IN THE SUPREME COURT OF NIGERIS

On friday, the 13th day of january 1978

Between

J.B. ATUNRASE .................. APPELLANT

And

THE REGISTRAR OF TITLES & ANOR ................... RESPONDENT

The appellant sued the respondent for a declaration of title to a piece of land. The appellant claimed that he obtained his title from the Oloto family whilst the 2nd respondent claimed that he purchased the property from one Fadipe in 1959. Fadipe had previously purchased the same from one Akonbi Martins who bought the land from the Oloto family.

A composite plan prepared revealed during the hearing of the case, that the land of Akonbi Martins did not include the land in dispute. At the close of the appellant and 1st respondent's case the 2nd respondent asked for amendment of the statement of defence and this was granted. The amended averment reads:-

"The 2nd defendant will contend at the trial that he is a purchaser for value without notice and that he and his predecessor in title have remained in undisturbed possession since 1940 and will rely on all legal and equitable defences, particularly long and undisturbed possession, laches, acquiescence and undue delay."

Throughout the trial the 2nd respondent did not give any evidence of exclusive possession either by himself or his predecessor in title as would have put the Oloto family on notice that someone was challenging their title as owners.

The trial Judge, found that the land certificate issued to the 2nd respondent was irregularly issued (since the land of Akonbi Martins did not include the land in dispute) but held that since the 2nd respondent and his predecessor in title had been in undisturbed possession, it will be inequitable to deprive him of his possession. He then ordered that the register be rectified in circumstances set out under section 63 of the Registration of Titles Act.

On appeal to the Supreme Court.

HELD

(1)     It was wrong for the learned trail judge to hold that possession of the 2nd respondent was undisturbed since there was no evidence of exclusive possession by the respondent. There was also no evidence of laches and undue delay either on the part of the appellant or the Oloto family.

(2)     Once the learned trail judge had found that section 8 of the Registration of Titles Act was not complied with before the land certificate under section 61 of the Act the register must be rectified accordingly.

(3)     It is not in dispute that title to the land was originally vested in the Oloto family. They validly sold the land to the appellant, therefore any purported disposition of the same land to the 2nd respondent by any person who is not the owners in void.

Appeal allowed.

Chief F.R.A. Williams for Appellant

Mr Adesina for Respondent

Statutes referred to:-

Registration of Titles Act Cap. 181 Vol. V of Laws of Nigeria.

Sowemimi, J.S.C.-The point raised in this appeal is whether the Appellant, who sued the Respondents in the lower Court is entitled to a declaration of title and therefore a rectification of register of title No. MO 5964, in spite of the plea of long possession, laches, acquiescence and undue delay which the learned trial Judge allowed the defendant to raise after the close of Plaintiff's case.

There is no dispute that the land, the subject matter in this case, originally belonged to the Oloto Family. The learned trail judge held that the Appellant obtained his title from the Oloto Family and thereby, had a valid title. The 2nd defendant's defence that he also claimed title from a predecessor, who claimed to have derived title from the Oloto in 1911, was rejected.

The 2nd defendant/respondent claimed to have purchased the property from one Fadipe in 1959. He also said that Fadipe had previously purchased the same land from the children of one J.W. Martins, otherwise known as AKOBI Martins. One of the vendors to Fadipe, and who claimed to be a son of Martins gave evidence and tendered the title deed of their father. At the hearing it was proved in Court that the land of Akobi Martins did not include the land in dispute.

The learned trail judge, after finding that the land Certificate issued to the 2nd respondent was irregularly issued, held thus:-

"In the present case, however, the 1st defendant (2nd defendant) and his predecessor in title had been in undisturbed possession from 1940, and in 1965 he erected a fence round the whole land. I think it will be inequitable to deprive him of his possession in the circumstances, and I will therefore refuse to grant the declaration sought. It is for this reason that the second claim also fails. The register can be only rectified in the circumstances set out under section 63 of the Registration of Titles Act, and it appears that the Plaintiff's case does not fall within them. In the result the entire claim will be dismissed."

We wish at this stage to deal with the evidence of possession as given on behalf of the 2nd respondent. Mr L.O. Fadipe, who sold the land from the children of J.W. Martins (deceased) in 1940. He was let into possession but there was no evidence as to how this was done and the nature of the possession was not given. He caused a survey of the land to be made and later got a conveyance made in his favour. He did nothing to the land until he sold it in 1959 to the 2nd respondent. D.W. 3, one Akinola Martins, one of those who sold the land to Mr Fadipe, in answer to a question by the Court had this to say:-

I do not know precisely where the land in dispute is situated but I know it is somewhere in Surulere.

