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.

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.