Madam Fatima Jaffar V. Ezekiel Abiodun Ladipo (1969)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

Ezekiel Abiodun Ladipo, hereinafter referred to as the cautioner, had applied to the Registrar of Titles to register a caution pursuant to the provisions of section 44 of the Registration of Titles Act against dealings with the registered land covered by Title No. L04190. (See exhibit ‘A’ dated 10th July, 1964).

The land concerned is stated to be situate at 58 Raymond Njoku Road, South-West Ikoyi, Lagos. Then, as now, the registered proprietor of the leasehold title in the land was one Madam Fatima Jaffar who had objected to the registration of the caution. She will hereinafter in this judgment be referred to as the objector. The Registrar of Titles in view of the objection called a hearing of all the parties and after hearing them and the addresses of their counsel decided that the application to register the caution should he refused.

He thereafter dismissed the application. The cautioner appealed to the High Court, Lagos, and after hearing both parties, Taylor, C.J., allowed the appeal of the cautioner and ordered that the caution sought to be registered by him should be so registered. The objector then appealed to this Court. Six grounds of appeal were filed and were argued together on behalf of the objector and the point canvassed was that the cautioner had no right or interest or claim in the property in question on which he could found a right to register a caution.

For the cautioner on the other hand it was contended, firstly, that he possessed an equitable interest in the property and so could register a caution by virtue of that interest or, secondly, that if it was accepted that his immediate transferors, Messrs. John Bech (Nigeria) Ltd., could have registered a caution in respect of the registered title then the present cautioner was entitled to step into their shoes, or, thirdly, that the facts of the case justified an inference that at the least the cautioner had a claim against the property in question so as to entitle him to come within the provisions of section 44( 1) of the Registration of Titles Act, Cap. 181.

Now section 44( 1) of the Registration of Titles Act (Cap. 181, 1958 Laws of the Federation of Nigeria) reads as follows:-  “44(1) Any person claiming an unregistered estate, interest or claim in any registered land or charge, whether such estate, interest or claim is created before or after first registration, may require the registrar to register a caution against the registration of any disposition or change of ownership affecting that land or charge without notice to the cautioner”. On a plain reading of that sub-section it is clear that it envisages a right to register a caution by any person claiming “an unregistered estate, interest or claim” in any registered land. It was not disputed before us, and we do not think that it is arguable, that all that a cautioner is supposed to show at the time of registering a caution is that he is claiming such an estate, interest or claim. This means in effect that he is supposed at that stage to show only a prima facie case of his claim. He is not supposed at that stage to prove his claim or interest but certainly he must show that he is claiming such an estate or interest or claim. Unfortunately, there can be no uniform set of facts that constitutes a prima facie case in all known instances and the facts and evidence required to establish such a prima facie case must vary infinitely depending on the particular circumstances of each incident. In whatever way the duty imposed by law upon the cautioner is looked at it seems to us quite clear that he has to show at the time when he seeks to register a caution that he is claiming an estate or interest or claim in the registered land or charge.

