United Investments Limited V. The Registrar of Titles, Lagos State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an Appeal against the ruling of the Lagos High Court Coram Alogba J. delivered on 18th day of October, 2007. The Appellant filed its Notice of Appeal against the ruling of the Trial Court on the 27th day of November, 2007. The Notice of Appeal was dated 20th day of November, 2007.
An application had been made by United Investment Limited, with the Registrar of Titles as Defendant, for an order that the proprietorship Register of Title No. LO 7049/8223 being Plot 299 in Akin-Olugbade Street Victoria Island be rectified by deleting the name of Chief Frederick Rotimi Alade Williams and substituting therefore the name of United Investment Limited as the registered owner.
The High Court Coram Honourable Justice A. A. Alabi had earlier heard the application and on the 28th of November 2006 ruled as follows:
?I am satisfied that Chief Frederick Rotimi Alade Williams (SAN) now deceased during his life time always acknowledged that the beneficial ownership of the property comprised in the Title No. LO 7049/8223 is vested in the United Investment Limited
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the Applicant herein.
I am also satisfied that pursuant to Section 61(1) (c) of the Registration of Titles Law there is need and justification to rectify the proprietorship register.
Accordingly, it is hereby ordered that the proprietorship register of the above-mentioned Title No. LO 7049/8223 being plot 299 in Akin-Olugbade Street, Victoria Island, Lagos be rectified by deleting the name of Chief Frederick Rotimi Alade Williams and substituting therefore the name of United Investment Limited as the registered owner and proprietor of the said Land together with the buildings thereon.
An amended motion dated 25th June 2007 was filed on behalf of Chief Ladi Williams SAN and Mr. Kayode Williams seeking to be joined in the action, and by the same motion they also prayed the Court to join Mrs. Abimbola Williams SAN, Mr. T. E. Williams SAN and Mr. Folarin Rotimi Abiola Williams in the matter. Messrs. Ladi and Kayode Williams asked for several other reliefs. (See Pages 352 – 354 of the Record).
?United Investment Limited, the Applicant filed a Notice of Preliminary Objection to the application filed on behalf of Messrs. Ladi and Kayode Williams.
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(See pages 95 to 106 of the Record). On the 18th day of October the High Court Coram Alogba J. delivered a ruling allowing the application of Messrs. Ladi and Kayode Williams in part, granting them leave to join in the suit as 2nd and 3rd Respondents, and setting aside the Order of Rectification made in the case by ADE-ALABI, CJ.
In the circumstances of the matter herein, the ruling of the Court below and in the light of the Notice of Appeal, it is the submission of the Appellant Learned Counsel that the following questions arise for determination in this Appeal.
(1) Whether the High Court (Coram Alogba, J.) had the jurisdiction to sit on appeal over the decision of ADE-ALABI (J.)
(2) Whether the High Court (Coram Alogba, J.) ought to have reached the conclusion that the property in issue remained personal property of Late Chief Frederick Rotimi Alade Williams.
(3) Whether the Court below (Coram Alogba, J.) was right in concluding that the Applicants for joinder were necessary parties to deal with the property, and having not authorized the filing of the application for rectification rendered the action incompetent.
(4) Whether the
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Court below (Coram Alogba, J.) was right when it made the finding that –
“In so far as Exhibit ?KAOW1? stated that United Investment was the beneficial owner of the property in issue contrary to the proprietorship register of that property that was invalid..?
The Learned Counsel for the Appellant submitted that the High Court (Coram Alogba, J.) had no jurisdiction to sit on appeal over the decision of ADE-ALABI, (J).
It was the submission of the Learned Counsel for the Appellant that once the High Court Coram ADE-ALABI, CJ delivered his ruling on the 28th day of November, 2006 which put finality to the matter, the High Court of Lagos State no longer had jurisdiction to consider the matter any further. In support of this submission, the case of Obi Vs. Obi reported in (2004) 5 NWLR Pt.867, 647 at 658 line H to 659 line A was cited to the effect that:
It is settled law that after a judge has delivered his judgment, he becomes functus officio in the matter and could not reopen the matter again in order to take fresh evidence from the patties. See Nnajiofor Vs. Ukonu (1955) 2 NWLR (Pt.9) 686 and John Andy Sons and Co. Ltd. Vs.
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NCRI (1997) 3 NWLR (Pt.491). Once a judge has delivered his final judgment in a suit, he ceases to be seized of the matter and cannot reopen the suit for any purpose whatsoever except for making of ancillary orders such as an order for stay of execution of the judgment or for ordering the judgment debt to be paid installmentaly.
In further support of the submission for the Appellant the Court was referred to the case of Oyeyipo Vs. Oyinloye (1987) 1 NWLR 356 at 368 line E wherein the Supreme Court per KARIBI-WHYTE, JSC stated categorically that:
?…It is pertinent to point out that the exercise of the power to review a judgment is the exercise of appellate jurisdiction which can only be conferred by statute…”
Further authority on this point, was the pronouncement in Bakare Vs. Apena (1986) 4 NWLR (Pt 331) at 25 line C – D that:
If a judge makes an error (baring typographical errors of course) in a judgment which he has read in open Court to the hearing of all – parties and non-parties – alike – he has no business correcting that error himself. If he does so, he is usurping both the jurisdiction and the functions of the Court of
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Appeal. That would be to say the least unconstitutional, and in our Nigerian situation highly suspicious being an open affront against the brittle bond of confidence binding our people with the judicial process. It is well to restate here again that judges like Caesar?s wife should be above suspicion.
In these circumstances the Learned Counsel for the Appellant asserted that the High Court Coram Alogba, J. ought to have upheld the Preliminary Objection and struck out the application brought after the final ruling in the matter.
The learned trial Judge (ALOGBA, J.) found that the earlier High Court Ruling on the matter was a nullity because not all the proper parties were before ADE-ALABI, CJ when he delivered the said Ruling.
The Learned Trial Judge, ALOGBA, J. fell into serious error in reaching this finding. Such a situation was considered by the Court of Appeal in the case of Fawehinmi vs. A.G. Lagos State (No.1) (1999) 3 NWLR (Pt.112) 707 at 726 lines E to F wherein the view was expressed that:
?Even if the judgment of Longe, J., was a nullity the proper way to set it aside is by an appeal and not by review before a Court of
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coordinate jurisdiction: See Ajao Vs. Alao (1956) 5 NWLR (Part 45) 802 at 878 – 879. It seems to me that in view of the provisions of the Constitution which carefully shares jurisdictions to the various Courts (Section 212, 213, 219, 230 and 236) only the Court vested with the particular jurisdiction can interfere with the decision of another Court. In my opinion any decision of one judge of the High Court which has the effect of reversing, altering or in any other way changing the purport of the final decision of another High Court will be outside the jurisdiction of the latter Court. It is only the Court of Appeal that has been vested with such power.
Learned Counsel for the Appellant inferred therefore that Honourable Justice Alogba (f) having held that ?the Applicants for joinder (2nd and 3rd Respondents) having not authorized the filing of the application for rectification rendered the action incompetent.”
The above finding of Alogba (J) amounted to reviewing the decision of ADE-ALABI (J) who was still then in active service as a judge of the High Court of Lagos State and whose finding was final on the matter.
?Learned Counsel for the
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Appellant amplified the position at law in Adeyemi – Bero Vs. Omotosho & Ors. (2008) 15 NWLR (Pt.1111) p. 576 at 589 – 590 para B – G where the Court of Appeal per Mukhtar JCA stated as follows:
The power of a Court to set aside its own decision is exercisable when such decision is nullity. However, the exercise of the power in appropriate cases does not extend to reviewing such decision. That is the function and exclusive preserve of an appellate Court. In the instant case, Abiru J., reversed the judgment of Candide-Johnson, J, on the issue of service of the writ of summons which was tantamount to sitting on appeal over the earlier decision made by another Court of concurrent jurisdiction. It is very glaring from the above two inconsistent decisions of the Court below that the latter was a review of the former. The power to review any decision of the Court below is the exclusive preserve of an appellate Court. The Court has no power to sit on appeal over its own decision as was done in this case. The Leaned Trial Judges of the same Court must stand shoulder to shoulder by complementing each other in their onerous duty of adjudication and not to be
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re-opening and reviewing an earlier decision of their learned brothers not only of coordinate jurisdiction but the same Court for that matter. It behooves the latter judge to exercise utmost caution not to overstep his limited power in respect of earlier decisions made by the same Court, (Pp. 589 paras. B – D; 590, paras. E ? G.
The Learned Counsel for the Appellant re-iterated that the Honourable Justice A. A. Alabi had on the 28th November, 2006 made the following order:
?… I am also satisfied that pursuant to Section 61(1) (c) of the Registration of Titles Law there is need and justification to rectify the proprietorship register.?
However the Honourable Justice Alogba J, on the 18th October, 2007 reviewed the decision of A. A. Alabi (J) and held as follows:
the provision of Section 61(1) (c) of the Registration of Titles Law of Lagos State, CAP R.4 2003, Laws of Lagos State provides for rectification of the Register of Titles in any case and at any time with the consent of all person interested.?
See page 377 of the record of appeal.
The Learned Counsel for the Appellant expressed the
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perspective that it is solely the function and exclusive preserve of the Appellate Court to review the decision of A. A. ALABI (J) and not that of the judge of the same Court as in the instant case. The Honourable Justice Alogba of the Lagos State High Court ought not to have reopened and reviewed the final decision of A. A. Alabi (J) of the same Court.
ADE-ALABI, J. having found that pursuant to Section 61 (1) (c) of the Registration of Titles Law, he was justified to rectify the proprietorship Register, it was no longer open for the same Court (CORAM ALOGBA, J.) to set aside the Judgment by reviewing the provisions of the same Section 61 (1) (c) of the Registration of Titles Law.
See Adeyemi-Bero vs. Omotosho (supra) at p.591 paragraph D ? E.
The Learned Counsel for the Appellant insisted that the Honourable Justice Alogba was aware of Exhibit KAOW. 1 and the lease agreement between the Appellant, Late Chief F.R.A Williams, SAN and Konufaj Nigeria Limited which were all before him. Whilst the former was signed by all the children of Late Chief FRA Williams, SAN, who are all the shareholders in the Appellant, two of whom are the 2nd and
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3rd Respondents, the latter was signed by Late Chief F.R.A Williams, on behalf of the beneficial owner of the property (the Appellant) and Konufaj Nigeria Limited. See pages 81, 14 and 19 of the record of appeal.
The Learned Counsel for the Appellant evaluated that both instruments are clear that the Appellant is the beneficial owner of the property known as Plot 299 Akin Olugbade Street, Victoria Island and registered in the name of Late Chief Rotimi Williams, SAN, and came to the conclusion that this was the reason why all the children of Late Chief Rotimi Williams, SAN who are shareholders in the Appellant who own the beneficial interest in the property all agreed and consented that the property does not form part of the estate of Late Chief Rotimi Williams, SAN and instructed the majority shareholders of the Appellant, Messrs Folarin and Tokunbo Williams to ensure that UIL transfers the beneficial interest to such purchaser. See pages 77 and 78 of the record.
?It was the deductive reasoning of the Learned Counsel for the Appellant that the 2nd and 3rd Respondents having given such consent that UIL transfers the beneficial interest to such
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purchaser as clearly evidenced in the family agreement (page 78, paragraph 8.3), cannot therefore be made parties to the Court as the Appellant was merely carrying out their instruction.
Learned Counsel for the Appellant recalled that this Honourable Court in Williams Vs Williams (2014) 4 CLR Page 86 – 112 had held that the family agreement (Exhibit KAOW. 1 herein) is exhaustive of all the issues concerning or pertaining to the estate of Late Chief Williams, SAN and will govern the manner and distribution of the estate.
The said family agreement did not include Plot 299 Olugbade Street, Victoria Island as part of the estate of Late Chief Williams, SAN. See page 69 – 81 of the record of appeal.
To say, that the Respondents as Applicants in the Lower Court were not aware in the face of Exhibit KAOW.1 was therefore untenable, and the Honourable Justice Alogba in the face of the evidence before him ought not to have allowed the application of the 2nd and 3rd Respondent.
According to the Learned Counsel for the Appellant, the High Court (CORAM ALOGBA J.) ought not to have reached the conclusion that the property in issue remained personal
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property of Late Chief Frederick Rotimi Hade Williams.
The Learned Counsel for the Appellant asserted that the finding of ALOGBA, J. contradicted the finding earlier made by ADE-ALABI, CJ. And in the words of the Supreme Court inBakare Vs. Apena (supra) he was
“?usurping both the jurisdiction and the functions of the Court of Appeal.”
It was the submission of the Learned Counsel for the Appellant that based on the evidence before him, ADE-ALABI, CJ. came to the right decision that:
…I am satisfied that Chief Frederick Rotimi Alade Williams (SAN) now deceased during his life time always acknowledged that the beneficial ownership of the property comprised in the Title No. LO 7049/8223 is vested in the United Investment Limited;
and predicated the submission on pages 131 and 132 of the record, paragraphs 10 and 11 of the affidavit of T. E. Williams Esq. SAN sworn to on the 7th of March 2007 and also on pages 13 – 20 and 112 – 114 of the record.
It was the summation of the Learned Counsel for the Appellant that the only way that findings of ADE – ALABI, CJ. on these documents could have been reversed was by a proper
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appeal.
