Mrs. Gladys Abiade Majekodunmi & Ors V. Mutiu Abina (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

There was an application to register title to land. The application was made to the Registrar of Titles, Lagos State in respect of Title No.OM 11052 to No.66 Karimu Street, Surulere, Lagos. An objection was taken. The objector also applied for the registration of title in respect of Title No.OM 11574 to both No.66 and No.68 Karimu Street and accordingly objected to title to No.66 being registered for the applicant. The two applications along with the objection were heard together and a determination was made by the Registrar of Titles, Lands Registry Court. The present appellants were substituted for the objector, Williams Sanyaolu, now deceased, at the appellate High Court. The respondent was also substituted for the applicant, Babatunde Badaru Abina (deceased) in this court. The substance of the objection was that both No.66 and No.68 Karimu Street together formed a vacant parcel of land the objector bought from one Idris Ashaka in 1941 and a deed of conveyance was executed in his favour by him. The said Idris Ashaka was alleged to have bought the land at a public auction sale also in 1941. The objector said he erected a building on the portion now known as No.68 Karimu Street in 1948. That building was said to have been rented out and used as a school from 1959 while the portion now known as No.66 Karimu Street was used as playground for the school children.

The applicant’s case is that the land now known as No.66 Karimu Street formed part of Oloto Chieftaincy family land. One Mr. J.M. Martins got a conveyance in respect of a large parcel of land from Oloto Chieftaincy family by a deed of conveyance dated 6 August, 1910 (exhibit C) of which the land in No.66 Karimu Street was a part. After Mr. Martins’ death, his executors sold this land to the applicant and he got a deed of conveyance from them dated 16 September, 1974 (exhibit A). Counsel for both the objector and the applicant addressed the court. The printed record of proceedings is full of typographical errors and omissions. I shall lift the substance of the submission by each counsel as can be found in the said printed record. Learned counsel for the objector was recorded to have said: “It will be unnecessary to go to question of facts because the question of law raised was sufficient for the court to discuss this action. It is a question of law which should be followed. The Limitation Decree of 1966 is still the law of this country as it has not been revoked. He submitted that the application was brought after 21 years which is an infringement of the provisions of Limitation Decree of 1966. This Honourable Court has no jurisdiction to hear this case and should be dismissed.” It was contended by learned counsel that the objector had been on the land for over 25 years. He further said that the objector obtained his deed of conveyance in 1940 (sic) while the applicant got his in 1974. The essence of the objector’s counsel’s submission was that the applicant did not seek to register his title within the limitation period stated in the said Limitation Decree of 1966 and that since he himself had been in possession for more than that period, the applicant was debarred thereby from being registered as the title holder. Therefore, he added he the objector had obtained title by adverse possession which should be registered. The record shows that learned counsel for the applicant submitted that the deed of conveyance by which the applicant got title was executed on 16 December, 1974 and that immediately thereafter he applied for registration of the title. He said the title is traced to Oloto Chieftaincy family who are the original or radical owners. He further made the following submission: “The application before the court is to register the property at No.66 Karimu Street, Surulere and not an action for a declaration of title. The Limitation Decree of 1966 applies in respect of declaration of title in the High Court. The submission in its entirety is misconstrued and should be discountenanced. This Honourable Court has jurisdiction to hear this application under section 5 of the Register (sic) of Titles Law Cap. 121 Laws of Lagos State.”

In his judgment delivered on 4 August, 1980, the Registrar of Titles found that the applicant traced his root of title to the radical owners, namely Oloto Chieftaincy family whereas the objector was unable to do so. He held the view that the duty and power of the Registrar were confined to the investigation of title to be satisfied before registering the same and not to declare or confer title on any applicant who applies for registration. He further held that the interests which he could register under first registration were as set out in a statute section 5 of the Registration of Titles Law (the Law) which came into effect on 4 April, 1935, now in Cap.166, vol.7 Laws of Lagos State, 1994. He then observed as follows: “After careful consideration of the legal authorities cited by the learned counsel for the objector including the section of Limitation Law which he referred to, I have to state in clear terms that they are not in any way appropriate to the present issue of registration under section 5(1)(a) to (c) of the R.T.L. (i.e. Registration of Titles Law) now before the court. The proceedings before this court were not an action for a Registration of Title, and even if they were, long possession will only be available as a weapon of defence against ostensibly clear title but not by itself constitute a basis of title.” The Registrar came to the conclusion that going by the documentary evidence tendered before him, the applicant was the person entitled to be registered as the owner of No.66 Karimu Street, Surulere. He overruled the objection made by the objector and at the same time dismissed his application in respect of title No.MO11574. He finally made orders as follows: “The Land Registry should proceed with the applicant’s application for 1st registration of 66 Karimu Street, Surulere. The application should not be processed until the expiration of 30 days with effect from today, allowing period for appeal. The application is No.MO 11052. MO 11574 and the objection in MO 11052 are hereby dismissed.” In essence, the application to register Title No. 11052 was granted after the objection to it was overruled. The application by the objector to register Title No. MO 11574 (which would have covered both No.66 and No.68 Karimu Street) was dismissed. The objector appealed to the High Court, Lagos. He died before the appeal was heard and was substituted by order of court with the present six appellants. The learned Chief Judge who heard the appeal (J.A. Adefarasin, C.J.) dismissed the same on 14 March, 1985. He held that he was unable to disturb the findings of the Registrar as to the documentary evidence in favour of title in the applicant/respondent which he accepted and the evidence of long possession relied on by the objector/appellants with which he was not satisfied. The appellants then took their case on appeal to the Court of Appeal, Lagos Division, upon five issues for determination, one of which, issue 3, was stated as follows:- “Whether a party with an interest in land that arises by adverse possession under section 21 of the Limitation Law (Lagos State) is entitled at law or in equity to an estate in fee simple in the land under section 6 of the Registration of Titles Law (Lagos State) and whether the appellants so qualify as such adverse possessors of the land in dispute.” I have specifically referred to this issue because

