Onashile V. Barclays Bank D.C.O. (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

This appeal by Mr Onashile requires a short summary of the events which led to it.
Mr Onashile gave Barclays Bank a legal mortgage of some land of his, to secure his overdraft. The Bank did not apply to have the legal estate registered under the Registration of Titles Act.

He was remiss in repaying, and in due course the Bank, exercising a mortgagee’s power of sale, sold and conveyed the mortgaged land to two purchasers, but Mr. Onashile refused to let them have possession. He sued claiming that the Bank’s omission to apply for registration of title made the transfer of the legal estate void; the purchasers and the Bank sued for possession; and the suits were consolidated. The attitude of the Bank was that a legal mortgage was not caught in section 5 of the Registration of Titles Act.

The High Court of Lagos decided in favour of the Bank and ordered possession. The Federal Supreme Court allowed Mr Onashile’s appeal; the judgement is reported in [1961] 1 All N.L.R., 313; at p. 317 it reads:-
“It follows that this mortgage should have been registered under section 5 of the Ordinance.

It has therefore become void insofar as it purports to convey the legal estate and the purported sale under the Conveyancing Act is also void to this extent.
I would accordingly allow the appeal and set aside the order for possession and mesne profits, and the order for costs. The appellant is entitled to costs both here and in the Court below, and I would assess these costs at a total of ninety guineas.”
That was the judgement of the Court. The Bank applied for leave to appeal to the Privy Council, but gave it up.

Some time later, the Bank applied to the High Court for extension of the time within which the Bank might apply for registration as the owner of the fee simple; and the affidavit in support states that the only reason why the Bank had not applied for registration was that ever since 1936, when the Act came into force, it was assumed that a legal mortgage did not originate registration. Mr Onashile opposed the application.

Evidence was heard to the effect that before that judgement was given the Registrar of Titles did not accept mortgages for registration. Onyeama J. thought the Bank had shown sufficient cause, and made an order granting an extension of time; and this second appeal by Mr Onashile is against that order.

The relevant provisions are in section 5 of the Act, of which it will be enough to quote the following portions:-
“Every conveyance of a fee simple estate in any land for a consideration which consists wholly or in part of money executed after the creation of the registration district in which the land is situated, shall on the expiration of two months from the date thereof or of any authorised extension of that period, become void so far as regards the grant or conveyance of the legal estate unless the grantee or his successor in title or assign has in the meantime applied to be registered as the owner of the fee simple……..

Provided always that the court may, on the application of any persons interested in any particular case in which the court is satisfied that the application for registration cannot be made within the said period, or can only so be made by incurring unreasonable expense, or that the application has not been made within the said period by reason of some accident or other sufficient cause, make an order extending the said period ;”

It is under the latter part of the proviso that the period of two months was extended.
There is no need to state the objections to the order in detail: for in our opinion the decision in the first appeal, that the mortgage had become void insofar as it purported to convey the legal estate, finally closed the door on any application for extension of the prescribed period. For the Bank it is argued that that decision did no more than set aside the High Court order for possession. It is true that the Federal Supreme Court decision did that; but the ground and foundation for doing it was that the mortgage had become void to the extent aforesaid.

The other argument for the Bank is that when the period of two months has expired, the conveyance automatically becomes void as regards the legal estate by operation of law, but the court may, nevertheless, by virtue of the proviso, grant an extension of that period and enable the mortgagee to apply for registration of the fee simple estate. The deduction to be drawn from that argument is that these words, namely:-

“It (viz. the mortgage) has therefore become void insofar as it purports to convey the legal estate”:-

Merely stated the position which resulted under the enacting clause of section 5 (1) from the failure of the Bank to apply for registration within two months from the date of the mortgage, and did not close the door on an application for an extension of that period.
The enacting clause provides that the conveyance:-

“Shall on the expiration of two months from the date thereof or of any authorised extension of that period, become void unless the grantee has in the meantime applied to be registered    ”