Madam B. O. Shobogun V. Raimi Sanni & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

In Suit No. LD/60A/71, the applicants made an application on November 28, 1968 to the Registrar of Titles to register themselves as the owners of the freehold property Plots 43 and 44, near Iwaya Road, Onike, Lagos. The application was duly advertised in accordance with section 8(2) of the Registration of Tiles Act; Cap 181, and two objections were lodged against the first registration The hearing of these objections was held and they were dismissed on May 1, 1971 by the then Acting Registrar of Titles, who there upon ordered that the applicants be registered.

The applicants, who were the administrators of the estate of one Aminu Adediran Aderibigbe empowered to administer the estate (see Ex. A), claimed to derive title from the Oloto Chieftaincy family by virtue of Ex. E which was, the conveyance of the plots from the Oloto to Mr. Da Costa who testified that he sold the same to the deceased intestate as per Ex. B. A surveyor also gave.. . evidence and the Acting Registrar said: “From the evidence of the. surveyor and, Exhibits B, C, D and E, I am satisfied that the applicants have fully established their legal title to the land and I do so hold.” Their first objector admitted that the land in dispute originally belonged to the Oloto Chieftaincy family but failed to link her title to this source. As the Acting Registrar put it:

“In an application for first registration once the applicant has established his title to the land, the onus is on the objector to prove that his own land falls on that of the applicant or part thereof.

In this case, ‘besides failing to establish the identity of her land, the objector does not seem to know the land she is claiming. The only important witness for the 1st objector Femi Shobogun stated in evidence that the land covered by Exhibits F, L and K is quite different from the land in dispute.”

The Acting Registrar accordingly dismissed the objections, the second objector having dropped out of the case. From this decision the objector went on appeal to the High Court where Taylor, C.J., confirmed the Acting Registrar’s judgment on January 5, 1973. The present appeal has been brought against this decision.

Before us two grounds of appeal were argued in the alternative, the first being in two parts as follows:

“(a) That the whole proceedings were a nullity in so far as the Court of first instance was presided over by a Senior Magistrate who is not competent to exercise original jurisdiction in any cause or matter which raises any issue as to the title of land or to any interest therein.

(b) That the whole proceedings were a nullity as they were held before a person not authorised to investigate title with a view to first registration by section 4(3) of the provisions of the Registration of Titles Act as amended by Legal Notice No. 22 of 1964.”

In support of his contention that the whole proceedings in the Land Registry were a nullity, Dr. Yesufa, learned counsel for the appellant, submitted (a) that the serving officer at all material times was a magistrate, not a registrar, (b) that a magistrate of any grade has no jurisdiction to decide matters relating to land or any interest in land, (c) that, accordingly, a magistrate cannot also decide objections lodged against applications for a first registration because the issue involved really relates to title to land, (d) that mere administrative transfer of a magistrate either by the Chief Justice of Lagos State or by the Chief Registrar does not confer jurisdiction on that magistrate, and (e) that a formal appointment as registrar must therefore be made in accordance with section 4(2) of the Registration of Titles Act, Cap. 181 before any person can have power to hear and determine issues of title to land. He pointed out that, in the instant case, Mr.A.O. Agbebi signed his judgment and his court notes as “Acting Senior Magistrate” and not as “Acting Registrar”.

The second ground of appeal argued by learned counsel in the alternative reads:

“(a) The trial court entered in law in ordering registration for first registration to proceed in favour of the applicants as owners of the property in dispute without being first satisfied of the competency of the applicants to be registered as such as provided for by section 9(2) of the Registration of Titles Act, Cap. 181 Laws of Nigeria.

(b) The trial court erred in law in failing to observe that the applicants are administrators in respect of personal estate and cannot deal with real estate except they produce evidence that administration had been completed or an order of court entitling them to deal with the real estate of the deceased.”

