Akano Fashina Agboola Vs Angelina Abimbola (1969)

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COKER, AG. C.J.N.

Akano Fashina Agboola has appealed a second time from the decision of the Registrar of Titles given against him in proceedings in which he had sought to be registered as the proprietor of the freehold title to a piece or parcel of land “situate at the junction of Oko-Bada and Abeokuta Streets, Ebute-Metta.” His first appeal was to the High Court, Lagos, where it was heard and dismissed by Taylor, C.J. This second appeal is from that judgment.

The appeal itself raises a number of procedural issues some of which will be dealt with in the course of this judgment and one of which must at the outset of this judgment be commented upon. As stated before, Agboola had applied to be registered to the freehold title. He was therefore an applicant for registration within the provisions of section 8 (1), (2) and (3) of Registration of Titles Act, cap 181. In the proceedings before the Registrar of Titles and subsequently he was regarded and referred to as an objector.

This is because prior to the presentation of Agboola’s application a lady, by name of Angelina Abimbola, had presented as well an application to be registered as the proprietress of the freehold title to the same land. She was treated throughout as the applicant but will hereafter in this judgment be referred to as the respondent. When one reads the provisions of section 8(4) and 10 of the Registration of Titles Act, it is impossible to resist the suggestion that the law clearly lays down specific provisions for the treatment of applications and objections and obviously in this case the treatment of an application as an objection has combined with other matters to befog the clear issues that call for decision.

Hereafter in this judgment we will refer to Agboola as the appellant. The appellant’s case is that the land in respect of which he had sought to be registered is shown edged red on the plan attached to his conveyance which was admitted in evidence as exhibit ‘D’. The conveyance is dated the 9th July, 1963 and is expressed to have been executed in his favour by the Oloto Chieftaincy family.

The respondent, on the other hand, claims that the land is shown edged pink on a conveyance produced by her and admitted in evidence as exhibit F and dated the 4th October, 1949. According to the respondent the land was purchased as per purchase receipts dated the 4th August, 1913 and 6th August, 1919, by one Lawani Kufowora from one Kanyinde who was an Egba refugee settled on the land; that after the death on the 3rd September, 1947, of Lawani Kufowora his children instructed an auctioneer to sell the land by public auction which was held on the 18th February, 1949, by one Gilbert Oluwole Kembi and at which sale the appellant (sic) was the highest bidder and became the purchaser of the land by virtue of the auctioneer’s receipt exhibit ‘E’.

The children of Kufowora thereafter conveyed the land to the respondent by means of the conveyance exhibit ‘F’. There was evidence by or on behalf of the respondent that after the auction sale of the land and indeed on the 24th February, 1949, the children of Kufowora among themselves swore to a deed of declaration declaring themselves to be absolute owners of the land. This deed of declaration was admitted in evidence as exhibit ‘C’.

Later still, the children of Kufowora paid an amount of £25 to the Oloto Chieftaincy family, for the purchase of the same land and this is evidenced by a purchase receipt produced in evidence and admitted as exhibit ‘B’. It is dated the 18th March, 1949. This document, i.e. exhibit ‘B’, is posterior in date to the deed of declaration, exhibit ‘C’, and so in exhibit ‘B’ it is stated that the land thereby sold is the land described and contained in the plan attached to exhibit ‘C’.

One of the issues canvassed before the Registrar of Titles was the identity of the land claimed by the parties. There is positive evidence by the Chief Oloto, the titular head of the Oloto Chieftaincy family who had been called as a witness at the instance of the respondent, that the land sold by his family to the appellant was the land contained in the appellant’s conveyance exhibit ‘D’. The Chief Oloto was taken to the locus as he had earlier on in the course of his evidence in court suggested that the lands purchased by the parties were different parcels adjoining each other and could be separately seen at the site.

His evidence at the locus confirms that the land sold by his family to the appellant is the land shown in exhibit ‘D’. In the course of his decision, the Registrar of Titles observed as follows:- “Salisu Akanbi Alaka (8th a.w.) a licensed Surveyor gave evidence that the plan attached to exhibit `D’ is the same land as shown in the plan attached to exhibit `C’ and I find that this is true.” This finding was not questioned on the appeal to the High Court and we entertain no doubt that learned counsel for the respondent could not, as he attempted to do before us, reopen the issue of the identity of the land.

The controversy between the parties was one of titles and it was common ground that the original owners of the land were the Oloto Chieftaincy family. It seems to us that the occupation of the land at one time or the other by Kanyinde was not seriously pursued.

In any case, there was no reliable evidence of this and the learned Chief Justice on appeal made the following observations on this aspect of the case:- “Mr. L. V. Davis agreed that there was no evidence of a grant to Kayinde, an Egba refugee, but that the respondent’s case rested on the knowledge of the Oloto family of the sale and possession of the land in dispute after the sale by Kayinde, by person with adverse title to theirs. Both counsel agreed that there was a misdirection by the Registrar of Titles on the law as to the effect of the purported sale by Kayinde on the title of the Oloto Chieftaincy family, but conceded that it did not effect the outcome of this case.”

The resultant position therefore is that although both parties agreed that the radical title to the land belonged to the Oloto Chieftaincy family the appellant rested his case on the conveyance exhibit ‘D’ executed in his favour by that family whilst the respondent based her claim on the fact of her long possession of the land (by herself and her predecessors-in-title), the documents exhibit ‘C’ and ‘F’ and the purchase receipt exhibit ‘B’ (dated the 18th March, 1949) issued by her by the Oloto Chieftaincy family.

The conveyance of the appellant, exhibit ‘D’, contains a recital to the effect that the Oloto Chieftaincy family had sold the land to the appellant by virtue of a purchase receipt dated the 8th October, 1938. To start with, if it is common ground, as indeed it was, that the land origi-nally belonged to the Oloto Chieftaincy family then in order to establish title to the land a party must trace his title to the family. See Thomas v. Preston Holder (1946) 12 W.A.C.A. 78.