presents and thereon edged “Red”.” (Underlining ours)
It turned out and was discovered that the plan drawn below the conveyance did not comply with the requirements of Section 23 (1) of the Survey Act, Cap. 194 which reads:
“No map, plan or diagram of land
(a)if prepared after 1st day of June, 1918 shall be accepted for registration with any registable instrument which is required by any written law to contain a map, plan or diagram and ………………..
(b)if prepared, in the case of land in the Eastern or the Western Region after the 20th day of October, 1897 or in the case of land in the Northern Region after the 16th day of May, 1918, shall save for good cause shown to the court, be admitted in evidence in any court.
Unless the map or diagram
(i)has been prepared and signed by a surveyor or is a copy of map, plan, or diagram so prepared and signed by a surveyor as being a true copy and
(ii)has been examined by the Survey Department and bears the countersignature of the Director or Regional Director.”
The conveyance Exhibit A, is an instrument within the meaning of Section 2 of the Land Registration Act Cap. 99 Vol. 4 Laws of the Federation of Nigeria and Lagos 1958 and under Section 6 of the said Act (Land Registration Act) it is a registrable instrument, its registration being compulsory. Moreover, its registration is dependent upon the instrument containing a proper and sufficient description, and a plan of the land conveyed (see Section 9(1) Land Registration Act Cap. 99 Laws of the Federation of Nigeria and Lagos). Finally, its registration is further made subject to the plan being signed by a surveyor (Section 9(4) Land Registration Act Cap. 99 Laws of the Federation of Nigeria and Lagos).
Since this was an application for first registration, the above provisions rendered the plan drawn at the foot of the conveyance Exhibit A, which was not signed by a surveyor nor countersigned by the Director of Surveys unacceptable for registration with the conveyance.
The rejection of this plan in no way affected the validity of the conveyance, Exhibit A, as it did not in any way render the contents of the habendum unmeaningful. The parcel of land conveyed is still described in general terms in the habendum as “being at Denton Street by Market Road in the Mainland of Lagos.”
However, for purposes of registration under Section 65(1) of the Registration of Titles Act, the land must be surveyed to the satisfaction of the Registrar and the Director of Federal Surveys. Section 65(1) reads:-
“Except as mentioned in this Section, the Registrar shall not register any freehold or any leasehold having more than 20 years to run, unless the land has been surveyed to his satisfaction and to the satisfaction of the Director of Federal Surveys.” (Underlining ours)
We are in no doubt the wide powers invested in the Registrar by the Act in regard to surveys of lands to be registered or already registered. From the provisions of subsections 2 and 3 of Section 65 of the Act (Registration of Titles Act) which are set out hereunder it is clear that, provided, that the land is sufficiently definite to enable the land to be located by survey at any time, the Registrar has discretionary power to register the land without survey. These subsections read:
“(2)Where the description of the land is, in the opinion of the registrar, sufficiently definite to enable the land to be located by survey at any time, or such land has been located to the satisfaction of the registrar on a general map provided by the Director of Federal Surveys, the registrar may in his discretion register the land without a survey, but may at any time require the land to be surveyed, or himself cause it to be surveyed at the expenses of the registered owner, when, in his opinion, a survey has become necessary to avoid confusion with other registered land or land sought to be registered.
(3)Where land is registered without having been surveyed, a note to the effect shall be made in the register, and in such case the rights of every registered owner of the land or of a charge on the land shall extend only over such area of land as is in fact comprised in the grant or lease.”(Underlining ours)
Further, when land is registered without survey, the Registrar has power under the same subsection, i.e. Section 65 (2) of the Act, if a survey has become necessary to avoid confusion with other registered land or land sought to be registered, to require the land to be surveyed, or may himself cause it to be surveyed at the expense of the registered owner.
However, those subsections are not directly material to the question raised in this appeal but have been referred to, to show the extent of the discretionary powers invested in the Registrar and the relevance of a map or plan in applications for first registration.