Learned counsel submitted that the applicants for registration had not established that they were competent to bring the application since, as administrators only, they could not ask to be registered as owners of a freehold estate, and that they could only deal with the personal estate of the deceased. Under section 9(2) of the Registration of Titles Act, the Registrar is required to satisfy himself that the applicant for registration has a right to be registered as owner of the land in question, or that he has obtained an order of court (if he is only an administrator of the estate). On the issue of competency, learned counsel reflected us to Alhaji Ajao v. Sonola (1973) S.C. 119, at p. 120, where the question of competency to sue was held capable of being raised for the first time on appeal. As regards the question of an administrator’s capacity to apply to be registered, he cited Prattv. Haffner (1959) 4 F.S.C. 82 in which the Federal Supreme Court held that, after completion of the administration of the estate, the Administration (Real Estate) Ordinance ceases to apply and that the administrator becomes a trustee of the realty by virtue of section 1 of the Land Transfer Act, 1897. It was counsel’s contention that the applicant had failed to show by evidence that he had completed administration of the estate in this case.

Learned counsel for the respondents, for his part, pointed out that Mr. A.O. Agbebi described himself as Registrar in the Court Form at page 1 of the Record of Appeal and that this will be found repeated at page, lines 1-8; and also line 23-29 where he was described as Acting Registrar of titles in the record of proceedings in the Land Registry on December 2, 1971. Indeed, counsel for the respondents, in the Additional Grounds of Appeal med on their behalf, refers to Mr. Agbebi as “the learned trial registrar” throughout (see p.106 of that Record of Appeal).

Learned counsel next contended that, on the issue of lack of jurisdiction, Alhaji Ajao v. Sonola (supra), does not apply to the present case I because the applicants were not administering the estate by applying for registration of the Land Registry, but applied only as administrator not in their own right as owners. He also pointed out that Pratt v. Haffner can equally be distinguished on the ground that there the administrators were in fact trying administer the estate by the grant of a lease of the estate. We find ourselves in agreement with these contentions of learned counsel. Attention may also be drawn to the fact that, although the Registered Land Act 1965 has not been fully applied in the Lagos State, it has nevertheless come into force with effect from November 10, 1965 sufficiently to make the old Land Registry now form part of the Lagos High Court so as to bring the Registrar under the general direction of the Chief Justice of Lagos State (see sections 22 and 23). Also, the Registrar of Land at the commencement of the Act is deemed to have been appointed Registrar for the purposes of the Act.

We think that, while an appellant has the right to raise the issue of jurisdiction as well as that of competency to sue at any stage of the case, it is significant that the entire appeal has been brought on these two technical grounds alone. But when vital questions are involved as in the present case, it is worthy of note that the appellant would seem to be at a disadvantage when expected to have anticipated a plea of the respondent that, for example, he should have led evidence to show that the had completed the administration of the estate at the time of his application for registration, an issue not directly relevant to the matter then in hand. It seems to us preferable that both the issue of jurisdiction of the Senior Magistrate acting as Registrar and of the competency of the applicant to apply for registration should have been raised specifically at the trial so that the appellant might have been given an opportunity to know the case he has to meet.

Pratt v. Haffner does raise an important point of law as to when an administrator becomes a trustee in respect of the realty forming part of the intestate estate of a deceased person so as to entitle such person to apply to have the title vested in him. Since a proper determination of this change is fundamental to the issue of competency, the question whether the applicant should establish by evidence that they had completed administration should not, in our view, be left to be raised for the first time on appeal.

We may now consider whether the applicant as an administrator can apply to be registered. While it is true, as learned counsel for the appellant contended, that the letters of administration relate only to the personal estate of the deceased, we think that the administrator can also deal with the real estate. Section 2 of the Administration (Real Estate) Act, Cap. 2 of the Laws of the Federation and Lagos provides:

“When any person shall die intestate after the commencement of this Act leaving any real property of whatsoever nature of which the intestate might have disposed by will, such real property shall for the purposes of administration be deemed to be part of the personal estate of the said intestate and shall be administered accordingly.”

Apart from this enabling statutory provision, there is the following which indicates those who are entitled to apply for first registration under the Registration of Titles Act, Cap. 181:

“6(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.”

It would be inconceivable that an administrator or legal personal representative is not such a person. If we may below an analogy from registered land, section 37(2) of the Registration of Titles Act provides that, on the death of the sole registered owner who is entitled to the land for his own benefit, his administrator is entitled to be registered as owner. It seems to us that the same ought to be true of unregistered land.

For the foregoing reasons, we think that both grounds of appeal that were argued before us fail, and the appeal is dismissed. The judgment of Taylor, C.J., in Suit No. LD/60A/71 is hereby affirmed. We award costs assessed at N128 to the respondents.

SC.314/1973