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FEBRUARY 14, 1972

(SUIT LD/619/70)

3PLR/1972/34  (HC)


Odesanya J


Declaratory action-Plaintiff selling property to defendant and receiving part purchase price Conveyance indicating that full price already paid-Defendant selling property to third parties and receiving full pay-Plaintiff taking action to claim lien on property and re-possession until balance of purchase price paid—Alternative claim for sale of property to enforce lien-Declaration that conveyance to purchasers in fraud of creditors-Right of plaintiff to reliefs considered.



Bada for the plaintiff.

First and second defendants absent.

Olowofoyeku for the third and fourth defendant.


ODESANYA J.: By his amended writ of summons the plaintiff claims against the defendants:


  1. A declaration that the plaintiff is entitled to a lien on the landed property situate at 1ponri Village, Western Avenue, Surulere, Lagos, which was sold by the plaintiff to the first defendant through her agent, the second defendant on November 23, 1961, for the sum of £6,000 out of which she paid £2,000 and which landed property was conveyed to the first defendant by a deed of conveyance dated November 24, 1961, and registered as No. 66 at page 66 in volume 1182 of the Register of Deeds kept at the Land Registry, Lagos.


  1. An order revesting possession of the property in the plaintiff for the unpaid purchase money or alternatively

An order for the sale of the said property to enforce the plaintiff’s lien and with interest at the current rate of interest.


  1. A declaration that the deed dated May 28, 1964, and registered as No. 24 at page 24 in volume 1227 at the Lagos Land Registry and made between the first and third and fourth defendants in respect of the said landed property is void and of no legal effect being in fraud of creditors.


The plaintiff bought for the sum of £2,000 the land described in his writ of summons early in 1961 and in November of the same year sold it to the first defendant and signed with her exhibit “ A “ which reads as follows:


“ This agreement made this November 23, 1961 between Mohammed Buhari Ayinde Ayonrinde of 63 Docemo Street, Lagos, Nigeria (hereinafter called the vendor) and Madam Abiodun Scott of 20 Soponon Street, Lagos, Nigeria (hereinafter called the purchaser).


Witnesseth as follows:


  1. That the vendor has agreed to sell and has sold to the purchaser for the sum of £6,000 (six thousand pounds) his piece or parcel of land situate lying and being at Iponri Village, Western Avenue, Surulere, Yaba, and registered as No. 45 at page 45 in Volume 1171 in the Lands Office at Lagos.


  1. That the purchaser has requested and the vendor has agreed to execute the deed of conveyance in favour of the purchaser after part payment of £2,0(10 (two thousand pounds).


  1. That the purchaser promises to pay the balance of £4,000 (four thousand pounds) 30 days after the execution of the said conveyance.


  1. In witness whereof the parties hereto affix their signatures thereto.


Exhibit “A” is dated November 23, 1961. On the following day, to wit November 24, 1961, the plaintiff executed a conveyance in the usual terms and containing a receipt clause acknowledging the plaintiff’s receipt of the entire consideration of £6,000 before the execution of the conveyance. In February 1964 the first defendant tried to sell the land to the third and fourth defendants, the registered trustees of the Apostolic Church (Lagos Area). The plaintiff exhibited a warning notice on the land. The notice was subsequently removed therefrom and the third and fourth defendants notice was substituted therefor. They eventually bought the property from the first defendant for £5,000 and had it conveyed to them by exhibit “ D “ the deed of conveyance dated May 28, 1964, and registered as No. 24 at page 24 in Volume 1227 of the Land Registry at Lagos. When the third and fourth defendants attempted to have the land registered under the Registration of Titles Act the plaintiff objected, apparently successfully. The plaintiff however knows that some squatters and some buildings are now on the land in dispute.


The first and second defendants admit the plaintiff’s sale and conveyance of the land to the first defendant as pleaded but enter a general traverse in relation to the other allegations of fact in the plaintiff’s statement of claim. In their defence, the third and fourth defendants admit the sale and conveyance of the land to them by the first defendant for the consideration stated in exhibit “D,” but deny all other allegations in the statement of claim including a specific denial of any knowledge of the unpaid balance of the purchase money due from the first defendant to the plaintiff. Since none of the defendants called any evidence after the plaintiff concluded his evidence and immediately thereafter closed his case it is not necessary to go into the details of their defence, although the court will give effect to their denials of any material allegations by the plaintiff if such allegations are not established by him.


The case for a declaration that the plaintiff is entitled to a lien on the property in dispute is-of material interest not only to the first defendant who bought the land from him but also to the third and fourth defendants to whom the first defendant sold it.


The sum of £4,000 alleged to be unpaid by the first defendant will be regarded as unpaid only for the purpose of this case. Any part of the purchase money unpaid by the first defendant would remain owing to the plaintiff as a debt due to him on the contract of sale. After the sale of the land in dispute to Madam Abiodun Scott the first defendant in 1961, the plaintiff executed in her favour the conveyance exhibit “ B,” which, on the face of it, is clear and confers upon her an estate in fee simple which is equally clear and unfettered. The consideration and receipt clauses in the deed of conveyance read:


“ that in pursuance of the said agreement and in consideration of the said sum of £6,000 paid by the purchaser to the vendor before the execution of these presents (the receipt whereof the vendor hereby acknowledges).”


