Gabriel Fashoyin Oyedele V. Sanni Ayinla & Ors. (1972)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal from the judgment of Taylor C.J. in appeal No. LD/71A/68 delivered in the Lagos High Court on 10th March, 1969, by which he confirmed the judgment of the Registrar of Titles dismissing the application for registration of two plots of land known as numbers 27 and 28 in Wrights’ allotment, Yaba.
The admitted facts are these. Following upon the receipt of the application for registration, the first objector objected to the registration in respect of plot No. 27 and the second set of objectors objected to the registration of plot No. 28. The third objector did not appear in the proceedings before the Registrar. All the parties were agreed that the two plots sought to be registered formed part of the land of the late Rufus Alexander Wright which was covered by a deed of settlement. The applicant based his title on three documents:-
(a) a purchase receipt dated 3rd September, 1969.
(b) a deed of conveyance (exhibit H) dated 31st December, 1959 purporting to have been executed by the trustees of the estate and Rufus Alexander Wright; and
(c) a document purporting to be a conveyance from one Mrs. Gladys Ayodele Smith, one of the beneficiaries of the estate, marked exhibit B and dated 5th September, 1966.
As regards the first objector’s title, this is derived from two sources:(a) a deed of conveyance (exhibit P) made in his favour by the Administrator-General in consequence of a court order, and dated 9th April, 1954, and
(b) a receipt dated 24th October, 1954 purporting to be issued by Rufus Adekunle Wright, also a beneficiary under the settlement. In the case of the second set of objectors, their title is based on a purchase receipt of plot No. 28 issued by Rufus Adekunle Wright but unsupported by any deed conveyance. After hearing the parties before him, the Registrar of Titles dismissed the applicant’s case on the grounds:-
(i) That the deeds on which he based his title being less than twenty years old must be proved, and
(ii) That Mrs. Gladys Smith, alleged to have been a witness to exhibit H, was not called to prove due execution, it was only the applicant who gave evidence at all.
In support of his decision the Registrar cited Brett F.J.’s decision in Bamgbala v. Tunji Alade. F.S.C. 327/64. The Registrar similarly ruled against the second set of objectors by holding that Rufus Adekunle Wright, not being the sole surviving beneficiary, could not sell or convey as such, and that where the Administrator-General purported to convey to the first objector, the doctrine nemo dat quod non habet applies. Having thus ruled against both the applicant and the two groups of objectors on the question of title, the Registrar visited the site and thereafter held that he believed the evidence of the first objector and of his witnesses that he had been in possession of and exercised acts of ownership over plot 27 for a period of over twenty years before action brought; he also held that he believed the evidence of the second set of objectors and of their witnesses that “ever since the late Odubela bought plot 28, Mr. Oduwale has been using it as a garden.” The Registrar, in finding that all the objectors had exercised long and continued possession over the two plots, observed:-
“There is no doubt that the applicant has been associated with the Wright estate for a considerable length of time and he cannot pretend not to have known that the objectors have been on these plots as far back as 1945.”
From this decision the applicant appealed to the Lagos High Court on the following grounds:-
“1. The decision is against the weight of evidence.
- The learned Registrar mis-directed himself in law on the true construction of the deed of settlement and thereby came to a wrong decision. Particulars of mis-direction will be filed when the record of proceedings is received.
- Error in law. Particulars will be filed when the record of proceedings is received.
- Further grounds of appeal will be filed when the record of proceedings is received and leave to argue them sought.”
In an application dated 29th January, 1969, counsel for the appellant prayed for an order that a supplementary record of appeal be compiled containing:-
(i) the whole of the proceedings in the matter from 1960 to 1967, and
(ii) the notice and grounds of objection of each objector and that in the meantime the appeal should stand adjourned.