He must claim a right in rem as opposed to one in personam. For so it must be since if the rights claimed by a cautioner do not run with the land it is inconceivable that he would be allowed to place such an embargo upon the exercise of his rights by a registered proprietor of the land or charge. We have already pointed out that whether or not a prima facie case had been made out by the cautioner is to be decided by the facts of each case and in the instant case the chronology of the facts and events is as follows:- (i) On 21st April, 1964, Madam fatima Jaffar, i.e. the objector, was registered as the proprietor of the leasehold interest in the land (sec exhibit ‘D’ of that date). (ii) On 8th May, 1964, John Bech (Nigeria) Ltd., wrote the letter exhibit ‘G2’ to the cautioner acknowledging the payment of the purchase price in respect of the land (exhibits ‘G’ and ‘G1’ are receipts in respect of exhibit ‘G2’). (iii) On 10th June, 1964, by virtue of exhibit ‘E’ of that date, the objector executed a transfer of the property to John Bech (Nigeria) Ltd. on Form 7 under the First Schedule to the Registration of Titles Act. (iv) On lst July, 1964, John Bech (Nigeria) Ltd. wrote the letter exhibit ‘T’ of that date to the Minister for Lagos Affairs withdrawing their request for permission to assign the property to the cautioner and stating that the company was no longer interested in the lease. (v) On 2nd July, 1964. by virtue of an instrument exhibit ‘C’ John Bech (Nigeria) Ltd ., executed a transfer or assignment of the property to the cautioner on Form 7 under the Schedule to the Registration of Titles Act. (vi) On 4th July, 1964, by letter exhibit ‘U’ of that date Messrs. Abudu and Co., solicitors, wrote on behalf of the objector to the Ministry of Lagos Affairs requesting the Minister not to consent to the assignment for the many reasons stated in that letter. (vii) On 6th July, 1964, and 8th July, 1964, by virtue of letters admitted in evidence as exhibits ‘M’ and ‘N’ respectively, John Bech (Nigeria) Ltd., wrote to the objector indicating that they were no more interested in the leasehold interest in the property or any agreement already existing between them and the objector and that they were instructing their solicitor to return her title deeds to her. (viii) On l0th July, 1964, the cautioner filed his application to register a caution against this title (see exhibit ‘A’ already referred to). Some facts were also either found as such by the Registrar of Titles or admitted by the parties. Such are the fact that John Bech (Nigeria) Ltd, did not use any monies raised by them on mortgage for the purpose of completing the buildings which the objector bargained for; the fact that when the objector executed the instrument of transfer, exhibit ‘E’, to John Bech (Nigeria) Ltd. on the 10th June, 1964, she at the same time handed over to the company or the company’s solicitor her own leasehold certificate exhibit ‘D’ and the fact that although the instrument of transfer to the cautioner, exhibit ‘C’, was stated on the face of it to have been signed by the managing director of John Bech (Nigeria) Ltd, on the 2nd July, 1964 yet there was evidence that early in July, 1964, when the cautioner claimed to have come into possession of that instrument, the managing director had already left this country. The letter exhibit ‘G2’ is significant and its contents must play a crucial part in resolving some of the arguments addressed to us. It reads as follows:- “Dear Sir, We hereby confirm that the amount paid in respect of your duplex house to be built on plot No. 46 Victoria Island, eight thousand pounds, has been transferred to your purchasing account of Plot Nos. 58 South West Ikoyi as agreed between you and ourselves and this will be adjusted accordingly in our books. We also look forward to receive the balance of four thousand pounds at your earliest convenience”.

At this point reference may be made to two receipts issued by the company in favour of the cautioner, i.e. exhibit ‘G’ dated 13th May, 1964 for £2,000 and exhibit ‘G1’ dated 7th May, 1964 for £2,000.

Reading exhibits ‘G1’, and ‘G2’ together therefore it is clear that on the 13th May, 1964, the cautioner had paid fully for the property which he was contracting to buy from John Bech (Nigeria) Ltd. Yet on that date, i.e. the 13th May, 1964, the objector had not parted with her property for she did not do this until the 10th June, 1964, when she executed exhibit ‘E’ in favour of John Bech (Nigeria) Ltd.

It is appropriate to comment here that when it is said that a person is a bona fide purchaser for value without notice such notice may be actual or constructive and clearly it is a notice of the matters which might affect the efficacy of his title; in this case the title which the cautioner was purchasing from John Bech (Nigeria) Ltd. was not even then vested in the company: the land concerned was State land and falls within the provisions of section 7(b)(iii) of the State Lands Act, Cap. 45, which sub-section requires that the consent of the Minister for Lagos Affairs must be obtained to any purported transfer or assignment.

The cautioner obviously had no documents to consult at the time he completed the payment for his purchase, and when-after the 10th June, 1964 he could have seen exhibit ‘E’ or on the 2nd July, 1964 he did see ‘C’-he in fact had the documents, he saw or must have seen on them that the consent of the Minister for Lagos Affairs still had to be obtained to the transactions.

We are of the view that he had actual notice of this for in exhibit A (i.e. his application to register a caution dated l0th July, 1964) he stated that the documents on which his claims rested were still awaiting the consent of the Minister.

Be that as it may, when the objector on the l0th June, 1964, executed the instrument of transfer exhibit ‘E’to John Bech (Nigeria) Ltd, we are of the view that she thereby transferred her leasehold interest in the registered title to that company. Exhibit ‘E’ is in form 7 in the Schedule to the Registration of Titles Act. The transfer was effected in accordance with the provi

Case Number: SC. 270/1967