Tijani Jolasun V Napoleon Bamgboye (2010)
LAWGLOBAL HUB Lead Judgment Report
MAHMUD MOHAMMED, J.S.C.
The Appellant in this appeal was the Applicant in the Land Registry of Lagos in Lagos State in respect of first registration in his favour an interest in the property known and described as No. 43, Shifawu Street, Surulere, Lagos. This applicant was made on 16th April, 1986 pursuant to Section 9(2) of the Registrartion of Title Law Cap 121 of the Laws of Lagos State. The Application which was supported by the relevant documents of the title to be registered was duly advertised by the Registrar in accordance with the requirements of Section 8 of the law. Following the advertisement, the Respondent filed his notice opposing the Appellant’s application for first registration of the property as an objector on the main ground that the property belong to his late father.
The Respondent’s objection and the application for registration were set down for hearing by the Registrar of Titles where both the Appellant/Applicant and the Respondent/Objector,were duly represented by their respective Counsel. The matter was heard between 29th October, 1975 and 21st March, 1979 by B. O. Martins, the Registrar of Titles before arriving at his decision to dismiss the Respondent’s objection to the first registration of the property in question, No. 43 Shifawu Street Surulere in favour of the Applicant who is now the Appellant.
The Respondent who lost was not happy and therefore appealed to the High Court against the decision of the Registrar of Titles. The appeal was heard by the High Court and in its judgment delivered on 19th January, 1994, dismissed the appeal and affirmed the decision of the Registrar of Titles. However, on further appeal to the Court of Appeal Lagos Division against the judgment of the High Court, the Respondent who was the Appellant in that Court, was successful when his appeal was allowed and the judgment of the High Court was set aside while the Appellant’s application for the first Respondent of the Property No 43 Shifawu Street Surulere was dismissed in the judgment of the Court of Appeal given on 11th December, 2000. Aggrieved by that decision, the Appellant is now on a further and final appeal to this Court.
The case of the Appellant who was the Applicant for first Registration of title before the Registrar of Titles was that the land the subject matter of his application originally belonged to the Oloto family. That the Oloto family sold large expense of the land including the land the subject of the application to the late Joseph Samuel Bamgboye who was the father of the Respondent and objector before the Registrar of Titles. That the Respondent’s late father in turn mortgaged the said land to the Scottish Nigeria Mortgage and Trust Company Limited. That on failure of the Respondent’s father to redeem the Mortgaged property, the same was sold by public auction to one Mr. Ola Dawodu who in turn sold it to Surakatu Ogunsanya Kiyomi who in turn sold the same to Jacob Ade Osinowo who eventually sold it to the Appellant. The Appellant supported his application for first registration with documentary evidence comprising Deeds of conveyances Exhibits ‘A’, ‘B’ and ‘C’ which were duly registered in the Land Registry and duly executed between the parties on 25th October, 1951, 16th December 1948 and 27th April, 1920 respectively. The Appellant/Applicant in the course of the hearing before the Registrar of Titles also gave oral evidence and called one other witness who testified in support of his application which was also published in the Daily Times and Gazette No 77 Vol. 53 of 8th August, 1966 as required by the law. It was while the Appellant/Applicant was waiting to receive his certificate of first registration after the submission of his title documents including the resurveyed plan of the property on 4th May, 1967 that the Respondent/objector filed his objection to the registration of the property.
The case of the Respondent/objector on the other hand who testified in support of his objection to the first registration of the property at No.43 Shifawu Street Surulere in the name of the Appellant/Applicant, also testified before the Registrar of Titles and called two other witnesses. His ground of objection to the registration of the Property was –
“that the parcel of land intended to be registered is covered by a Deed of Conveyance dated 17th April, 1920 registered as No.133 at Page 437 in volume 133 Lagos Land Registry and registered in favour of his late father J. S. Bamgboye.”
