Nurudeen Adio Olufunmishe V. T. E. G. Labinjo & Ors (1972)
LawGlobal-Hub Lead Judgment Report
defendants claiming:
“an order rectifying the Register of Titles by expunging therefrom the name of the 4th defendant as registered proprietor of No. 20 Glover Street, Lagos, under Title No. LO 1004 and L0 03659 and substituting the names of the plaintiffs as proprietors thereof.”
The 1st to 3rd defendants were sued as the executors and trustees of the deceased.
Pleadings were ordered and duly delivered. In their Statement of Claim, the plaintiffs averred that they were the two children of the deceased; that the deceased died testate on the 6th of March, 1946, when the plaintiffs were about 9 and 4 years old respectively; and that probate of the will of the deceased dated the 18th of December, 1945, was granted to the 1st to 3rd defendants. The main grounds upon which the plaintiffs founded their case were contained in paragraphs 4, 6 and 7 of the Statement of Claim which read as follows:-
“4. By Clauses 6, 11 and 32 of his said Will, A.A. Labinjo made the following devises:
“I direct that if the matter of the sale of No. 20, Glover Street, Lagos, Nigeria, is settled with the Vendors and the building is completed as I shall direct later in this Will Alphonsia Ibironke Da Costa should occupy a room and parlour there; but if not yet, I give devise and bequeath unto Aphonsia Ibironke Da Costa portion of my house and land of brick walls at No. 65 Hawley Street, Lagos, Nigeria, for her life and after her death the said portion shall revert and form portion of my estate; that is to say if Alphonsia Ibironke Da Costa occupies a room and a parlour at 20, Glover Street, Lagos then she is not entitled to any portion at 65, Hawley Street, Lagos and vice versa for the term of her natural life.
The Vendors of the remaining portion of new building back of No. 20 Glover Street, Lagos, have agreed to sell the said portion to me for 200pds. The money is ready. My Executors and Trustees shall settle with the said Vendors and complete the said building now in progress. It shall not be sold but remain as family house according to native law and custom.
I direct my Executors and Trustees shall not sell my property at No. 18A, Glover Street, Lagos, in front of No. 20 Glover Street, Lagos but the rooms shall be put to rent and the money or monies to be collected therefrom shall be deposited in the Bank of British West Africa Ltd., Lagos Branch. In Witness whereof I have hereunto set my hand to this my Will written on five pages this 18th day of December, 1945.”
- The plaintiffs aver that the 1st, 2nd and 3rd defendants in fraud of the plaintiffs and in breach of trust and of the provisions of the said Will sold and conveyed the whole of the property situate and known as Nos. 18 and 20 Glover Street, Lagos.
- The plaintiffs aver that they were not put on notice by the Registrar when the purchasers applied for the registration aforesaid.”
For their part, the 1st to 3rd defendants filed a Statement of Defence denying the allegations of fraud. The 4th defendant also filed a Statement of Defence in which he denied the allegations of fraud and spelt out his defence to the action as follows:
“6. The defendant admits paragraph 10 of the Statement of Claim save and except the allegation that the plaintiffs have “just recently discovered the facts” as contained in the said paragraph.
- The defendant further avers as follows:-
a. That he is a purchaser of value without notice of the property namely No. 20 Glover Street, lagos, the subject matter of this action.
b. That the property, the subject matter of this action, has passed through various persons by way of mortgages and sales before being finally purchased by him. The defendant will, inter-alia, at the trial of this action rely on the previous transactions in respect of the said property.
c. That he is neither a party nor privy to any fraud (if any) in respect of any transaction whatsoever relating to the said property.
- The defendant also avers that the plaintiffs’ action, apart from being an after-thought, is misconceived, mischievous, scandalous and is an abuse of the process of the court and should be dismissed with costs.
9 The Defendant will also rely, at the hearing of this action on all the legal and equitable defences open to him particularly the following:-
(a) Undue delay. (b) Acquiescence (c) Laches and (d) The statutes of limitation.”
The only witness who testified for the plaintiffs at the trial was the 1st plaintiff. He stated that the deceased died testate and was survived by the plaintiffs. He produced a copy of the will and the probate granted in respect thereof to the 1st to 3rd defendants. He also stated that there was an uncompleted three storey building at No. 20 Glover Street, Lagos, when the deceased died. He further stated that it was in 1966 when the court ordered the 1st to 3rd defendants to render an account to him that he became aware, for the first time, from the accounts so rendered that they had sold No. 20 Glover Street, Lagos, to the 4th defendant. This, in brief, was the substance of the evidence led by the plaintiffs in support of their case.
Mr. Agusto who appeared for the defence indicated to the court that he did not intend to call evidence for the 1st to 3rd defendants. He however called the 4th defendant who testified as follows:
“I live at 53, Oluwole Street, Lagos and I am a Petty Trader. I am now the registered owner of the property at 20, Glover Street, Lagos. I bought it from one Joseph Modupe Johnson in 1965. I paid 6,500pds for it. I am still in possession of the property and my tenants are there.”
Under cross examination, he said:
“I paid for the house with a cheque and I was issued with a receipt. Since this case started, I had not become aware that the house originally belonged to one T.A. Labinjo. When I was served with a writ of summons I went and gave it to my Solicitors. I did not ask anyone to read it out to me. It was when I got to court that I became aware that the action was to dispossess me of the house. I don’t know why the plaintiffs wanted to take the house from me.
Put: You know the reasons why you have been sued.
ANSWER: I don’t know.
