Henry B. Phillips V Joseph Ogundipe (1967) LLJR-SC

Henry B. Phillips V Joseph Ogundipe (1967)

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Henry Babalola Phillips was the plaintiff in an action he instituted in the Lagos High Court against Joseph Oloyinloye Ogundipe and in which he claimed:-

“1. Declaration of title in fee simple of all that parcel or piece of land which forms part of No. 86 Agege Motor Road, Idioro covered by conveyance dated the 7th day of June, 1920 and Registered as No. 58 at page 179, in Volume 138 in the Land Registry in Lagos.

2. Rectification of all entries in the register of titles in relation to the said land.

3. The sum of £100 as damages for trespass committed by the defendant on the said land belonging to the plaintiff and in his possession.

4. A perpetual injunction restraining the defendant, by himself, by his servants or agents or otherwise from continuing or repeating further acts of trespass on the said land.”

Pleadings were ordered and after their delivery it became obvious that the complaint of the plaintiff was against the registration and entry of the name of the defendant, pursuant to the provisions of the Registration of Titles Act, cap. 181 as the registered proprietor of the fee simple estate in the land in dispute. The land itself is stated to be situate along the Agege Motor Road in the Idioro district of the mainland of Lagos. Both by his pleadings and the evidence given on his behalf the plaintiff claimed to have derived title to the land in dispute by series of conveyances of which the first was dated the 28th May, 1920; and also to have exercised exclusive acts of possession on the land since he purchased is on the 7th June, 1920. There was evidence from the caretaker whom he had placed on the land that whilst he was in possession on the 21 at August, 1965, the defendant forcibly entered on the land with some quantity of building materials and commenced building operations thereon. It was also part of the case of the plaintiff that without his knowledge and consent the defendant had been registered under the Registration of Tides Act as the owner of the freehold interest in the land in dispute under Title No. M03718.

The defence of the defendant was simple. He had purchased the land from one Michael Alatishe and had secured the entry of his own name on the register as a transferee from him of his freehold interest in the land and he based his right to enter on the land on this fact.

In a reserved judgment, Lambo, J., non-suited the plaintiff’s case with costs observing as follows:-

“From this it is plain that the court is unable to decide whether or not the land upon which the plaintiff’s claim is based is the same land described in defendant’s Land Certificate of Title No. M03718.

In the circumstances the plaintiff’s claim will be non suited. The effect of this judgment however, is that the plaintiff will be able hereafter to have a second bite at the cherry.”

The plaintiff has appealed against this order. He will hereafter in this judgment, as before, be referred to as the plaintiff. The defendant has also appealed against the order of non suit. There is therefore both an appeal and a cross-appeal but the defendant will hereafter, as before, in the judgment be referred to as the defendant. At the beginning of the appeal, learned counsel for the defendant indicated that he agreed with the plaintiff’s counsel that the evidence did establish that the land being claimed by both parties was the same. It is clear therefore that the ground on which the order of non-suit was based by the judge is not acceptable to either side. In this connection we observe that neither party was invited to argue the question of non-suit and it is little surprising that the order was unsupported by either party in this Court. An order of non-suit, admittedly a discretionary one, should be employed rather sparingly and only in cases in which such an order is clearly justified by the circumstances.

Besides, such an order should not be made when counsel on either side has not requested it, and counsel on both sides have not been invited to address the court on the propriety of adopting such a course. In Craig v. Craig (1967) N.M.L.R. 52 at p.55 this Court observed as follows:-

“It seemed to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and others and Dawodu v. Gomez. We mean no disrespect when we say that those cases do not solve the question before us since each case must be considered in the light of its own facts.

Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.”

We think it is apt to repeat these observations in the present case and if counsel had been requested to address the court on the issue of non-suit in the present case, some further expense or litigation might have been obviated.

