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F.S.C. 71/1962

29TH OCTOBER, 1963.

  3PLR/1963/111  (FSC)





SIR VAHE BAIRAMIAN, J.S.C. (Read the Judgment of the Court)




INTERPRETATION OF STATUTES -”Subject to the provisions of this Ordinance” – Meaning of.

LAND LAW – Land Registration Act Cap. 99 – Alleging fraud thereunder – Standard of proof.

LAND LAW – Land Registration Act, Cap.99 – Effect and purport.

LAND LAW – Land Registration Act, Cap. 99, S.16 – Priorities created.

LAND LAW – Registration of land instruments – Effect of not registering on time.

LAND LAW – Registration of land instruments – Failure to register – Effect.

LAND LAW – Registration of land instruments – How certified

LAND LAW – Registration of land instruments – When defective – What fol­lows.

WORDS AND PHRASES – “Subject to the provisions of this Ordinance” – Meaning of.


D.O. Coker -for the Appellant.

  1. Desalu -for the Respondent.


BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court): The defen­dant appeals from the judgment of Dickson J. dated 13th March, 1961, in the Lagos High Court suit No. LD/30/1959, which grants the plaintiff a declara­tion of title to a certain piece of land.


Part of the plaintiff’s case is that it was conveyed to him on 29th August, 1957, by deed, which was delivered for registration at 11 o’clock a.m. on the 16th September, 1957, and registered as No. 34 at page 34 in volume 1093 of the Land Registry Office at Lagos. The vendor is Charles Olusola Togonu Bickersteth, and the purchaser the plaintiff. It is exhibit H in the record.


The defendant relies mainly on exhibit W, a conveyance between the same vendor and one Adekunle Coker as the purchaser, which is dated the 16th May, 1957; it was delivered for registration at 11.40 a.m. on the 17th March, 1960, and registered as No. 67 at page 67 in volume 1159 of that Re­gistry.


The argument for the defendant in her appeal is that, as the vendor had conveyed the legal estate to Coker in May, 1957, he had divested himself of the legal estate and had it not any more, so he could not convey it to the plaintiff in August, 1957: nemo dat quod non habet. The argument for the plaintiff had been in the court below, that the defendant had lost priority by virtue of section 16 of the Land Registration Act, cap. 99.


The long title of that Act is –


“An Ordinance to consolidate and amend the Law relating to the registration of instruments and the filing of judgments af­fecting land in Nigeria.”


It is not an Act for the registration of title to land; but it contains sanctions for failure to register and for delay in registration, in sections 14 to 16. Sec­tion 14 relates to Crown grants and certain other instruments with which we are not concerned here; they become void if not registered within a certain time, which, however, may be extended for good cause. Section 15 provides that –


“15.   No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been re­gistered in the proper office as specified in section 3: Provided that etc.”


Of section 16 it is enough to copy subsection (1):


“16. (1) Subject to the provisions of this Ordinance, and in particular of subsection (2) of this section, every instrument re­gistered under this Ordinance shall, so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration as hereinafter defined in the proper office as specified in section 3, and every instrument regis­tered before the commencement of this Ordinance shall be deemed to have taken effect from the date provided by the law in force at the time of its registration.”


In the normal case, a person who receives a conveyance takes it to the Regis­try, where the time and date of his delivering it is certified; if all is well, it is registered, and the registration is taken to be at the time and on the date cer­tified as that of delivery: section 17. If registration is refused, a note of “re­gistration refused” is made; in case of subsequent delivery for registration, the time and date of it are certified, and if the instrument is registered, they become the hour and date of registration: section 18. The precise hour and date of delivery, or subsequent delivery, are of supreme importance for the purposes of section 16. They are of supreme importance to a person who makes a search for his guidance. Section 28 states that –


“28.   The registrar shall allow searches to be made at all reasonable times in any register book, register or file of regis­tered or filed documents in his custody.”


If there is nothing to show that his vendor has conveyed the land, he pre­sumes that the vendor has not conveyed it, and goes ahead. Clearly, al­though the Ordinance or, as it should here be called, the Act, does not relate to registration of title, but of instruments, it is plainly intended to give some measure of security and some protection against fraud. When two persons claim the transfer of a legal estate, he who did not register his conveyance cannot plead it or give it in evidence; if they both registered their deeds, each takes effect as against the other from the date of registration; which means that the one executed earlier loses its priority if it was registered later. What counts is the date and hour of registration.