The learned Chief Justice dismissed this application when it was established before the court that the record had in fact been despatched to the applicant since 12th December, 1968. Learned counsel for the appellant thereafter abandoned ground (ii) and limited himself only to the omnibus ground. He submitted that the evidence of possession was not sufficient to oust the title of the applicant and that, although the applicant did not give any evidence of execution of the documents, the Registrar should not have followed Brett F.J.’s decision in the Bamgbala case so rigidly since he had power under the Registration of Titles Act, as it then stood, to decide cases on less than legal evidence. The learned Chief Justice said that he saw no reason to disturb the decision of the Registrar or to order a new trial. Against this judgment the present appeal has been brought on the following permitted grounds in substitution for those originally filed:-
“1. The judgments of the Registrar of Titles and the learned Chief Justice are against the weight of evidence.
- The learned Chief Justice erred in failing to uphold the contention of the appellant’s counsel to the effect that the evidence of possession is not sufficient to oust the title of the appellant.
- The learned Chief Justice erred in upholding the decision of the Registrar of Title in regard to the execution of the conveyance in favour of the applicant when:-
(a) The Registrar was empowered to act on less than legal evidence;
(b) The question of execution was not raised in the proceedings before the Registrar; and
(c) The title to the land was contested before the Registrar on the basis of the validity of the conveyance by Adekunle Wright as against the right of the trustees to convey.”
Chief Williams, learned counsel for the appellant, offered to argue the appeal mainly on the two grounds advanced by Mr. Lardner as counsel for the appellant before the High Court: (a) that the question of execution of the conveyance did not arise for a decision and (b) that the evidence of possession is not sufficient to oust the title of the applicant. Under ground (3) learned counsel submitted that, while it is generally incumbent on an applicant to prove execution, this is not required in the present case since the trustees executed the conveyance. He further submitted that, in the practice of registered conveyancing, when a person applies for first registration of his title, there is a statutory duty on the Registrar to investigate title even if no objection is received. The Registrar must give notice to all those likely to be affected, using the statutory forms. It he suspects a signature, he must invite the attesting witness to give evidence as to title. Any objection must first be cleared before the Registrar can proceed to register. An objector must state the ground of his objection. The hearing of an objection is a hearing to determine the validity of those grounds and nothing more.
The issue of execution, learned counsel further submits, is irrelevant to the hearing of the objection though he admitted that it is relevant to the appellant’s application. The gravamen of learned counsel’s contention, as we understand it, is that the respondents did not argue the question of execution during the trial and that the applicant therefore did not know that the learned appellate judge had the matter in his mind until he gave his decision. In support of his argument that only a grantor or a witness can take up the matter of execution, learned counsel referred to section 8(4) of the Registration of Titles Act and to the Supreme Court judgment in Agboola v. Abimbola S.C. 366/67 delivered on 4th July, 1969; he also referred to section 9(1) of the Registration of Titles Act on the issue of the duties of the Registrar in connection with the investigation of title on first registration, pointing out that there has been an amendment of this section since November 1968. Learned counsel insisted that he relied mainly on section 9(2) and that the Registrar must investigate and must register if satisfied. Learned counsel finally submitted that hearing an objection is not the same thing as hearing an application, and that although both processes are involved in one operation the judge must keep each separate in his mind. He also drew attention to section 91 of the Registration of Titles Act on the question of the attendance of witnesses and submitted that the Registrar could have asked Mrs. Gladys Smith to satisfy him on the issue of signature. It is his submission that, on this ground alone the case should be sent back to the Registrar to determine the matter.
In arguing ground (2) regarding the Registrar’s finding on long possession and the appellate judge’s affirmation of this based upon a reliance on the Bamgbala case, learned counsel for the appellant pointed out that that case has since been overruled by the Supreme Court in Smith v. Sodipe S.c. 73/68 decided on 29th January, 1971. In support of his further submission that long possession does not per se oust the title of the true owner, he referred to Agboola v. Abimbola, cited above, and Ayodele v. Olumide S.c. 260/67 decided on 23rd May, 1969. Chief Williams’ final submission is that the appeal be allowed, that the learned Chief Justice’s judgment and that of the Registrar of Titles be set aside and that an order be substituted for both judgments dismissing all the objections and directing the Registrar to proceed with the investigation of the application in terms of section 8 of the Registration of Titles Act cap. 181 which reads:-
“8. (1) Application to be registered as an owner under this Ordinance shall be made to, and the title to the land or lease shall be investigated by, the registrar in the prescribed manner.
