The Estate Of Alhaji N. B. Soule V. Oluseye Johnson & Co. & Anor (1974)
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FATAYI-WILLIAMS, J.S.C.
This is an appeal from the judgment of Taylor, C.J. in which he allowed the appeal of the first Objector (Oluseye Johnson & Co., the Provisional Liquidators of the Muslim Bank (W.A. Ltd.) from the order of the Registrar of Titles dismissing the objection of the Liquidators to the first registration of the freehold property at No. 16, Williams Street, Lagos.
Earlier on 13th September, 1968, the applicants who are the Administrator and Administratrices of the estate of Alhaji N.B. Soule, deceased, and who are now appellants, had made an application to the Registrar of Titles in Lagos to register themselves as owners of the said freehold property. The application was duly advertised in accordance with the provisions of Section 8(2) of the Registration of Titles Act (Cap. 181) and objections were lodged with the Registrar of Titles against the first registration by the first and second Objectors. After hearing the applicants and the first Objector, the second Objector having dropped out, the Registrar dismissed the objections, and ordered that the freehold property should be registered in favour of the applicants.
Both the applicants and the first Objector agreed as to the following facts. The property in question originally belonged to the late Akarigbo of Ijebu-Remo (the second Objector) by virtue of a deed of conveyance dated 31st March, 1926 (Exhibit C). On 4th November, 1949, one Sosanya, an auctioneer, acting on the instruction of the late Akarigbo and by private treaty sold the property to the late Alhaji N.B. Soule, the father of the present applicants, for 2,000 Pounds and issued him a receipt (Exhibit B1) for the amount. The property was, however, never conveyed to Alhaji Soule although he was allowed to take possession of it. After renovating it, Alhaji Soule used it for his business.
On 4th April, 1957, the Muslim Bank (W.A.) Ltd., with Alhaji Soule as the Managing Director, was incorporated and was granted a Banking licence (Exhibit 1) in June of that same year. After the incorporation of the Bank, Alhaji Soule handed the property over to the Bank in return for an allotment to him of 6,500 shares in the Bank, valued nominally at 13,000 Pounds, as can be seen from the particulars in the document dated 20th July, 1957 (Exhibit G2) forwarded by Alhaji Soule to the Registrar of Companies in compliance with the Companies Ordinance (Cap. 38). Attached to this document is a Return on Allotment of Shares (Exhibit G2). These two documents clearly show that the consideration which Alhaji Soule gave for the allotment of the 6,500 shares to him was this freehold property at No. 16, Williams Street, Lagos. Moreover, a document (Exhibit N) dated 20th February, 1961, and executed by the said Alhaji Soule (admitted with the consent of both parties presumably as a memorandum of the transaction) showed that there was a sale of the property by Alhaji Soule to the bank for 13,000 Pounds.
After the handing over, the Bank entered into possession of the property and used it as its head office. Alhaji Soule remained the Managing Director of the Bank until his death on 15th August, 1965. On 21st January, 1966, the High Court of Lagos State granted Letters of Administration (Exhibit A1) to the applicants to administer the estate of their father (Alhaji N.B. Soule). The property at No.16, Williams Street was not included in the particulars of freehold and leasehold properties of the deceased (Exhibit D) which the applicants later filed in the Probate Registry of the Lagos High Court.
By the Muslim Bank (Revocation of Licence) Order, 1968 (L.N. 77 of 1968), the licence of the Bank was revoked by the Federal Commissioner for Finance and the present 1st Objector were appointed Provisional Liquidators on 12th November, 1968.
Notwithstanding what Alhaji Soule did with the property in his lifetime, the applicants, as we had pointed out earlier, nevertheless, applied to the Registrar of Titles to be registered as owners of the said property. The Provisional Liquidators objected to the application on the sole ground that the late Alhaji Soule had sold the property to the Bank during his life time.
After holding that the transaction dated 20th July, 1957, under which, in consideration for the 6,500 shares allotted to him by the Bank, Alhaji Soule gave the property at No. 16, Williams Street to the Bank, did not “give rise to any estate, either at law or in equity, in favour of the Bank” the Registrar dismissed the objection and ordered that the registration of the property should proceed.
