Oyebisi Afolabi Usenfowokan Vs Sule Salami Idowu & Anor (1975)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

The term ‘right, title or interest’ of a judgment debtor in realty, sold at auction sale ordered by a court, often raises some difficulty, when conflicting claims are made. Such difficulty is easily resolved once it can be determined the nature or interest of the rival parties.

In this suit, Plaintiff claims (a) that he is owner in equity the property at 47 Idumagbo Avenue Lagos, and (b) an order, (if claim (a) succeeds) that the defendants do convey the said property to the plaintiff.

The facts are not so much in dispute. It is agreed by both parties that the property at 47, Idumagbo Avenue, Lagos, originally belonged to one Samuel Talabi Onashile (now deceased). Sometime before 1960, the late Talabi Onashile entered into a banking transaction with Barclays Bank D.C.O. under which the Title Deed of his property was deposited with the Bank. It is enough to say, that the deposit of the title of 47 Idumagbo Avenue Lagos was made to secure an overdraft account of 10,000(pounds).
On the facts before the learned trial Judge in this case, he made the following findings:-

“I have no hesitation therefore in holding that there was a sale of the property
…

“The Plaintiff under cross-examination stated that he did not see the title deed of (the) property. He did not obtain a conveyance from application for first registration and filed no caution in the Lands Register.”

On the other hand, the defendants took precaution to “register their title.”
…..
Indeed, in the evidence of Obi, one of the tenants, in the previous trial which was put in evidence at this re-trial he stated at page 24 of the record of proceedings under cross-examination by Impey thus:-

‘Knew 1st and 2nd Defendants. They and I live in opposite houses. It was Mr. Onashile who admitted me into the house. I met Mr. Usenfowokan first time about nine months ago. He came into our premises. I did not know who he was. I did not know he bought the property until this case commenced.’

The defendants have no actual or constructive knowledge of the purchase by the plaintiff of the property from Onashile at the time they bought. The defendants as legal owners have not therefore been divested of the priority which that estate confers.

In conclusion, the plaintiff by reason of his laches and delay is not entitled to the declaration claimed and his claim for conveyance also fails. Both claims are dismissed. The defendants’ counter-claim succeeds and Judgment is entered for them accordingly with costs.”

The argument on appeal before us, is as to the nature of the right, title and interest of Onashile in the property at No. 47 Idumagbo Avenue, Lagos, which the respondents bought in 1965 and in respect of which they got a Certificate of Purchase issued by the Court.

The learned trial Judge, held that he believed the Plaintiff that he agreed to purchase the property from Onashile in July 1962, and paid the agreed purchase price of 10,000(pounds) in three instalments  first instalment on 31/10/62 Exhibit A, second instalment on 10th January 1963 Exhibit A1, and third and last instalment on 14th March 1964  Exhibit A2. Receipts were issued to him but no conveyance transferring the property to him was up till the time of the death of Onashile in November 1966 ever executed in his favour. As a matter of fact he had not seen the title deed of the property he bought, up till 13th March 1969 when he gave evidence before the lower court.

With reference to the further averment that rents were collected by him as well as through agents the learned trial judge had this to say:-

“In this case, I do not believe that the plaintiff collected rents from any of the tenants personally. Rents were collected for him through agents. The tenants were in possession before the plaintiff bought the property. The receipts Exhibits E – E6 did not show for whom the rents were collected and in my view, any inquiry made of the tenants would not have disclosed the equitable title of the plaintiff. Indeed, in the evidence of Obi, one of the tenants in the previous trial which was put in evidence at this re-trial he stated at page 24 of the record of proceedings under cross-examination by Impey thus:-