(2) Each application for first registration shall be advertised by the registrar in the prescribed form at least once in the Gazette and, if the registrar thinks fit, in one or more newspapers circulating in Nigeria. Any number of applications may be included in one advertisement.
(3) Notice of every application for first registration shall be served on such persons, if any, as the registrar may direct, and, unless the registrar otherwise orders, on each occupier of the land and on all owners of the adjoining lands.
(4) Where an objection to a first registration is received within two months from the date of the notice or within two months from the date upon which such notice is served upon the person objecting, whichever is the later, the registration shall not be effected until the person objecting has been given an opportunity of being heard: Provided that the Registrar may, in his discretion, extend or reduce the said period of two months.
(5) This section shall not apply to registrations effected under section 7.”
Mr. Lawal, learned counsel for the first respondent, argued in reply to three main points:-
(a) the duties of the Registrar under sections 8 and 9 of the Registration of Titles Act.
(b) what amounts to execution for the purposes of the Act, and ( c) the legal effect of long possession.
He submitted that advertisement under section 8(2) is only one form, that notice must also be given to certain persons in accordance with section 8(3), and that there is nothing in the whole of section 8 which requires an attesting witness to be invited apart from the occupier or someone claiming the land. As regards section 9(2), learned counsel submitted the Registrar is merely to be satisfied and in this respect his mode of doing this is laid down in section 99 of the Evidence Act, (Cap. 62). When we pointed out to him that the Registrar was required to act on less than legal evidence under section 9(1) as the law stood at that time, the submission of learned counsel was that the Registrar had been right to have rejected the conveyance under both section 99 and section 129 of the Evidence Act.
Mr. Lawal next argued that, on the issue of long possession, these was evidence that justified the court below in reaching its conclusion and that Smith v. Sodipe as finally decided by the Supreme Court must be distinguished from Sodipe v. Coker and Others F.S.C. 98/1961.
Learned counsel, however, conceded that the whole issue was not properly argued before the High Court by the counsel for the respondent. In answer to our question, he also conceded that the Registrar should have raised the matter of execution of the conveyance during the argument before him and not only in his judgment, so that counsel could have attempted to clear his doubt. Mr. Lawal finally submitted that, on the basis of Folasade v. Durosola [1961] 1 All N.L.R. 87 at page 91, it would be inequitable for the two plots to be taken away from the respondents after such a long period in possession during which many huge buildings have been erected thereon. It is his submission that if this court should find that the Registrar has not been fair to all sides in failing to require proof of execution, the case should be sent back to the Registrar to determine the issue of execution.
In exercising his right of reply, Chief Williams contended that, in the light of section 84 of the Registration of Titles Act,the onus does not lie on the appellant to have proved execution and that, faced with doubt as to this point, the Registrar should have come to one of two conclusions either to uphold or to dismiss the objections. Learned counsel submitted that, instead of doing either of the two things he said he was dismissing the application when he should have dismissed the objection, with which alone he had all along been dealing. Learned counsel for the appellant then invited us to hold that, if we agree to send the case back to the Registrar, the hearing before him should be confined to the hearing of the objection alone and that the objector should be made to begin as the party on whom the onus lies to establish his grounds of objection. Onayade v. Registrar of Titles and Anor. S.C. 163/68 decided on 12th March, 1971, at page 8 of the typescript. We do not agree with this submission by the learned counsel for the appellant. We are of the view that the case should be sent back to the Registrar who should first deal with the question of the validity of the application and later invite the objectors who should be free to raise any new point not dealt with already. If an objection has been dismissed, application may then be investigated by the Registrar.
We will accordingly allow the appeal and order that the case should be sent back to the Registrar with a direction that he proceed with the application in terms of section 8 and 9 of the Registration of Titles Act Cap. 181, including the question of proof of execution of the conveyance in question. We award costs assessed at 57 guineas to the appellant.
SC.177/1971
