J. D. Owumi V. Paterson Zochonis & Co (Nig.) Ltd. (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN.

In Suit No. LD/659/70 delivered by Lambo, J., in the High Court of Lagos State on May 24, 1971, the plaintiff’s claim was dismissed. The plaintiff’s claim against the defendants were for:-

(i) a declaration that the deed dated 24th September, 1969 and made between Chief Joseph Modupe Johnson of the one part and the defendants of the other part confers no estate on the defendants in or over the land registered under Title No. L0 5243;

(ii) an order that the Register kept at the Lands Registry pursuant to the Registration of Titles Act be rectified by deleting therefrom any entry made to give effect to any estate purported to be vested in the defendants by virtue of the deed aforesaid.

In his Statement of Claim, the plaintiff averred as follows:

“1. The plaintiff is the registered owner of a leasehold estate in the land described in the claim on the writ of summons and registered under Title No. LO 5243 (hereinafter referred to as ‘the said land’).

2. The former registered owner of the said land was Chief J.M. Johnson, who duly transferred his estate therein to the plaintiff.
3. The defendants are a limited liability company and were let into possession by Chief J.M. Johnson aforesaid.
4. By a deed dated 24th September, 1969, the said Chief J. M. Johnson purported to grant the defendants a leasehold estate in the land aforesaid for a term of 3 years.
5. The defendants claim the right to remain in possession under and by virtue of the deed of lease aforesaid.
6. The plaintiff avers that the said lease is void and of no effect in law because it was not made in the manner prescribed by the Registration of Titles Act.

Whereupon the plaintiff claims as per the writ of summons.”

The Statement of Defence admitted all the plaintiff’s averments except that in paragraph 6 and further averred as follows:

“4. The defendants aver that the said sub-lease was properly and validly made in strict conformity with the provisions of the Registration of Titles Act, Cap. 181.

5. The defendants will contend at the hearing of this action that the plaintiff’s claim is frivolous, misconceived and an abuse of the process of the court and should be dismissed.

Whereupon the defendants say that the plaintiff is not entitled to claim as per his writ of summons.”

It was contended on behalf of the plaintiff that, since the defendants admitted paragraphs 1-5 of the Statement of Claim, the only question for determination was whether the deed of sub-lease was valid or void. As the parcel of land in question was registered (see Ex. A) under the Registration of Titles Act, Cap. 181, it could only be dealt with in a manner prescribed by the Act, the whole object being to simplify conveyancing by following the prescribed form in accordance with Section 14 (1) of the Registration of Titles Act and the First Schedule, Form 4 thereto. Section 14 (1) and (2) reads as follows:

“(1) The registered owner of land may in the prescribed manner lease the land to the same extent as if the land has not been registered.

(2) The lease shall be completed by registration of the lease as an incumbrance, and of the lessee as owner of the lease, and by filing the original lease or a copy thereof in the registry.”

It was submitted on plaintiff’s behalf that the deed is in the general form and does not contain an application for registration as in Form 4 (Section 16 of the Act). It was further pointed out that Section 42 (1) of the Registration of Titles Act gives free power of disposition whether the land is or is not registered under the Act, and that Section 42 (2) provides that if a dealing can be done in a prescribed manner it must be done in that manner alone; the effect of the latter subsection is to nullify any dealing with registered land other than in the prescribed manner. See Jaffar v. Ladipo (1969) 1 All NLR 165 and Adegbesan v. Agbonmagbe Bank Ltd. LD/262/65 in which a mortgage transaction was held void for not having been executed in the prescribed manner for ordinary dealing with the land concerned. It was submitted that the deed in the present case was void and that the registration should be declared cancelled since the sub-lessee did not apply to be registered in the prescribed manner.

On behalf of the defendants, it was contended that it is not obligatory upon the lessor to comply with the form prescribed under Section 14 (1) which is merely permissive by using “may” not “shall”. It was argued that the interest being for a term of 3 years, it was not registrable, to be registrable; a term must be for at least 5 years. The issue of the Land Certificate to the defendants after the Registrar had done all that was required of him under the Act means that the deed is valid. It was contended that, even if there had been non-compliance with the Act, the payment of consideration of 12,000 pounds (N24,000) on the execution of the document which the Registrar accepted should be considered in the defendants’ favour so as to ensure that non-observance of mere form should not be allowed to defeat the ends of justice. The defendants’ interest, it was argued, was an over-riding interest under Section 52 (e) of the Registration of Titles Act, and that, as the present plaintiff was not a party to the transaction, he could not bring an action to have it set aside. In any case, when the plaintiff had an assignment of the property, he had notice of the presence of the defendants on the land.

