HUSSEIN MANSOUR v. 1. THE NATIONAL INVESTMENT AND PROPERTIES COMPANY ZLIMITED 2. S.O. SHONIBARE (Appeal No. LD/22A/61) [1961] 10 (24 November 1961);

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  • HUSSEIN MANSOUR v. 1. THE NATIONAL INVESTMENT AND PROPERTIES COMPANY ZLIMITED 2. S.O. SHONIBARE (Appeal No. LD/22A/61) [1961] 10 (24 November 1961);

HUSSEIN MANSOUR (APPELLANT)

v.

                              1. THE NATIONAL INVESTMENT AND PROPERTIES COMPANY ZLIMITED

                                2. S.O. SHONIBARE (RESPONDENTS)

                                   (1961) All N.L.R. 787

 

Division: High Court of Lagos

Date of Judgment: 24th November, 1961

Case Number: Appeal No. LD/22A/61

Before: Bellamy, J.

 

Appeal from Registrar of Titles.

The respondents, on the 24th February, 1961, had issued a Writ of Summons against the appellant seeking, inter alia a declaration that the second-named respondent was the owner in equity, or the purchaser for value, of the registered land and buildings situate at No. 208/212 Broad Street, Lagos. On the 27th February, each of the respondents lodged a Caution under section 44 of the Registration of Titles Ordinance, Cap. 181. Each Caution contained a declaration purporting to show the interest claimed by the Cautioner in the land, which stated that each respondent had "a claim against the registered owner in respect of the registered land as per Writ of Summons attached here-with"; a copy of the Writ of Summons in the pending suit was attached to each Caution. The appellant objected to the registration of the Cautions and when, on the 22nd April, the matter came before the Acting Registrar of Titles, it was contended on behalf of the appellant that the Cautions lodged did not comply with Form 10 in the First Schedule to the Registration of Titles Ordinance, in that, particulars of the respondents' unregistered estates were not given. It was also urged that the issue of a Writ of Summons per se did not amount to a "claim" for the purpose of section 44 of the Ordinance.

The Registrar over-ruled these objections. The appellant lodged an appeal on the following grounds:-

1. The Registrar erred in law in holding that a Writ of Summons issued in a Civil Action in the High Court, not yet adjudicated upon, constitutes a "claim" within the meaning of section 44 of the Registration of Titles Ordinance, Cap. 181, Laws of the Federation of Nigeria and Lagos, 1958.

2. The Registrar misdirected himself in law and in fact in holding that the particulars supplied by the respondents in their respective Cautions were sufficient compliance with the statutory requirements of the Registration of Titles Ordinance Cap. 181, Form 10.

3. The Registrar erred in law in deciding to conduct an inquiry into a claim when the said claim formed the subject matter of a Suit No. LD/104/61 pending before the High Court, and not yet adjudicated upon by the said Court."

On Appeal:

HELD:

(1) A pending action affecting registered lands implies a claim of right thereto; and is, therefore, a "claim" for the purpose of section 44(1) of the Registration of Titles Ordinance, and is registrable thereunder as a Caution.

(2) To refer to a pending action in an application for the Registration of a Caution, and to attach a copy of the Writ of Summons to the Application, constitute the giving of particulars of the applicant's claim sufficient to satisfy the requirements of section 79(1) of the Registration of Titles Ordinance, and of Form No. 10 in the First Schedule thereto.

(3) The duty of the Registrar is not to decide whether the Cautioner's claim is, or is not, well-founded, but merely to satisfy himself that prima facie grounds have been shown for the registration of the Caution.

Appeal dismissed.

Ordinance referred to:-

Registration of Title Ordinance, Cap. 181, sections 44, 79(1); First Schedule, Form 10.

APPEAL from Registrar of Titles.

Okorodudu for the Appellant.

Rotimi Williams, Q.C. (with him Owodunmi) for the Respondents.

Bellamy, J.:-By their writ of summons issued on the 24th February 1961 in the High Court of Lagos in Suit No. LD/104/61 S.O. Shonibare and National Investment and Properties Co. Limited jointly and severally claimed against Hussein Ali Mansour the following amongst other relief's: (a) a declaration that S.O. Shonibare is the owner in equity or the purchaser for value of the registered land and buildings situate at and known as No. 208/212 Broad Street, Lagos, and more clearly delineated in the Register of Titles at the Lands Registry as Titles No. LO.2682, LO.2692 and LO.2709; (b) specific performance of the defendant's obligation to transfer the said land and buildings to National Investment and Properties Co. Limited alternatively, an order that the defendant do transfer the said land and buildings to S.O. Shonibare; and (c) rectification of the Register of Titles to give effect to the decision of the court. On the 27th February each of the plaintiffs in this suit lodged a caution under section 44 of the Registration of Titles Ordinance (Cap. 181) against dealings by the registered proprietor with each of the registered lands, the subject matter of the dispute in Suit No. LD/104/61. Each caution contained a declaration purporting to show the interest claimed by the cautioner in the land, and this declaration took the form, S.O. Shonibare or National Investment and Properties Co. Limited, as the case may be, "have a claim against the registered owner in respect of the registered land as per writ of summons attached herewith", and to each caution was attached a copy of the writ of summons in Suit No. LD/104/61. Hussein Ali Mansour objected to the registration of the cautions. When, on the 22nd April, the matter came before the Acting Registrar of Titles, Mr Tayo, a preliminary objection was taken on behalf of the objector (1) that the cautions lodged by the cautioners failed to comply with Form 10 in the First Schedule to the Registration of Titles Ordinance in that no particulars of the applicant's unregistered estate were given, and (2) that the issue of a writ of summons per se did not amount to a "claim" for the purpose of section 44 of the Ordinance aforesaid and that the cautioners had no claim and, therefore, no locus standi. The Registrar over-ruled this preliminary objection, and he intimated that he proposed to consider whether or not he would accept the cautions lodged. Thereupon verbal notice of intention to appeal against the decision of the Registrar was given on behalf of the objector, and no further steps in the matter were taken by the Registrar. Notice of intention to appeal in the prescribed form was later lodged by the objector, and hence this appeal now comes before the court.