As the location of the land covered by Exhibit A was sufficiently described to remove any uncertainty about the land affected, the acceptance of an identical survey plan Exhibit D (duly countersigned) in preference to the plan drawn on Exhibit A was in compliance with and in the contemplation of the provision of Section 65(1) of the Registration of Titles Act: Exhibit D has quite rightly been classified as extrinsic evidence. We observe, however, that it was not tendered to contradict, vary or alter the contents of Exhibit A. It was put in evidence for the purpose of identifying the land sought to be registered having been conveyed by Exhibit A. At any rate, no evidence tending to establish such fact was led. We are therefore unable to accept the submission of learned counsel for the appellant that it is inadmissible.
Quite apart from the provisions of the Registration of Titles Act, it is the law that extrinsic evidence is admissible to identify a piece of land sufficiently described and referred to in a Deed of Conveyance or Lease or other documents. In this respect, the following statement of the learned Authors of Halsbury’s Laws of England 4th Edition are particularly relevant:
“Extrinsic evidence is admissible to put before the court the same knowledge of the subject matter of the deed as was in the possession of the parties to it at the time of its execution. It may also be admitted where the description of the boundaries is general or ambiguous, and the ambiguity is latent………” (Vol. 4 Halsbury’s Laws of England 4th Ed. Paragraph 859 page 371) ”
Extrinsic evidence is however admissible both to ascertain where necessary the meanings of the words used and to identify the persons or object to which they are to be applied. …….” For example, to connect the language of a deed with the property conveyed and since the meaning and the application will depend upon the circumstances surrounding the author at the time when the words were used the same principles require that evidence of such circumstances should be admitted.” (Vol. 12 Halsbury’s Laws of England 4th Ed. Paragraph 1490 page 622)
This statement is enshrined in our Statute Law, the Evidence Act Section 132 subsections (4) and (8) of which provide as follows:
(4)”In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers or may probably have been intended to refer or which identifies any person or thing mentioned in it, such facts are hereafter called the circumstances of the case.
(8)If the language of the document though plain in itself, applies equally well to more objects than one, evidence may be given both of the circumstances of the case and of statements made by any party to the document as to his intention in reference to the matter to which the document relates.”
The latitude to adduce extrinsic evidence to explain the circumstances of the case is further expanded by Section 133(1) and (3) which read as follows:
(1)”Sections 131 and 132 apply only to parties to documents, and their representatives in interest and only cases in which some civil right or civil liability is dependent upon the terms of a document in question.”
(3)”Any party to any document or any representative in interest of any such fact for any purpose other than that of varying or altering any right or liability depending upon the terms of the documents.”
There were no Nigerian cases cited to us on this point. There are a few English authorities, however, in which the question has been given adequate consideration by the House of Lords and the Privy Council.
The first case we wish to refer to is Bank of New Zealand v. Sampson (1900) AC 182. There, a written contract provided that the respondent a railway engineer, should receive extra commission “on the estimate of 35,000pounds in the event of being able to reduce the total cost of the works below 30,000. The court held that evidence was rightly admitted to show to what items of cost the estimate related. Lord Davy delivering the judgment of the Board said at pages 1878:
“The rule is thus stated in Taylor on Evidence 8th Ed. Vol. II S1194: “It may be laid down as broad and distinct rule of law that extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject matter of the instrument or in other words to identify the persons and things to which the instrument refers be received.” In Grant v. Grant LR 5 C.P. 727 at page 728 Blackburn, J., quoted judicially the following passage from his valuable work on contract of sale (p.49):
“The general rule seems to be that all facts are admissible to show the sense the words bear with reference to the surrounding circumstances of and concerning which the words were used, but “that such facts as only tend to show that the writer intended to use the words bearing a particular sense are to be rejected.”
Various cases may be cited in which these principles have been applied. In Ogilvie v. Foljambe (1817)3 Mer 53: 17 R.R.13 Sir Williams Smart says:
“The defendant speaks of ‘Mr. Ogilvie’s house, and agrees to give 14,000pounds for the premises’ and parole evidence has always been admitted in such cases to show to what house and to what premises the treaty related.”