He testified that his late father left six children including himself and four of whom had executed a power of Attorney empowering him to challenge the registration of the property. He stated that in 1918 his late father bought large parcel of land including the property No. 43 Shifawu Street, Surulere from the Oloto family who executed a Deed of Conveyance duly registered in 1920. While he specifically denied that his late father ever sold the property in question before his death in Kaduna in 1935, he disclosed that his late father sold his other properties to other people as reflected in the Deed of Conveyance received in evidence as Exhibits ‘M’ ‘N’ and ‘O’. The Respondent/objector who denied in his evidence in chief that his father had mortgaged his property including No.43 Shifawu Street Surulere to the Scottish Nigeria Mortgage and Trust company Limited, admitted under cross examination that the mortgage transaction between his late father and the Scottish Nigeria Mortgage and Trust company Limited indeed took place but claimed that the property was not sold by auction to settle the loan granted to his late father but that the property was redeemed by his late father. He could not however say if any deed of release was executed or registered in the Land Registry before 1927 to support this claim. The Respondent/objector’s reaction to these questions was that his late father merely told him by his own words that the mortgaged property had been redeemed. The Registrar of Titles in his findings from the evidence led or brought before him on the Respondent/Objectors objection to the first Registration of the property No. 43 Shifawa Street Surulere, found that the main contention between the Appellant and the Respondent before who were parties before him on the objection to the registration of the property, was the question of the existence or otherwise of the mortgage transaction between the Scottish Nigeria Mortgage and Trust Company Limited and Mr. J. S. Bamgboye, the late father of the Respondent. The Registrar then found that the failure of the Respondent/Objector to produce any evidence in support of his claim that the property in question had been redeemed, such as Deed of Release of the Mortgaged property, was fatal of his objection to the registration of the property and therefore proceeded to dismiss the objection.
Although the objectors appeal to the High Court of Justice was dismissed and the decision of the Registrar of Titles was affirmed, his further appeal to the Court of Appeal Lagos was successful where the appeal was allowed and the decisions of High court and the Registrar of Titles were set aside and the Appellant/Applicant’s application was dismissed hence the present appeal by the Applicant/Appellant.
In the Appellant’s amended brief of argument filed on 27th April, 2004, two issues for the determination of the appeal were formulated. There are –
“Wasn’t the Court of Appeal in error by holding that it is the Respondent who needed to show that he had a good title to the land indispute who bore the burden of proof If the answer to this issue is in the affirmative, did the Respondent in this appeal discharge the onus on him to show that his father redeemed the mortgage on the property so as to give him the locus stand to defend the interest of the family in the property.
Issue No. 2.
- Whether long and undisturbed Possession can be basis for registration under the Registration of Titles (sic) Act CAP 121 Laws of Lagos State.”
In the Respondent’s brief of argument however, the following two issues for determination were identified from the two grounds of appeal filed by the Appellant.
“1. Whether the Court of Appeal was right when they held that the Applicant for first registration under the Registration of Titles Law CAP 121 has the burden to prove that he was the owner of the land claimed.
- Whether the Court of Appeal was right in holding that the presumption as to the truth of the contents of documents over 20 Years old at the date of contract as Provided in Section 130 of the Evidence Act did not operate in favour of the Applicant Tijani Jolasun (Appellant) in this case”
Having regard to the 2 grounds of appeal filed by the Appellant in this appeal, the issues as identified in the Appellants brief of argument are indeed the issues for determination. In support of the first issue, it was submitted for the Appellant that the Appellant had been in possession of No. 43 Shifawu Street Surulere which he bought from Jacob Ade Oshinowo in 1950 and a Deed of Conveyance executed on 25th October, 1951 in this respect, was in evidence as Exhibit ‘A’; that having satisfied of his root of title, the Appellant between 1959 and 1973 developed the land by putting up a story building without any challenge from any person; that the Appellant having applied for registration which was objected by the Respondent, the burden was on the Respondent to show a better title to the property in order to stop the registration. The Appellant relied on the case of Udeze v. Chedebe (1990) 1 N.W.L.R. (Pt. 125) 141 at 162 where this Court said there is a presumption of ownership in favour of any person in possession of land by virtue of the provisions of Section 45 of the Evidence Act which put the burden of proof on the other side which is asserting the contrary to prove that the person in possession is not the owner of the land as was also decided by this court in Onobruchare v. Esegene (1986) 1 N.W.L.R. (Pt. 19) 799; Itanma v. Ikpe-Ime (2000) 12 N.W.L.R. (Pt. 680) 156 at 159 and Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 568.
