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23RD JANUARY, 1925

3PLR/1925/1 (DC)










DANIEL SAMPSON OBALADE (joined by order)



  1. JAMES R.


Akinsemoyin for the plaintiff.

  1. Moore for the defendant Harworth.

Agbebi for the defendant Oshinlaja.

The defendant Obalade in person.


LAND LAW/REAL ESTATE:- Title to land – Alienation – Sale by person not having legal estate – Subsequent sale by mortgagor of Legal estate – Effect


The judgment of the Divisional Court sitting in Lagos was delivered on the 23rd January, 1925, by VAN DER MEULEN, J.

There is no dispute as to the facts in this case. In 1916 the Defendant Obalade purported to sell the land in dispute to one Vidal Cole. No deed of conveyance was executed at the time but Obalade gave a receipt dated the 17th October, 1916, to Cole for the purchase money paid by the latter. In 1919 Cole sold the property to one Joseph Oguntuyi, and on the 27th September, 1921, Cole executed n deed of conveyance of the property to Oguntuyi. Oguntuyi erected buildings on the land and in 1922 sold the property to the plaintiff Ajose, to whom on the 23rd September, 1922, he executed a deed or conveyance.

It should here be mentioned that the land in dispute forms a part of the property which was formerly known as 66 Griffith street, but that it was subsequently divided and the land with which this action is concerned then became known as 64A Griffith Street.

By a deed of mortgage dated the 10th March, 1920, the defendant Obalade mortgaged the whole of the property, including that portion now known as 64A Griffith Street, to the defendant Harworth, and acting under the power of sale contained in this deed of mortgage the defendant Harworth advertised the property for sale by public auction, and at the sale on the 29th July, 1924, it was bought by the defendant Oshinlaja. Prior to this sale the plaintiff Ajose had notified the auctioneer of his claim to the property, of which I do not doubt that the plaintiff and his predecessors In title, Cole and Oguntuyi, had been in uninterrupted possession since the alleged sale by the defendant Obalade to Cole in 1916.

A deed of conveyance dated the 21st February, 1917, and made between Sarah Bishopton and others to the defendant Obalade has been put in evidence, and in this deed it is recited that Sarah Bishopton and the others vendors are entitled to this property as tenants in common with the defendant Obalade, and by the deed they convey all their interest in the property to the defendant Obalade.

It therefore follows that when in 1916 the defendant Obalade purported to sell this property to Vidal Cole his sole interest in it was that of one of several tenants in common, and that he then had no legal power or right to dispose of the property by himself to Cole, for the full legal estate in the property did not vest in him until the following year, and it has not been suggested that since that time Obalade has done anything to vest the legal estate in Cole or his successors in title.

This being so, I think there can be no doubt that the legal estate must have remained in Obalade until by the deed of mortgage dated the 10th March, 1920, he vested it in the ‘defendant Harworth, although it may well be that Obalade has in this matter practised a fraud upon Vidal Cole.

Mr. Akinsemoyin for the plaintiff has cited the case of Holmes v. Powell (1) in support of his contention that the fact that the defendant Harworth has in his possession the title deeds of the property in dispute will give him no title as against the rightful owner in possession, and with that contention I am in entire agreement. This however assumes that the plaintiff is the rightful owner.

As to this point, I consider that the following passage from the\judgment of James, L.J., in the case of Pilcher v. Rawlins (2) which has been cited by Mr, Moore for the defendant Harworth, is conclusive:-

” I propose simply to apply myself to the case of a purchaser for valuable consideration without notice obtaining, upon the occasion of his purchase, and by means of his purchase deed, some legal right, some legal advantage; and according to my view of the established law of this Court, such a purchaser’s plea of a purchase for valuable consideration without notice is an absolute, unqualified and unanswerable defence, and an unanswerable plea to the jurisdiction of this Court.”

In my opinion the defendant Harworth was clearly a purchaser without notice, either express or implied, for at the time the deed of mortgage of the 10th March, 1920, was executed the land in dispute ,was admittedly an empty lot of land, although some months later Oguntuyi started building upon it. At that time Obalade had in his possession the deed conferring the legal estate upon him, and no reasonable enquiries which Harworth might have made at that time would have been likely to elicit any other claim to the property.

Having the legal estate vested in him, the defendant Harworth was entitled to dispose of it, and I agree with Mr. Agbebi’s argument that the purchaser at the sale, the defendant Oshinlaja, is not affected by the notice given by the plaintiff Ajose to the auctioneer of his claim.

There must therefore be judgment in favour of the defendants Harworth and Oshinlaja, with fifteen guineas costs to each of them. The defendant Obalade was not, I consider, a necessary party to this action and he is therefore dismissed from it.

(1) 8 de G.M. and G. 5772.

(2) L.R. 7 Ch. App. Cases 269.



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