The High Court, CORAM ALOGBA, J. had found that:
Chief F. R. A. Williams SAN maintained throughout his life his legal ownership of the property… the property in issue remained personal property of the Late Chief F.R-A Williams up to his demise and no legal or even equitable interest had been shown to have been passed to UIL.
Learned Counsel for the Appellant maintained that, when making these findings, ALOGBA, J. did not take the Sub-lease Agreement signed by Chief F.R.A. Williams SAN acknowledging United Investment Limited as the beneficial owner into account (see pages 14 – 19 of the record).
Learned Counsel for the Appellant argued that this Sub-lease Agreement was evidence of an admission by Chief F.R.A. Williams that the beneficial owner of the property in issue was United Investments Limited and he was holding same in trust for the beneficial owner though it was registered in his name.
?Furthermore, Learned Counsel for the Appellant contended that when the Sub-lease Agreement was read in conjunction with Section 23 (a) of the Evidence Act, it was clear that his heirs could not turn around and state that United
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Investments Limited was not the beneficial owner of the property.
By the estimation of the Learned Counsel for the Appellant this was the reason why in Exhibit KAOW. 1 (the Family Agreement) all the shareholders of the Appellant who are children of the Late Rotimi Williams, SAN including the 2nd and 3rd Respondents herein agreed that the property was not part of the estate of Late Chief Williams, SAN in recognition of the beneficial ownership of the property which was in United Investments Limited.
The 2nd and 3rd Respondents in the said Exhibit KAOW 1 (the Family Agreement) had also consented and agreed that ‘UIL transfers the beneficial interest to such purchaser’ as clearly evidenced in the Family Agreement (page 78, paragraph 8.3).
The Learned Counsel for the Appellant sustained his argument that in McCallum Vs. Country Residence Limited (1965) 1 WLR 657 cited with approval by the Supreme Court in Abey Vs. Alex (1999) 1 NWLR (Pt 637) P.149 at 165 paras. E – F., the Supreme Court held that it is absolutely legal and within the rights of parties to settle or compromise all or any of the questions or disputes between them on any term and
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condition on which they agreed even without the approval or sanction of the Court.
This Honourable Court in Williams Vs. Williams (2014) 4 CLR Page 86 – 112 held that the Family Agreement was exhaustive of all the issues concerning or pertaining to the estate of Late Chief Williams, SAN and will govern the manner and distribution of the estate.
The said Family Agreement which was entered into by all the parties on the 23rd November, 2005 did not include Plot 299 Olugbade Street, Victoria Island as part of the estate of Late Chief Williams, SAN. See page 69 – 81 of the record of appeal.
It is therefore clear that the property in issue does not form part of the personal property of Late Chief Frederick Rotimi Alade Williams as acknowledged by Late Chief Rotimi Williams in the Sub-lease Agreement (Page 14 – 19 of the record) and by all his children who are shareholders in the family company, the Appellant, vide the Family Agreement, Exhibit KAOW.1 at Pages 59 – 81 of the record of appeal.
?The Learned Trial Judge seemed to think that the legal owner must be the same as the beneficial owner. This was where he indeed fell into grave error. The
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acknowledgement of Chief Williams, SAN of beneficial ownership by United Investments Limited of the property elucidates that he acted as a trustees and merely held the property in trust for Appellant who retains beneficial ownership.
In furtherance of proof of beneficial ownership of the property by United Investment Limited, all the children of Late FRA Williams, SAN who are all the shareholders of the Appellant executed Exhibit KAOW .1 which is the Family Agreement.
The Learned Counsel for the Appellants maintained that the Lower Court (CORAM ALOGBA, J.) was not right in concluding that the Applicants for joinder were necessary parties to deal with the property, and having not authorized the filing of the application for rectification rendered the action incompetent.
The submissions of Learned Counsel for the Appellant was that in the light of the evidence before the Lower Trial Court, the parties seeking joinder had no locus to put forward a position contrary to that put forward by the Late Chief F.R.A. Williams SAN in the Sub-Lease Agreement signed with KONUFAJ at pages 13 – 20 of the record.
Learned Counsel for the Appellant canvassed
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the view that Chief Williams himself had stated that United Investments Limited was the beneficial owner of the property in issue. This was found to be the position in the earlier ruling delivered by ADE-ALABI, CJ and, in the con thereof, it was not possible for ALOGBA, J., in his later ruling to overturn this finding of fact. Section 61 (1)(c) is quite clear on the persons who may apply for Rectification of the Register and it is reproduced herein for ease of reference:
The register may be rectified pursuant to an order of the Court or by the registrar, subject to an appeal to the Court in any of the following cases, but subject to the provisions of this Section-
(c) in any case and at any time with the consent of all persons interested.
The postulation of the Learned Counsel for the Appellant was that because of the ‘admission’ against his interest contained in the Sub-Lease Agreement signed by Chief F.R.A. Williams, his heirs could no longer put forward an interest adverse to the beneficial ownership of the property by United Investments Limited. The parties seeking joinder could therefore come within the body of “all persons
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interested.? In any event the Family Agreement (copied at pages 69 – 81 of the record) shows that both the parties seeking joinder and the parties they sought to join were all agreed that the beneficial interest in the property in issue belonged to United Investments Limited. (See Clause 8.3 on p.78 of the record). Even the finding at p.378 of the record by ALOGBA, J actually supported this contention. The said finding is reproduced hereunder for easy reference, as follows:
I agree more with the position that though they could be mistaken in interpretation of the powers given to them to take steps to pass the legal title in the property to any purchaser, when Tokunbo and Folarin in the believe (sic) that the beneficial interest in the property was in UIL, (which position Ladi and Kayode then apparently agreed with) proceeded to get the register rectified to read UIL’s names as proprietor, they were only taking steps to carry out the obligations given to them to see that UIL transferred title in the property to any eventual purchaser.
and this Honourable Court in Williams Vs. Williams (2014) 4 CLR Page 86 – 112 had held that the Family Agreement
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was exhaustive of all the issues concerning or pertaining to the estate of Late Chief Williams, SAN and will govern the manner and distribution of the estate.
The two controlling shareholders of the Appellant who are brothers of the 2nd and 3rd Respondent herein all consented to the Family Agreement and accordingly executed same. The agreement mandates that as soon as the Sub-Lease of Konufaj Nigeria Limited expires in December 2006, the property be sold or rented out.
It is in this light that all the four children of Late Chief Williams, SAN who are all shareholders of the Appellant agreed that Folarin and Tokunbo who are majority shareholders in the Appellant will ensure that the Appellant transfers the beneficial interest to such purchaser as stated in Clause 8.3 of the family agreement. See page 69 – 81 of the record.
?Consequent on the above, and in accordance with the instruction of the 2nd and 3rd Respondents in the Family Agreement, the said Folarin and Tokunbo acting therewith ensured that the proprietorship register be rectified to enable the Appellant transfer beneficial interest to a would be purchaser as agreed by all the
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shareholders of the Appellant amongst whom are the 2nd and 3rd Respondent.
In his own rhetoric’s, to which he responded, the Learned Counsel for the Appellant posited that, if the other two parties to the agreement are not necessary parties and as such were not made parties to the suit, why should the 2nd and 3rd Respondent be necessary parties. The Appellant only acted on the instruction of its shareholders who are all the children of the Late Chief Rotimi Williams, SAN and parties to the agreement.
The 2nd and 3rd Respondents and their brothers (Folarin and Tokunbo) having given such consent that “Folarin and Tokunbo should ensure that UIL transfer the beneficial interest to such purchase” as clearly evidenced in the family agreement (page 78, paragraph 8.3), could therefore not be necessary parties as the Appellant was merely carrying out their instruction. Certainly, they could not feign ignorance of same.
The Learned Counsel for the Appellant submitted that the Court below (CORAM ALOGBA, J.) was not right when it made the finding that – “in so far as Exhibit KAOW.1 stated that United Investment was the beneficial owner of the property in
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issue contrary to the proprietorship register of that property that was invalid…”
?It was the contention of the Learned Counsel for the Appellant that the Lower Court CORAM ALOGBA, J. came to the wrong conclusion when it held that Clauses in Exhibit KAOW 1 declaring United Investments the beneficial owner of the property in issue were invalid.
Learned Counsel for the Appellant stated that quite clearly the evidence before the Court showed that Chief F.R.A. Williams had always acknowledged the beneficial ownership of the said property by United Investments Limited.
Furthermore, Exhibit KAOW 1 contained admissions by the parties seeking joinder that the beneficial ownership of the said property was vested in United Investments Limited. Finally, nothing in law prevents one party holding legal title with the beneficial ownership belonging to a different party.
The 2nd Respondent brief of argument filed on 10/3/15 described in an overview the legal standing and status of all the various parties vis–vis the Late Chief F.R.A. Williams, SAN, CFR., and the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos (the
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subject matter herein).
The Learned Counsel for the 2nd Respondent pointed out that the Appellant is a family company registered under the Laws of Nigeria with its registered office at No. 1, Shagamu Avenue, Ilupeju, Lagos which has as surviving Shareholders and Directors the 4 (four) sons of the Late Chief F.R.A. Williams, SAN, CFR (see page 4 of the Record and paragraph 5 of the Affidavit in Support dated 10th day of November, 2006, deposed to by one E. S. Aguda). The said four (4) sons are the only surviving Shareholders and Directors of the Appellant.
The property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos was owned by Chief F.R.A. Williams, SAN, CFR, (of blessed memory), and was registered in his name under Title No. LO7049 in the Lands Registry of Lagos State. The said property devolved on the Estate of the Late Chief F.R.A. Williams, SAN, CFR., on his death testate on 26th March 2005.
The Registrar of Titles herein is the Registrar in the Lands Registry of Lagos State.
?Chief Oladipupo Akanni Olumuyiwa Williams, SAN, Mr. Kayode Adekunle Olusegun Williams are the two sons of Chief F.R.A. Williams, SAN, CFR
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mentioned in his 1954 Will, who are also persons interested and entitled under Section 51 (1) (c) of the Registration of Titles Law, Cap. R4, Laws of Lagos State, 2003, to give their consent in writing for the rectification of the Register of Titles in respect of Plot 299, Akin Olugbade Street, Victoria Island, Lagos, and who are entitled to equal portions of the moveable and immoveable assets of their late father, Chief F.R.A. Williams, SAN, CFR under the Wills Act. At the time Suit No.ID/648M/2006 was brought in the trial Court by way of Originating Motion dated 10th day of November, 2006 before the Honourable Chief Judge of Lagos State and up to the time the Record was entered in this Honourable Court, Probate had not been obtained in respect of the Estate of the Late Chief F.R.A. Williams, SAN, CFR, and this explains why none was presented at the trial Court – See page 67 of the Record, paragraph (iv).
According to the Learned Counsel for the 2nd Respondent, other persons interested in the subject matter of the rectification but not made parties in suit no. Id/648m/2006 and the appeal herein as follows;
The Executive Governor of Lagos State who
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was not made a party in Suit No. ID/648M/2006 in the trial Court, is also a person interested in the said Plot 299, Akin Olugbade Street, Victoria island, Lagos by virtue of the combined effect of Section 61 (1) (c) of the Registration of Titles Law, Cap. R4, Laws of Lagos State, 2003; Sections 22 and 26 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria 2004.
The Estate of the Late Chief F.R.A. Williams, SAN, CFR., and the Honourable Chief Judge of Lagos State who were not parties in Suit No.ID/648M /2006, are also persons interested in the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos by virtue of Section 61(c) (supra) and the Administration of Estates Law, Cap. 43, Laws of Lagos State, 2003.
The Learned Counsel for the 2nd Respondent asserted that by a Notice of Originating Motion dated 10th day of November, 2006 (page 2 of the Record) which was after the death TESTATE of Chief F. R. A. Williams, SAN, CFR.,) the Appellant pursuant to Section 61 (1) (c) of the Registration of Titles Laws, Cap. R4 Laws of Lagos State 2003 (page 1 of the Record) sought for: –
An Order that the proprietorship register of
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the above mentioned Title Nos. LO7049.8223 being Plot 299 in Akin Olugbade Street Victoria Island Lagos State be rectified by deleting the name of Chief Frederick Rotimi Alade Williams and substituting therefore the name of United Investments Limited as the registered owner and proprietor of the said Land together with the buildings thereon.
The above application was made and brought without the consent of all person interested in the said property.
The said application was brought and granted by the trial Court when Probate in respect of the Estate of the Late Chief F.R.A. Williams, SAN, CFR, had not been first sought and obtained.
The Appellant brought the said application mentioned above without any MANDATE of the 4 (four) surviving Directors and Shareholders of the Appellant. In other words, there was no Board Resolution passed empowering the Appellant to take any steps into initiating the action at the trial Court nor this Honourable Court.
The Honourable Justice Ade-Alabi the Honourable Chief Judge of Lagos State granted the said application dated 10th day of November, 2006, under the above-mentioned Section 61 (1) (c) of the
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Registration of Titles Law, Cap. R4 Laws of Lagos State 2004 believing that the consent of all persons interested had been obtained and the said persons interested had been duly served. The learned trial judge was not informed that Probate had not been sought for and or obtained at that point in time. Up to the 28th day of November, 2006, when the trial Court made the Order for the Register of Titles to be rectified in respect of Title No. LO7049, the 2nd and 3rd Respondents herein (Chief Oladipupo Akanni Olumuyiwa Williams, SAN and Mr. Kayode Adekunle Olusegun Williams) were never aware of the existence of Suit No. ID/648M/2006, neither were they served with any Court process in the said Suit. On becoming aware of Suit No.ID/648M/2006, and the Order for rectification on or about the 30th day of January 2007, they immediately took steps by filing an application dated 2nd February, 2007, as shown at pages 63 to 94 of the record of appeal herein. An Amended Motion on Notice dated 25th day of June, 2007, as shown at pages 352 – 354 of the Record was filed on behalf of the 2nd and 3rd Respondents herein to be joined in the action and for the Order of Rectification
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to be set aside.