The second case we wish to refer to is the case of Lyle v. Richards (1866) LR 1 HL 222, Lord Westbury delivering his dissenting judgment said at p.239:
“Before the court in Banco the defendant insisted that parole evidence was not admissible to prove and correct the error in the map, or at all events not to alter or affect the position of the boundary line, which whatever might be the true site of John Vincent’s house, must, as the defendants contend be drawn from the north-east corner of it. It is admitted that the map must be treated as incorporated into and forming part of the parcels in the set of 1835.
In my opinion, the evidence is clearly admissible.
Upon a question of parcel, parole evidence is always received. The error here is latent, not being discovered until it is shown by extrinsic evidence what was the true site of the house incorrectly laid down in the map and in a question of the extent or correctness of the parcels in a deed “which are a description of external objects, parole evidence, for the purpose of ascertaining the thing so described or referred to, is admissible.”(See also Plant v. Bourne (1897) 2 Ch. 297)
The fourth case we may refer to is the case of Barnard v. De Charleroy (1899) 81 LT 497 PC a case where the parties to a deed met after execution to determine the boundary between the parcel sold and the parcel in possession of the vendor and the purchaser occupied his parcel as determined by the survey. The court held that the measurements in the deeds did not affect the title of the respondents to the lands included in the conveyance to them as determined by contemporary survey. Lord Hobhouse delivering the reasons for the judgment of the Board affirming the judgment of the court below which dismissed the claim said at page 500:
“What was included under the comprehensive name of Mont Lezard which embraced fresh parcels from time to time cannot be determined on the face of the deed. It must be determined by evidence outside the deed. The Vendor and Charleroy took the most practicable way of getting such evidence. They met together on the spot, put themselves in communication with the lessee of Parcel who was the only other person then interested in the matter, called in a surveyor, worked with him and signed his report.”
We are therefore in no doubt that, in so far as it was necessary to ascertain and identify the land conveyed by Exhibit A, the plan Exhibit D is clearly admissible and was properly admitted in evidence by the Acting Deputy Registrar of Titles.
The wisdom of describing the property conveyed both by words and by reference to a plan has been forcibly brought out in this case. If the property had been described by reference to a plan alone, the rejection of the plan attached to Exhibit A would have deprived Exhibit A of any meaning.
Attaching a plan to a conveyance does not necessarily warrant the accuracy of the plan (Lyle v. Richards (1866) LR 1 HL 222 at 232) and hence the provision of Section 65 (1) of the Registration of Titles Act requiring the Registrar to satisfy himself about the survey of the land to be registered.
The next question raised before us which we consider very substantial is one of nullity of the whole proceedings before the Acting Deputy Registrar of Titles for want of jurisdiction to entertain the application to register title failed out of time. It was raised in ground 3 of the grounds of appeal.
Learned counsel for the objector/appellant pointed out that the application for first registration was made after the expiration of two months from the date of execution of the conveyance Exhibit A, and that the conveyance Exhibit A, was by then void as regards the grant or conveyance of the legal estate in the freehold.
We were referred to the provision of Section 5 of the Registration of Titles Act Cap. 181 Vol. 5 Laws of the Federation of Nigeria and Lagos 1958 as the authority for the submission.
In reply, learned counsel for the respondent drew our attention to the application for extension of time submitted along with the application and late application fees submitted to the Registrar to initiate these proceedings and submitted that the fact of an investigation having been conducted is prima facie evidence that time was extended.
The fact highlighted before us is the absence of any order of the Registrar extending time to apply for first registration.
We find that the date of execution of the conveyance, Exhibit A was 20th day of July, 1969 and the date of submission of the application for first registration was 2nd October, 1969.
