E.A. MOLAJO (OBJECTOR/APPELLANT)
ALHAJI BRAIMAH ALAO (APPLICANT/RESPONDENT)
(1971) All N.L.R. 571
Division: High Court of Lagos
Date of Judgment: 25th October, 1971
Case Number: SUIT NO. LD/9A/1971
Before: Taylor, C.J.
APPEAL from the Registrar of Titles' Court.
(1) Certain powers which are outside the jurisdiction of the courts can only be exercised when given to the court by statute or rules of Court. Where in a civil matter, the plaintiff appears and the defendant who has filed a defence or entered an appearance fails to appear, the plaintiff must proceed to prove his case and judgment cannot be entered in his favour unless he so proves his case.
(2) Under section 7 of the Registration of Titles (Appeals) Rules, the Registrar is required to give the condition of appeal in relation to the sum that is to be paid to cover the cost of the record. It is specifically provided that this must be done within a month. Then the next portion of that rule makes provision for cases when the amount called for by the Registrar and so paid within one month is in fact found later to be insufficient to cover the record of appeal. It is then provided that the registrar shall again call on the appellant to pay the difference. No time limit is stated as to when the Registrar may so call on the appellant and when so called no time limit is stated as to when the appellant may so pay the additional sum or "the difference." The penalty provided is the inadequate one that the Registrar shall not transmit such record of appeal until payment is made.
Preliminary objection dismissed; Appeal allowed: order of Court below set aside: Case sent back to Court below for trial.
Rules referred to:
Registration of Titles (Appeals) Rules, rules 7, 8.
APPEAL from the Registrar of Titles' Court.
SUIT NO. LD/9A/1971.
Lardner for the Appellant.
Olorunnimbe for the Respondent.
Taylor, C.J.:-The present respondent applied under the Registration of Titles Act to register himself as the owner of the property adjoining 23 Oweh Street, Igbobi Yaba, and the present applicant lodged an objection to such registration.
The matter then came up before the Ag. Registrar of Titles on the 27th August 1970. After two adjournments it was set down for hearing on the 6th November, 1970. The applicant was present and was represented by learned Counsel. The respondent in the court below who was the objector and is now appellant did not appear and was not represented by Counsel. He is in fact a member of the Legal profession.
Learned Counsel for the applicant then applied for an order to strike out the objection on the ground of the absence of the objector and the Learned Ag. Registrar of Titles made the following order:-
"The objector in this matter is a private legal practitioner of some considerable experience. As an officer of the court he has some duty to notify this Court of the circumstances preventing him from further appearance and pursuit of the objection he has personally lodged in this matter. He has chosen to treat the court in a nonchalant manner by withdrawing his appearance without due notice to the court or to the Counsel on the other side. This is by itself enough embarrassing. However Mr Olorunnimbe the learned Counsel for the applicant has rightly applied for an order to strike out the objection as lodged by the objector.
I see no reason to refuse the application. It is accordingly granted and the objection as lodged by the objector is hereby struck out."
After costs have been granted a further order was made as follows:-
"It is hereby further ordered that in the absence of any other incumbrances the applicant may proceed forthwith to register his title to the said property."
I have on more than one occasion endeavoured to stress to Courts below that certain powers which are outside the inherent jurisdiction of the courts can only be exercised when given to the court by Statute or rules of Court. When learned Counsel for the applicant made his application to the court below he did not state under what rule he was moving and the Learned Registrar did not state under what rule or order he was making the order he made. This is no wonder because no such power is vested in any Court under such circumstances. The proceedings before the Learned Registrar can be likened to the proceedings in an ordinary civil matter or cause where the plaintiff appears and the defendant who has filed a defence or entered an appearance fails to appear. The plaintiff must of course proceed to the proof of his case and judgment cannot be entered in his favour unless he so proves his case. Parties would do well to study closely the wording of s. 9 of the Registration of Titles Act in future before such an application is made or granted.
The objector has rightly appealed against this judgment and Mr Olorunnimbe who unfortunately set the ball in motion in the Registrar of Titles' Court by the application he made, has rightly made it clear that he cannot support the judgment appealed against by the objector. He has however raised the following preliminary objection against the appeal urging that the appeal is not properly before the court:-
That payment into Court for the purposes of preparation of the Record of Appeal was not made in accordance with Rules 7 and 8 of the Registration of Titles (Appeals) Rules. The Judgment was delivered by the Registrar of Titles on the 6th November, 1970. The appellant paid a sum of £1-10s-0d. on the 18th November, 1970 and a further sum of £5-15s-0d. on the 11th December, 1970 for the preparation of the Record of Appeal. Learned Counsel for the respondent argues that both of these sums must be paid within a month or an application made for an extension of such period before payment can be made beyond a month after judgment.
It is provided in Rule 7 that:-
"The appellant shall within a month from the date of the decision or order appealed from, deposit such sum of money as is considered sufficient by the Registrar to cover the cost of preparing as many records of appeal as are required for the parties, and the court, and any balance left over after defraying the cost of the records shall be refunded to the appellant. Should the money so deposited be found to be insufficient to cover the cost of the records, the registrar shall call upon the appellant to pay the difference, and the Registrar shall not transmit the Records to the Registrar of the court until such difference shall have been paid."
It is provided in s. 8(a) inter alia that:-
"The Registrar shall not accept for filing any notice of appeal filed after the expiration of the time prescribed nor shall he accept any deposit for the preparation of the records of appeal after the expiration of the time prescribed, unless the applicant shall have obtained an order of Court enlarging the time for filing the notice of appeal or for making the deposit."
In short the question for determination is the simple one as to whether the portion of Rule 7 dealing with further payment to meet the insufficiency of the money deposited within 30 days is also subject to the same period of time within which it should be made?
The answer is that in s. 7 the Registrar is required to give the condition of appeal in relation to the sum that is to be paid to cover the cost of the record. It is specifically provided that this must be done within a month. The next portion of that rule makes provision for cases when the amount called for by the Registrar and so paid within one month is in fact found later to be insufficient to cover the record of appeal. It is then provided that the Registrar shall again call on the appellant to pay the difference. No time limit is stated as to when the Registrar may so call on the appellant and when so called or no time limit is stated as to when the appellant may so pay the additional sum or "the difference" as it is called in the rule. The penalty provided is the inadequate one that the Registrar shall not transmit such record of appeal until payment is made. While such a penalty may be suitable where the appellant genuinely appeals it is a most inadequate one where the appellant, as sometimes is the case, is merely appealing to delay the evil day. It helps him to do so.
Be that as it may there can be no doubt that that is the only interpretation that can be given to s. 7. If the
Legislature had intended otherwise it would have specifically said so either by adding a provision or proviso to s. 7 to show that not only "the deposit" but "the difference" shall be paid within one month and/or in s. 8(a) by providing that the Registrar shall not accept any deposit or "the difference" between the actual cost of the record and the deposit paid without an order for extension of time having been granted by the court.
The preliminary objection fails and is dismissed. For the reasons given earlier i.e. that learned Counsel for the respondent does not support the Judgment and that the Judgment itself is in fact unsupportable in law I allow this appeal and set aside the order of the court below. The case is sent back to the court below for trial.
If not for the fact that learned Counsel for the respondent took the initiative in leading the court below up the wrong path I would have been inclined not to mulct his client in costs for the error of the Learned Registrar. That is not however the case. I shall hear Counsel on costs.
Preliminary objection dismissed: Appeal allowed: order of court below set aside: case sent back to court below for that.