Abigail Folashade Vs Alhaji A. A. O. Duroshola (1961) LLJR-SC

Abigail Folashade Vs Alhaji A. A. O. Duroshola (1961)

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In this case parties are competing purchasers of a piece of land at Lagos-Ikorodu Road, Mushin, in Ikeja district.

The plaintiff claimed from the defendant the sum of £660 being damages for trespass to the piece of land. He also prayed the Court to grant an injunction against the defendant, his agents and servants from further acts of trespass upon the said land.

The plaintiff claimed that he derived his title from Charles Olayemi Blaize.

The defendant also based his root of title from the same man.

The plaintiff relied on a sale of two plots of land, which he said is the land in dispute, to one Aminu Alfa in 1927 and 1926. The sale, he alleged, was made in two plots to Aminu Alfa by the agents of Charles Olayemi Blaize to whom the sum of £3- lOs-0d and £2 respectively was paid for each of the plots. The payment of the first amount was evidenced by receipt Exhibit A in favour of the said Aminu Alfa by one Sunmonu Raji whilst the payment of £2 was evidenced by Exhibit Al in favour of Aminu Alfa by one Joseph Ogundipe, an auctioneer. There was no evidence before the Court how these men became agents to the aforesaid Charles Olayemi Blaize. There was however no deed of conveyance executed by Blaize in favour of Aminu Alfa. The plaintiff however claimed to have bought the land from the next of kin of the said Aminu Alfa from whom he received in 1949 a deed of conveyance, Exhibit B. The recital in the deed Exhibit B referred to the two plots of land as being bought for £2 and 30s respectively and not for £3-10s-0d and £2 respectively as per the receipts.

Meanwhile in 1952, Charles Olayemi Blaize sold the land in dispute (or a large part of it) to one Ade Akodu to whom he executed a deed of conveyance Exhibit Q conveying his whole interest in the land in fee simple. In 1956 the said Ade Akodu transferred his interest in the land to the defendant and executed a deed of conveyance, Exhibit O.

After the sale to Ade Akodu in 1952 and indeed in 1955, the plaintiff obtained from Charles Olayemi Blaize a document, Exhibit D, which has been referred to by counsel as ‘a deed of ratification of the sale to the plaintiff witnessed by the deed Exhibit B’.

The recital in Exhibit D states that the plaintiff ‘became seized of Plots 138 and 139 of C. O. Blaizes allotment for the sum or price of one pound each …. ‘ although in her deed of conveyance Exhibit B, she had paid £70 for the land. The recital in Exhibit D, however, continued:-

AND WHEREAS in order to add more effect to his title the purchaser had requested the vendor (C. O. Blaize) as the original owner of the land to ratify and confirm the sale in his favour and the vendor had agreed to do so in the manner hereinafter appearing…………

NOW THIS INDENTURE witnesseth in pursuance of such agreement and in consideration of the sum of £2 sterling paid to the vendor by his auctioneer J. O. Ogundipe after the sale at a public auction held on the 14th November, 1925 (the receipt of which sum the vendor hereby admitted and acknowledge) the vendor as the original and beneficial owner hereby grants gives confirms ratifies conveys and assures unto the Purchaser her heirs and assigns in fee simple all the piece of land …..

The learned trial Judge disbelieved the plaintiff that she was in possession of the land until 1956. He found however that as from 1956 both the plaintiff and the defendant were in possession of the land in dispute. He then summed up the position succinctly thus:-

What I have to decide therefore is, who has the better title and therefore the right to possession.

The Judge eventually dismissed the plaintiffs claim from which judgment plaintiff appeals. Counsel on both sides do not quarrel with the summing up of the learned trial Judge but Mr Somolu for the appellant arguing the appeal before us, made two submissions: namely that the act of ratification by Blaize (Exhibit D) dates back from the date the two plots were sold in 1927 and 1926 for which the receipts Exhibits A and A1 were issued: secondly, that the respondent had notice of the earlier sale to the appellant in that he was bound by the notice to his predecessor in title, who if he had made a search in the Land Registry in Lagos would have found that there was a registered deed of conveyance (Exhibit B) in 1949 relating to the land in dispute, in favour of the appellant.

I will deal with the first submission that the ratification dates back to 1927 and 1926. We were referred to the definition of ratification at page 1476 in the Dictionary of English Law by Lord Jowitt. It is defined thus:-

Ratification: confirmation: agency may be created by ratification. Where A purports to act as agent for B either having no authority at all or having no authority to do that particular act, the subsequent adoption by B of As act has the same legal consequences as if B had originally authorised the act. But there can be no ratification unless A purported to act as agent, and to act for B; and in such a case B alone can ratify.