(1) it has again raised in these proceedings the matter as to the registrability under section 6 of the Law, an adverse possessor’s title derived by virtue of section 21 of the Limitation Law;

(2) it was extensively canvassed in the court below as it has now been done before this court;

(3) it involves a consideration of the decision of this court in Agboola v. Abimbola (1969) 1 All NLR 287; (1969) NSCC (vol.6) 263 to which attention was drawn as having been decided per incuriam.

The court below dismissed the appeal. It did not appear to have dealt sufficiently with the said issue 3. The Registrar of Titles, as already shown in a passage from his judgment, made reference to the Limitation Law and said it was inappropriate to the issue of registration before him, and that long possession was only a weapon of defence against clear evidence of title but would not of itself be a basis for title to be registered. The court below per Babalakin, JCA, who read the leading judgment, said inter alia: “On issue No.3 it is erroneous on the part of the counsel for the appellants to argue as he did that the Chief Judge failed to answer the question whether an interest in land which arises by adverse possession under section 21 of the Limitation Law is within the expression ‘owner in law or in equity’ in section 6 of the Registration of Titles Law….. The Registrar of Titles carefully considered the Titles Law intendment of sections 5 and 6 of the Registration Titles Law and found that long possession relied upon by the appellants under section 21 of Limitation Law is not applicable to the facts of this case. He then relied on the cases of Agboola v. Abimbola (1969) 1 All N.L.R. 287 and Atunrase v. Olugbile CCHCJ/3/73 page 55 which cases deal with first registration and supported his contention. He further found that all other cases cited by the counsel for the appellants dealt with recovery of possession of land and are not applicable to application for first registration. The learned Chief Judge agreed with this reasoning in his judgment……….I must re-affirm that long possession can only be used as a shield not as a sword.”

In their appeal against the judgment of the court below to this court, the appellants have set down four issues for determination, namely:

“1. Whether the respondent was entitled to be registered upon his application as the first registered owner of No.66 Karimu Street,Surulere, Lagos having regard to the evidence

2. Whether the appellants were not entitled to be registered as the first registered owners of Nos.66 and/or 68 Karimu Street,Surulere, Lagos upon the evidence
3. Whether the lower court properly considered the point of law raised by the appellants as to whether they qualify as adverse possessors of the land in dispute arising under section 21 of the Limitation Law of Lagos State, or, in equity, and if so, whether such interest qualifies them under section 6 of the Registration of Titles Law to defeat the respondent’s application and ground their own application
4. Whether the lower court was not wrong in its assessment of the manner of the appellants’ attack on the judgment of the High Court”

Issue No.1

Although the appellants’ counsel argued issues Nos. 1, 2 and 3 together in the appellants’ brief of argument, I shall take them separately. Issue 1 asks whether the applicant was entitled to be registered as the first registered owner of No. 66 Karimu Street. The argument is that the land in the deed of conveyance (exhibit A) relied on by the applicant was not shown to have fallen within the land in the deed of conveyance (exhibit C) obtained from the Martins family who trace their title to Oloto Chieftaincy family. At the Registrar of Titles Court, the applicant gave evidence that Oloto Chieftaincy family, the radical owners of a large parcel of land, sold part to Mr. J. M. Martins as per exhibit C and that the Martins family sold part of the said land to him as per exhibit A, which land is now No.66 Karimu Street. It was the title to that land he sought to register. It was at no stage raised as an issue that the land was not traceable to Oloto Chieftaincy family land. When the deed of conveyance between Oloto Chieftaincy family and Mr. Martins (exh. C) was tendered as evidence, the objection raised by the learned counsel for the objector was that no proper foundation was laid for its production and further that the document was not from proper custody. The Registrar in his ruling said: “I am of the view that it will not be proper for this Honourable Court to refuse the acceptance of the deed of conveyance between Oloto Chieftaincy Family and J.M. Martins in that the applicant told the court that he bought the land from Martins family, who had earlier bought from Oloto Chieftaincy Family. The document has also been certified by the Land Registry as coming from their custody which in effect makes it a public document.” The applicant was cross-examined. It was mainly on the point as to how Martins family were able to execute the deed of conveyance on the strength of the probate order obtained from the court and the court order made later in 1939. The applicant added that he was put on the land in 1972 before the deed of conveyance was executed. There was no suggestion made to him that the land covered by the said deed did not fall within the land Martins got from Oloto Chieftaincy family. The Registrar of Titles was satisfied with the title shown by the applicant as per the deed of conveyance, exhibit A. The appellate High Court and the Court of Appeal upheld the finding of the Registrar. The finding is not perverse and this court is not entitled to make a contrary finding to that concurrent finding: see Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355; Odeniji v. Akinpelu (1998) 7 NWLR (Pt. 557) 174; Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1. Under section 5(1)(a) of the Law, the applicant brought himself within circumstances in which first registration is compulsory and by virtue of section 9(2) he was registered. This latter subsection reads: “If after investigation of an application for first registration the registrar is satisfied that the applicant is entitled to be as registered as the owner of the whole or part of the land claimed, he shall be registered accordingly.”

I accordingly answer issue No.1 in the affirmative.

Issue No.2