On the question of the redemption of the mortgage of the property by the late father of the Respondent, learned Appellant’s Counsel referred to the evidence of the Appellant at page 39 of the record and the evidence of the Respondent under cross-examination at page 52 of the record and concluded that the Respondent having clearly admitted that his late father Bamgboye had mortgaged the property to the Scottish Mortgage Company, the need for the Appellant to have relied exclusively on the recital in the Deed of Conveyances in Exhibits ‘A’ and ‘B’ to prove such mortgage was no longer necessary as what was admitted needed no further proof taking into consideration the cases of Agbanebo v. Union Bank of Nigeria Ltd (2000) 7 N.W.L.R. (Pt. 666) 534 at 549 and Edopolo & Co. Ltd. V. Ohenhen (1994) 7 N.W.L.R. (Pt. 358) 511 at 519; that as it was the Respondent who after the admission of the existence of the mortgage that went ahead to assert that his late father had redeemed the mortgaged property, the onus remained on him to have proved the redemption by evidence as those facts were within his peculiar knowledge. Learned Counsel relied on the cases of Okubule v. Oyabola (1990) 4 NWLR. Pt. 1471 723; Osawaru v. Ezeiruka (1978) 6 – 7 S.C. 135 at 145 and Odukwe Ogunbiyi (1998) 8 N.W.L.R. (Pt. 561) 339 at 352. Thus with the failure of the Respondent to prove the redemption, the property which is the subject of the Appellant’s application, was properly dealt with on 26th November, 1921 to justify the same supporting the application of the Appellant, concluded the learned Counsel who urged the Court to allow the appeal.
For the Respondent however, it was argued that by virtue of section 9 of the Registration of Titles Law CAP 121, for an Applicant for first registration to succeed, he has to satisfy the Registrar that he is entitled to be registered as the owner of the land claimed; that at the hearing of the objection filed by the Respondent before the Registrar of Titles, the Appellant agreed that the Oloto Chieftaincy family were the original owners of Shifawu Street Surulere and that they had sold the land to the Respondent’s father since 1920 as shown on the Deed of conveyance Exhibit ‘C’ who in turn mortgaged it to the Scottish Nigeria Mortgage and Trust company Limited as reflected on the Deed of conveyance Exhibit ‘B.’ Learned Respondent’s Counsel then quoted part of the judgment of Court of Appeal at pages 281 to 282 where the Court said –
“The Respondent in order to succeed needed to trace his title to Bamgboye who had acquired the title to the land in dispute from mutually agreed original owners – the Oloto family. It is in attempt to do this that the Respondent gave evidence that Bamgboye mortgaged the land and that the mortgaged (sic) through the auctioneer later sold the land to one Dawudu and later one Kiyomi. The Respondent however did not tender the deed of mortgage by which Bamboye mortgaged the land. Neither did he call the evidence of the mortgage Company. The result is that there was no evidence before the Court that the mortgage Company caused Bamgboye’s property to be sold to one M. Ola Dawodu or later to Kiyomi.”
and proceeded to defend the same in his argument pointing out that the Appellant had failed to trace his title to Bamgboye, the father of the Respondent in the absence of the notice of public auction, deed of reconveyance of the property to mortgagor, deed of transfer of land to Surakatu Ogunsaya Kiyomi and receipt of purchase issued to Kiyomi, tendered before the Registrar of Titles by the Appellant/Applicant. In such circumstances, learned Counsel argued, the Court below was right in allowing the appeal and in dismissing the Appellant/Applicant’s application particularly when from the evidence brought by the Respondent in Exhibits ‘M,’ ‘N,’ D and R, the Respondent had proved a better title to the property sought to be registered.