After hearing evidence from both sides, the learned trial Judge held that the deed of sub-lease was valid and that the plaintiff could not, as a stranger to the transaction between the original owner and the defendants, challenge the manner of its execution. He further held that the defendants had an over-riding interest under Section 52 (e) of the Registration of Titles Act subject to which the plaintiff must be deemed to have taken any interest he might have in the registered piece of land.

From this judgment the plaintiff has appealed to this court on the following four grounds:

“1. The learned trial Judge erred in law in holding that the decision of Adefarasin, J., in Adegbesan v. Agbonmagbe Bank Ltd. LD/262/65 was based upon the provisions of the Bills of Sale Act when the said decision did not mention the Act aforesaid.

2. The learned trial Judge misdirected himself in law in paying regard to the Land Registry Act 1862 when the said Act is inapplicable in Lagos State.
3. The learned trial Judge erred in law in failing to give judgment for the plaintiff as claimed when it is plain that the deed Exhibit A not having been made in the manner prescribed by the Registration of Titles Act is ineffective to divest the registered owner of the estate or interest vested in him under the Act.
4. Judgment is against the weight of evidence.”

Mr. Balogun, learned counsel for the appellants, submitted that the deed of sub-lease was not executed in the form prescribed by the Registration of Titles Act and was, therefore, invalid in law. He referred us to our recent decision in Shell BP Petroleum Development Company v. Jammal Engineering Nigeria Ltd. (1974) 4 S.C. 33, especially at pages 64 and 65 where, in considering the effects of the relevant sections, we stated as follows:

“To put together the effects of the relevant sections of the Act, we point out that a lease by virtue of Section 14 must be made ‘in the prescribed manner’ in order to escape the proscription of Section 28, to enjoy the protection of Section 42 (1) and to escape the disqualification of Section 42(2). If, like Exhibit W, it is not so made, it does not comply with Section 14 (1) and Section 28 (1) [it need not comply with Section 28 (2) ] and apart from lacking the protection of Section 42 (1) falls within the disabilities prescribed by Section 42 (2). Now, Section 42 (2) requires that such dealings shall be effected under and in the manner required by the Act – a requirement which postulates that any disposition or dealing which discountenances it must be invalid under the Act. We are of the view that learned counsel for the defendants was right in his contention that the lease Exhibit W is void. Although Section 14 (1) has employed the word ‘may’ in its requirement of compliance, it seems to us clear that where the dealing contemplated is one for which provision is made in the prescribed manner, the transferor or transferee has no alternative but to due such ‘prescribed manner’ in order to make the disposition or dealing valid under the Act.”

Mr. Araoye, learned counsel for the respondents, submitted that, having read the judgment of this court just considered, he would leave it to us to construe the effect of Section 14 (1) of the Registration of Titles Act on Ex.A as we should deem best.

We think that the substance of this appeal can be and is effectively disposed of by the foregoing considerations regarding the proper interpretation of Section 14 (1) of the Registration of Titles Act. Cap. 181 vis-a-vis Ex. A, the deed of sub-lease in question. We are of the view that the deed is void.

In the result, we allow the appeal and set aside the judgment of Lambo, J., in Suit No. LD/649/70 delivered on May 24, 1971, at the Lagos High Court, including the order as to costs.

We accordingly make the following orders:

(1) That a declaration be made that the deed Ex. A dated September 24, 1969, and made between Chief Joseph Modupe Johnson and the Paterson Zochonics & Co. (Nigeria) Ltd. in respect of the land registered under Title No. LO 5243 is void and of no effect whatsoever.

(2) That the Register kept at the Lands Registry pursuant to the Registration of Titles Act be rectified by deleting therefrom any entry made to give effect to any estate purported to be vested in the respondents by virtue of the deed aforesaid in (1) above; and

(3) That (1) and (2) above shall be the judgment of the court.

We assess costs in the court below at N84 and at N100 in this court to be paid by the respondents to the appellant.

SC.99/1972