The first Objector appealed to the Lagos High Court against the Registrar’s order. In the judgment allowing the appeal, the learned Chief Justice of the Lagos High Court, after considering the provisions of Section 6 of the Registration of Titles Act (Cap. 181) and referring to some of the cases cited before him, observed as follows:-
“In the case before me however there is no previously registered owner of the property in dispute and the sole question boils down to what I have said earlier, i.e. whether the respondents, having through Alhaji N.B. Soule, deceased,
(1) entered into a contract of sale of the property with the appellant,
(2) put the appellant in possession of the said property, and
(3) received valuable consideration for the property,
can under Section 6(a) be regarded as persons entitled to apply for first registration
In the first place, can the respondents under those circumstances be said to be persons with power to sell the property I presumed this power to sell is one which must exist at the time of the application for registration. Surely the only answer to this is that they have already sold, received consideration and put the purchaser into possession and so cannot at the time of the application be regarded as persons with the power to sell the property.”
The learned Chief Justice then considered the argument put forward by Chief Williams who appeared for the respondents (the Administrator and Administratrices of the State of Alhaji N.B. Soule) in that appeal and observed as follow:-
“The argument of Chief Williams to the effect that only the contractual right to acquire the estate in fee simple passed, breaks down when the purchaser is actually put in physical possession of the property as happened in this case after receipt of valuable consideration by the vendor. I can certainly find nothing in the evidence on record or from which I can draw the presumption that in the circumstances prevailing at the time of the sale to the Bank, what the vendor contracted to sell and what the vendee contracted to buy was the mere contractual right to acquire the estate.”
After finding that the first Objector (the Muslim Bank Ltd.) were entitled in equity to an estate in fee simple, the learned Chief Justice allowed the appeal and set aside the order of the Registrar of Titles. He then upheld the objection to the application for registration after stating finally as follows:-
“I am of the view that the respondents in this appeal as applicants to first registration in the Registrar’s Court had not shown any right to be so registered in view of the objection of the appellants and that the learned Registrar erred in so ordering registration to proceed in their favour.
“The only question at the heart of the further appeal now before us is whether the Administrator and Administratrices of the estate of the late Alhaji Soule can apply to be registered as the owner, in fee simple, of the property in question, as they had sought to do, subject to the rights of the Muslim Bank Ltd. For the appellants, it was contended that they had such a right and that, in allowing the appeal from the Registrar’s order and upholding the objection to the application for registration, the learned Chief Justice misconstrued the provisions of Section 6(a) of the Registration of Titles Act (Cap. 181 of the Laws of the Federation) which will hereafter be referred to as the Act. Learned counsel for the 1st Objector/respondent (who is the only respondent concerned with this appeal) agreed that what is involved in the appeal is the consideration of Section 6(a) of the Act. He submitted, however, that the interpretation which the learned Chief Justice put on the provisions of the section and on which he based his decision was correct and that for that reason his finding should not be disturbed.
It is also our view that the whole case hinges on the interpretation of Section 6(a) of the Act. The section reads:-
“Subject to the provisions of this Act-
(a) any person who has power to sell, or is entitled, at law or in equity, to an estate in fee simple in any land, whether subject or not to incumbrances, may apply to be registered as the owner of the fee simple of that land.”
A breakdown of the section shows that only the following persons can apply to be registered as the owners of the fee simple in any land which is subject to the provisions of the Act:-
(i) any person who has the power to sell any land, whether the land is subject to any incumbrances or not;
(ii) any person who is entitled at law to an estate in fee simple in any such land; and
(iii) any person who is entitled in equity to an estate in fee simple in any such land.
Having sold the property at No. 16, Williams Street, Lagos, to the bank and received valuable consideration for the sale, not to mention the fact that he had himself put the Bank in possession soon after the sale, Alhaji Soule, in our view, could not and did not have the power to sell the property again as he would have nothing to sell. He could not, therefore, belong to the first category of applicants. For the same reason and also because he did not obtain any deed of conveyance from the Akarigbo, we do not think that he is entitled at law to an estate in fee simple in the said property and accordingly he is outside the second category of persons who can apply to be registered as owner. Indeed, the learned counsel for the appellants conceded this point.