We wish also to observe that the plaintiff had cited two other persons as respondents in his notice of appeal, i.e. (1) Michael Alatishe, and (2) The Nigeria Building Society. With regard to Alatishe, the case of the defendant was that he was his vendor and that he executed on his behalf an instrument of transfer purporting to vest the land in the defendant. With regard to the Nigeria Building Society, it appears that the appellation was another name for the Nigeria Housing Development Society Limited whose name appears on the Charge Certificate tendered during the hearing and admitted as exhibit N. This is an incorporated body which had granted loan to the defendant on the security of the lands in dispute. It was reported at the hearing of the appeal, and we are satisfied, that the two persons cited were duly served with the necessary notices. They were neither present nor represented and the appeal proceeded in their absence.

Before us on appeal the main point canvassed on behalf of the plaintiff was that the purported transfer of the land to the defendant is null and void. The story of the registration of the transfer is told by the several exhibits produced at the trial. That story is not in dispute and is as follows:- Michael Natishe had purchased the land from the Tinubu family, who had given him a conveyance dated the 10th June, 1963 In which they were described as the original owners of the land. We were not told whether the area in which the land is situate was a compulsory registration area or voluntary registration area under the Registration of Titles Act, but the facts of the case suggest that registration of title in the area was merely voluntary. On the 12th July, 1963, Alatishe executed an instrument of transfer of the land in favour of the defendant. The instrument was in Form No. 7 in the First Schedule to the Registration of Titles Act and reads as follows:-

“District: Surulere       Application Number 807/63

Title No. M03718

Property: Land near 84 Agege Motor Road, Idi Oro. day of; 12th July, 1963, in consideration of four hundred and fifty pounds (£450) I, Michael Adeniran Alatishe, Trader of No. 45 Haastrup Street, Surulere, by this deed hereby transfer to Joseph Oyinloye Ogundipe, Trader of No. 22 Idumagbo Avenue, Lagos, Nigeria in fee simple the land comprised in the above-mentioned title. And I, the said Joseph Oyinloye Ogundipe, Trader, hereby apply to be registered as owner of the said land.”

Later and on the 7th August, 1963, Alatishe signed an application for first registration of his title to the land and lodged that application with the registrar of titles on the same day. The instrument of transfer executed in favour of the defendant on the 12th July, 1963, was also lodged with the registrar on the 7th August, 1963. There is no evidence as to what happened to both applications since the lodgment but it appears that on the 29th November, 1965, the certificate of title was issued with the name of Alatishe shown therein as the registered proprietor of the freehold title to the land. It was also stated on the certificate that on the 2nd August, 1965, by virtue of the instrument of transfer dated the 12th July, 1963, the defendant was registered as the present proprietor.

Learned counsel for the plaintiff contended that the transfer was purportedly made under the provisions of section 28 of the Registration of Titles Act and that inasmuch as the provisions of that section were not satisfied, the transfer was null and void and inoperative. Section 28 so far as it is material to this case provides as follows:-

“28(1) The registered owner of any land or charge may in the prescribed manner transfer such land or charge or any part thereof.

(2) The transfer shall be completed by registration of the transferee as owner of the land or charge transferred, and filing the transfer in the registry; but until such registration the transferor shall remain the registered owner of the land or charge.”

Counsel argued that at the time of execution of the instrument of transfer, Alatishe was not the registered owner of the land and also that on the wording of the instrument of transfer he could not have transferred any land “comprised in the above- mentioned title” since no title had been registered in his own name at that time. We do not consider the argument about the wording of the Form of any real assistance in this case. The Registration of Titles Act does not create a new type of land- tenure. The nature of the interest transferred is described as the fee simple and what follows after this seems to us to be no more than a description of the land for the purposes of conveyancing.

The argument on section 28(1) is, in our view however well-founded. Alatishe had not even applied for registration of his own title to the land when he executed the instrument of transfer, much less having been registered as the owner for purposes of first registration.