The Appellant filed a Motion on Notice of Preliminary Objection dated 2nd day of March, 2007 (pages 95 to 106 of the Record). At the end of hearing the parties, the trial Court on 18th day of October, 2007, per Alogba J., joined the 2nd and 3rd Respondents herein and set aside the Order dated 28th day of November, 2006 for rectification of the Register of Titles in respect of the property known as Plot 299 Akin Olugbade Street, Victoria Island, Lagos, Registered under Title No. 7049 in the name of Chief F. R. A. Williams, SAN, CFR. The Appellant filed its Notice of Appeal against the trial Court’s Ruling on the 27th day of November, 2007.
Learned Counsel for the 2nd Respondent in addition raised, a preliminary objection in his Brief of Argument that the Appellant lacked the locus standi to invoke the jurisdiction of this Honourable Court in respect of all aspects of this suit. The Notice of Preliminary Objection was supported by an Affidavit, the Exhibits attached thereto together with all other processes referred to in the Record of Appeal.
According to the Learned Counsel for the 2nd Respondent;
The Appellant had not the
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required locus standi to have invoked the jurisdiction of the trial Court and/or initiate the action (Suit No, ID/648M/2006) in respect of the property in issue and consequently, the locus standi to file its Notice of Appeal dated 27th day of November, 2007; its Brief of Argument dated and filed on 6th day of November, 2008 and its Motion on Notice dated and filed on 12th day of January, 2009, in this Honourable Court.
The Learned Counsel for the 2nd Respondent submitted that, in the case of A – G, Federation Vs A – G, Abia State & Ors. (2001) 11 NWLR (Part 725) 689 at 772 – 772, Paragraphs E – G, the Supreme Court, per Karibi-Whyte, JSC (as he then was), re-stated the meaning of locus sandi and defined the term as follows:
Locus Sandi is defined to mean the legal right of a party to an action to be heard in a litigation before a Court of law or Tribunal. The expression encompasses the legal capacity to institute, initiate or commence an action in a competent Court of law or tribunal without inhibition, obstruction or hindrance from any person or body whatsoever including the provision of any existing law. The locus standi raises the question
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whether the person whose standing is in issue is the proper person to seek an adjudication of the issue. It is not whether the issue itself is justiceable; or whether the case was likely to succeed. The issue is whether the Plaintiff has sufficient legal interest, that is, whether there is a breach of the civil rights and obligations of the Plaintiff, See: Ogbuchi Vs Governor of Imo State (1995) 9 NWLR (Part 417) 53; Adesanya Vs. Shagari (1951) 2 NCLR 358; Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341 (1962) 1 All NLR 587. There is no issue more fundamental in the entire process of adjudication than that of access to justice.
See also Owodunni Vs. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Part 576) 315; or (2000) 6 SC (Part 111) 60.
Learned Counsel for the 2nd Respondent further submitted that locus standi is jurisdictional by its very essence citing Yusuf Vs. Kode (2002) 6 NWLR (Part 762) 231 at 250 paragraphs B – C, per Tobi JCA, and asserted that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on Appeal. Relying on and referring the Court to Nnonye Vs. Anyichie (2005) 2 NWLR
30
(Part 910) 623 at 656 paragraphs A – B where Tukur Vs. Governor of Gongola State (1989) 4 NWLR (Part 117) 517 and Saude Vs. Abdullahi (1989) 4 NWLR (Part 116) 387 were referred to and applied.
Therefore the Learned Counsel for the 2nd Respondent maintained that the issue of locus standi being raised in the Appeal herein was not taking the Appellant by surprise.
Relying on the decision of the Supreme Court in A – G of Federation Vs. A-G of Abia State (supra), Learned Counsel for the 2nd Respondent submitted that, the Appellant herein has no valid legal right, title or interest whatsoever in the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos (the subject matter in Suit No.ID/648M/2006, as there was no valid legal evidence in writing placed before the trial Court and this Honourable Court to show that there is a valid legal vesting deed, instrument and/or lease which shows a grant from Chief F.R.A. Williams, SAN, CFR, to the Appellant. Had this been done, it would have conferred the appellant with Locus to invoke the jurisdiction of the trial Court and this Honourable Court in respect of the subject – matter herein. In other
31
words, the Appellant does not have any legal right, title or interest in the said subject-matter giving rise to the Ruling and Order of the trial Court made on 28th day of November, 2006.
The Learned Counsel for the 2nd Respondent argued that, in the determination of this issue of locus standi as in this instance, the merit or the soundness of the Ruling/Order made by the trial Court on 28th day of November, 2006, was irrelevant/immaterial. The Appellant had no evidence in writing a title, right or interest in any legal valid instrument or deed of conveyance or grant duly registered, made inter vivos and given to the Appellant. If there was any such valid legal instrument (either legal or equitable) in favour of the Appellant in respect of the property known as plot 299, Akin Olugbade Street, Victoria Island, Lagos, the Learned Counsel for the Respondent submitted that it must be evidenced in writing being a transaction in land.
Section 5 (1) and (2) Law Reform (Contracts) Law, Cap. L63, Laws of Lagos State, 2003, provides as follows:
(1) This Section applies to: –
(a) Every contract for the sale of land;
(b) Every contract to enter
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into any disposition of land being a disposition that is required by any enactment to be made by deed or instrument or in writing or to be proved in writing
(c) Every contract to enter into any mortgage or charge on land; and
(d) Every contract by any person to answer to another person for the debt, default or liability of a third person.
(1) No contract to which this Section applies shall be enforceable by action unless the contract or some memorandum or note in respect therefore is in writing and is signed by the party to be charged therewith or by some other person lawfully authorized by him.
Also, Section 4 of the Statute of Frauds, 1677, a statute of general application with counterparts in different States of the Federation provides as follows:
No action may be brought upon any contract for the sale of land or any interest in land unless the Agreement upon which such action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged or by some other person thereunto by him lawfully authorized.
It was the inference of the Learned Counsel for the 2nd Respondent that, by virtue of the
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combination of Section 5(1) (a) (b) and 2 of the Law Reform (Contracts) Law, Cap. L63, Laws of Lagos State 2003 (supra) and Section 4 of the Statute of Frauds, 1677 (supra), the absence of a valid legal instrument or deed of conveyance or grant in writing and signed by Chief F.R.A. Williams, SAN, CFR (the registered owner and proprietor of Plot 299, Akin Olugbade Street, Victoria Island, Lagos – see Page 1, paragraph (i) of the Record of Appeal) with explicit intention to transfer title of the said property to the Appellant, the Appellant had no legal right, title and/or interest in the said property to vest it with the locus standi to invoke the jurisdiction of the Court vide its Originating Motion dated 10th day of November, 2006 (pages 1 to 56 of the Record) for an Order for rectification of the Register of Titles by deleting the name of Chief F.R.A. Williams, SAN, CFR, and substituting its name thereto.
The law is clear, according to the Learned Counsel for the 2nd Respondent, that in order to determine whether a Plaintiff has locus standi or not, the Court shall restrict itself to the averments in the Plaintiffs Statement of Claim.
?In
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Adesokan Vs. Adegorolu (1991) 3 NWLR (Part 179) 293 at 305 to 305, this Honourable Court, per Akpabio JCA, held inter alia that: –
…In an application to determine whether a Plaintiff has locus standi or not, the judge is bound to confine himself within the four walls of the writ of summons and the statement of claim before him and no more, as the issue of locus standi is a matter of law. Even if the statement of defence has been filed at the time the objection was made, the judge would still be bound to confine himself to the statement of claim to decide whether he had a locus standi…
In the present case, the Learned Counsel for the 2nd Respondent maintained that the Appellant’s Originating Motion dated 10th day of November, 2006, in Suit No. ID/648M/2006 (Pages 1 to 56 of the Record of Appeal) stood as the Appellant’s claim before the trial Court, and in order for this Honourable Court to determine whether or not the Appellant had locus standi in invoking the jurisdiction of the trial Court and bringing this Appeal, the Court is bound by the said Originating Motion and all the exhibits attached to the Affidavit in Support thereto.
?Learned
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Counsel for the 2nd Respondent in the con of this present Appeal, made the observation that, where there is a feature in a case when the objection to locus standi is being taken which call for examination of other processes before the Court, it would not be unlawful for the Court to consider the other processes along with the statement of claim in determining the locus standi of the Plaintiff. Therefore in the brief of argument for the 2nd Respondent, in looking at and dismantling the Appellant’s Originating Motion and Counter-Affidavit at pages 107 to 128 of the Record, which were the averments and Exhibits attached thereto that the Appellant was laying as foundation to claim legal right title and or interest in the subject-matter herein, the submission was made as follows: –
(A) As admitted by the Appellant itself at paragraph (i) page 7 of the Record, and paragraph 3 page 3 of the record Chief F.R.A Williams, SAN, CFR, is the registered owner and proprietor of the property known as Plot 292 Akin Olugbade Street, Victoria Island Lagos, which is duly registered in the Lagos State Lands Registry under Title No.Lo7049/5223.
(B) By the
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Appellant?s averment in the said paragraph 3 at page 3 of the Record herein, it is undisputed that Chief F.RA Williams, SAN, CFR, died testate on 26th day of March, 2005.
(C) Exhibit B1 at pages 6 to 11 of the Record is the Lease dated 29th day of May, 1973, in respect of the property known as Plot 292 Akin Olugbade Street, Victoria Island, Lagos, from Lagos State Government to Chief F.R.A. Williams, SAN CFR, for a term of 99 years, registered on 12th day of July, 1973, under Title No.LO7049.
(D) At page 12 of the Record is the entry of a sub-lease dated 11th day of September, 1978 and Registered under Title No.8223 in favour of United Bank for Africa Limited for a period of 10 years commencing from 1st day of August, 1978.
(E) Exhibit B2 at page 13 of the Record is the certification dated 25th day of November, 1994 by the Registrar of Titles, Lagos State Lands Registry that the Deed of Lease dated 29/5/73 (Exhibit B1) is true, correct and registered under Title No. Lo7049 at the Lagos State Lands Registry in the name of the Chief F.R.A. Williams, CFR, SAN.
This is the document the Appellant is relying on as conferring it as the
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beneficial owner of the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos (the subject-matter herein) – see paragraph 2 of the said page 14 of the Record which states as follows:
…WHEREAS the first party (the Appellant herein) is the beneficial owner of the land in Victoria Island known as Plot 299 and registered in the name of the Second party (Chief F.R.A. Williams, SAN, CFR) under Title No. 8223, which is hereinafter referred to as ?the said Plot…”
(F) It is evidenced in the said Exhibit B2 that the said property is registered under Title No. Lo7049. The registration under Title No. 8223 as evidenced at page 12 of the Record, is a sub-lease dated 11th day of September, 1998, in favour of United Bank for Africa Limited (now Plc) for a period of 10 years from 1st day of August, 1978 which expired on 31st day of July, 1988 by arithmetical calculation. Therefore, the said Title No. 8223 is extinct as it goes with the expiration of the said sub-lease.
Therefore, the Appellant, through Learned Counsel, in Suit No. ID/648M/2006 (the Appellant herein) deliberately misled the trial Court in obtaining the Order for
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rectification made on 28th day of November, 2006 by combining the original Title No. Lo7049 (which is still in the name of Chief F.R.A. Williams, SAN, CFR) with Title No.8223 (a sub-lease in favour of United Bank for Africa Limited (now Plc) for a period of ten (10) years from 1st day of August, 1978) which expired on 31st day of July, 1980 as the title under which it derives its beneficial ownership or interest in the said property.
(G) Exhibit B3 at pages 14 – 20 of the Record will be broken down into two parts.
Firstly, at pages 14 – 16 of the Record is an unexecuted agreement dated 15th day of April, 1981, between United Investments Limited (the Appellant herein), Chief F.R.A. Williams, SAN, CFR, and Konufaj Nigeria Limited.
(i) This unsigned and incomplete agreement which the Appellant relies heavily on as conferring on it interest as beneficial owner of the said subject-matter herein, is invalid and fraudulent and it is incapable of vesting beneficial ownership in the Appellant. It is therefore right to further state that this Agreement is also incapable of vesting the Appellant with the required locus standi to approach the trial Court to
39
rectify the Register of Titles in respect of Title No. L07049 by deleting the name of the registered owner and proprietor (Chief F.R.A. Williams, SAN, CFR) and substituting its own name thereto. This same agreement, it is further submitted is illegal and inadmissible in evidence as it was not signed by any of the parties thereto.
Learned Counsel for the 3rd Respondent cited in this regard the case of A – G Abia State Vs. Agharanya (1999) 6 NWLR (Part 607) 362 at 377, Paragraphs D – G where this Honourable Court per Akpiroroh, JCA, held inter alia that:-
“…It is well settled law that an unsigned document is worthless and void…?