The main plank of the argument put forward in support of the appeal is this. Because the late Alhaaji Soule did not obtain a deed of conveyance from the Akarigbo when he bought the land from him, he (Soule) had only an equitable interest in the property at the time he sold it to the Muslim Bank. As he could not and did not transfer this equitable interest to the Bank, all the Bank obtained was a contractual right to the legal estate. The equitable interest still remains with Alhaji Soule and since this brings him within the third category of applicant – those who are entitled in equity to an estate in fee simple in any such land – it is only the Administrator and Administratrices of his estate who could apply for registration.
In our view, this argument is not only ingenious but it also begs the issue, the main question in issue, to our mind, is whether the appellants (who have now stepped into the shoes of the late Alhaji Soule who, before his death, had sold whatever interest he had in the property to the Muslim Bank), pursuant to the provisions of Section 6 (a) of the Act, are “entitled in equity to an estate in fee simple” in the said property and can therefore apply to be registered “as owner of the fee simple of that” property.
It is manifest that the words “entitled in equity” used in the section are not synonymous with the words “having an equitable interest.” We do not therefore accept the submission of learned counsel for the appellant which assumed that they are. The cardinal rule for the construction of legislative language is that the words used in a statute which are not applied to any particular science or art are to be construed as they are understood in common language. If this rule is applied to the provisions of Section 6(a) of the Act, it is obvious that the words “in equity”, as used in the section, mean simply “in fairness”. Indeed, we can discern nothing in the con which shows that the words “in equity” were intended to be applied otherwise than in their ordinary meaning. On the contrary, the fact that the word “estate” is defined in Section 2 of the Act as including “right or equity” would appear to indicate that the words “in equity” are not intended to mean and could not therefore mean “equitable interest”.
We therefore think that, in the con in which the words are used, the narrow and restricted meaning of the word “equity” will not suffice. We are of the view that a person is “entitled in equity” to an estate in fee simple in any land which can be registered under the Act if he can show that, having regard to all the surrounding circumstances, he is justly or in all fairness, so entitled. In this connection, it is necessary to bear in mind that the functions of the Registrar of Titles, in the case in hand, is to investigate the title of the applicants, if any, with a view to first registration. Section 9(2) of the Act provides that:
“If after investigation of application for first registration the registrar is satisfied that the applicant is entitled to be registered as the owner of the whole or part of the land claimed, he shall be registered accordingly. In every other case the application shall be dismissed.” (The underlining is ours).
The late Alhaji Soule had sold the property in question to the Muslim Bank for valuable consideration as far back as June, 1957, and had put the Bank in possession soon after. Would it be just or fair for the appellant, as administrator and administratrices of his estate, to now apply as persons “entitled in equity” to be registered as owner of the same property and for the Registrar of Titles, knowing all these undisputed facts, to order that they should be registered as owner We think not. Indeed, it would be most inequitable to register them as such. As Lord Uthwatt had rightly pointed out in Winter Garden Theatre (London) v. Millenium Productions (1948) A.C. 173 at p. 203 –
“In a court of equity, wrongful acts are no passport to favour. A court should not assist those who have been shown, by their action, and in unmistakable terms, to have disregarded the rights of the 1st Objector, rights which the father of the appellants had himself conferred upon the 1st Objector and about which the appellants are fully aware. It would have been most unfair to the Bank to have allowed the appellants to keep both the 6,500 shares which they still have in the Bank and the disputed premises which their father gave in exchange for those shares. We, therefore, see no reason to disturb the decision of the learned Chief Justice that the application for first registration of the property at No. 16, Williams Street, Lagos, should have been dismissed and the Objection lodged by the 1st Objector upheld.
The appeal fails for all these reasons and it is dismissed with costs assessed at N92.00.
Other Citation: (1974) LCN/1862(SC)