The argument for the defendant, if correct, would open the door to fraud. Suppose that A. conveys by deed his land to B.; they could connive to cheat C. by delaying registration; A. could convey the same land to C., who would search in the Land Registry but find nothing about the earlier con­veyance to B. Or suppose that A. conveys his land to C.; A. and B. could connive to cheat C. by A. giving B. a deed with an earlier date than the deed he had given to C. The latter case is forgery; both are conspiracies to de­fraud; either has to be strictly proved as if it were a criminal charge, which might not be easy. It is desirable to give some protection against fraud and facilitate dealings in land; it is done by such provisions as those in section 15 and section 16 of the Act. In our opinion, they were intended to make an in­strument requiring registration ineffectual unless and until it was registered; and for the better protection of honest people, the date and hour of registra­tion is the date and hour of delivery to the Registrar, who is enjoined to cer­tify it immediately on the instrument and the copy thereof delivered to him: section 17 (2).


In the present case Bickersteth gave a deed to the plaintiff dated the 29th August, 1957; his date of registration is 16th September, 1957, and this is the date on which the transfer of the legal estate to him took effect. Bic­kersteth gave Adekunle Coker a deed dated the 16th May, 1957; and it did not and could not take effect as a transfer of the legal estate until the 17th March, 1960, the date of the registration of this deed. The plaintiff has the earlier effective transfer and wins.


Mr. Coker, the learned counsel for the defendant (the appellant), has argued by reference to the position in contract law. Some contracts require a memorandum in writing; if there is no memorandum, evidence of the con­tract cannot be given, but the contract is not void. He submits that the posi­tion is similar: if X gives Y a deed but it is not registered, it cannot be given in evidence, but it is not void. If Y registers the deed, it can be given in evi­dence; and in the present case one can then see that the deed given to Adekunle Coker was earlier in date, and that consequently Bickersteth could not convey the same land to the plaintiff by a later deed. That is the ar­gument.


It may be assumed that failure to register a deed such as that given to Coker does not make the deed void; and that presumably is the reason why it may be registered at any time apparently. But besides section 15, there is section 16, and some meaning and effect must be given to it. We asked the learned counsel to suggest some example of how section 16 could operate and yet not defeat the defendant’s case. The example he gave was one which involved criminal collusion on the part of the registrar.


The learned counsel also drew attention to the opening words of section 16 (1), which are “subject to the provisions of this Ordinance”; and he refer­red to section 25 of the Act, which provides that –


“25.   Registration shall not cure any defect in any instrument or, subject to the provisions of this Ordinance, confer upon it any effect or validity which it would not other wise have had.”


The argument is the same as before: that the conveyance to the plaintiff gave him a defective title, or no title at all, on the ground that the vendor had con­veyed the legal estate to Adekunle Coker by an earlier deed. That argument assumes – what is not true – that the deed given to Coker conveyed the legal estate on the day of its execution: it did not. In cumbrous language, the deed given to Adekunle Coker purported to convey the legal estate to him on that day, but did not effectually transfer it. Again, when later Bickersteth gave a second deed to the plaintiff, he purported to convey the legal estate to him; in his case the transfer became effective upon registration and enured to his benefit by the fact of earlier registration. In section 25 the words “subject to the provisions of this Ordinance” bring in subsection (1) of section 16 and in­corporate its operation on competing deeds of conveyance.


So far as we know, this is the first time that section 16 has come up for decision. Mr. Coker said that registration did not operate as notice to the world, according to a decision of the Federal Supreme Court. He did not cite it, and we must presume that it does not help his argument.


It is ordered as follows:


That the appeal of the defendant from the judgment of 13th March, 1961 in the Lagos High Court Suit LD/30/1959 be and the same is hereby dismissed with costs of appeal assessed at thirty guineas pay­able by the defendant Rebecca Amankra to Latey Zankley, the plain­tiff in the suit.


TAYLOR, J.S.C.: I concur.


MORGAN, AG. J.S.C.: I concur.


Appeal Dismissed.


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