Mushud O. Bada V. Mrs. H. F. Pereira & Ors (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N. 

This is an appeal from the judgment of Lambo, J., in the High Court of Lagos State which was given in favour of the plaintiffs/respondents against the defendant/appellant for a declaration of title in fee simple to all that piece or parcel of land situate lying and being at 136, Griffith Street, Ebute-Metta, damages for trespass and an injunction restraining the defendant/appellant, his servants and or agents from committing further acts of trespass to the said land; there was also granted an order for rectification of the Register of Titles by removing therefore the names of the defendant/appellant and his predecessors in title as registered proprietors and substituting therefore the names of the plaintiffs/respondents.

The plaintiffs’ case is that the land in dispute formed a portion of a larger piece of land granted to one David Adefuyi Thomas on January 11, 1905 and registered as No. 27 at p. 53 of Vol. 46 of the Register of Deeds kept in the Land Registry in Lagos. It is common ground that the identity of the land is not in dispute and that both parties claim through one common ancestor, David Adefuyi Thomas, who was at his death in 1913 survived by two legitimate children, Mary Fanny Oladamade Ajibabi Dekalu and Adenkunle Olusoji Dekalu. Mary died in 1921 intestate and without an issue, and the property thereupon devolved on Adenkunle who, by an Indenture of Mortgage dated January 2, 1926 (Ex. B2), conveyed the said propeny to the executors and trustees of one Michael Daniel Elliott by way of mortgage to secure a loan of 100 (N200). In October 1926, acting with the knowledge and consent of the mortgagor, Mr. Adekunle Dekalu, the mortgagees, sold the land to one J.T. Nelson Caulcrick, the immediate predecessor in title of the plaintiffs.

The defendants, for their part,contended that the conveyance of the land in question by Mr. Adenkunle Dekalu to the executors and trustees of the said Elliott is void by reason of the fact that, when he mortgaged the propeny to secure the aforesaid loan, he had already transferred the legal estate to the mortgagee and had nothing left to sell to Caulcrick in 1926. The averment obviously overlooks the fact that the property was sold by the mortgagees in the exercise of their statutory power of sale. The learned trial judge observed as follows:

“It is to be noted that challenge on the validity of the Mortgage transaction is by both Kehinde Thomas and Modupe Thomas, children of the said mort gagor, Adekunle Olusoji Dekalu Thomas. By what purports to be a Deed of Reconveyance (Exhibit B3) dated 23rd May, 1956, they sought to repay to one Ellen Jane Subulola King the loan of ‘a3100 obtained by their father from the estate of Daniel Elliott. If, as claimed by the Defence, the mortgage of the property by Adekunle Olusoji Thomas is void then “eo ipso” its purported reconveyance to his children is equally void as well. But I do not share the views of the Defence that the mortgage transaction of the 2nd January, 1926, as evidenced by Exhibit B2, is void. It is my opinion that, as the heir-at-law of David Adefuyi Thomas, the mortgagor was well within his rights to deal with the property “in the way he did. It follows from this that the subsequent sale of the property by the Mortgagees is valid and that J. T. Nelson Caulcrick acquired a good title to it.”

Also with regard to the purported reconveyance of the property to Caulcrick, the learned trial judge held as follows:

“In my view, the purported reconveyance of the property by Ellen Jane Subola King is void since the property in question had been sold and conveyed to Caulcrick as far back as October 1926: vide Exhibit J. That being so, all other transactions under and by virtue of the void Deed of Conveyance (Exhibit B3) are ‘ipso facto’ void and of no effect For the same reason, I hold that the Land Certificate (Exhibit K) is spurious and therefore confers no title on the defendant As regards the Plaintiffs’ claim for rectification of the register, S.61(3) of the Registration of Titles Act provides as follows:

“61(3) The Register shall not be rectified, except for the purpose of giving effect to an over-rising interest, so as to effect the title of the owner in possession:

(a)…..

(b) Unless the immediate disposition to him was void or the disposition to any person through whom he claims otherwise than for valuable consideration was void; or

(c) unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him.”

On the facts of this case, I think the Plaintiffs are entitled to a decree of declaration of title in their favour; they are also for the same entitled to have the register rectified by deleting there from the name of the defendant as the registered proprietor of the said land.”

As regards the claim for trespass, the learned trial judge found that there was preponderance of evidence that the plaintiffs were in uninterrupted possession of the land for 43 years from 1926 to 1969 when the defendant wrongfully entered upon the land by virtue of a void Land Certificate (Exhibit K).

From this decision on the present appeal has been brought to this court on the following four grounds: