Mohamoud J. Lababedi Vs Lagos Metal Industries (Nig.) Ltd (1973)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN.

In Suit No. LD/217/69 in the Lagos High Court, judgment was given by Sowemimo, J., against the defendants, who are appellants in the present appeal. The present respondents as the plaintiffs had instituted the action against the appellants claiming against them as follows:

PAGE| 2 1. For a declaration of title in fee simple to the piece of land known as plot 30 in sub-area 3 of the Lagos Central Planning Scheme, 1951, situate at Gbajumo Street, Lagos, or in the alternative for a declaration that the plaintiffs are entitled to estate interest or right to the said piece of land. 2. For an order directing the Registrar of Titles to rectify the Register kept at the Land Registry, Lagos, by expunging the name of the 1st defendants therefrom and inserting the name of the plaintiffs as the registered owners. 3. For an order directing that the 1st defendants do surrender to the 2nd defendant for cancellation and/or destruction the Certificate of Title No. MO 4186, issued to him by the 2nd defendant in respect of the land. 4. For an injunction restraining the 1st defendant, his servants and/or agents from entering the piece of land.

The relevant paragraphs of the defence are as follows: “6. This defendant says that when he was negotiating to buy the property in dispute he had no knowledge of any legal proceedings relating to the property. 7. This defendant conducted a search at the lands Registry through his Solicitors who reported that his vendor had a good title as there were no caution, charges or any encumbrances whatsoever on the property. 8. This defendant says that he is a subsequent registered owner of the land in dispute and as bona fide purchaser for value without notice, he acquired an indefeasible title to the property.

9. This defendant will challenge the validity of the purported sale of the said property to the plaintiffs and will aver that it confers no title whatsoever to the plaintiffs. 10. WHEREOF the plaintiffs are not entitled as per their Writ of Summons.” The material facts as pleaded by the plaintiffs in their Statement of Claim and as found by the learned trial Judge, may be summarized thus.

Before the plaintiff company (hereinafter referred to as the plaintiffs) went into voluntary liquidation, it brought an action in the Lagos High Court (Suit No. LD/618/61) against one Akanji Lagunju, who was then the registered proprietor under the Registration of Titles Act of the piece of land now in dispute, for a sum of £9,169:5/- and obtained judgment for it on June 9, 1962.

PAGE| 3 Lagunju lodged an appeal which was dismissed later on April 21, 1965.

While the appeal was still pending, the plaintiffs lodged a Caution against any dealing in respect of the piece of land, and the relevant portion of the Certified Copy of the Caution (Exhibit J), said a follows: “We hereby solemnly and sincerely declare that we are the Judgment Creditors of approximately £9,500 and an application is pending to attach the property in Suit LD/618/61.”

By Suit LD/389/63, the Judgment Creditor, (Lagos Metal Industries (Nig.) Ltd.) as plaintiffs, having failed to recover the judgment debt by levying execution on Lagunju’s movable property, instituted another action asking, among other things, for an order to set aside the purported transfer of the property to Haastrup because, 13 days after the judgment had been delivered against Lagunju in Suit No. LD/618/61, he (Lagunju) had purported to transfer the property to one Ade Haastrup. Adelaja, to whom Haastrup had in the meantime transferred the property, was later joined as the third defendant. Judgment was given on November 15, 1965 in favour of the plaintiffs and the purported transfer of the said property by Lagunju to Haastrup and by Haastrup to Adelaja were declared null and void and the Registrar of Titles was ordered to rectify the Register in accordance with the judgment of the court by expunging the names of Haastrup and Adelaja as proprietors of the piece of land in dispute. Meanwhile, the plaintiffs, in the earlier Suit LD/618/61, had obtained the leave of the court to levy execution on Lagunju’s property and also to take part in the sale of the property by public auction under the Deputy Sheriff who sold the property to the plaintiffs as the highest bidder on May 13, 1966.

Ten days later, the plaintiffs then informed the Registrar of Titles of the sale of the property to them. Lagunju and Adelaja appealed against the judgment in Suit LD/389/63 but the appeal was dismissed by the Supreme Court in SC.394/66 on February 1, 1967. On December 11, 1967 , the necessary Certificate of Purchase was issued by the Deputy Sheriff to the plaintiffs which thereafter sought to register their title on the basis of the purchase receipt.

It was at that point that the plaintiffs discovered that Adelaja had transferred it to the 1st defendant in the present case who was then duly registered as the proprietor of the land in question. In these circumstances, the plaintiff drew the attention of the Registrar of Titles to (a) the Caution Notice (Exhibit C of 21/7/65), (b) the High Court judgment in Suit LD/389/63 (Exhibit L), and (c) the plaintiffs’ solicitor’s letter of May 23, 1966 (Exhibit M). It was clear that up to that date, the Registrar had not carried out the order of the court to rectify the Registrar and had not also registered the Caution filed by the Plaintiffs.

It would also seem that the Registrar was not aware of the judgment in Suit LD//389/63 or of the Caution Notice when he issued the Certificate to the 1st defendant on August 30, 1967. When he became aware of what had happened, he (Mr. Ojomo) requested Lababedi (1st defendant) to surrender the Land Certificate issued to him but he refused (see letter Exhibit ‘N’).

PAGE| 4 The plaintiffs thereupon brought the present action. The evidence showed that the Executive Officer in charge of the Proprietorship Register had misled the Register of Titles in the minutes by which he recommended the registration of the 1st defendant’s title for the latter’s approval. The learned trial Judge observed as follows: “The Deed of Transfer was executed between one Ajiboye and the 1st defendant. Before issuing the Certificate of Title, notices were served on Ajiboye, the 1st defendant, Mr. Ogunsanya by virtue of Exhibits V20, V21 and Exhibit V22, the reply to these notices to the registration of the 1st defendant, were tendered as Exhibits V23 to V25.”

After observing that the 1st defendant elected not to call evidence in support of his averments, the learned trial Judge put what he regarded as the important issues for decision in this case as follows: “The questions therefore which require a decision are whether the person who purported to sell to the 1st defendant had any title or estate in the piece of land, secondly whether the defendant as a subsequent registered owner of the land in dispute had acquired an indefeasible title to the property, and thirdly whether the Certificate of Purchase issued by the Deputy Sheriff confers any interest or estate registrable under the Registration of Titles Act Cap.181.”

The learned trial Judge would appear to have taken two factors into consideration: (a) the Caution Notice which was prepared and filed in the Lands Registry on July 21, 1965, but which was never registered on any part of the Register ; and (b) the judgment of the High Court, LD/389/6 dated November 15, 1965, by which the Register was ordered to be rectified by the removal therefrom of the names of Haastrup and Adelaja on the ground that the purported dispositions as a result of which the land passed from the first to the third were void for fraud. The learned trial Judge, after stating without much discussion the provisions of Section 53 and 54 of the Registration of Ti

Other Citation: (1973) LCN/1775(SC)