And the case of Aiki Vs. Idowu (2006) 9 NWLR (Part 984) 47 at 65, where this Honourable Court, per Alagoa, JCA held inter alia that:-
?Where a document which ought to be signed is not, its authenticity is in doubt and pleadings fall into this category of documents. What for example would be the effect of attempting to tender a letter of employment which is unsigned by the employer? It would certainly not go in as an Exhibit?
The Supreme Court in Omega Bank (Nig) Plc vs. O.B.C. Ltd. (2005)
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8 NWLR (Part 928) 547 at 587 Paragraphs C – D per Tobi, JSC the Apex Court held inter alia that:-
…It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of Exhibit P6 did not sign the exhibit it was not available to the two Courts to attach probative value on it…
and at page 582 Paragraph A, His Lordship, Tobi, JSC further emphasized that: –
..A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious. I hold that Exhibit P6 was wrongly admitted and given probative value…
These judicial decisions in the estimation of the Learned Counsel for the 2nd Respondent supported of the contentions above that the purported sublease agreement at pages 14 to 16 of the Record was invalid, inadmissible in any Court of law and therefore incapable to vest any legal right, title and or
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interest in the Appellant in respect of the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos.
Furthermore, the Learned Counsel for the 2nd Respondent asserted that the said unsigned sub-lease agreement was not registered nor was it shown to have been registered in the Lands Registry of Lagos State.
Sections 6 and 15 of the Land Instruments Registration Law provides as follows:
Instruments, the Registration of which is compulsory-
6. Instruments executed after the commencement of the Law.
Subject to the provisions of this Law, every instrument executed after the commencement of this Law shall be registered.
15. Inadmissibility in evidence.
No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered…
Learned Counsel for the 2nd Respondent re-iterated that the said Title No. 8223 under which the Appellant claimed beneficial interest ownership in the said property was a Title given on a Sub-lease of the said property to United Bank for Africa Limited (now Plc) in 1978 for ten (10) years, which has since expired in 1988.
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Thus, it was the contention of the Learned Counsel for the 2nd Respondent that the unsigned Sub-lease Agreement by virtue of the above judicial decisions and provisions of the Lands Instrument Registration Law (supra), was invalid as it fell foul of the Law. Therefore, the Appellant herein could not claim any legal title, interest or right as beneficial owner of the said property under the Sub-lease Agreement. Therefore, in the absence of a valid legal vesting instrument, or deed or conveyance or grant duly executed and registered and or made inter vivos in its favour by the said registered owner and proprietor of the said property, (Chief F.R.A. Williams, SAN, CFR), the said property remains as one of the properties belonging to Chief F.R.A. Williams, SAN, CFR and which he died possessed of.
?Learned Counsel for the 2nd Respondent made a further observation that Exhibit 83 at pages 17 to 21 of the Record of Appeal was a Sub-lease Agreement signed by Chief F.R.A. Williams, SAN, CFR as “the Landlord” of the property, Plot 299, Akin Olugbade Street, Victoria Island, Lagos, AND KONUFAJ NIGERA LIMITED as other Tenant of the said property for a term of
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TWENTY-FIVE (25) years from 1st day of January 1982. There was no reference nor mention of United Investments Limited (the Appellant herein) in this Sublease Agreement. The Title under which this Sub-lease was granted was the same as Title No. LO7049 under which the property was registered in the Lands Registry in the name of Chief F.R.A. Williams, SAN, CFR.
Learned Counsel for the 2nd Respondent made the pertinent remark that Learned Senior Counsel who signed the Originating Motion at the trial Court (pages 2 and 56 of the Record) witnessed this Sub-lease Agreement at the time for and on behalf of Chief F.R.A. Williams, SAN, CFR and not for the Appellant herein.
Learned Counsel for the 2nd Respondent in taking the two Sub-lease Agreements contained in Exhibit 83 together, further submitted that even if same was made by Chief F.R.A. Williams, SAN, CFR and the parties therein, for Exhibit 83 to be valid and or legal or be said to confer the Appellant with the required legal right, interest or title as beneficial owner of the property which should vest it with the necessary locus standi to institute Suit No.ID/648M/2006 and the Appeal herein in
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respect of the said property, plot 299, Akin Olugbade Street, Victoria Island, Lagos, must have been made pursuant to the provisions of Section 22 (1) of the Land Use Act, Cap. L5 Laws of the Federation of Nigeria 2004.
Section 22 (1) of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004 (supra) provide in part as follows:-
It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of Occupancy or any part thereof by assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever without the consent of the Governor first had and obtained.
Also, Section 26 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004 (supra) also provide as follows:-
?Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
?Learned Counsel for the 2nd Respondent in the circumstances submitted that if the purport of the Appellant’s Exhibit B3 at pages 14 – 21 of the Record herein, was intended to transfer or convey
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title or some interest in the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos, whose statutory right of occupancy was in the name of Chief F.R.A. Williams, SAN, CFR, to the Appellant, when the whole transaction did not satisfy the requirements of the above provisions of the Land Instument Registration Law (supra) and the Land Use Act (supra), the said transaction was null and void.
In Calabar vs. Ekpo (2008) 11 M.J.S.C. 104 at 152 – 153 paragraphs G – A, the Supreme Court, per Mohammad, JSC held inter alia that: –
…It is trite law in landed matters governed by the Land Use Act that while dealing in a right of occupancy where the right granted or deemed granted under the provisions of the Act, requires under Section 22 of the Act, the consent of the Governor of a State first had and obtained otherwise the purported transaction is rendered null and void under Section 26 of the Act. It is never shown in this appeal that the said consent of the Governor of Cross Rivers State was ever sought and obtained at any stage of the deal?
So also according to the Learned Counsel to the 2nd Respondent in the present case, there
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was nothing placed before the trial Court and this Honourable Court showing that the consent of the Governor of Lagos State was ever sought and obtained at any stage of the transaction in respect of the said Exhibit B3, in order for the said agreement to be within the law and vest the Appellant with the required legal right interest and or title which would have conferred it with locus standi in respect of the said property.
Learned Counsel for the 2nd Respondent buttressed this point of the law by recapitulating that at page 133 Paragraphs D – G in the case of Calabar Vs. Ekpo (supra), the Apex Court, per Tobi, JSC held inter alia that:-
..Section 22 requires the consent of the Governor of a State before alienation of a right of Occupancy and Section 26 provides that any transaction or instrument which confers or vests interest or right over land not in accordance with the Act is null and void. Section 22 comes within Section 26 and therefore alienation of land without the consent of a Governor of State is null and void. In my view, the provisions of Section 22 is consistent with the status of a Governor who holds the land in the State in trust for
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the use and common benefit of all Nigerians in accordance with the provision of the Act. The case law is in great proliferation. See Savannah Bank Ltd vs. Ajilo (1989) 1 NWLR (Part 97) 305; Jacobson Engineering Co. vs. UBA Ltd. (1993) 3 NWLR (Part 282) 586; Ogbo Vs. Adoga (1994) 3 NWLR (Part 333) 469; Mainagge Vs. Gwanma (1997) 11 NWLR (Part 528) 191; Ezenwa Vs. Oko (1999) 14 NWLR (Part 637) 95 referred to.
And at pages 127 – 128, Paragraphs G – F, Onnoghen, JSC held inter alia that:-
?Section 22 (1) of the Act clearly provides that it shall be unlawful for a holder of a right of occupancy to alienate same or any part thereof by assignment mortgage, transfer of possession, sub-lease or otherwise without the consent of the Government first had and obtained. It is very clear that the said provision is by the tone and tenor, mandatory, it makes the obtaining of the Governors consent a precondition for the validity of any alienation of a right of occupancy, under the Land Use Act 1978. Though there is no time limit to the obtaining of the said consent by the provision, it is very clear that before the alienation can be valid or be said to confer the
48
desire right on the party intended to benefit therefrom, the consent of the Governor of the State concerned must be “first had and obtained.? That does not by any means, make the transaction without the requisite consent inchoate. It makes it invalid until consent is obtained. It should be noted that it is not the case of the parties or any of them that Exhibit A is an agreement for sale of Land but a conveyance of the land in question – a completed act of the parties. The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under Section 26 also supra. It makes the transaction, such as Exhibit A expressly null and void. Section 26 in declaring such an act null and void used the word ?shall? which in the instant case makes the provision mandatory, not directory or discretionary. Learned Counsel for the Appellants wants the Court to hold that Section 26 of the Act does not say that the alienation is void for all purposes but I do not see how that interpretation can be achieved. The provision, as earlier stated is clear and unambiguous and therefore calls for no
49
interpretation – it says that an alienation made contrary to the provisions of the Act ?shall be null and void” which to my mind, means ?null and void? for all purposes under the sun; if it were not so the law would expressly or by necessary implication have stated so?
The Learned Counsel for the 2nd Respondent stated that the Learned Senior Counsel who witnessed the sub-lease agreement at pages 17 to 21 of the Record, who caused and /or initiated the Suit No. ID/648M/2006 and the Appeal herein, ought to recall that the consent of the Governor of Lagos State was not first sought and obtained as required under Section 22 (1) of the Land Use Act (supra), the breach of which renders the said sub-lease null and void under Section 26 of the Land Use Act (supra). This fact was confirmed by Chief F.R.A. Williams, SAN, CFR in his letter dated 20th day of February, 2003 Exhibit TEW2 attached to the Appellant’s Counter – Affidavit dated 2nd day of March, 2007, at pages 107 – 128 of the Record, where the eminent Lawyer (as the registered owner and proprietor of the said property) recalled to Konufaj Nigeria Limited that –
You will recall
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that the instrument executed by you was stated to be made ?subject to the approval or consent of the Governor of Lagos State as Head-Lessor and to all other consents required by law.? By failing to seek for, or to obtain the Governor?s consent, you are in breach of your obligation to perfect it.
The instrument executed by the aforesaid parties can no longer operate as a valid lease, at best it can operate merely as a licence. It follows that the instrument cannot lawfully operate as a lease, It may possible operate as a licence. In any event, I have no intention of denying that I gave you a licence to enter upon and build on the above-mentioned land. I cannot and I had no intention of granting you a lease save with the approval and consent of the Governor of Lagos State…
In the circumstances, I have lodged a caution at the Lands Registry, Alausa and intend to the further steps to protect my interest…
The Learned Counsel for the 2nd Respondent espoused that the paragraphs contained in Exhibit TEW2 made it patently obvious that the property in dispute remained in the name of Chief F.R.A. Williams, SAN, CFR, throughout his
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lifetime and never passed to the Appellant herein, and since the Sub-lease Agreement ? Exhibit B3, on which the Appellant relies heavily as vesting it with beneficial ownership or interest in the said property was null and void by virtue of Sections 22(1) and 26 of the Land Use Act (supra), no legal title and or interest does not lie vested in the Appellant in respect of the said property, as was held in Macfoy Vs. U. A. C. (1962) A.C. 152 that: “you cannot put something on nothing and expect it to stand, it must collapse.”
It was the submission of Learned Counsel for the 2nd Respondent that the Appellant cannot lay claim to legal title, right or any interest in the subject-matter herein where none exist, as it has not put forward any valid legal vesting deed or instrument or deed or conveyance duly registered with Governor’s consent first had and obtained transferring and/or conferring on it any interest in the subject-matter herein to vest it with loans standi to have invoked the jurisdiction of the trial Court for an order to rectify the Register of Titles as stated in its Originating Motion dated 10th day of November, 2006.
Exhibits
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TEW1 and TEW/2 at pages 112, 113 and 114 of the Record, further confirmed the assertion of Learned Counsel for the 2nd Respondent that Exhibit B3 at pages 14 – 21 of the Record were not valid in law and therefore not capable of transferring valid title nor conferring any interest or right in the Appellant in respect of the said property.
Learned Counsel for the 2nd Respondent in further elucidation referred to paragraph 4 of the Affidavit in Support of the Appellant’s Originating Motion (page 4 of the Record) deposed to by one Emmanuel Sunday Aguda which stated that:-
“Chief Frederick Rotimi Alade Williams, SAN during his lifetime informed me and I verily believe him that the beneficial ownership of the said property was vested in United Investments Limited
Learned Counsel for the 2nd Respondent maintained that the deponent relied on Exhibit 83 at pages 14 – 21 of the Record which was invalid in law, was and in the con the averment by Emmanuel Aguda was incapable in law of vesting any kind of legal right, title or interest known to law with locus standi on the Appellant to delete the name of Chief F.R.A. Williams, SAN, CFR
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(the registered owner of the property) by rectification of the Register of Titles.
It was further submitted by the Learned Counsel for the 2nd Respondent that oral vesting of land by any person to another cannot be supported by law because being a transaction in land, it must be evidenced in writing. See Section 5 (1) (b) (c) and (2) of the Law Reform (Contracts) Law (supra) and Section 4 of the Statute of Frauds, 1677 (supra).
Learned Counsel for the 2nd Respondent canvassed the view that, having no valid legal instrument or Deed of Conveyance or grant evidenced in writing and duly registered as provided by law, made inter vivos in favour of the Appellant, the Appellant could not rely on an invalid document and the oral information as averred in paragraph 4 of its Affidavit in Support of its Originating Motion and vest itself with a legal right, title or interest in the said property. Thus, the Appellant lacked the locus standi to have invoked the jurisdiction of the trial Court to adjudicate on the property in issue and make an Order for the rectification of the Register of Titles and to further invoke the jurisdiction of this Honourable Court vide
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its Notice of Appeal and other processes herein in respect of a property it has no legal right, title and/or interest in.