Earlier under cross-examination this witness had said that before their father died on 10th November 1925, the area of land was a thick bush. No evidence was given that this thick bush was ever cleared by the children of Akobi Martins or Fadipe. The 2nd respondent did not give any evidence of any act of possession of the land in dispute before 1965 except when under cross-examination by appellant's Counsel he asserted that he built some stores on the land when he was erecting a building on a land adjacent to the land in dispute. The learned judge did not seem to believe this. The evidence of any other act of possession was given by one Surveyor Mr Suwaje, whom the 2nd respondent employed to prepare a composite plan for him. He stated that when he visited the land in 1972, he did not see any building on the land but noticed a fence around the land.

On this meagre evidence the learned trail judge stated:-

"I now come to the pleas of long possession, laches and acquiescence. The predecessor in title of the 2nd defendant claimed that he was put in possession upon his purchase in 1940 from the children of J.W. Martins. There is no strong evidence of this beyond the site plan prepared in 1939 and attached to his conveyance; Exhibit O. Some twenty years later, J.J. Mederes a Licensed Surveyor prepared another site plan of the same land for the 2nd defendant. (See Ex. P.) Still in 1964 Mr Suwaje prepared another plan (Ex. K.) which shows the present position of the land that it is only the adjoining portion of it that has been built upon. The portion in dispute at the moment is not developed although the defendant claimed that he built a store on it while erecting the building on the adjoining land in 1965. The sum total of the adverse possession to the Oloto's title will be around 25 years.

At the close of pleadings, the issues joined by the parties was as to who had a valid title from the Oloto Family in 1965. The 2nd defendant, whilst admitting the original ownership of the Oloto Family, maintained that family had divested itself of the title to the land in dispute when it sold it to one J.W. Martins in 1911. When it dawned on the 2nd respondent, after the close of the case for Plaintiff and 1st respondent, that the land sold by the Oloto Family to late J.W. Martins, did not include the land in dispute, his Counsel asked for amendment of the statement of defence and this was granted. The amended averment reads:-

"The 2nd defendant will contend at the trial that he is a purchase for value without notice and that he and his predecessor in title have remained in undisturbed possession since 1940 and will rely on all legal and equitable defences: particularly long and undisturbed possession, laches, acquiescence and undue delay."

The learned trail judge made no finding as to whether the 2nd respondent was a purchaser without notice. On the contrary, in his view, the circumstance under which the certificate of title was issued to him was irregular and did not comply with Section 8 of the Registration of Titles Act. Although the appellant gave evidence as well as Chief Oloto, no question was put to them that either the 2nd respondent or his predecessor in title since 1910. The appellant gave evidence, and he was not challenged on this, that the 2nd respondent only erected the iron fence around the land in dispute about three years before he the appellant gave evidence. The 2nd respondent did not give any evidence of any exclusive possession either by himself of his predecessor in title such as would have put the Oloto Family on notice that someone was challenging their title as owners. The learned judge himself did not find such evidence of exclusive possession. It is therefore difficult to appreciate why the learned judge held that the possession of 2nd respondent was undisturbed since 1940. There was no evidence of laches and undue delay either on the part of the appellant or the Oloto Family. As we have pointed out earlier, these matters which form the subject of the amendment of the statement of defence, were never put to either the appellant or Chief Oloto when they gave evidence. We agree with the learned Counsel for the appellant that the 2nd respondent did not discharge the onus of proving long possession, laches, acquiescence and undue delay and therefore the title of the Oloto Family was subsisting at the time the land was sold to the appellant.

Once the learned trial Judge had found that section 8 of the Registration of Titles Act was not complied with before the land certificate was issued to the 2nd respondent, then of course under section 61 of the Act under reference the register must be rectified accordingly.

It is not in dispute that title to the land was originally vested in the Oloto Family. They validly sold the land to the appellant and he is entitled to the title of the land in dispute. Therefore any purported disposition of the land to the 2nd respondent by any person who is not the owner must be regarded as void. Under the provisions of Section 53 of the same Act, no estate of whatever nature was conferred on the 2nd respondent by the Certificate of Title issued on 1/7/65. It is therefore only logical that the Court, in the circumstances of this case ought to order that the register should be rectified and the name of the 2nd respondent deleted from the proprietorship register as owner of the land under title MO 5964.