3PLR – ALHAJ ABUDU WAHID ELYAS v OLAONIPEKUN AKINYEMI

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ALHAJ ABUDU WAHID ELYAS

v

OLAONIPEKUN AKINYEMI

FEDERAL SUPREME COURT OF NIGERIA

13TH DECEMBER, 1956.

FSC.100/1956

3PLR/1956/38 (SC)

BEFORE THEIR LORDSHIPS:

OLUMUYIWA JIBOWU, Ag. F.C.J. (Presided and Read the Judgment of the Court)

M.C. NAGEON DE LESTANG, F.J.

PERCY CYRIL HUBBARD, Ag. F.J.

In Re: THE PRESCRIBED OFFICER

MAIN ISSUES

LAND LAW/REAL ESTATE

GLOVER SETTLEMENT ORDINANCE- Purpose of-When applicable.

REPRESENTATION

1. A. Kotun -for the Claimant/Appellant.
2. E. Burke -for the Claimant/Respondent.

MAIN JUDGMENT

JIBOWU, AG. F.C.J. (Delivering the Judgment of the Court):

This is an appeal against the decision of Jobling, J., given on the 1st March, 1955, that a certificate of title do issue under Section 8(1) of the Glover Settlement Or­dinance to the claimant/respondent, Mr. N.O.A. Akinyemi.

The facts of the case put shortly are that the respondent and the appel­lant each applied to the Prescribed Officer for a certificate of title under the Glover Settlement Ordinance to a piece of land in Odunfa Street, Ebute­-Metta, and the matter was referred to the former Supreme Court at Lagos for a decision to be taken as to which of the two a certificate should be issued. The appellant withdrew his claim to a certificate of title and a provisional certificate was ordered to be issued to the respondent under Section 8(2) of the Ordinance, but the appellant opposed the order being made absolute as he claimed the land to be his.

The land in dispute is, no doubt, within the Glover Settlement area, but the appellant’s case was that the land being covered with water was not allot­ted to any Egba refugee and so reverted to the Oloto Chieftaincy family, who sold it as part of a larger area in 1924 to one Jaiye Oshodi to whom it was not conveyed; that on the sale of the land by Jaiye Oshodi to the appellant in 1943, both Jaiye Oshodi and the Oloto Chieftaincy family conveyed it to the appellant by the deed of conveyance, Exhibit “E,” which was registered in the Land Registry in Lagos.

The respondent, on the other hand, claimed ownership of the land in dispute by virtue of purchase from one J.A. Sobo, who bought the land from one Olatunde Sowoolu, who claimed to be a descendant of the original allot­tee, Daniel Sowoolu, and he obtained a conveyance, Exhibit “A,” executed by both J. A. Sobo and Olatunde Sowoolu. He also obtained a conveyance of the same land from the Oloto Chieftaincy family for valuable consideration. Exhibit “B” is the conveyance. The position then was that each claimant was in possession of a conveyance or conveyances purporting to convey to him the fee simple title to the land in dispute.

The point has been taken on this appeal by Mr. Kotun for the appellant that the learned Judge was wrong in ordering a certificate of title to issue to the respondent when the issue which arose was not to which of them a certifi­cate should issue, but which of the two claimants had the better title to the land in dispute. There appears to be substance in this submission because one of the main objects of the Glover Settlement Ordinance is to preserve the right of the Oloto Chieftaincy family to their reversionary interest in the lands comprised in the Glover Settlement and this is clear from the form of a certificate of title which is to issue under the Ordinance and refers to Section 13 of the Ordinance. Section 13 reads:

“In the event either of the family of the person to whom a certificate of title is issued, or of the family of the successor in title to such person, failing and becoming extinct, the land to which such certificate related shall be deemed to be vested in the head of the Oloto Chieftaincy family as land sub­ject to his control as head of the Family.”

The certificate of title is couched in the form following:

“It is hereby certified that pursuant to the provisions of the Glover Set­tlement Ordinance all that parcel of land described in the Schedule hereto is vested in ……his heirs, executors, administrators and assignors for an estate free from competing interest and restrictions, save such interests and restric­tions as are recognised since the year 1868, but so as not to affect such rever­sionary rights as are reserved by Section 13 of the said Ordinance.”

It is quite clear that proceedings leading to the issue of a certificate of title under the Ordinance do not relate to cases where the reversionary right of the Oloto Chieftaincy family in the land in question has been bought in as in this case. It is, therefore, wrong for the learned Judge to have heard evi­dence to enable him to decide whether a certificate of title under Section 8(1) of the Ordinance should issue to the respondent. The respondent had already shown to the Court that he was the absolute owner of the property in dispute according to his title deeds, and the Court was wrong in making the order absolute for the issue of a certificate of title which would subject the title granted to the reversionary right of the Oloto Chieftaincy family. The learned Judge, in my view, should have refused to make the order and should have dismissed the respondent’s claim and left the parties to fight out, in an action for declaration of title, their respective claims to title to the land in dispute. Such an action will have nothing to do with the Prescribed Officer, but will be a straight fight between the parties concerned.

For the above reasons, I would allow this appeal and set aside the order for the issue of a certificate of title to the respondent and for costs.

The appellant is awarded costs in the Court below assessed at 12 guineas and costs of this appeal fixed at £19.10.0d.

DE LESTANG, F.J.: I concur.

HUBBARD, AG. F.J.: I concur.

Appeal Allowed.