M. O. Onayemi V. R. O. Balogun (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The appellant was the defendant before the High Court, Lagos (Suit No. LD/166/67) in an action instituted against him by the respondent, then plaintiff, and in which her writ of summons was endorsed as follows:

“The piece or parcel of land together with buildings thereon situate and lying at 21 Oyinkan Road, Apapa, in the Federal Territory of Lagos and which is described in the Land Certificate Title No. MO. 1866 in the Register of Deeds kept in the Federal Lands Registry in the Office at Lagos is the property of the above-named plaintiff.

The defendant, without the knowledge and consent of the plaintiff, unlawfully claims ownership of the afore-mentioned property.

THE PLAINTIFF THEREFORE CLAIMS AGAINST THE DEFENDANT:

1. Declaration that the above-named property is her property in fee simple absolute.
2. Any amount of money whatsoever which the defendant might have collected from Messrs. Sadhwanis who are the tenants now in occupation of the said property.
3. An injunction to restrain the defendant by himself or by his servants or agents or otherwise from continuing or repeating the act complained of or any similar act.
4. An order directing the Registrar of Titles to rectify the land Certificate which now bears the defendant’s name and to substitute the name

of the plaintiff thereof on the basis that the change of name was obtained by Forgery.

5. Damages.
6. Any other or further Orders as may be just.
7. Costs.” In the High Court pleadings were ordered and filed and the statement of claim states in substance that the plaintiff is the freehold owner of the property situate at and known as No. 21 Oyekan Road, Apapa which had been registered in her name under Title No. MO. 1866 under the provisions of the Registration of Titles Act, Cap. 181, that the tenants occupying the premises and who used to pay her rents have now ceased to do so and that without her consent or authority the defendant had purported to buy the property and got the property registered in his own name. Paragraphs 19 and 22 of the statement of claim read thus:

“19. The plaintiff will contend during the trial that procedure laid down in section 44 of the Registration of Titles Act, Cap. 181, was not followed before a change of ownership of her property was registered by the Federal Lands Registry in that:

(a) the plaintiff was not given notice of any disposition which affected the change or ownership of her property.

(b) The plaintiff did not give her consent to the Registrar of Lands or any person that a change of ownership of her property be effected.

22. The plaintiff did not at any time sign or authorise any person or group of persons to sign any document transferring her rights and interest in the property to the defendant or to any person whatsoever.”

The statement of defence calls for strict proof of the principal averments in the statement of claim and avers that the plaintiff had by her conduct permitted the firm of solicitors in which her husband was a partner to deal with the property and that the defendant would rely upon the fact of his registration as the proprietor of the leasehold interest comprised in the said property.

The case was tried by Taylor, C.J. In the course of the proceedings an order was obtained to join as a second defendant to the action the husband of the plaintiff, Chief Kolawole Balogun, but on the application of learned counsel for the first defendant, now appellant, Chief Kolawole Balogun was discharged from the action after he had filed a statement of defence. The plaintiff gave evidence and called two other witnesses in support of her case. She stated that the property belonged to her and that she was indeed the registered proprietor of the leasehold interest comprised in the title and confirmed her pleadings to the effect that she gave no authority or permission to anybody to sell her property or interest in the said land.

She also stated that after she was registered as the proprietor of the property she handed over her certificate of title to her husband and that the latter had failed and/or refused to return the certificate to her despite her several requests for the same. She was shown the certificate of title issued to the defendant and she confirmed that the contents of the certificate related to her property. One of the witnesses called by her was the Assistant Registrar of Titles in the Registry of Titles at the material time. The certificate issued to the defendant was admitted in evidence in the proceedings as exhibit B and the Assistant Registrar of Titles gave it in evidence as his impression that the certificate exhibit B looked like a first registration of the property in dispute whereas it was not and should not have been a first registration. The other plaintiff’s witness was a police officer whose evidence did not however affect the case one way or the other.

The defendant gave no evidence and called no witnesses.

In a considered judgment in which the learned Chief Justice referred to the provisions of section 53(1) of the Registration of Titles Act, Cap. 181,