National Investment & Properties Company Limited & Anor V. Bank Of West Africa Ltd (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

This appeal is against the judgment of de Lestang, C.J., High Court of Lagos in favour of the plaintiff Bank.

The Bank’s case was that Mansour had deposited three certificates of leasehold property in Lagos registered in his name under the Registration of Titles Act, to secure monies advanced or to be advanced to him and to Ali Mansour and Sons Ltd., or to either of them; that in or about March, 1956, he undertook in a memorandum (referred to as Exhibit P.6) to execute a legal mortgage, but did not do so when called upon in or about July 1957; that in February, 1958, the Bank lodged the certificates with the Registrar of Titles for a purpose; that on the 1st March, Mansour purported to assign the leases to the N.I.P.C. who obtained the certificates and on the 25th were registered as owners,but as the N.I.P. C. were then unincorporated, the registration was void, and yet they would not hand over the certificates; and that both Mansour and Ali Mansour and Sons Ltd. were heavily indebted to the Bank: accordingly the Bank asked for a declaration that the N.I.P.C. did not obtain by registration any rights of priority over those of the Bank as equitable mortgagee, and certain forms of relief.

The Bank called evidence, the defendants did not: the learned Chief Justice found that the Bank’s case was proved, and granted the declaration; he also made orders on Mansour to execute a legal mortgage with the usual covenants, and on the N.I.P.C. to deliver the certificates to the Bank, together with an order for the Register to be rectified by deleting the N.I.P.C. and restoring Mansour as the owner of the leases.

The defendants have each appealed against the judgment. The hearing began with Mansour’s appeal, which was argued by Chief Okorodudu; Chief Williams argued for the N.I.P.C.; Mr. Goulding argued for the Bank. The dominant question arises under Mansour’s first ground of appeal, which complains that –

The learned trial Judge erred in law in admitting as evidence the document exhibit P.6., the said document being inadmissible by virtue of the provisions of the Land Registration Act.

For convenience that Act will be referred to as the 1924 Act. It provides for the registration of instruments and the filing of judgments affecting land in Nigeria. It sets up offices for registration and directs the Registrars to register instruments which satisfy the requisite conditions:

section 3; section 5. Every instrument (as defined in section 2) must be registered; if it is not, then, subject to the exemption, which will be discussed later, an instrument cannot be pleaded or given in evidence in court as affecting land; section 15; but registration does not cure defects: section 25.

It was doubtless to give a measure of security to dealings in land and reduce litigation, that in 1935 the Legislature enacted the Registration of Titles Act, to provide for the registration of titles to land, which is being applied step by step to more and more of Lagos, according as it becomes possible to create one and then another registration district: see Orders made under the Act in Vol. X of the  current Laws. The Act establishes registries and requires a separate Register to be kept in a certain form: section 4; section 69. If after the creation of a registration district a fee simple is conveyed, or a lease with forty years to run is granted or assigned, for a consideration which consists wholly or in part of money, the grant becomes, after two months (unless extended) after execution of the conveyance grant or assignment, void if the grantee does not apply for registration within that period: section 5. After first registration there are simple methods of dealing with registered land and having the dealing registered. On the other hand, the land can be dealt with as if it were not registered, but any such dealing is capable of being overridden by registered dispositions for valuable consideration: section 42(1). Mortgage by deposit of certificate is dealt with in section 58.

The point to note is that the Titles Act (section referred to for short) is based on a different conception and has another aim; that can easily be seen by looking at section 48 and on to section 54, which protects the registered purchaser for value from unregistered interests affecting the estate of any previous registered owner.

Much turns on section 86(1), which provides that –

(1)No document affecting land which originates an application for first registration and which is executed after the creation of the registration district in which land is situate and no document affecting registered land executed after first registration shall require to be registered under the Land Registration Act. No registered owner, being a purchaser for value subsequent to first registration shall be affected by notice of any document registered under such Act.

For such a purchaser the register kept under the Titles Act serves as a screen behind which he need not look. The first mentioned class of documents is dealt with in section 5; failure to apply for registration in time carries the penalty of making the document (conveyance of fee simple; grant or assignment of lease) void. The second class comprises all documents executed after first registration, whether the interest or right created by the document be registered or not; failure to register such interest or right carries the risk of its being overridden by registered dispositions for valuable consideration: section 42(1).

Moreover, the convenience and security of a person buying, or advancing money on land registered under the Titles Act, made it desirable to save him from having to look at anything other than the Register kept under the Act. There was no point in having registration under two Acts; hence the exemption of those two classes of documents from registration under the 1924 Act. When the Titles Act was passed in 1935, section 85(1) (now printed as 86(1)) began with the second class of document after “and” in line 4 of the text; early in 1956 the subsection was amplified to read as quoted above, by Act No. 8 of 1956, with effect from 1st March, 1956.