M. O. Onayemi V. R. O. Balogun (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The appellant was the defendant before the High Court, Lagos (Suit No. LD/166/67) in an action instituted against him by the respondent, then plaintiff, and in which her writ of summons was endorsed as follows:
“The piece or parcel of land together with buildings thereon situate and lying at 21 Oyinkan Road, Apapa, in the Federal Territory of Lagos and which is described in the Land Certificate Title No. MO. 1866 in the Register of Deeds kept in the Federal Lands Registry in the Office at Lagos is the property of the above-named plaintiff.
The defendant, without the knowledge and consent of the plaintiff, unlawfully claims ownership of the afore-mentioned property.
THE PLAINTIFF THEREFORE CLAIMS AGAINST THE DEFENDANT:
- Declaration that the above-named property is her property in fee simple absolute.
- Any amount of money whatsoever which the defendant might have collected from Messrs. Sadhwanis who are the tenants now in occupation of the said property.
- An injunction to restrain the defendant by himself or by his servants or agents or otherwise from continuing or repeating the act complained of or any similar act.
- An order directing the Registrar of Titles to rectify the land Certificate which now bears the defendant’s name and to substitute the name
of the plaintiff thereof on the basis that the change of name was obtained by Forgery.
- Damages.
- Any other or further Orders as may be just.
- Costs.” In the High Court pleadings were ordered and filed and the statement of claim states in substance that the plaintiff is the freehold owner of the property situate at and known as No. 21 Oyekan Road, Apapa which had been registered in her name under Title No. MO. 1866 under the provisions of the Registration of Titles Act, Cap. 181, that the tenants occupying the premises and who used to pay her rents have now ceased to do so and that without her consent or authority the defendant had purported to buy the property and got the property registered in his own name. Paragraphs 19 and 22 of the statement of claim read thus:
“19. The plaintiff will contend during the trial that procedure laid down in section 44 of the Registration of Titles Act, Cap. 181, was not followed before a change of ownership of her property was registered by the Federal Lands Registry in that:
(a) the plaintiff was not given notice of any disposition which affected the change or ownership of her property.
(b) The plaintiff did not give her consent to the Registrar of Lands or any person that a change of ownership of her property be effected.
- The plaintiff did not at any time sign or authorise any person or group of persons to sign any document transferring her rights and interest in the property to the defendant or to any person whatsoever.”
The statement of defence calls for strict proof of the principal averments in the statement of claim and avers that the plaintiff had by her conduct permitted the firm of solicitors in which her husband was a partner to deal with the property and that the defendant would rely upon the fact of his registration as the proprietor of the leasehold interest comprised in the said property.
The case was tried by Taylor, C.J. In the course of the proceedings an order was obtained to join as a second defendant to the action the husband of the plaintiff, Chief Kolawole Balogun, but on the application of learned counsel for the first defendant, now appellant, Chief Kolawole Balogun was discharged from the action after he had filed a statement of defence. The plaintiff gave evidence and called two other witnesses in support of her case. She stated that the property belonged to her and that she was indeed the registered proprietor of the leasehold interest comprised in the title and confirmed her pleadings to the effect that she gave no authority or permission to anybody to sell her property or interest in the said land.
She also stated that after she was registered as the proprietor of the property she handed over her certificate of title to her husband and that the latter had failed and/or refused to return the certificate to her despite her several requests for the same. She was shown the certificate of title issued to the defendant and she confirmed that the contents of the certificate related to her property. One of the witnesses called by her was the Assistant Registrar of Titles in the Registry of Titles at the material time. The certificate issued to the defendant was admitted in evidence in the proceedings as exhibit B and the Assistant Registrar of Titles gave it in evidence as his impression that the certificate exhibit B looked like a first registration of the property in dispute whereas it was not and should not have been a first registration. The other plaintiff’s witness was a police officer whose evidence did not however affect the case one way or the other.
The defendant gave no evidence and called no witnesses.
In a considered judgment in which the learned Chief Justice referred to the provisions of section 53(1) of the Registration of Titles Act, Cap. 181,
he commented as follows:
“The defendant has not gone into the witness box to explain the circumstances surrounding the transfer of title. Whether he relied on the fact that the plaintiff’s interests were represented by a firm of solicitors or not, the plaintiff’s signature to the deed of transfer must still be obtained. If it is obtained by a forgery the deed passes no title to him.”
The learned Chief Justice then went on to conclude that as the plaintiff whose name appeared on the certificate did not herself deal with the property or authorise anyone else to deal with the property on her behalf, the defendant has not made out any title to the property. He then observed as follows:
“It is clear then that this claim cannot be determined without a determination of the issue as to whether a forgery has been committed or not.”
The learned Chief Justice then stayed the entire proceedings and referred the whole case to the police for investigation concerning forgery. A report was soon sent to him and on the 21st October, 1968 he delivered a final judgment in the case.
In that judgment he observed as follows:
“Having stayed the proceedings in order to give the rightful authorities the opportunity of investigating the cause alleged I now proceed to come to a finding on the case and evidence adduced at the trial before me. For the reasons given in my order of 1st July, 1968, which I embody in this judgment, I accept the evidence of the plaintiff in to and in view of my finding that she was not a party to the deed of transfer it follows that the deed was executed by means of a forgery and it passes no title.”
He then entered judgment for the plaintiff as per her writ with costs.