It was contended by counsel for the defendant, firstly that ’the registered owner’ in section 28(1) must be read as including “a person who has applied to be registered as the owner of the land”; and, secondly, that the relevant transactions did not take effect until the completion of the registration of the title of Alatishe on the 31st July, 1965. Concerning the first submission, reliance was placed on the case of Lever Finance Ltd. v. Trustee of the Property of L. N. and H. M. Needleman (Bankrupts) and Kreutzer [1956] Ch. 375 and on certain passages in Halsbury’s Laws of England, 3rd edition, volume 23, page 218 paragraphs 472-473. Neither the case cited nor the passages quoted from Halsbury’s Laws of England supported the contentions of counsel. The case of Lever Finance Ltd. dealt with the exercise of statutory powers by persons claiming to be chargees by virtue of instruments executed in pursuance of the provisions of the English Land Registration Act, 1925; and even in that case, Harman, J. considered sections 33(1) and (2) and section 34(1) – to which our sections 28(1) and (2) and section 22 (a) correspond – and after reading those sections, observed at page 382 of the report as follows:-

“I think that justifies the proposition for which it was cited, namely that until the transfer is completed by registration, the statutory powers remain in the person whose name is on the Register; and, therefore until July when the Plaintiff was registered it was not in a position to exercise statutory powers.”

With regard to the passages from Halsbury’s Laws of England it is manifest that they are concerned with section 37 of the English Land Registration Act – a section which counsel for the defendant eventually admitted has no counterpart in this country. Besides, section 37 of the English Act refers to “a person on whom the right to be registered as proprietor…….. has devolved ………… or has been conferred” and it is wrong to assume that no difference exists between such a person and “a person who has applied to be registered as an owner.” The second contention of counsel for the defendant is more difficult to appreciate, but its weakness is implicit in his first submission. In the course of his evidence, Alatishe testified as follows, when he was asked whether he ever got a certificate of title to the land:-

“Yes, but I did not take it away; I at once transferred it to the defendant.”

And in the course of his own evidence the defendant said as follows:-

“I Investigated the title to the land before I paid for it. I investigated the title from the Lands Registry. I afterwards applied to be registered under ‘Title.’”

On the 12th July, 1963, Alatishe did not have to employ a method prescribed by the Registration of Titles Act to transfer the land to the defendant as he himself was not then registered as proprietor of the land under that Act. He chose to do so and must bear the consequences of a non- compliance with the provisions of the Act. It may be that as between him and his transferee, the defendant, an enforceable contract was created in the events that had happened but our decision in this case turns on the effect of the instrument of transfer, vis-a-vis a third party, and whether or not in the context of the Registration of Titles Act under which the defendant and his transferor purported to act, a valid transfer had been effected.

The evidence for the defence and the argument of defence counsel suggested that the defendant regarded himself as a “subsequent registered owner being a purchaser for value” within the provisions of section 53 (2) of the Act. Section 53 reads as follows:-

“53.(1) Registration of any person as owner of any land, lease or charge consequent on a forged disposition or any disposition which if unregistered would be absolutely void confers no estate on such registered owner, but he shall, in the event of the register being rectified to his prejudice on that account and claiming in good faith under a forged disposition be entitled to recover compensation from the Government.

(2) Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such subsequent registered owner.”

It was submitted for the defendant that being a subsequent registered owner who had purchased for value his title was unassailable by virtue of section 53 (2). Cases quoted in support of this contention were:- Yesufu v. Ojo 1958 3 F.S.C. 106 and Lababedi v. Bajulaiye, S.C. 540/65, decided on the 12th June, 1967. The latter case is clearly irrelevant to counsel’s argument. As for the case of Yesufu v. Ojo it is distinguishable on the ground that at the time the transfer was effected the transferor was already registered as the proprietor of the freehold interest in the land concerned. It is well to point out at this stage that section 53 (2) is a section which is often quoted but equally often misunderstood. Subsection (1) of section 53 states that registration of any persons in the circumstances described therein confers no tide to the land on such person and all that subsection (2) does is to qualify the provisions of subsection (1) in relation to a subsequent registered owner – his estate shall not be invalidated by circumstances described in subsection (1) unless his own disposition was void as under subsection (1) or he had not given value for the acquisition. The section does not validate spurious transfers. As stated before, the Registration of Titles Act does not create new land tenures and although it is clear that one of its main purposes or objects is to ensure that at some stage an official investigation of the title had been carried out and recorded, the Act does not protect the inadequacies of such investigation; and so even where a subsequent registered owner is in possession the Register may still be rectified against him for section 61(3) provides as follows:-