The definition cannot by any stretch of imagination, in my view, apply to the present situation. Assuming that the receipts Exhibits A and A 1 purport to refer to the land in dispute and sold by Sunmonu Raji and the auctioneer Joseph Ogundipe respectively to Aminu Alfa, and there is no evidence to this effect, both might be regarded as agents of Blaize, selling on his behalf and at his instance. In such a case, following the definition above, there would be no need for Blaize to execute a deed of ratification for Aminu Alfa or a purchaser from him for value since he (Blaize) authorised the sale. All Blaize would have to do is to execute a deed of conveyance in favour of Aminu Alfa or to join in the execution of one to a purchaser for value from anyone who derives his title through the said Aminu Alfa. In my view, at best Exhibit D can only be looked upon as a deed of conveyance from Blaize to the plaintiff/appellant, although it is clear that the recital in the deed are almost all inaccurate. Its reference to the deed Exhibit B which is the conveyance of 1949 from Fatai Aminu and Moriamo Aduke to the plaintiff/appellant is, to say the least, inaccurate and misleading. Blaize apparently knew nothing about the sale by his supposed agents mentioned in the deed. The sale was according to the document (Exhibit D) said to have taken place on the 14th November, 1925, by public auction and the purchase price was £2 whereas the sale on which the plaintiff/appellant originally based his claim and evidenced by receipts Exhibits A and A1 took place in 1927 and 1926, by private treaty, the purchase price being £3-10s-Od and £2 respectively.

In a word, the deed Exhibit D on which the appellant relies is a worthless document containing no more than a conglomeration of legal terms which does not mean what it states. It ratifies nothing at all. It is a misnomer to call this document a deed of ratification. However, a proper case of ratification is subject to the important qualification that ratification must be within a reasonable time after which an act cannot be ratified to the prejudice of a third party.

I now come to the second submission, namely, that the Respondent had notice of the earlier sale to the appellant or that he was bound by the notice to his predecessor in title Ade Akodu who, Counsel submitted, should have discovered the conveyance, Exhibit B, had he made a search. It is doubtful whether the lands originally sold to Aminu Alta, for which Exhibits A and A1 are receipts, are the lands sold and conveyed to the present appellant: that is far from being established by evidence. Assuming that it was the same land, the original purchaser Aminu Alfa took the receipts and there is some evidence that he went into possession, but never had a deed of conveyance executed in his favour. Thus, he has created for himself an equitable interest in the land. When his (Aminu Alfa) next of kin sold the land to the appellant, they in turn could convey no more than the interest Aminu Alfa himself had, namely an equitable interest in the property. Thus the deed of conveyance Exhibit B to the appellant created no mote than an equitable interest. The appellant went into possession. Although the point was not fully argued by him but Mr Somolu suggested that the appellant has a better title by virtue of her possession. He apparently relied Ogunbambi v. Abowaba, 13 W.A.C.A. 222. But, as it has been pointed out in Orasanmi v. ldawu, 4 F.S.C. 40, to rely on Ogunbambi v. Abowaba there must be not only payment and possession, but the possession must be undisturbed and a continuous one for many years.

There is the findings of the learned trial Judge that the appellant was not in possession of the land until 1956. Further, there is evidence that in 1954 the respondent came to the land and erected a barbed wire fence on it. In 1952 the original owner Blaize, who be it noted still had the legal estate vested in him, had divested himself of this by selling the land to Ade Akodu, the predecessor in title to the respondent, to whom he executed a deed of conveyance (Exhibit Q). It was after the erection of the barbed wire and indeed in 1955 that the appellant sought for a transfer of the legal estate to her and the result was the defective deed, Exhibit D, which she got Blaize to execute. It was evident then that Blaize having parted with the legal estate to Ade Akodu in 1952 had no legal estate vested in him anymore which he could convey to the appellant.

It was submitted that the Respondent, and Ade Akodu before him, was bound by the notice of the equitable interest of the appellant as evidenced by the deed Exhibit B which was registered.

Counsel sought to direct our attention to a feint inscription on the deed of conveyance from Blaize to Ade Akodu (Exhibit Q). This was a pencilled instruction that ‘the usual letter’ was to be sent. Counsel said it should have indicated to anyone who is familiar with the practice of the Land Registry that the instrument relating to the land shown in the deed had previously been registered.

This he argued should have been enough notice to the Respondent had he or his Solicitor made a proper search. This sounds rather a startling proposition; however it is unnecessary to deal with this point as it was never raised in the court below and there was no evidence before that court about such inscriptions as creating sufficient notice to a purchaser.

It seems to me appropriate here to reiterate what was said by this court in the case Omosanya v. Anifowoshe, 4, F.S.C. 94 that the Land Registration Ordinance (Cap 99) deals with registration of instruments, with non-admissibility of unregistered instruments as evidence, with priorities of registered instruments and the like but makes no provisions that registration of a deed is to be regarded as notice of what the deed contains or conveys nor does it provide that registration shall cure any defect in the deed.

This should not be taken to mean however that the Court will not take cognisance of the doctrine of notice wherever it is applicable. I will put the position thus-where an estate is affected by an equitable interest, a subsequent purchaser for value will not be affected by that equitable interest provided he obtained the legal estate, he gave value for the property and he had no notice of the equitable interest at the time when he gave his consideration.

In the present appeal there was no evidence before the learned trial Judge that Ade Akodu when he bought the land in dispute and had the legal estate conveyed to him in 1952, had notice of any equitable interest in the property. The Respondent, a second purchaser of the legal estate cannot in anyway be affected by any notice which the previous purchaser had no notice of.

It is clear that this appeal cannot succeed on any of the grounds; I would therefore dismiss it with costs assessed at 30 guineas.

Other Citation: (1961) LCN/0934(SC)

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