In resolving this issue, I note that this appeal arose out of the application by the Appellant to register his interest in the property described as No. 43 Shifawu Street Surulere, Lagos under the Registration of Titles Law CAP 121 of the Laws of Lagos State. Cases in which registration is permitted are specified in Section 6(1) of the law which says –
“6(1) subject to the provisions of this law –
(a) any person who has power to sell, or, entitled at law or in equity, to estate in fee simple, in any land, whether subject or not to incumbrances, may apply to be registered in the registry as the owner of the fee simple of that land; and
(b) any person entitled, at law or in equity, to a lease of any land for an unexpired term of not less than five years whether subject incumbrances or not, may apply to be registered in the registry as owner of that lease.”
The section has clearly specified categories of persons who may apply to be registered as owners of land under the law. See also Majekodomi & Ors. v. Abina (2002) 3 NWLR (Pt.755) 720 at 750. It was by virtue of these interests in land permitted to be registered under the law that the Appellant applied to the Registrar of Titles under section 9, of the law to be registered as the owner of No.43, Shifawu Street Surulere. That Section of the law states –
“9(1) In investigating a title with a view to first registration the registrar shall accept and act on legal evidence or evidence ordinarily required by conveyancers.
(2) If after investigation of an 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.”
From the evidence adduced before the Registrar of Titles, it appears the registrar was satisfied with the evidence of ownership brought by the Applicant comprising the Deeds of conveyances in respect of the property to be registered – that is Exhibits ‘A’, ‘B’ and ‘C’ respectively which traced the title in the property to the Oloto family when the applicant was asked to come back for the certificate of registration. This is in line with the requirement of Section 9 of the law that the Registrar of Titles shall, in investigating a title with a view to first registration, accept and act on legal evidence or evidence ordinarily required by conveyancers, and if satisfied register accordingly. See Onagoruwa v. Akinremi & Ors. (2001) 13 N.W.L.R. (Pt. 729) 38 at 56. It is significant to note that it was while the applicant was awaiting the certificate that the Respondent filed his objection to the first registration before the registrar. The question then is what was the Respondent required to do under the law in challenging the registration The answer is in Section 10(1) of Law which provides as follows –
“10(1) If any person opposing an application for first registration claims and proves to the registrar that the land is family land under customary law, the registrar shall, unless the family should consent to registration dismiss the application.”
It is quite clear from the provisions of sections 9 and 10 of the law, that while section 9 enjoined the registrar on being satisfied with the legal evidence or evidence ordinarily required by conveyances that the Applicant is entitled to be registered as owner of the whole or part of the land claimed, proceed to register the same, section 10(1) of the law on the other hand empowered the registrar to dismiss the application where any person opposing the application for first registration claims and proves to the registrar that the land is family land under customary law. Therefore under the law, the burden of proof lies both in the Applicant to prove his ownership of the land to the satisfaction of the registrar to be entitled to registration, while the Objector or person opposing the registration to prove to the satisfaction of the registrar that the land being the subject matter of the application for first registration, is a family land to justify the application being dismissed by the registrar.
In the case at hand, the evidence on record before the Registrar of Titles shows that No. 43 Shifawu Street Surulere forms part of the Oloto family land that was conveyed to the late father of the Respondent Mr. Bamgboye on or about 7th April 1920 by a Deed of Conveyance received in evidence as Exhibit ‘C.’ There is evidence from both parties in this case that this property owned by late Bamboye had been mortgaged by him to the Scottish Nigeria Mortgage and Trust company Limited. The evidence of the existence of the mortgage is not only contained in the Deed of conveyance Exhibit ‘B” previous court proceedings brought by the Respondent Exhibit ‘Q where the particular mortgage dated 29th May 1920 was registered as No. 115 at page 421 Vol. 130 certified true copy of which was received in evidence as Exhibit ‘E’ but was also admitted in no uncertain terms by the Respondent under cross-examination inspite of his earlier denial of its existence in his evidence in chief. As the existence of the mortgage had been admitted by the Respondent, what had been admitted needed no further proof – see Agbanebo v. U.B.N. Plc (2000) 7 N.W.L.R. (Pt. 666) 53 at 549 and Edopolo and company Limited v. Ohenhen (1994) 7 N.W.L.R. (Pt. 358) 511 at 519. It may I believe, throw more light in the determination of this issue if the findings of the Registrar of Titles on the evidence adduced before him by the parties on the existence of the mortgage of the property and its alleged redemption or otherwise as affirmed by the High Court on appeal, are brought out clearly. In coming to the conclusion that the Respondent’s late father did not redeem the mortgage affecting the property No. 34 Shifawu Street Surulere Lagos, the Registrar said at pages 93 – 94 of the record and as follows –