Furthermore, it was contended in the Brief of Argument for the 2nd Respondent that this action is brought in the name of the company. The name of the company could only be legally used as Applicant (Appellant in the present case) by the direction of the company itself or its directors. Where the company directs such action, a meeting of the shareholders is convened for that purpose.
The judicial authority of La Compagne de Mayville Vs. Whitley (1896) 1 Ch. At 803; 74 L.T. at 447, was cited in this regard.
In Asaboro Ltd. Vs. W. N. Finance Corporation (1974) N.C.L.R 266 at 272 – 273, it was held that:-
?If authority is wanted to use the name of the company it must be authority got from the proper quarters – either from the directors, or from the shareholders convened for the purpose.?
In A.C.B. Plc Vs. Haston (Nig). Ltd. (1997) 8 NWLR (Part 515) 110 at 128 Paragraphs F – H, Achike JCA (as he then was) held inter alia that:
It is also firmly established that no person can institute an action in the name
55
of a company unless it is so instituted on the authorization of the company upon the resolution of the Board of Directors or the resolution of the shareholders. This is so because where an injury has been done to a company, it is the company that has the right of action and not any of the members or group of shareholders, acting together. See: Foss vs. Harbottle (1843) 2 Hare 461.
Thus, Learned Counsel for the 2nd Respondent stated that in the absence of the aforesaid resolution, any action so instituted on behalf of and in the name of the company was a nullity. See Danish Merchantile Co. Ltd. & Ors. Vs. Beaumount & Anr. (1951) l All E. R 925.
In Provincial Highway Chemist (Nig.) Ltd vs. S. S. Umaru & 2 Ors. (1986) F.G.C.L.R 196 it was held inter-alia that:
By the Memorandum and Articles of Association of the Respondent company; there is nothing in it that confers even on a director the right to initiate the action, that the suit was irregularly instituted without however producing any resolution authorizing the commencement of the suit.
?The Court further held that the learned trial Judge was in error to deny that there was
56
compelling need for the Respondent company to prove its competence by producing the resolution of the Board or ordinary resolution of members of the company; and that failure to produce this authority to initiate the legal action is fatal to the claim.
Also, in Trans Atlantic Shipping Agency & Anr. Vs. Dantrans Nigeria Limited (1966) 10 NWLR (Part 478) 360, on who can authorize institution of action in a company’s name, the Court of Appeal held at page 368 paragraph G that-
?The Managing Director had got no power to authorize for the institution of the legal proceedings in the company’s name without the requisite authority from the Board of Directors or the Shareholders.?
Relating the judicial authorities to the present case, the Learned Counsel for the 2nd Respondent submitted that in the Affidavit in Support of the Appellant’s Originating Motion in the trial Court (pages 3 – 4 of the Record), sworn to on Oath by one Emmanuel Sunday Aguda who purportedly held himself out to be the Company Secretary of the Appellant (see paragraphs 1 and 2 at page 3 of the Record), no evidence whatsoever was placed before the trial Court to
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indicate that the said Emmanuel Sunday Aguda was indeed the duly appointed Company Secretary to the Appellant.
Paragraph 5 (page 4 of the Record) of the said Affidavit in Support sworn to by the said Emmanuel Sunday Aguda admitted that the 2nd Respondent is a Shareholder in the Appellant. Exhibit C attached thereto does not have the names of the said Shareholders of the Appellant. The decision of this Honourable Court in A – G Enugu State Vs. Omaba (supra); and the procedure applied by the Supreme Court in Yesufu Vs. Governor of Edo State & Ors. (supra) was called in – aid to look at Exhibits UIL/2 and UIL/3 at pages 157 – 160 of the Record, which were attached to a Counter-Affidavit dated 19th day of April, 2007 (pages 152 – 154 of the Record) filed on behalf of the 2nd Respondent in opposition to the Appellant’s Preliminary Objection dated 2nd day of March, 2007 (pages 95 – 106 of the Record). The said Exhibits UIL/2 and UIL/3 clearly showed the names of all the Shareholders of the Appellant as registered at the Corporate Affairs Commission. There was no evidence whatsoever that the said Shareholders authorized the institution of Suit No.ID/648M/2006
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nor the Appeal herein.
Learned Counsel for the 2nd Respondent pointed out that in Exhibit D, a purported Memorandum and Articles of Association of the Appellant (pages 27-48 of the Record), attached to the Appellant’s Originating Motion document, there was nowhere in it that a Director or Shareholder of the appellant had the right to initiate legal proceedings on behalf of the Appellant. Furthermore, no resolution of the Board of Directors and/or of the Shareholders of the Appellant was placed before the trial Court, or has been placed before this Honourable Court authorizing Suit No.ID/648M/2006 nor the Appeal herein.
Therefore it was the submission of the Learned Counsel for the 2nd Respondent that there was no MANDATE from the Board of Directors of the Appellant before the action was commenced at the trial Court and this Honourable Court.
The Learned Counsel for the 2nd Respondent maintained that the Appellant, in the absence of any valid legal right, title and /or interest evidenced in writing in respect of the subject-matter- Plot 299, Akin Olugbade Street, Victoria Island, Lagos; and without any MANDATE from the Board of Directors and/
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or Shareholders of the Appellant lacked the required locus standi to have instituted Suit No. ID/648M/2006 and the trial Court in the circumstance, lacked jurisdiction to have adjudicated upon the Appellant’s Originating Motion.
According to the Learned Counsel for the 2nd Respondent, the issue of locus standi was a fundamental issue that touched on the jurisdiction of the Court.
The Supreme Court, in R.T.EAN. vs N.U.R.T.W. (1992) 2 NWLR (Part 224) 381 at 391, Paragraph C, held inter alia that:
?The rationale is that holding that a Plaintiff has no locus standi goes to the jurisdiction of the Court before which such an action is brought. When the question that a Plaintiff has no locus standi to institute an action arises, all that is being said in effect is that the Court before which such an action is brought cannot entertain the adjudication of such an action?
The proper order to make in the circumstances of this case is an order striking out the claim…
Consequent upon the 2nd Respondent having filed and served his Respondent brief of argument dated 28th April 2015, the Appellant prepared and filed a reply brief of
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argument dated 5/5/15.
The Appellant responded seriatim to the Preliminary Objection which the 2nd Respondent had raised in his Brief of Argument.
This Honourable Court was invited to discountenance the Notice of Preliminary Objection dated 8th October, 2010 as none of the points taken in the said preliminary objection arose from the appeal herein which is an appeal against the decision of Honourable Justice Alogba of the High Court of Lagos State.
Learned Counsel for the Appellant in respect of the argument of the 2nd Respondent that locus goes to jurisdiction and can therefore be raised at any time, referred this Honourable Court to the dictum of BELGORE JSC (as he then was) in the case of Jov. Vs. Dom (1999) 9 NWLR 539 Pt.620 at P.547 lines B-C as follows:
As for the issue of jurisdiction raised in issue (a) for determination; it is a ground of law but it is novel to this case. It was never raised in any of the three tiers of Courts below and to raise it here, a procedure must be followed. It is true, question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. The Court can
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raise a matter of law and Constitution at any time, but in doing so the two sides must be afforded the opportunity of addressing on it. This basically goes to the spirit of fair hearing. It is for this reason that a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so.
The Learned Counsel for the Appellant maintained that the 2nd Respondent also tried to adduce further evidence by making reference to the purported Will of Late Chief FRA Williams, SAN even after this Honourable Court in Williams Vs. Williams (2014) 4 Commercial Law Report Page 86 ? 112 held that the family agreement freely entered by all the children of Late Chief Williams, SAN is exhaustive of all the issues concerning or pertaining to his estate. See pages 69 – 81 of the Record. It was the argument of the Learned Counsel for the Appellant that the reliance on the purported Will by the 2nd Respondent as his basis for locus must consequently fail in so far as he failed to show the importance of the purported will in the light of the decision of this Honourable Court.
Learned Counsel for the Appellant submitted
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that the purported Will as the basis of their interest was inadmissible.
The Jurisdiction of this Honourable Court is statutory and it hears appeals by way of rehearing. Its powers to receive fresh evidence are limited, circumscribed by Order 4 Rule 2 of the Court of Appeal Rules 2007; as prescribed that:
The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court by affidavit or by deposition taken before an examiner or commissioner as the Court may direct, but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merit, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
The Honourable Justice Sulu-Gambari, JCA (as he then was) put the situation in very simple language when interpreting the Old Order 1 Rule 20 (3) which is in pari-materia with the current Order 4 Rule 2. In the case of Odeleye Vs. Orelusi (1991) 7 NWLR 247 at 256 line F to 257 line F, it was stated that:
The trial Court usually comes to a decision on the totality of
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evidence led on both sides and when an appeal is brought before an Appeal Court, the Court of Appeal is always to determine whether the trial Court came to the right decision on the evidence placed before the Lower Court and whether it had applied the law on suit evidence correctly. It will not be normally correct for the Appeal Court to determine an appeal on the basis of the evidence which was not placed before the trial Court and which cannot be said to have been considered. In other words, it would be absurd to determine an appeal on evidence partly adduced at the trial Court and other evidence adduced at the Court of Appeal – that would not be a just disposal of the case. This explains why the Court of Appeal is always loath to admit further evidence on appeal except in circumstances where the matter arose ex improvise which no human ingenuity could foresee and it is in the interest of justice to allow such evidence – See Obasi Vs. Onwuka (1987) 3 NWLR (Pt.61) 354.
An Appellant should not be allowed to improve or reshape his case in the appellate Court by bringing forth further evidence which he could have reasonably produced at the trial Court except
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on special grounds. However, the power of this Court to grant leave to adduce further or additional evidence is conferred upon it by statutes. It derives the power from Order 1 Rule 20 (3) of the Court of Appeal Rules and the present application is brought specifically pursuant to that rule. The rule states as follows:
The Courts have power to receive further evidence on questions of fact either by oral examination in Court, by affidavit or by deposition taken before an examiner or commissioner as the Court may direct, but in the case of an Appeal from a judgment after trial or hearing of any cause or matter on the merit, no such further evidence (other than as to matters which have occurred after the date of the trial or hearing) shall be admitted accept on special grounds.
It is therefore clear that this Court has power to receive further evidence on question of facts either by taking evidence viva voce, by affidavit or by deposition taken before an examiner or commissioner.
It is also clear that in a case on appeal to this Court, after it has been tried on its merit, further evidence will not be received except under the following
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circumstances:
a. Where the matter sought to be given in evidence happened after the hearing in the trial Court; and
b. Where special grounds are shown to exist for admitting such evidence.
In exercising this discretion, however, certain principles have been laid down in decided cases both in England and in Nigeria which crystallized in the principles postulated in the locus classicus – Asaboro Vs. Aruwaji (1974) SC 119 at 124 (1974) l All NLR (Pt.1) as follows –
…the matters which the Courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence namely:
(i) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
(ii) The evidence should be such that if admitted it would have an important, not necessarily crucial, effect on the whole case; and
(iii) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
These principles were re-stated in other cases of Obasi Vs. Onwuka (supra) and Adeleke Vs. Aserifa (1985) 3 NWLR
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(Pt.30) 575. Akanbi JCA (as he then was) had this to say:
The application is stranger than fiction. The relevance of the assorted documents or affidavits sought to be introduced into the record of appeal as additional evidence has not been established. There appears to be no nexus between the documents and the case on appeal; and it is difficult to say that their admission will have an important effect on the entire case. If anything admitting them as additional evidence, will in my view befog the real issues to be decided on appeal.
The Learned Counsel for the Appellant submitted that the situation in this case is that the 2nd Respondent has not filed an application to adduce further evidence before this Honourable Court, and therefore in these circumstances the Preliminary Objection application of the 2nd Respondent ought to be dismissed.
?The Learned Counsel for the Appellant stated that an appeal is against the findings or conclusions reached by the trial Judge of a Court. The decision of the Honourable Justice Ade Alabi was a final one and was never appealed against by the 2nd Respondent neither did he file any cross appeal with respect to
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the issues now being raised.
The Learned Counsel for the Appellant contended that to successfully raise the issue of locus standi, the 2nd Respondent ought to have cross appealed on the point. Though he filed a cross-appeal, that appeal has nothing to do with the point on locus that he was now trying to raise.
In 7UP Bottling Co. Ltd. Vs. Bishop Samuel A. Abiola & Ors. (1995) 4 NWLR (Pt.38) P.287 at 297 paras. C – G;, it was held as follows:
In the instant case, while it is quite correct as argued by the learned counsel to the Respondents before us in support of Respondents’ 2nd issue on jurisdiction, that issue of jurisdiction can be raised at any time the requirement of the law is that where a Respondent wishes to contest the jurisdiction or vires of the Lower Court on appeal, a cross appeal must be filed against the decision of the Lower Court. See Ogunbadejo Vs. Owoyemi (1993) 1 NWLR (Pt 271) P.517 at 535.
The 2nd Respondent has not fulfilled the necessary pre-condition to invoke the jurisdiction of this Honourable Court. Accordingly, this Honourable Court is accordingly invited to discountenance the notice of Preliminary Objection
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and dismiss same.
The reply to the Notice of Preliminary Objection formulated by the Learned Counsel for the Appellant was predicated first on resolving the issue:
Whether the Appellant has the locus standi to institute this appeal.
It is the perspective of the Learned Counsel for the Appellant that the locus to appeal against a finding of a Court of law or tribunal by a dissatisfied party is constitutionally vested upon parties without derogation.