This is the first house I have ever bought. I told my brother’s father-in-law that I wanted to buy a house that was not subject to litigation. He promised to help. Later I was shown some houses for sale and I chose 20, Glover Street, Lagos. I was then taken to J.M.J. who asked for 7,000pds. At that time the documents for the house was at a Bank. At the Bank I was asked to pay into J.M.J’s account which I did. I paid 6,500pds in two separate cheques. It was my brother’s father-in-law that arranged the whole transaction.”
In a reserved judgment, Kazeem, J., referred to clauses 6 and 11 of the will which we have reproduced earlier, and after pointing out that it was not disputed that the plaintiffs were minors at the time of the death of the deceased and that the 4th defendant was the registered proprietor of the property in dispute, that is, No. 20 Glover Street, Lagos, he considered the allegations of fraud and breach of trust and came to the conclusion that:
“the 1st to 3rd defendants having decided not to participate in the proceedings have left me no choice but to accept the evidence of the plaintiffs that they sold the said property at least in breach of the provisions of clauses 6 and 11 of the Will – Exhibit A.’
The learned Judge then proceeded to consider the defence of the 4th defendant and observed as follows:-
“No document whatsoever was tendered by the 4th defendant in support of his evidence that he bought the said property from Mr. Joseph Modupe Johnson for a sum of 6,500pds and the Land Certificates in respect of Titles No. L0 1004 and LO 3659 which he admitted belonged to him were not produced. Moreover it is clear from his answers under cross-examination, that he made no investigations whatsoever about the titles of his vendors before he purchased the property nor did he make or cause to be made any inquiry as to any other interests affecting the said property.
It is equally evident that no evidence was adduced in support of the averment in paragraph 7(b) of his Statement of Defence that “That property, the subject matter of this action has passed through various persons by way of mortgages and sales before being finally purchased by him” and that he would rely on those facts at the trial.”
and finally, he made the following findings of facts:-
“Having regard to the evidence before me, I am satisfied that the 1st to 3rd defendants sold the property at 20, Glover Street Lagos, in breach of clauses 6 and 11 of the provisions of the Will Exhibit A and that the said property is now registered in the name of the 4th defendant in the Register of Titles as Nos. L0 1004 and L0 3659. But in the absence of documentary evidence, I find it difficult to accept the evidence of the 4th defendant that he bought the said property either from one Joseph Modupe Johnson or for the amount of 6,500pds. I am therefore not satisfied from the evidence before me that the 4th defendant was a purchaser for value of the said property, as pleaded.”
The learned trial Judge then entered judgment for the plaintiffs by ordering that the name of the 4th defendant be expunged from the Register of Titles with respect to the Titles L0 1004 and L0 3659 and that the names of the plaintiff be substituted therefor.
The 4th defendant has now appealed against that decision. Before us on appeal, it was the contention of Chief H.O. Davies that inasmuch as the plaintiffs had rested their case on allegations of fraud and breach of trust, the onus was on them to substantiate these allegations by proving
(1) that the estate of the deceased was solvent when the property was sold and consequently the executors acted wrongly in selling the property; and
(2) either that the 4th defendant was the first registered owner of the property or that there were no intermediary registered proprietors.
It seems to us that the main controversy in this appeal stemmed from the fact that the defence had failed to adduce evidence in the lower court to substantiate their defence to the action as set out in their Statements of Defence. In our view, the learned trial Judge was left with no alternative but to come to the conclusion as he did that
“The 1st to 3rd defendants having decided not to participate in the proceedings have left me no choice but to accept the evidence of the plaintiffs that they sold the said property at least in breach of the provisions of clauses 6 and 11 of the Will – Exhibit A.”
As these findings were supported by evidence, we can find no good cause to disturb them.
The next point raised by Chief Davies was that the learned trial Judge wrongfully dealt with the effect of the provisions of Sections 53 and 54 of the Registration of Titles Act (Chapter 181) on the defence of the 4th defendant/appellant. Now Sections 53 and 54 makes provisions for certain statutory defences in the following terms:-
“53.(1) Registration of any person as owner of any land, lease, or charge consequent on a forged disposition or any disposition which, if unregistered, would be absolutely void confers no estate on such registered owner, but he shall, in the event of the register being rectified to his prejudice on that account and claiming in good faith under a forged disposition be entitled to recover compensation from the Government.
(2) Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such subsequent registered owner.
- A registered owner of any land or charge, being a purchaser for value, is not affected by notice, whether express or implied, of any unregistered estate, interest or claim affecting the estate of any previous registered owner, or concerned to inquire whether the terms of any caution or restriction, so far as they relate to the time prior to the registration of himself as owner of such land or charge, have been complied with.”
It was the contention of Chief Davies that the onus was on the plaintiffs to establish that the 4th defendant was not entitled to avail himself of the provisions of Section 54. As the issue formed part of the 4th defendant’s defence to the action, we are of the view that the onus was on him to establish it and that at no time did that onus shift to the plaintiffs.
Whilst appreciating the force of Chief Davies’ arguments, we are satisfied that the findings of the learned trial Judge that:
“I find it difficult to accept the evidence of the 4th defendant that he bought the said property either from one Joseph Modupe Johnson or for the amount of 6,500pds. I am therefore not satisfied from the evidence before me that the 4th defendant was a purchaser for value of the said property, as pleaded.”
which have not been successfully challenged before us do not entitle the 4th defendant/appellant to any protection under the Registration of Titles Act. On the totality of the evidence, we fail to see how the learned trial Judge could have come to a different conclusion as, in determining the case, he was restricted to the evidence before him and as no iota of evidence had been led by the defence on whom in our view the onus lay to do so to establish that there were previous registered owners of the property.
In the result, this appeal must fail and it is hereby dismissed. The 4th defendant/appellant shall pay 35 guineas cost to the plaintiffs/respondents.
SC.69/1971