“From the above I have no doubt in my mind that the landed Property was put into Public auction on the 26/11/21 and that Kojilabelu was the auctioneer. Similarly I have no doubt in my mind that the Public auction of 26/11/21 was with the consent of the mortgagees and that as at that date i.e 26/11/21 the mortgagor has not redeemed the mortgage and what was sold at the public auction of 26/11/21 can never be redeem again. If there was any redemption at all it must be what was left unsold on the 26/11/21. The land which is the subject matter of this application from the evidence before me and the exhibits tendered falls within the portion of the land which was sold at the Public auction of 26/11/21. The objector be able to succeed must show evidence that before the Public auction of 26/11/21, there was a redemption of their fathers landed property. The evidence nearest to this came from Exhibit M and N. Exhibit ‘M’ was dated 31/12/21 which was after the public auction. Exhibit N was in 1927. Time is an essential factor to the date of redemption in this case.”
From the above findings which are clearly based on the evidence before the Registrar of Titles, the only remaining area of dispute or contention between the parties from the evidence therefore is whether or not late Bamboye had redeemed the mortgaged property before his death in 1935. In his oral evidence under cross-examination the Respondent had asserted that the property had been redeemed by his late father in 1926. By this assertion in his opposition to the application for first registration by the Appellant/Applicant, the burden is clearly on the Respondent by virtue of section 10(1) of the Registration of Titles Law to call reliable evidence to establish the fact in contention that the property the subject of the application had been redeemed by his late father as asserted by him. The law is trite. There can be no doubt that the burden of proving a particular fact lies on the party who substantially asserts the affirmative of the issue. See osawaru v. Ezeiruka (1978) 6 – 7 S.C. 135 at 145; Okubule v. Oyagbola (1990) 4 N.W.L.R. (Pt. 147) 723 and Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 352. On the state of the evidence on record and the law therefore, the Court below was in error when in its judgment now on appeal, it placed or heaped the burden of proof on the Appellant/Applicant who did not make the assertion of the redemption of the property. Taking into consideration the evidence on record that was before the Registrar of Titles, the Respondent who opposed the application for first registration of the property, having failed to satisfy the Registrar that the property the subject of registration had been redeemed by his late father before his death in 1935, the Registrar was right in dismissing the Respondent claim and in directing the first registration of No. 43 Shifawu Street Surulere in favour of the Applicant now Appellant. On this issue therefore the appeal must succeed.
The second issue is whether long and undisturbed possession can be basis for registration under the Registration of Titles Act (sic.) CAP 121 Laws of Lagos State. The issue as framed has not been addressed to the present case. It is an issue at large only requiring an academic answer which this court or any other Court for that matter, is not allowed to embark upon. See Eperokun v. University of Lagos (1986) 4 N.W.L.R (Pt.34) 162 at 167; Olaniyi v. Aroyehun (1991) 5 NWLR. (Pt.194) 152; Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) 47. The types of evidence required to support application for first registration have been clearly stated in Section 9(1) of the Registration of Titles Law CAP 121 of the Laws of Lagos State. Since the long and undisturbed possession in this issue has not been linked to the long and undisturbed possession by the Appellant/Applicant in the present case, I have no business to look into it in the determination of this appeal.
In the final result this appeal succeeds and it is hereby allowed. The decision of the court of Appeal of 11th December, 2000 is hereby set aside. The decision of the Registrar of Titles given on 21st March, 1979 directing the registration of the Appellant/Applicant as the owner of the property known as No. 43 Shifawu Street Surulere, Lagos as affirmed on appeal by the High Court of Justice, Lagos, is hereby restored and affirmed.
I am not making any order on costs.
SC.8/2002