In Progress Bank (Nig) Plc Vs. O. K. Contact Point Ltd. (2008) 1 NWLR (Pt.1069) 514 CA, the Court of Appeal, per Rhodes-Vivour, JCA (as he then was) stated as follows:-
Once a party is dissatisfied with the decision of a Court there is a fundamental constitutional right to appeal. Once there is a right to appeal then there is locus standi. The Respondent wants to rob the Applicant of his fundamental right to appeal. This is unacceptable in this Court.
According to the Learned Counsel for the Appellant, the 2nd Respondent herein executed a family agreement which was affirmed by this Honourable Court in Williams Vs. Williams (20L4) 4 CLR Pg. 86 – 112. The said family agreement (at Page
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69 – 81 of the record) executed by all the four sons of Late Chief Williams who are the surviving shareholders of the Appellant set out the sharing arrangement in respect of the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos. The agreement provided for 25% for each of the four sons and obligated the two majority shareholders to ensure that the Appellant transfers the beneficial interest to such purchaser which was the basis of the application at the Lower Court by the Appellant.
In the con of the family agreement, the Learned Counsel for the Appellant asserted that the issue of locus filed by a party to that agreement on the basis of a 1954 will (made before the birth of two of the sons of Late FRA Williams, SAN) and which allegedly gives all the property to him and the 3rd Respondent who were the only ones born at the time was totally untenable after they had represented that they each sought independent legal advice prior to signing the family agreement. See Clause t6 @ Page 79 of the record.
The Learned Counsel for the Appellant recalled that this Honourable Court held in Williams Vs. Williams (Supra) that the family
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agreement was exhaustive of all the issues concerning or pertaining to the estate of late Chief Williams, SAN and will govern the manner and distribution of the estate. The said family agreement had listed what constitutes the estate of Late Chief Williams, SAN and the property under reference – Plot 299 Olugbade Street, Victoria Island was not included therein.
Learned Counsel for the Appellant canvassed the view that the 2nd Respondent was bound by the decision of the Court of Appeal Williams Vs. Williams and therefore can only challenge the Family Agreement via arbitral proceedings (if need be).
In Mr. Eugene Obi Okoye & Anr. Vs. Beatitudes Nigeria Limited (2014) LPELR-23014 (CA), Abubakar Jega Abdulkadir, JCA, stated as follows:
Locus standi or standing to sue is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed.
The term interest was further explained by Muhammad JSC, in the case of Adetona Vs. Zenith Int’l
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Bank Plc (2011) 18 NWLR (Pt 1279) 627 at 654 SC, where he stated as follows:
Further it is to be noted my lords, that for a person to have interest in a thing he has to have rights, advantages, duties, liabilities, losses or the like, connected with the thing whether present or future, ascertained or potential; provided that the connection and in the case of potential rights and duties, the possibility is not too remote.
See also Imade Vs. Military Administrator Edo State (2001) 6 NWLR (Part 709) 478; Adesanya Vs. President Federal Republic of Nigeria (1981) 5 SC 112.
From the above authority and the exposition of the Honorable Justice Muhammad JSC, the pertinent question to ask according to the Learned Counsel of the Appellant was whether there was any right or duty connected with Plot 299 Akin Olugbade Street, Victoria Island, whether present or future, ascertained or potential that was placed on the Appellant? This would determine the interest or otherwise of the Appellant.
?The Learned Counsel for the Appellant averred that the beneficial ownership of Plot 299 Akin Olugbade Street, Victoria Island by the Appellant was acknowledged on
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different occasions by Chief Williams, SAN of blessed memory and that in the 25 years lease agreement granted to Konufaj Nigeria Limited by the Appellant and Chief Williams in April 1981, the 2nd paragraph on the first page of that document reads:
?Whereas the first party (United Investments Limited) is the beneficial owner of the land in Victoria Island known as plot 299 Akin Olugbade Street, Victoria Island and registered in the name of the second party.?
See pages 14 – 21 and 112 – 114 of the record of appeal.
?Learned Counsel for the Appellant insisted that it was in furtherance of the above amongst other issues that the 2nd, 3rd Respondent and the two other sons of Late Chief Williams who are all shareholders in the Appellant executed a family agreement (see page 69 – 81 of the record). In the said family agreement, the 2nd and 3rd Respondents herein agreed with their two other brothers who are the majority shareholders in the Appellant Company to ensure UIL transfers the beneficial interest (which it already has in the property under reference) to such purchaser. See Clause 8.3 and 11.1 of the family agreement at page 78 of the
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record.
The Learned Counsel for the Appellant argued that the 2nd Respondent along with his other siblings who are all the shareholders in the Appellant company agreed vide the Family Agreement at page 69 of the record that beneficial interest in the property under reference belonged to the Appellant. The 2nd Respondent was not in a position to approbate and reprobate at the same time in the con of the Family Agreement.
Learned Counsel for the Appellant re-iterated that this Honourable Court in Williams Vs. Williams (2014) 4 CLR Page 86 – 112 held that the family agreement is exhaustive of all the issues concerning or pertaining to the estate of Late Chief Williams, SAN and will govern the manner and distribution of the estate.
The said family agreement did not include Plot 299 Akin Olugbade Street, Victoria Island as part of the estate of Late Chief Williams, SAN. See page 69 – 81 of the record of appeal.
The two controlling shareholders of the Appellant who are brothers of the 2nd and 3rd Respondent herein consented in the family agreement that the said property would be shared into four equal portions and when sold, each of them will
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receive 25% of the proceeds. It is trite that parties cannot unilaterally resile from agreement/contract freely entered. See Williams Vs. Williams (supra).
The agreement mandated that as soon as the lease of Konufaj Nigeria Limited expires in December 2006, the property be sold or rented out. It is in this light that all the four sons of Late Chief Williams, SAN who are all shareholders of the Appellant agreed that Folarin and Tokunbo who are majority shareholders of the Appellant will ensure that the Appellant transfers the beneficial interest to such purchaser as stated in Clause 8.3 of the family agreement. See page 69 – 91 of the record.
Consequent on the above, the said Folarin and Tokunbo in line with the Family Agreement freely entered by all the parties including the 2nd and 3rd Respondents ensured that the proprietorship register be rectified to enable the Appellant duly transfer beneficial interest to a would be purchaser.
In Adetona Vs. Zenith Int’l Bank Plc (supra), it is sufficient to establish interest or locus in a thing where you can show that you have duties connected therewith, whether present or future. The duty to ensure that UIL
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transfers the beneficial interest to any purchaser of the property was collectively agreed by the children of late Chief Williams, including the objector, the 2nd Respondent herein. Page 78, Clause 8.3 of the record succinctly captures the mandate as follows:
‘Folarin and Tokunbo shall ensure that UIL transfers the beneficial interest to such purchaser.?
Locus Standi has thus been established by the duty placed on the Appellant by the 2nd Respondent and his other siblings who are the surviving shareholders of the Appellant to ensure that the Appellant transferred the beneficial interest to such purchaser and the duty to ensure this was placed on Folarin and Tokunbo. It was the manifest thought pattern of the Learned Counsel for the Appellant that a party who is privy to an agreement and has consented to the doing of a thing cannot feign ignorance of same due to personal interest. It was this duty the Appellant sought to fulfill to do in the light of the Family Agreement hence its locus cannot be disputed.
Learned Counsel for the Appellant in line with his thinking submitted that in Attorney General Rivers State Vs. Attorney General
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AKWA-IBOM State unreported (2011) 3 SC 1, Bode Rhodes Vivour (JSC) stated as follows:
Once parties enter into an agreement voluntarily and there is nothing to show that the agreement was obtained by fraud, mistake, deception or misrepresentation the parties are to be found by the terms freely entered into. Consequently a party no longer satisfied with the terms of the agreement cannot resile or jettison the agreement.
Learned Counsel for the Appellant in addition anchored his thoughts also to McCallum Vs. Country Residence Limited (1965) 1 WLR 657 cited with approval by the Supreme Court in Abey Vs. Alex (1999) 1 NWLR (Pt 637) P.149 at 155 paras. E – F where the Supreme Court held that it is absolutely legal and within the rights of parties to settle or compromise all or any of the questions or disputes between them on any term and condition on which they agreed even without the approval or sanction of the Court.
Learned Counsel for the Appellant maintained that it is a settled principle of law that for a Counsel to institute or defend an action on behalf of a company, he must be so authorized by the company, and he cited Ejekam Vs. Devonn Ind.
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Limited (1998) 1 NWLR (Pt 534) 417, Odutola Holdings Ltd. Vs. Ladejobi (2006) 12 NWLR (Pt 994) 321, Sotiminu Vs. Ocean Steamship (Nig.) Ltd. (1987) 4 NWLR (Pt 66) 691, Ivory Merchant Bank Vs. Makham Co. Ltd. (2002) 1NWLR (Pt.747) 74.
Learned Counsel for the Appellant submitted that where a dispute arises as to the proper authority that can authorize the institution or defence of an action, the Courts have laid down principles for the resolution of such questions.
InEjekam Vs. Devon Ind. Limited at page 433 line G, PATS-ACHOLONU, JCA as he then was noted:
I have held that only a Board or the Company in a General Meeting may authorize the institution of an action. Nowadays, the Boards act through the Chief Executive Officers, who are normally given umbrella powers. This extension of powers to Chief Executive Officer of a Company otherwise known as the Managing Director is not extended to a Secretary whose duties and functions are circumscribed around Section 298 of CAMA save with the authority of the Board. The Secretary has absolutely no right to commence civil action without the authority of the Board. A Director who enjoys the confidence of the
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Board in contrast can in certain appropriate or emergency and situational circumstances as events would dictate commence an action in the name of Company with the intent that it would be ratified.
In Sotiminu vs. Ocean Steamship (Nig) Ltd. (1987) 4 NWLR (Pt.66) 691, AKPATA, JCA as he then was in his leading judgment held as follows:
The position therefore is this; a solicitor to a company, without first being formally authorized to do so by the company, if it appears to him that the company’s interest property or rights are in immediately jeopardy. If the solicitor?s authority is callenged, the action will not be struck out by the Court if it appears to it that the grievance is one in respect of which the company is competent and would normally institute an action to protect its interest, property or rights. In such circumstance, the Court would take steps to ascertain the stand of the company in the matter.
Ejiwunmi, JSC in Odutola Holdings Ltd. vs. Ladejobi, at pages 351 ? 352 paragraph H – B while construing Sotiminu’s case adumbrated as follows:
In my humble view I do not think that the case of Sotiminu Vs. Ocean Steamship
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(Nig), Ltd. is an authority for the proposition that an authority duly conveyed to a solicitor by directors of a company cannot be relied upon by the solicitor to institute proceedings as in the instant case. There is no doubt from the facts presented in this case and as evidenced by exhibit “H’ that the 2nd ? 7th Appellant were duly authorized to institute this action with themselves and the 1st Appellant.
Learned Counsel for the Appellant contended that the majority shareholders of a company have the ultimate control of its affairs and are entitled to decide whether or not an action should be instituted or defended in the name of the company, and made reference to Section 299 of the Companies and Allied Matters Act, (CAMA) Cap C20 LFN 2004, also the cases of Foss Vs. Harbottle (1843) 67 ER 189, Harben Vs. Phillips (1883) 23 Ch. D 14, Marshall’s Valve Gear Co. Ltd. Vs. Manning Wardle & Co. Ltd. (1909) 1 Ch. 207, and particularly to the decision in Sotiminu’s case where the Court laid down the principle that the view of the majority of the shareholders of a company should be ascertained to determine authority to represent a company where there is
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doubt.
In Agbaje & Ors. Vs. Agboluaje & Ors. (1970) 1 ANLR 21 at 25, the Court recognized the position of the majority in a company in holding that a Court should uphold the view of the majority shareholders where there are different voices on behalf of the company.
This is a peculiar case, and the submission by Chief FRA Williams, learned Counsel for the Respondents, which we accept, that it was not a proper case for a grant of a declaration such as was asked for by the Appellants would appear to be irresistible. It is trite law that a Court cannot make an unenforceable order.
In a case of this kind, in view of the undisputed averment that the amendments complained of were popular, if even the evidence of the Appellants was accepted and the relief sought granted, there would have been nothing to prevent the Respondents soon thereafter from summoning a meeting of the Society and passing a proper resolution ratifying the amendments, the subject matter of the complaint.
?Learned Counsel for the Appellant in the con of the judicial authorities submitted that from the affidavit evidence before this Court deposed to by Tokunbo
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Williams on the 19th of January 20th, Folarin and Tokunbo Williams who authorized the firm of Chief Rotimi Williams Chambers to represent the appellant herein are the Controlling (Majority) shareholders as well as the Directors of the company. The 2nd Respondent also affirmed this position by executing the Family Agreement which is explicit on page 78 of the record that 99.6% shares are held by Folarin and Tokunbo Williams. This authority to initiate this suit was also affirmed vide Exhibit TE6 annexed to the Counter-affidavit to the preliminary objection dated 19th January, 2011.
In Jadesimi Vs. Egbe (2003) 10 NWLR (Pt.827) 1, the Court of Appeal held that a Family Agreement such as Exhibit “TE3” is valid and binding on the parties. Galadima JCA, as he then was at page 3, after reviewing the family agreement between the parties held:
The corollary of this view is that I am prepared to hold that the agreement between the parties for the distribution of the estate of the deceased is valid in law: In deciding this point I will apply the doctrine of equity “pacta sunt servanda? which means that agreement voluntarily entered into must be honoured
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in good faith. For equity would not allow the law to be used as an engine to defraud.