It certainly is trite law that the mere fact that in exhibit “ B “ the deed of conveyance the whole of the purchase money is expressed to have been paid and received is not conclusive evidence of such payment and receipt. Evidence may be given and has in fact been given in the instant case, that there is an actual mis-statement of fact in the conveyance and only £2,000 had been paid at the time the plaintiff executed the conveyance. Before executing the conveyance he had a legal lien on the land for the unpaid balance of the purchase money, namely £4,000. After November 24, 1961, that is, after executing the conveyance he would have an equitable lien for the money.


However, the matter cannot rest here. Years before the plaintiff took out the writ in the present case the landed property had changed hands. The third and fourth defendants as registered trustees of the Lagos Area Apostolic Church had bought the land in 1964 for £5,000 and had had it conveyed to them in fee simple. They were under no obligation to go and inquire whether all the purchase money had been paid to the plaintiff. All the usual protective measures for bringing the fact to the notice of subsequent purchasers were abandoned. The plaintiff did not keep the title deed as collateral security for the unpaid balance of the purchase money: he did not lodge any caveat with the Registrar of Titles: the conveyance was not endorsed to show that any sum of money remained unpaid: the collateral document exhibit “A” was not registered in order to certify the non-payment of part of the purchase price stated in the conveyance. Any one of these measures could have helped the plaintiff. All that appeared in the registry at the time the property was sold to the third and fourth defendants was exhibit “ B,” the conveyance executed by the plaintiff himself. Exhibit “ B “ is an absolute grant prima facie for full consideration paid and received.


In Re King’s Settlement: King v. King [1931] All E.R. 692, 694, Farwell J. states the law which applies as follows:


“Here the conveyance contains an actual definite mis-statement of fact. If a grantor conveys in a form actually and actively misleading, so that any person reading the conveyance would necessarily conclude that the grantee is the absolute owner, the grantor cannot subsequently be heard to say that this is not the real transaction but that the grantee takes on a secret trust not disclosed in the conveyance.”


This statement of the law neatly applies to the instant case, only one should substitute “ an equitable lien “ for the words “ a secret trust.”


In the present case I am invited to declare that the plaintiff’s equitable lien is still subsisting on the property already sold and conveyed to the third and fourth defendants who are purchasers for value without any notice of the lien. The plaintiff’s equity is certainly not as powerful as that. It cannot defeat the third and fourth defendants’ legal estate which they acquired for valuable consideration and without any notice of the imprudently concealed equity. In Rice v. Rice (1854) 61 E.R. 646, Kindersley V.-C. describes the conduct of the vendors in that case in this language:


“They voluntarily armed the purchaser with the means of dealing with the estate as the absolute legal and equitable owner free from every shadow of incumbrance or adverse equity. In truth it cannot be said that the purchaser, in mortgaging the estate by the deposit of the deeds, has done the vendors any wrong for he has only done that which the vendors authorised and enabled him to do.”


These words also apply to the case in hand only instead of mortgaging the land the purchaser bought it from the plaintiff, i.e. the first defendant Madam Scott, armed with exhibit “ B,” the deed of conveyance which the plaintiff gave her, succeeded in selling the land to innocent purchasers for value and without disclosing to them any equity belonging to the plaintiff. The plaintiff’s evidence is that 30 days after the execution of exhibit “ B “ on November 24, 1961, he was entitled to be paid £4,000 being the unpaid balance of the purchase money. He slept over his right for about three years until the property was sold and conveyed to the third and fourth defendants in May 1964. In September 1970, he staggered from his blissful slumber and took out a writ in order to enforce his extinguished lien. I cannot make the declaration sought nor can I make an order restoring possession of the land in dispute to the plaintiff. The frightening fact is that the innocent third and fourth defendants are in possession of the land and there are buildings and other people also on the land. For the same reasons it is impossible to order that the land be sold in order to enforce the plaintiff’s equitable lien. The third and last relief claimed by the plaintiff is a declaration that exhibit “ D,” the deed of conveyance dated May 28, 1964, and registered as No. 24 at page 24 in Volume 1227 of the Land Registry at Lagos is void and of no legal effect being in fraud of creditors.


The evidence before me cannot support such a declaration. The parties’ counsel understandably refrained from or merely omitted to address the court on the declaration that exhibit “ D “ is a fraudulent conveyance. The mere fact that Madam Scott did not pay over to the plaintiff £4,000 or any other part of the £5,000 which she collected from the Apostolic Church for the land in dispute cannot eo ipso sustain a finding that she sold the property fraudulently to the disadvantage of her creditor or creditors. The conveyance was executed for value and not gratuitously. The onus of proving the fraud alleged is on the plaintiff who impeaches the conveyance. See Re Holland [1902] 2 Ch. 360, 381. In my view section 137 (1) (2) of the Evidence Act applies and it states as follows:


(1)     If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.


(2)     The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 140 on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.


The section requires that the fraud alleged be proved beyond reasonable doubt. Fraud is a species of crime and must be strictly proved. There is no evidence here from which it can be inferred.


In the result the plaintiff’s case fails and it is dismissed with costs.



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