Section 5 of the Registration of Titles Act on which this objection is based reads as follows:
“(1) (a)Every conveyance of a fee simple estate in any land for a consideration which consists wholly or in part of money; and
(b)every grant of a lease of any land for a term of not less than 40 years; and
(c)every assignment of a lease of any land having not less than 40 years to run from the date thereof for a consideration which consists wholly or in part of money, executed after the creation of the registration district in which the land is situated shall on the expiration of two months from the date thereof or of any authorised extension of that period become void so far as regards the grant or conveyance of the legal estate in the freehold or leasehold comprised in the conveyance, grant or assignment or so much of such land as is situated within the registration district unless the grantee (that is to say the person to whom such fee simple estate or lease is conveyed granted or assigned) or his successor in title or assign has in the meantime applied in the prescribed form to the Registrar to be registered as the owner of the fee simple estate or lease.
Provided always, that the court may, on the application of any person interested in any particular case in which the court is satisfied that the application for registration cannot be made within the said period, or can only so be made by incurring unreasonable expense; or that the application has not been made within the said period by reason of some accident or other sufficient cause, make an order extending the said period, and if such order be made, then upon the registration of the grantee or his successor or assign, a note of the order shall be endorsed on the conveyance, grant or assignment.
Provided further that the registrar shall have the power conferred upon the court by the proceeding proviso to extend the said period, upon payment of a fee to be prescribed save that the registrar shall not extend it by more than two months.” (Underlining ours)
We observe that the record of proceedings and judgment before the Acting Deputy Registrar and the High Court is totally silent on the issue of whether or not the application was considered and the time extended. An order of the Registrar or of the High Court on this issue is totally absent from the record of all the proceedings.
We therefore find ourselves unable to accept the proposition of learned counsel for the respondent that the investigation conducted by the Acting Deputy Registrar leading to his order that respondent’s title be registered is evidence of the grant of the application to extend time. With the conclusion of the investigation, the following questions naturally arise and we cannot find affirmative answers to them from the record:
(1)When was the order made.
(2)Was the order made before or after the time limited by statute within which to make the application to the Registrar
(3)Is there any evidence of acceptance of the late fee
(4)Can the fee be paid before the grant of the order or after the grant of the order
(5)Is payment of the late fee without an order evidence of the grant of the order
Item 10 of the 2nd Schedule to the Registration of Titles Act prescribes the fee of 2pounds to be paid pursuant to an order of the Registrar or of the court extending the period prescribed by Section 5. On a closer study of the provisions of Section 5, we find it is mandatory that a note of the order extending the time be endorsed on the conveyance on registration of the grantee and there being no such endorsement on the conveyance Exhibit A, we are unable to find any evidence of the grant of extension of time. The evidence required is prescribed by Section 94 of the Registration of Titles Act. It reads:
“Every document sealed with the seal of the registry and purporting to contain an extract from the register, or to record, contain, or be any act, decision, notice, requirement, or order of the Registrar, shall be admissible in evidence without proof, and shall be sufficient prima facie evidence of the matter therein contained or thereby recorded.”
We find this ground of appeal made out. The appeal succeeds and is hereby allowed. In view of the fact that an application for extension of time was made before the Registrar of Titles within the time when he was competent to grant an extension of time, the justice of the case demands that the application be remitted to the Registrar of Titles for investigation de novo with liberty to the respondent to pursue his application for extension of time (within which to make the application for first registration) in the court competent to entertain such an application at this late stage.
We hereby allow the appeal and make the following orders:
(1)The judgment of the Acting Deputy Registrar of Title No. M08390 delivered on the 24th day of March, 1972 and the judgment of Bakare, J., in Appeal No. LD/11A/73 affirming the said judgment of the Acting Deputy Registrar of Titles delivered on 17th day of May, 1974 together with the orders as to costs are hereby set aside.
(2)The application of the respondent for first registration is hereby ordered to be investigated de novo.
The respondent shall pay the appellant costs in the
Registrar’s court assessed at N30.00
Costs in the High Court assessed at N70.00
And costs in this court assessed at N232.00
Other Citation: (1977) LCN/1907(SC)