In the instant case, the family agreement has not been set aside by any Court competent to do so; rather, this honourable Court has recognized its binding effect in the case of Williams Vs. Williams (supra).
In Attorney General Rivers State Vs. Attorney General Akwa-Ibom State unreported (2011) 3 SC 1, Bode Rhodes-Vivour (JSC) stated as follows:
Once parties enter into an agreement voluntarily and there is nothing to show that the agreement was obtained by fraud, mistake, deception or misrepresentation, the parties are to be bound by the terms freely entered into. Consequently a party no longer satisfied with the terms of the agreement cannot resile or jettison the agreement.
We refer also to McCdum Vs. Country Residence Limited (1965) 1 WLR 657 cited with approval by the Supreme Court in Abey Vs. Alex (1999) 1 NWLR (Pt 637) P.149 at 165 paras. E – F where the Supreme Court held that it is absolutely legal and within the rights of parties to settle or compromise all or any of the questions or disputes between them on any term and condition on which they agreed
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even without the approval or sanction of the Court.
Learned Counsel for the Appellant raised objection to issue 1 of the Respondent’s brief of argument for raising new issues without leave of Court, and espoused the consequences of the failure to File Cross-Appeal or Respondent’s Notice.
The Learned Counsel for the Appellant contended that the 2nd Respondent’s 1st issue for determination and the arguments arising thereto as stated in paragraphs 5.1 – 5.16 of the 2nd Respondent’s Brief of Argument should be discountenanced as same does not arise from the grounds of appeal in the notice of appeal and the 2nd Respondent did not file a cross appeal neither did he file a Respondent’s notice on the point.
According to the Learned Counsel for the Appellant, it is trite law that an issue for determination in any appeal must be derived from the ground(s) of appeal filed by the Appellant and any issue not distilled from such ground(s) is incompetent and ought to be discountenanced in the determination of the appeal. The Supreme Court, per Musdapher JSC, in the case of Mark Vs. Eke (2004) 5 NWLR (Pt 855) 54 @ 82, paras D – E, elucidated as follows:
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?It is law that neither a party nor a Court is permitted to argue or deal with an issue not related to any ground of appeal. See Oniah Vs. Onyia (1989) 1 NWLR (Pt 99) 514; Nwosu Vs. Udeaja (1990) 1 NWLR (Pt 125) 188.?
See also Eke Vs. Ogbonda (2006) 18 NWLR (Pt.192) 505 at 522; Globe Fishing Industries Ltd. Vs. Coker (1990) 7 NWLR (Pt 152) 265; Onyido Vs. Ajembu (1991) 4 NWLR (Pt.184) 203.
The Learned Counsel for the Appellant submitted that a Respondent to an appeal who has neither cross-appealed nor filed a Respondent’s notice, cannot raise an issue outside those framed or formulated by the Appellant from the grounds of appeal filed. See Nzekwu Vs. Nzekwu (1989) 2 NWLR (Pt.104) 373; Kuusu Vs. Udom (1990) 1 NWLR (Pt.127) 421.
Accordingly since the arguments of the 2nd Respondent arising from the 2nd Respondent’s issue one as stated in paragraphs 5.1 – 5.16, not having been distilled from the grounds of appeal, and in the absence of a cross-appeal or Respondent’s notice, ought to be discountenanced by the Honourable Court.
?The Learned Counsel for the Appellant in advancing arguments with respect to the issues raised by the 2nd
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Respondent proceeded to make the analysis.
Learned Counsel for the Appellant in his articulation remarked that the Learned Counsel to the 2nd Respondent contended that the High Court Coram Alogba J. had jurisdiction to set aside an order of the High Court Coram Ade-Alabi J. for rectification made on the 28th day of November, 2006. In support of his argument, the 2nd Respondent’s Counsel cited inter alia Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules A.C.B. Plc. Vs. Cosoda (1995) 7 NWLR (Pt 405) 26.
The Learned Counsel for the Appellant in response thereto, argued that the Learned Counsel to the 2nd Respondent missed the point when he cited Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules.
The said Order clearly provides for default judgment. The case at hand is not a default judgment rather a judgment on the merit. On the meaning of a default judgment, the Court of Appeal, per Onnoghen JCA (as he then was), in the case of Aro Vs. LILGC (2001) 32 WRN 72 had this to say on the term default judgment:
“It must be pointed out that a default judgment is the one that is given after the invocation of the coercive powers of the Court due to the default of
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the Defendant to comply with the Rules of Court. It is not on merit.?
The Learned Counsel for the Appellant asserted that as the Respondents, specifically the 2nd Respondent, were neither parties nor Defendants in this case before the High Court of Lagos State Coram Ade-Alabi, it would then be wrong for the 2nd Respondent to term the judgment of the Court a Default judgment.
The 2nd Respondent clearly omitted to read the provision of Order 20 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2012 before citing the provision of Order 20 Rule 12. Order 20 Rule 9 (1) provides as follows:
?In all actions other than those in the preceding Rules of this order if the Defendant makes default in filing a Defence, the Claimant may apply the Statement of Claim as the Judge shall consider the Claimant to be entitled to.”
The Learned Counsel for the Appellant pointed out that contrary to the aforequoted provision, the 2nd Respondent was neither a Defendant to the case and the Appellant did not apply for a default judgment to be entered on its behalf before the High Court of Lagos State of Honourable justice Ade-Alabi.
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Learned Counsel for the Appellant in furtherance of his analysis stated that the 2nd Respondent had contended that the High Court Coram Alogba was competent to set aside the decision of the High Court Coram Ada-Alabi J., and in support of his argument, the 2nd Respondent had relied on the Supreme Court case of ACB. Plc. Vs. Cosoda (1995) 7 NWLR (Pt 405) 26 @ 45, paras. C – D, per Kutugi JSC, (as he then was) as follows:
“…it is indisputable that a Court of law is competent to set aside its own judgment in a number of circumstances and the present circumstance when judgment obtained was a nullity is one of such circumstance..?
The Learned Counsel for the Appellant submitted that the dictum of the Supreme Court above applies to where a Court is sitting on its own judgment and it does not apply to where a High Court Coram Alogba J. reviews the decision of a Court of co-ordinate jurisdiction. Learned Counsel for the Appellant argued that this case amounted to sitting as an appellate Court over the decision of a High Court Coram Ade-Alabi J. (a Court of co-ordinate jurisdiction).
Learned Counsel for the Appellant submitted that the cases
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cited by the 2nd Respondent are not applicable to this case and are distinguishable as follows:
(i) In Sun Insurance (Nigeria) Plc. & Anr. Vs. LMB Stock Brokers Ltd. & 3 Ors. (2005) 12 NWLR (Pt.940) 609 @ 627 628, the Court of Appeal, per Onnoghen JCA (as he then was), only illustrated the circumstances where a trial judge can revisit its decision even when it had become functus officio.
In the instant case, the trial Court did not revisit its own judgment but reviewed the decision of a High Court Coram Ade-Alabi J. (a Court of co-ordinate jurisdiction) and set aside its judgment.
(ii) In Skenconsult (Nig) Ltd. Vs. Ukey (1981) 12 N.S.S.C. 1 @ 16 – 17 the Supreme Court, per Nnamani JSC (as of blessed memory) opined that Warrington J. ought to have set aside the decision of Rommer J on the ground that the said decision was a nullity.
There was nothing placed before the Trial Court of this Court to show that the decision of the trial Court Coram Ade-Alabi was a nullity; the only contention of the 2nd Respondent was that he was not made a party and on that ground the decision was a nullity. In any case there is a distinction between
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nullity and the power to review the decision of a Court of co-ordinate jurisdiction.
(iii) In Vulcan Gases Limited Vs. G.F. Industries A G. (G.I.V) (2001) 9 NWLR (part 219) 610 @ 644 ? 645 paragraph H – A, the Supreme Court per Iguh JSC made the pronouncement on the circumstance where a consent judgment can be set aside and where the consent of the parties were not actually obtained it would amount to a nullity. The case at hand was not a consent judgment rather it was the decision made on merit and which can only be set aside at the appellate Court.
(iv) In Kida Vs. Ogunmola (2006) 13 NWLR (Pt.997) 377 @ 393, paragraphs G – H, the Supreme Court was invited to make pronouncement on the effect of non-service of a Court process.
The instant case could not have been based on non-service, since only a party to the case was expected to have been served a Court process. The 2nd Respondent completely missed the point on this.
It was the submission of the Learned Counsel for the Appellant that the High Court Coram Alogba J. lacks the competence to sit as an appellate Court and review the decision of the High Court Coram Ade-Alabi J., in the
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con.
The Learned Counsel for the Appellant re-stated the argument as contained in the Appellant’s Brief of Argument; specifically at paragraphs 3.3 – 3.4.3 (pages 6 – 10).
Learned Counsel for the Appellant recapitulated that the 2nd Respondent had averred that the registered owner of the property known as Plot 299, on Akin-Olugbade Street, Victoria Island, Lagos was Chief Fredrick Rotimi Alade Williams SAN and he had referred to paragraph 3 at page 3 of the Record. In response. Learned Counsel for the Appellant recalled paragraph 4 of the Affidavit deposed to by Emmanuel Sunday Aguda at page 3 of the Record to wit:
Chief Frederick Rotimi Alade Williams SAN during his lifetime informed me and I verily believe him that the beneficial ownership of the said property was vested in the United Investment Limited the Applicant herein. Now shown to me attached herewith as Exhibit ?B3? is a true copy of a Lease dated 15/4/82 executed by the deceased and in which the deceased recited the beneficial interest of the Applicant.
Learned Counsel for the Appellant re-iterated further that the 2nd and 3rd Respondents and the two other sons of
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Late Chief Williams who are all shareholders in the Appellant had executed a Family Agreement (see page 69 – 81 of the record). In the said Family Agreement, the 2nd and 3rd Respondents herein had agreed with their two other brothers who are the majority shareholders in the Appellant Company to ensure UIL transfers the beneficial interest (which it has in the property under reference) to such purchaser. See Clause 8.3 and 11.1 of the family agreement at page 78 of the record.
In this scenario, the question that resonates the mind of the Learned Counsel for the Appellant is why would the 2nd Respondent along with his other siblings who are all the shareholders in the Appellant company agree vide the Family Agreement at page 78 of the record that beneficial interest in the property under reference belongs to the Appellant if that were not the case. The 2nd Respondent could not be seen to approbate and reprobate at the same time in the con.
?Learned Counsel for the appellant canvassed the view that UIL can transfer the beneficial interest only if the proprietorship register was rectified in accordance with the consistent pronouncement of the
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acknowledgment of same by Late Chief Williams and sanctioned by his children in the Family Agreement who are the shareholders of the Appellant. According to the Learned Counsel for the Appellant all the arguments made in pages 11 – 19 of the 2nd Respondents’ address are misleading, in the circumstances.
Learned Counsel for the Appellant contended that the 2nd Respondent was misconstruing “registered ownership” with ?beneficial ownership.? The said property was held in trust for the Appellant even though the property was registered in the name of Chief Rotimi Williams, SAN.
The 2nd Respondent had contended that the consent of all persons interested was not obtained before rectifying the said register. In rebuttal, the Learned Counsel for the Appellant reiterated the argument on the point that all the four children of the Late Chief Williams, SAN who are all shareholders of the Appellant had agreed that Folarin and Tokunbo who are the majority shareholders in the Appellant would ensure that the Appellant would transfer the beneficial interest to such purchaser as provided for in Clause 8.3 of the Family Agreement. See page 69 – 81 of the
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Record particularly page 78 wherein the 2nd and 3rd Respondent gave consent.
The Learned Counsel for the Appellant proffered that the so called ‘Admission made by the Appellant in its affidavit? are concoctions of the 2nd Respondent. The Appellant never at any time admitted that Late Chief Williams died testate as fabricated in its brief. A look at page 19 and 20 of the record would reveal that the sublease agreement between UIL, Late Chief Williams and Konufaj Nigeria Limited was duly executed contrary to the assertion of the 2nd Respondent. All the arguments proffered with respect to an unexecuted agreement therefore go to no issue.
Learned Counsel for the Appellant reiterated also that there was no contract of sale to necessitate compliance with consent of the Governor. Furthermore, in his view, he had stated very correctly the position that during the life time of late Chief Williams, he acknowledged that beneficial ownership of the property resided in UIL hence the consent of the 2nd Respondent vide the Family Agreement that UIL transfers the beneficial interest to any purchaser.
?In the determination of this Appeal, time and effort
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have been extensively expended on the perspectives of the protagonists to showcase the intensity of the energy both parties have invested therein. The 3rd Respondent has not pursued this case further, and this Court has allowed the preliminary Objection raised in the matter to be taken in, and infused in the respective Briefs of Argument.
To cut the Appeal to chase, it is stated from the on-set that the paradigm and heuristic devices of judicial Authorities cited as precedents in this Appeal are in their totality out of the con of the trajectory of facts that threw up these cases, and therefore there is no synergy and or relationship with the present case and consequently inapplicable.
The Preliminary Objection raised by the 2nd Respondent are not sustainable and it is hereby dismissed.
The core of this Appeal is the pivotal so-called finding at page 378 of the Record by Alogba J.