“61.(3) The register shall not be rectified, except for the purpose of giving effect to an overriding interest, so as to effect the title of the owner in possession-

(a) Unless such owner is a party or privy or has caused or substantially contributed, by his act, neglect or default to the fraud, mistake or omission in consequence of which such rectification is sought; or

(b) Unless the immediate disposition to him was void, or the disposition to any person through whom he claims otherwise than for valuable consideration was void; or

(c) Unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him.”

It was argued for the plaintiff that his interest in the land is an overriding interest as against that of the defendant and therefore overreached the interest in respect of which the defendant has been registered. The defendant resisted this argument. In view of the conclusion at which we have already arrived, it is not necessary for us to consider this submission.

As already stated, the argument that the purported transfer dated the 12th July, 1963, in favour of the defendant is void, is well founded. On the face of the instrument of transfer itself it could not have been completed when it was executed since no registration number could have been allotted to the land then and such number as now appears on the instrument must have been typed in subsequently and apparently, on a different typewriter. It is enough to say that the transfer was void; and if  it is, the defendant is caught by section 53(1) and as provided in section 61(3) (b) the register may be rectified as against such a transferee. Learned counsel for the plaintiff stated that his client would be satisfied with an order for the deletion of the name of the defendant from the register. He is at least entitled to this and an order to the effect is accordingly made.

It is only necessary to consider, briefly, the other claims of the plaintiff. In respect of his claim for a declaration of title he produced and proved the conveyances to which we have earlier on referred. He gave evidence of the exercise by him since he purchased the land of positive acts of possession and he indeed was in possession of the land when the defendant entered thereon vi et armis. He established that he had successfully defended his title to the land in two court actions, one of them against the predecessors-in-title of Alatishe – the Tinubu family – long before they sold to Alatishe. The defendant did not rely upon any history of title and no member of the Tinubu family on whom his radical title was founded was called to testify on his behalf. His defence was, in the High Court and is before us, as stated earlier on: he is a subsequent registered owner of the land. We have already expressed our views on this standpoint. In our judgment the plaintiff was entitled to a declaration of title and we award him this as claimed. He had asked for £100 damages but had given no evidence of any acts of trespass to warrant the award of more than nominal damages. Trespass is an infraction of the right of possession and although the defendant claimed to be in possession he cannot maintain to be in possession by the mere entry which is complained, of see Browne v. Dawson (1840) 113 E.R. 950. The plaintiff is hereby awarded an amount of £5 as damages for trespass. He is also awarded an injunction.

The only point canvassed on the defendant’s appeal is that the case of the plaintiff should have been dismissed and not non-suited. We do not agree with counsel for the defendant that the case should have been dismissed and his appeal fails and it is hereby dismissed.

The result is that the appeal succeeds and the judgment of the Lagos High Court in Suit No. LD461/65 is hereby set aside.

The following orders are hereby made:-

I. The plaintiff is granted a declaration of title in fee simple to the land in dispute in this case as shown in the plan produced in evidence as exhibit K and thereon edged red and forming part of land covered by conveyance dated the 7th day of June, 1920, and registered as No. 58 at page 179 of volume 138 in the Land Registry, Lagos.

II. The register of titles should be rectified by deleting therefrom the name of the defendant as the registered proprietor of the freehold title to the land.

III. The plaintiff is awarded the sum of £5 as damages for trespass against the defendant.

IV. The defendant by himself his servants and/or agents is hereby restrained from committing or continuing any acts of trespass on the said land.

The plaintiff will have the costs of this case fixed in the court below at 60 guineas and in this court at 62 guineas.

Appeal allowed.

Other Citation: (1967) LCN/1365(SC)

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