–
A. LATUNDE JOHNSON
V.
AMUSA ONISIWO AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
8TH DAY OF JULY, 1943
2PLR/1943/6 (WACA)
OTHER CITATION(S)
(1943) IX WACA PP. 189 – 193
2PLR/1943/6 (WACA)
LEX (1943) – WACA PP. 189 – 193
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
–
BETWEEN:
A. LATUNDE JOHNSON – Plaintiff-Appellant
AND
1. AMUSA ONISIWO
2. WULEMOTU ONISIWO
3. ABUDU RAHIMI ONISIWO
4. ELLIS JABOUR MINAISE – Defendants-Respondents
–
REPRESENTATION
I. F. Cameron — for Appellant
A. O. Abayomi — for 1st, 2nd and 3rd Respondents
A. Alakija — for 4th Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Registration of Title — Unregistered incumbrance — Notice — Enquiries — Estoppel — Registration of Titles Ordinance (No 13 of 1935) (Nigeria), section 54 — Ibid., meaning of “any unregistered estate”— Rectification of Register, ibid., sec. 61.
REAL ESTATE AND PROPERTY LAW — LAND:- Real Property — Partition — Where all co-owner not parties — Legal effect — Whether transaction voidable but not void
–
CASE SUMMARY
The houses Nos. 68 and 70 Martins Street, Lagos, were inherited as undivided property by Salimotu, Lawani and Amodu. In 1925, after Amodu’s death, Lawani and the first three defendants, Amodu’s children, purported to partition the property, without the participation of Salimotu, and executed cross-conveyances whereby No. 68 was conveyed to the first three defendants. In 1936 the first three defendants leased No. 68 to the fourth defendant. The lease was registered under the Lands Registration Ordinance, 1924, but not under the Registration of Titles Ordinance, 1935. In 1939 Salimotu got judgment against Lawani for her share of the rents of Nos. 68 and 70, and in 1940 she sued Lawani and the first three defendants for a partition of the whole property and by consent No. 70 was given to Salimotu and No. 68 was divided equally between Lawani and the first three defendants. Immediately afterwards Lawani’s share was attached and sold to Chacra, and Chacra’s title was registered under the Registration of Titles Ordinance. Chacra subsequently transferred his interest to the plaintiff.
Plaintiff claimed an order setting aside the lease of 1936, and possession of No. 68 from fourth defendant. The defendants pleaded that whatever interest the plaintiff had was subject to the lease of 1936, and the fourth defendant pleaded estoppel.
It was found as a fact, which was accepted by the Court of Appeal, that plaintiff had bad notice of the lease of 1936, and the trial Court dismissed the action and ordered the rectification of the Register of Titles by registering the lease of 1936 as an incumbrance on plaintiff’s title.
Plaintiff appealed on the grounds, inter alia,
(i) That the cross-conveyances of 1925 and the lease of 1936 were void as all the co-owners were not parties.
(ii) Relying on section 54 of the Registration of Titles Ordinance;
that plaintiff, having a registered title, was not affected by notice of the lease of 1936, as it had not been registered. In reply it was submitted by defendants that the registration under the Lands Registration Ordinance was sufficient.
(iii) That the order for rectification of the Register was wrong.
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):-
(i) The lease of 1936 was not void, but merely voidable, and Salimotu, the only person at whose instance it could have been avoided, had adopted it by suing for and recovering her share of the rents.
(ii) While registration under the Lands Registration Ordinance was not sufficient to cause the lease of 1936 to cease to be “unregistered” within the meaning of section 54 of the Registration of Titles Ordinance, that section was not an answer to fourth defendant’s equitable defence of estoppel.
(iii) The trial Court was right to order rectification of the Register.
Semble, it would have been open to the Court to consider that it would be unjust to rectify the Register if an innocent third party had meanwhile purchased from the plaintiff.
Case referred to:-
Aganran v. Olushi and anor. (1 N.L.R. 66).
–
–
MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
The terms of the plaintiff-appellant’s writ asking for relief were as follows:-
”The plaintiff seeks to set aside a Deed of Lease dated the 1st September, 1936, and registered as No. 42 at page 42 in Volume 436 of the Lagos Lands Registry relating to 68, Martina Street, Lagos and made between the 1st, 2nd and 3rd defendants without title to the 4th defendant.
2. Possession of the said premises of which plaintiff is now the owner from the 4th defendant with mesne profits as from the 31st day of October, 1940, to the date on which possession is given up as asked for by the plaintiff in these proceedings.
It is, however, only one-half of the plot known as No. 68 Martins Street which is affected by the Lease in question and of which the plaintiff seeks recovery of possession.
It is to be noted that the second relief, possession, is claimed against the 4th defendant-respondent only.
The following facts were agreed:
“1. The premises Nos. 68 and 70 Martins Street were inherited as undivided property by Salimotu, Lawani and Amodu.
2. In 1936 the first 3 defendants children of Amodu then deceased executed a lease of No. 68 to 4th defendant for 30 years at £36 a year.
3. In case 5/39 Salimotu got judgment against Lawani for £668 5s 0d in respect of rents collected on both properties.
4. In Suit 153/40, the properties were partitioned Salimotu taking No. 70 and No. 68 being divided between Lawani and 1-3 defendants.
5. In October, 1940 Lawani’s share was attached under the judgment in case 5/39 and sold to N. J. Chacra on 10th March, 1941.
6. Chacra’s title was registered under Registration of Titles Ordinance, 1935 on 4th June, 1941.
7. On 30th April, 1942, the property was transferred to plaintiff.
8. 4th defendant is still in possession.”
In addition to these agreed facts it is common ground that there was a conveyance executed by Lawani on the 1st July, 1925, of 68 Martins Street to the first three defendants-respondents. The said conveyance recites a partition of No. 68 Martins Street between Lawani and Amodu.