The grounds of appeal, as set out in the notice of appeal, are:-

1.      The Registrar erred in law in holding that a writ of summons issued in a civil action in the High Court not yet adjudicated upon constitutes a "claim" within the meaning of section 44 of the Registration of Titles Ordinance Cap. 181 Laws of the Federation of Nigeria and Lagos 1958.

2.      The Registrar misdirected himself in law and in fact in holding that the particulars supplied by the respondents in their respective cautions were sufficient compliance with the statutory requirements of the Registration of Titles Ordinance Cap. 181, Form 10.

3.      The Registrar erred in law in deciding to conduct an inquiry into a claim when the said claim formed the subject matter of a Suit No. LD/104/61 pending before the High Court and not yet adjudicated upon by the said Court.

I propose to consider these grounds of appeal one by one in the same order. Section 44(1) of the Registration of Titles Ordinance is as follows:-

Any person claiming an unregistered estate, interest or claim in any registered land or charge, whether such estate, interest or claim is created before or after first registration, may require the registrar to register a caution against the registration of any disposition or change of ownership affecting the land or charge without notice to the cautioner.

It will be observed that the section refers to "claiming an unregistered estate, interest or claim in any registered land."

The subject matter of Suit LD/104/61, so far as the registered land and buildings Nos. 208/212 Broad Street, Lagos, are concerned is the plaintiffs' interest in the land and buildings, if I may use that expression without prejudice. The nature of the plaintiffs' interest is, apparently, an equitable interest under a contract of sale which may be converted into a legal estate by specific performance. Suit No. LD/104/61 is a cause that is pending in a court of Justice, and I have, therefore, to decide whether this lis pendens is capable of registration as a caution under section 44(1) of the Ordinance.

Counsel for the appellant submitted that it was incapable of being registered as a caution. Paraphrasing his argument, he submitted that the expression "claim" in section 44(1) of the Ordinance did not include the issue of a writ of summons, and that no provision has been made in the Ordinance for the registration of a lis pendens. He argued that the expression "claim" meant an existing right or title to the registered land, and not some right or title to be determined in the action in the future. On the other hand, leading Counsel for the respondents, the cautioners, submitted that a lis pendens was registrable as a caution as a "claim" which the subject matter of the lis was the registered land. He referred to section 3 of the Ordinance where "estate" is defined as including right or equity, and he submitted that the respondents claimed in this action to have an equitable interest in the land and buildings Nos. 208/212 Broad Street, Lagos, and that the respondents were entitled to have such a claim registered.

I take the view that this lis pendens being an action affecting the registered lands, implies a claim of right thereto, and that it is, therefore, a "claim" for the purpose of section 44(1) of the Ordinance. I cannot follow the argument of Counsel for the objector when he argues that a writ of summons is "merely a statement of hopes and beliefs." As I see it, the very object of the suit in question was to obtain a Decree that the plaintiffs are equitable owners of the registered lands and buildings thereon, and an order to compel the defendant to perform his part of the bargain by transferring the said lands and buildings, and the writ of summons in this suit was issued by the plaintiffs for the purpose of asserting their rights. It seems to me that one of the very objects of section 44(1) of the Ordinance is to protect such a claim. Therefore, in my opinion, the cautioners had a right to apply for registration of a caution in respect of this lis pendens.

As to the second ground of appeal, it is agreed, and I think it was never disputed, that a cautioner must give sufficient particulars of his "unregistered estate, interest or claim", to quote the words of section 44(1) of the Ordinance, to establish prima facie grounds for lodging the caution. The cautioners here were not claiming an unregistered estate, as to which one finds in Form 10 in the First Schedule to the Ordinance the directions in italics "Give particulars of applicant's unregistered estate"; the cautionable interest they were setting up was the suit No. LD/104/61 relating to the registered lands and in which they were the plaintiffs, which suit was then pending in the High Court of Lagos. The particulars that the cautioners gave of this cautionable interest was to refer to the writ of summons in the caution and to attach a copy of the writ. In my view, the cautioners had done all that was required of them, and a reading of the Registrar's "order" shows that he himself was satisfied with the particulars supplied by the cautioners in their cautions and was prepared to allow the cautions as lodged to be used. In my view, there was here clearly a compliance with the provisions of section 79(1) of the Ordinance, and there is nothing in this ground of appeal.

This brings me to the third ground of appeal. With respect to Counsel for the appellant, his argument shows a complete misapprehension of the scope of proceedings before the Registrar under sections 44 and 46 of the Ordinance. The Registrar's duty is not to decide whether or not the cautioners' claim is well-founded, but merely to satisfy himself that a prima facie case has been made out for accepting the caution. There can be no question of the Registrar usurping the function of the High Court. That being my view, this ground of appeal also fails.

In the circumstances, I am of opinion that the Registrar was right, though for different reasons, in over-ruling the preliminary objection raised by Counsel for the objector and in deciding to verify the claim in the registered lands and buildings with a view to deciding whether or not the cautions should be registered, and, therefore, this appeal fails, and must be dismissed, with the usual consequences. The appellant will pay the costs of this appeal assessed at 20 guineas. I furthermore order that the matter be remitted to the Registrar with a direction that he proceed to hear and determine the objection lodged to registration of the cautioners' cautions.

Appeal dismissed.