?It is the unequivocal conclusion of this Court that it does not support any contention other than that the action for rectification in the Lower Court was in the belief of a mistaken interpretation of the powers given to Tokunbo and Folarin in the Family
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Agreement Clause 8.3 to take steps to pass the legal title in the property to any purchaser… and the agreement of Ladi and Kayode with this position was apparent not real. This Appeal is therefore moribund.
In Williams Vs. Williams (2014) 4 Commercial Law Report at Page 82 – 112, the Court of Appeal had held that the Family Agreement was exhaustive of all the issues concerning or pertaining to the estate of Late Chief F. R. A. Williams, SAN, CFR and shall govern the manner and distribution of the Estate.
The Family Agreement is both retrospective and anticipatory. It was retrospective in extinguishing all the competing possible claims on the property, the subject-matter of this Appeal, and anticipatory, in notionally converting the property into cash for equitable distribution in equal portions to the 4 sons of the Late Chief Williams. At that level of distribution, the property is only available in its state of realty or being a real estate only to the purchaser of the Land for valuable consideration.
The Appellant company is a stranger indeed separate and distinct personality, to the distribution and therefore cannot be seen in the position
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of an heir entitled to registration by transmission as envisaged under the Registration of Titles Law or the Registered Land Law, which ?transmission” means the acquisition of the Land by the operation of Law of any interest in Land. In the circumstance, the Clause 8.3 of the Family Agreement is predicated on Section 73 of the Registration of Titles Law on the entry of value that:
“On subsequent changes of ownership, the Registrar shall, wherever practicable, enter on the register the declared value or the price paid.”
In these circumstances, the Appellant Company cannot get ahead of itself and jump the gun as it were. There must be a purchaser, a Purchase Agreement stipulating a purchase price as the basis for the transfer for and on behalf of and for the account of the four (4) surviving sons of Late Chief F.R.A. Williams, SAN, CFR.
?There is in the absolute nothing in writing in the Family Agreement in accordance with any instruction that the proprietorship Register be rectified to enable the Appellant as proprietor in its own name to transfer beneficial interest to a would be purchaser. The instruction that the proprietorship Register
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be rectified is prerogative of only the subscribers of the Family Agreement. Even as at the time Suit NO. ID/648M/2006 was brought in the Trial Court by way of Originating Motion dated 10th day of November, 2006, the Family Agreement in 2005 had buried every interest derivable from the Sub-Lease Agreement that was to expire in 2006 and thereafter the property sold or rented out.
All these events followed the death of Chief F. R. A Williams, SAN, CFR on 26th March, 2005 when probate had not been obtained in respect of the Estate of the Late Chief F.R.A. Williams, SAN, CFR.
The decision of 2nd and 3rd Respondents when they became aware of Suit No.ID/648M/2006, and the order of rectification on 28th day of November, on or about 30th day of January 2007 and took steps by filing an application dated 2nd February 2007 and Amended Motion on Notice dated 25th day of June 2007 as shown at pages 352 – 354 of the Record was filed on behalf of the 2nd and 3rd Respondents herein to be joined in the action and the order of rectification to be set aside, was a decision made in the good faith of the Family Agreement.
It goes without saying that it was
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appropriate in the con that on 18th October, 2007 Alogba J. joined 2nd and 3rd Respondents and set aside the order dated 28th day of November, 2006 for rectification of the Register of Title in respect of the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos Registered Under Title No. 7049 in the name of Chief F. R. A. Williams, SAN, CFR.
There is nothing in assurance both in Law and for in equity on the making of the Family Agreement in 2005 that the Appellant had any claim to any valid legal right, title, or interest whatsoever in the property known as Plot 299, Akin, Olugbade Street, Victoria Island, Lagos. The printed Records disclose no Legal Vesting Deed/Assent, Instrument/or Lease which shows a direct grant from Chief F.R.A. Williams, SAN, CFR to this Appellant. The Appellant in the circumstance did not have any right title or Interest by itself valid and viable within the framework of any statute allowing the Appellant by the Ruling and order of the Trial Court made on the 28th day of November, 2006 to acquire any interest in its own name as Proprietor in the Proprietorship Register under the Land Laws of Lagos State.
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Particularly in the absence of “A purchaser” and the fact that the Appellant so called interest is expressed in regard to a Sub-lease and not in a direct lease…, the entire steps, the entire proceedings was null and void.
The Lease dated 29th day of May 1973, in respect of the property known as Plot 299, Akin Olugbade Street, Victoria Island, Lagos, was a direct allocation from Lagos State Government to Chief F. R. A. Williams, SAN, CFR, for a term of 99 years, and was so registered on 12th day of July, 1973, under Title No. LO7049.
What was therefore contemplated in the Family Agreement was a change in the Proprietorship Register, a Conveyance of the Land in question, a completed act of the parties to an identifiable purchaser.
The Family Agreement at Clause 8.3 is an Agreement for transfer, using UIL as a conduit.
The act of alienating the property to itself in its own name of United Investments Limited is a completed act of conveyance, the consequence of which without the consent of the subscribers of the Family Agreement as the body of persons interested in the conveyance was a null and void transaction.
?Title No. 8223 was a
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Sub-lease in favour of UBA, which was the Title under which the Appellant first appeared in the recital as beneficial owner interested in the said property and Exhibit TEW2, attached to the Counter-Affidavit dated 2nd day of March, 2007 at pages 107 -128 of the Record of Appeal is very instructive and most illuminating of the state of mind of Late Chief F.R.A. on this sub-lease as he wrote:
“I gave you a licence to enter upon and build on the above – mentioned land. I cannot and I had no intention of granting you a Lease? I…intend to take?steps to protect my interest…?
This ?interest” is the Legal Title in the Proprietorship Register in his own name in Title No. LO7049. It had nothing to do with the Appellant Company, nor any of the members or group of Shareholders of the Appellant Company acting together in filial relationship.
Section 38, Registered Land Law Cap R1 Vol.6, Laws of Lagos State 2003 states that interest is to be conferred by registration. Section 38 Sub-section (1) prescribes that:
Subject to the provision of this Law:
(a) The registration of any person as the proprietor of any land shall
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…vest in the person so registered the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;
(b) The registration of any person as the proprietor of a Lease shall vest in that person the Leasehold interest described in the Lease together with all rights express and implied and appurtenances attached thereto and subject to all agreements express or implied and all liabilities and incidents of a Lease..
Section 39 prescribes the rights of a proprietor in formidable terms as follows:
(1) The rights of a proprietor whether acquired on first registration or subsequently for valuable consideration or by an order of a High Court or any superior Court shall be rights not liable to be defeated except as provided in this law, and such rights shall be held by the proprietor together with all privileges and appurtenances belonging thereto free from all other interests and claims whatsoever including those of the State but subject
(a) To any encumbrances and to the conditions and restrictions, if any shown in the register.
(b) unless the contrary is expressed in the register, to such liabilities
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rights, and interests as affect the same and are declared by this Law not to require notification on the register.
(2) Nothing in this section shall be construed so as to relieve a proprietor from any duty or obligation to which he is subject as a trustee or family representative under this or any other enactment:
Section 116 makes provision for transmissions, trusts and family representation, and prescribed that:
…the Registrar shall delete the name of the deceased proprietor from the register and Legal Personal Representative shall be entitled to be registered by transmission to the interest of the deceased proprietor.
Section 118 makes provision for the Application for registration on death of proprietor, and Section 119 states the effect of transmission on death of the proprietor.
Therefore, within the purview of the applicable law, there is nothing that makes the Appellant Company entitled outside the confines of the Family Agreement made in 2005. Whatever, the case may be, the Family Agreement has compromised the various interests and settled each of the contending claims in this Appeal in the respective role profiles in the
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distribution patterns of the inheritance crystallized in the property located, situated and known as Plot 299 Akin, Olugbade Street, Victoria Island Lagos registered under the Registered Land Law of Lagos State in the Proprietorship Register thereof in the name of the Late Chief F. R. A. Williams, SAN, CFR.
The totality of the facts and the applicable Law in this Appeal reveal that the Lower Court was in error to have ordered the rectification of the Proprietorship Register in the circumstances of the disclosed facts, evaluation of evidence and the applicable Law as was done in the Lower Court both as pronounced by Ade-Alabi, J., and in the subsequent declaration of Alogba, J.
This Court had already set the tone for the distribution of the assets of Late Chief F.R.A. Williams in Williams Vs. Williams (2014). Commercial Law Report (20L4) 15 NWLR 213, that where parties had voluntarily entered into an agreement and duly endorsed it, the full intent and purpose of such agreement must be honoured in good faith.
There is nothing in the Family Agreement that expressly confers on the Appellant company to initiate any action prior to the
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identification of a purchaser… nor is there anything expressly instructing the Appellant Company to rectify the proprietorship Register to carry the name of United Investments Limited without the consent of the subscribers of the Family Agreement first sought and obtained in writing. The Power to transfer by purchase for valuable consideration derived from the Family Agreement… and the obligations of Folarin and Tokunbo under Clause 8.3 of the Family Agreement crystallizes only in United Investments Limited when a purchaser for valuable consideration is identified and they have to be joined together with the other subscribers of the Family Agreement to authorize the change in the Proprietorship Register in line with the Family Agreement…
In the process of rectifying the Register of Proprietorship therefore a procedure in the circumstances must be followed. The procedure in the proceedings is not a free for all procedure. It is prescribed procedure to change the name in respect of which the ownership of land with all its consequences is registered in the public domain.
?Section 61 (1) (c) of the Registration of Titles Law had prescribed
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rectification in any case and at any time with the consent of all persons interested.
Section 4 of the Statute of Frauds, 1677, a statute of general application in the Federal Republic of Nigeria prescribes that:
No action may be brought upon… any interest in land unless the Agreement upon which such action is brought or some memorandum or note thereof is in writing and signed by the party to be charged or by some other person there unto by him lawfully authorized.
Section 5 (1) (b) of the Law Reform (Contracts) Law, Cap L63, Laws of Lagos State 2003, provides that:
‘This section applies to… every contract to enter into any disposition of Land being a disposition that is required by any enactment to be made by Deed or Instrument or in writing or to be proved in writing.’
There must therefore be a point of contact evidenced in writing in the circumstance for the performance of the obligation under Clause 8.3 of the Family Agreement viz. A Purchaser – which means not an Agreement to purchase but a Purchase Agreement in respect of which the valuable consideration has passed into, and domiciled in an escrow account for distribution in
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equal shares to the four children of Late Chief F.R.A. Williams. Anything done outside this framework is inimical to good faith.
The control of the 99% shares both Folarin and Tokunbo had in UIL to access and appropriate the ?beneficial interest? in the property is extinguished; the interest that is of corporate benefit to UIL in the property is extinguished; and the interest of the Legal personal Representative in the Estate of Late Chief F.R.A. Williams lapses and the register of proprietorship can be rectified in accordance with the tenor of the Family Agreement within the framework of the prescription of the Law as specified at Section 140 of the Registered Land Law that:
1) The Register may at any time with the consent of all persons interested rectify entries in the register…
2) upon proof of the change of the name or address of any proprietor the Registrar shall, on the application in writing of the proprietor, amend the register accordingly…
Section 141 in outlining the Rectification of the register under Court Order prescribes that:
(1) Subject to the provisions of Subsection (2) of this Section, a Court may in
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any of the following cases order cancellation or amendment of a register –
c) Where it is necessary to supply any material omission…
According to the interpretation under Section 167 of the Registered Land Law, “interest? in relation to land includes absolute ownership allodium, ?Proprietor? means the person registered under this Law as the owner of land or of any lease or charge, ?transfer? means the acquisition of land or any lease or charge by act of the parties and not by operation of law, and includes the instrument by which any such acquisition is effected, and ?valuable consideration? does not include any nominal consideration in money…
It is all the meanings of the words in relation to the title in the property subject – matter of this Appeal that is to be encapsulated in the con of the Registration of Titles Law Cap R4 Vol.6 of the Laws of Lagos State 2003, a law to provide for the registration of title to Land in Lagos state.
?In the interpretation Section 3, ?estate? includes right or equity, and the ?purchaser for value? includes a transferee, Lease or
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mortgage for value… and ?registered land? includes land demised by a registered lease, and “registered owner of land? includes the registered owner of a lease, and Sections 5 and 6 make provision for cases of both compulsory and permissible registration of title;
Section 28 of the Registration of Titles Law makes provision for transfers by registered owners stating that… ?until such registration the transferor shall remain the registered owner of the Land or charger…”
It is pertinent to note that there is nothing in writing to indicate that Chief Williams in his lifetime exercised any power as registered owner to bind his successors and to enforce any obligation to the Appellant Company as the registered owner of the property, the subject matter of this Appeal.
In the con therefore the application for Rectification in the circumstances of the ruling of this Court in Williams and Williams (supra) is valid not only under Section 38 of the Registered Land Law that envisages change of ownership by operation of law but also under Section 61 (1) (c) of the Registration of Titles Law, if and when, and only then, a
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purchaser for valuable consideration has been found and a Purchase Agreement signed, sealed and delivered, and the consideration in respect of the transaction thereof placed in an escrow account for distribution to the four sons of late Chief F.R.A. Williams in equal portions.
On the whole therefore, the appeal lacks merit and it is hereby dismissed. The ruling of the Lagos High Court Coram Alogba J., delivered on 18th day of October, 2007 in this Suit No. ID/648M/2006 is hereby affirmed by this Court.
No order is made as to costs.
Other Citations: (2016)LCN/8874(CA)