The defendants-respondents pleaded that whatever interest plaintiff-appellant had in the premises was subject to the lease to the fourth defendant-respondent. In addition, the fourth defendant-respondent pleaded estoppel.
The learned trial Judge held that plaintiff had, at least, constructive notice of the lease to fourth defendant and so dismissed the action. He also ordered the Register of Titles to be rectified by registering the lease to fourth defendant as an encumbrance on the title. The Judge also directed that the papers in the case be forwarded to the Attorney-General for such action as he might think fit to take.
The first ground of appeal is:-
“The learned trial Judge erred in law in not finding that the cross-conveyance of Nos. 68 and 70 Martina Street, Lagos referred to in his judgment and the Lease dated 1st September, 1936 following thereon are void and of no legal effect and should accordingly be set aside as:-
“(a) The whole children of Ajalegbe Chief Onisiwo were not parties thereto, and
“(b) It was held in Suit No. 5 of 1939 (Salamotu versus Lawani Brimah Onisiwo) that there had then been no partition of Ajalegbe’s property.”
If the contention that the cross conveyances are void were correct, the appeal would succeed on this ground. But we are of opinion that it is not.
The arrangement made by Lawani with Amodu for partition recorded in Exhibit D was an arrangement made by all the members of the family except one, Salamotu. She could have taken steps to set aside the arrangement including the subsequent lease to Minaise by the children of Amodu. The whole arrangement including the subsequent lease was not void but voidable at Salamotu’s instance (Aganran v. Olushi & Ors. 1 N.L.R. 66). Salamotu did not take steps to void the lease. On the contrary she sued for and received her share of rent paid under it, and thereupon the lease ceased to be voidable the only person at whose instance it could be voided having adopted it as a lease by the family by the receipt of her share of the rent under it.
We hold therefore that the plaintiff was not entitled to the first relief claimed in his writ.
The fourth ground of appeal reads:-
“The learned trial Judge failed to give due effect to the appellant registered title No. L00593 and was wrong in law in finding that the appellant who was a purchaser for value, was affected by notice, expressed or implied of the said Lease which was not registered under the Registration of Titles Ordinance (No. 13 of 1935).”
As to this, whilst we agree with the appellant’s contention that “any unregistered estate, etc.” means any estate, etc. not registered in the Register of Titles kept in pursuance of the Ordinance and reject the respondents’ contention that when, for instance, a lease is registered under the Lands Registration Ordinance, 1924 (No. 36 of 1924) the estate or interest it gives ceases thereby to be ”unregistered” within the meaning of section 54 of the Registration of Titles Ordinance, we do not see how section 54 helps the appellant as an answer to the equitable defence of estoppel raised by the fourth defendant.
The Court below has found as a fact—and we accept the finding that the appellant at the time of his purchase had notice of the fourth respondent’s lease which constituted an unregistered equitable estate in the fourth respondent. It is clear therefore that at the time of his purchase the appellant was in equity bound by the lease and the estate he acquired by his purchase was in equity subject to the lease. That was the position at the time when the appellant applied to register his title under his conveyance. The registration of his title without any reference to the fourth defendant’s unregistered estate made the relative entry in the Register, to the appellant’s knowledge, an incorrect statement of the position. We think that it could not have been the intention of the Legislature in section 54 that a person affected by equities flowing from a notice he had received before becoming a purchaser for value could escape from such equities by deliberately registering his title without reference to the unregistered estate and with the obvious intention of defeating the equities operating against him.
As to those equities, counsel for the appellant pointed out that where an estate is affected by an equitable interest a subsequent purchaser for value will not be affected by that equitable interest provided three conditions are fulfilled, viz; –
(i) He must have obtained the legal estate.
(ii) He must have given value for the property.
(iii) He must have had no notice of the equitable interest at the time when he gave his consideration.
Counsel invited us to hold that all three conditions are fulfilled in the present case.
There is no difficulty about the first two; admittedly they are fulfilled. But as to the third the learned trial Judge found that the plaintiff had at least constructive notice. We see no reason to differ from this finding. This ground of appeal consequently fails and we hold that the plaintiff is not entitled to an order for recovery of possession against the fourth defendant-respondent.
In ground 5 of the grounds of appeal the appellant contends that the Judge was wrong in ordering the Register to be rectified.
As to this, we have already shown that the registration of the appellant’s title without any reference to the fourth defendant’s unregistered estate made the relative entry in the Register an incorrect statement of the position.
That having been established in the Court below, the Court manifestly had the power to rectify the register under section 61(3)(a) and (c) of the Ordinance. If any innocent third party had in the meantime, relying on the faith of the register, purchased the property from the appellant or otherwise transacted with the appellant for value in regard to the property, the Court, by that fact, might consider (in spite of the provisions of sub-section (2)) that it would be unjust to rectify the register.
But there is here no suggestion that there is any innocent third party whose interests might be unjustly prejudiced by the rectification of the register in such a way as to give to the appellant the protection of the register for the precise bargain which he knew he was making when he purchased the property subject to the unregistered estate of which he had notice at the time he made his bargain. To rectify the register in such circumstances is doing no injustice to the appellant or anyone else. To refuse to rectify in such circumstances would be doing grave injustice to the fourth respondent. This ground of appeal therefore fails.
None of the other grounds of appeal justify a reversal of the judgment Apart from the decision of this appeal counsel for the appellant asked us to cancel the order for the sending of the papers to the Attorney-General, or, at any rate, to express some views as to it. As to this, since the matter may conceivably be the subject of further proceedings, we will express no opinion whatever, one way or the other.
The appeal is dismissed with costs assessed at fifteen guineas in favour of the first three respondents and fifteen guineas in favour of the fourth respondent.
–