This appeal is from that judgment. Before the High Court and indeed as well before us, learned counsel for the defendant conceded that the plaintiff was the original registered owner of the property in dispute but counsel contends that as the defendants’ name now appears on the certificate exhibit B the onus is upon the plaintiff to show that she was still the owner of the property. Learned counsel referred to Section 55(5) of the Registration of Titles Act Cap. 181as conferring upon a holder of a certificate of title, whose name appears on it, prima facie evidence of title. Learned counsel also referred to Section 149(1) of the Evidence Act, Cap.62 and submits that this raises the presumption of regularity in the relevant entries in favour of the defendant. Learned counsel further submitted for the defendant that no forgery was proved and that the onus on the plaintiff then to establish that she did not give authority or consent to anyone else to deal with her property was not discharged by her. For the plaintiff it was submitted that once it is accepted, as indeed it is, that she was the original registered proprietor of the interest comprised in the title, the onus is upon anyone claiming to have got that interest transferred to himself to prove that the original registered owner was a party to the transfer.
The arguments on the appeal were elaborate but we think that the matter to be decided lies within a rather narrow compass. Learned counsel for the defendant had drawn our attention to Form No.7 in the First Schedule to the Registration of Titles Act and invited us to read the phrasing of that form. Learned counsel then submitted with respect to the form that in as much as a form of that type must have been filed with the Registrar of Titles before the defendant was registered there was prima facie evidence of regularity in the transfer of the property to the defendant and the endorsement of his name on the register. We are unable to accept this contention. First of all there is the fact that neither of the parties before us has produced the instrument of transfer in the pattern of Form No.7 in the Schedule to which our attention had been called. Then again, there is the question which is obvious on the face of the appellant’s certificate exhibit B as to whether it was properly assembled or not. In this regard the evidence of the Assistant Registrar of Titles, who gave evidence in the court below, is pertinent and one has to refer to that evidence to see that the certificate, on its face, is clearly defective. Exhibit B does not show the name of the plaintiff, as it should have done since she was admittedly the first registered owner of the land. In short, exhibit B does not appear to be a document in respect of which Form No.7 had at any time been put into operation.
We had been at pains to ascertain the nature of the forgery to which the learned Chief Justice, who tried the case, referred or indeed the particular document envisaged by him to have been forged, but we have been unable to ascertain either of those facts. Learned counsel for the plaintiff eventually before us conceded that although forgery was mentioned on the summons there was no forgery alleged in the statement of claim or proved. Indeed, this was so. The case of the plaintiff on the pleadings was and still is that she had not authorised anybody to deal with or otherwise transfer her property and that the defendant has no right to register himself as the proprietor of any interest in that land. The findings of the learned Chief Justice postulate that whatever instrument of transfer must have formed the basis of the defendant’s certificate exhibit B such instrument must have been executed without the authority of the plaintiff. That was the plaintiff’s case on the pleadings.
Section 53(1) of the Registration of Titles Act, Cap. 181 provides as follows:
“53. (1) Registration of any person as owner of any land, lease, or charge consequent on a forged disposition or any disposition which, if unregistered, would be absolutely void confers no estate on such registered owner, but he shall, in the event of the register being rectified to his prejudice on that account and claiming in good faith under a forged disposition be entitled to recover compensation from the Government. ”
That section describes the position in law with respect to a disposition which is either forged or defective to such an extent as to render it invalid for the purpose of effecting a transfer or vesting of the property in the person seeking to get registered. The learned Chief Justice in this case took the view that exhibit B had been grounded on an instrument of transfer executed without authority. We think that he is supported in this respect by the plethora of evidence from the plaintiff which is completely unchallenged by any evidence by the defence. There has not been from the defendant a shred of evidence as to the actual person or persons who negotiated to transfer the property in dispute to him. Learned counsel for the defendant relied on the fact of the registration of the defendant and the presumption of regularity but it is clear that that presumption first availed the plaintiff whom he himself had acknowledged as the first registered owner. The matter of presumption of regularity turns on that of onus and the party on whom it lies. The learned Chief Justice who tried the case had already accepted the evidence of the plaintiff on the point that she had not authorised the transfer of her property and had found in effect that no proper instrument of transfer exists for the transaction reflected on exhibit B.
That finding of necessity destroys the presumption of regularity and clearly throws upon the defendant the duty of justifying the insertion of his name on the certificate exhibit B.
If the plaintiff was the first registered owner, as admittedly she was, and if it was established by her that she did not by herself transfer her property and did not authorise anyone else to transfer the property, as the learned Chief Justice found, then clearly the defendant in order to get the judgment of the court must show that he had otherwise lawfully got or obtained the property to be registered in his name. He did not do this and indeed he neither gave nor called evidence. We do not accept the submissions that the certificate exhibit B speaks for itself and that it constitutes prima facie evidence of the title of the defendant. Exhibit B itself is defective on its face and therefore could not speak its contents with any authority nor, in the form in which it is, does it reflect any prima facie title of the only pattern on which the defendant could rest his case, that is that of transfer to himself by or on behalf of the plaintiff whom he had acknowledged as the first registered owner.
We have come to the conclusion that the clear provisions of section 53(1) of the Act applies to this case, that the defendant on whom the onus squarely lies has failed to prove a proper instrument of transfer of the property to himself, that the certificate of title exhibit B issued to him and on which he relies, is useless and that the learned Chief Justice was right to accede in the circumstances to the claims of the plaintiff.
The appeal fails and is dismissed. The appellant will pay the respondent the costs of the appeal fixed at 37 guineas.
SC.109/1969
