➥ CASE SUMMARY OF:
Bucknor-Maclean and Anor. v. Inlaks Limited (SC.83/1979, 29th August 1980)
by Branham Chima.
➥ ISSUES RAISED
Compliance with form in schedule;
Registration of title/deed;
Overrule Supreme Court decision.
➥ CASE FACT/HISTORY
This appeal, brought here by leave of this court, challenges the validity of the unanimous judgment of the Federal Court of Appeal holden in Lagos (Ogunkeye, Okagbue and Uthman Mohammed, JJ.C.A.) – hereinafter referred to as “the Court of Appeal” – which reversed the judgment of the High Court of Lagos State (Adefarasin, J. as he then was) in Suit L.D ./904/71 by which he found in favour of the claims of the appellants, the plaintiffs in the said suit. The facts which gave rise to the claims aforesaid as revealed from the proceedings in the High Court are, indeed, within a small compass and may be summarised thus: Mrs. Sabina Marian Bucknor, the mother of the first appellant was until the 4th day of March, 1968, the registered owner in fee simple, on record, of the parcel of land situate at Martins Street, Lagos and known as “Plot 53 in sub-area 3 of the Lagos Central Planning Scheme”, under Title No. L03181 (hereinafter referred to as the “Plot 53”). By a deed of lease of the 29th day of August, 1962, made between the said Sabina Marian Bucknor of the one part and the respondents of the other part, Plot 53 was demised to the respondents, as lessees, for a term of ninety-nine years subject to payment by the lessees in advance: “(a) during the first twenty years of a rental of £400 per annum. (b) during the second twenty years of a rental of £500 per annum. (c) during the third twenty years of a rental of £600 per annum. (d) during the fourth twenty years of a rental of £700 per annum. And (e) during the remaining nineteen years rental of £800 per annum.” Upon execution of the deed of lease, the respondents paid in advance rent for the period up to and including the 28th day of February, 1972. In November 1962, the respondents lodged with the Registrar of Titles the said lease, and on the 18th December, 1962, the Registrar of Titles having made the relevant entries (i.e. entries relating to the Charge) in the Register of Titles kept in the Lands Registry in Lagos in order to give effect to the said lease, further registered the said dealings in respect of Plot 53 under Title No. L04811 (i.e. registered the respondents as owners of the lease or charge on Title L03181) and, thereafter, issued a Land Certificate thereof.
Sabina Marian Bucknor died in Lagos on the 5th day of August, 1966, and probate of her last Will and Testament having been granted in October 1967, the appellants who are the devisees of Plot 53 were on the 4th day of March, 1968, registered as owners in undivided shares of the said plot under Title No.3181. Three years later, to be precise, on the 15th day of November, 1971, there being no apparent cause whatsoever for the course taken by them, the appellants filed the present suit in the High Court of Lagos State claiming from the respondents as follows: “(i) A declaration that the deed of lease dated the 29th day of August, 1962, and registered as Title No. LO4811 is null and void and of no effect whatsoever. (ii) An order that the Register of Titles be amended by: (a) the cancellation of Title No. LO4811 aforesaid, and (b) the deletion from the Charges Register in respect of Title No. LO3l8l of all entries therein relating to the purported lease hereinbefore mentioned.” (Italics by me). In a considered judgment, the learned trial Judge after holding that the deed of lease of the 29th day of August, 1962, is not null and void declared that Title No. LO4811 is null and void, and ordered that it be cancelled from the Register of Titles.
An appeal to the Court of Appeal was allowed. The Court of Appeal was of the view also that while the effect of section 79(1) of the Registration of Titles Act is to make the use of Form 4 set out in the First Schedule of the Act necessary in conveyancing under the Act, the Registrar of Titles had a discretion to accept for registration conveyances which were not made in compliance with Form 4 in the Schedule aforesaid.
➥ ISSUE(S) & RESOLUTION(S)
I. (FORM). Does failure to use the forms aforesaid (i.e. the special forms set out in the Schedule to Cap. 181) in respect of a dealing under the Act ipso facto invalidate the dealing [as decided in Jammal (supra)]?
RESOLUTION: IN RESPONDENT’S FAVOUR. (It does not invalidate the dealing).
[IT IS HARD TO SUBSCRIBE TO THE VIEW THAT THE FORM PRESCRIBED MUST ONLY BE USED
‘There is, however, no definition in Cap. 181 of the expression “prescribed manner” but I find it difficult to subscribe to the view of this court in Jammal (supra) that the expression “prescribed manner” used in sections 14(1) and 28(1) of Cap. 181 implies that the form set out in the First Schedule and no other must be used [see ‘(1974) 1 All N.L.R. at pp.564-566’]. With great respect, I also find myself unable to subscribe to the view taken in Jammal (p.565-op cit) that the provisions of section 79(1) of Cap. 181 are mandatory. On a calm view of the entire section (i.e. 79) and after a careful reading of sub-sections (1) and (2) thereof together with sub-sections (1) and (2) of section 14 as well as sub-sections (1) and (2) of section 28 of the Act, I am of the firm view that the expression “shall” in sub-sections (1) and (2) of section 79 is directory and not mandatory. In other words, the expression “prescribed manner” in sections 14(1) and 28(1) includes the use of the form set out in the First Schedule to the Act.’
‘Slavish adherence to the forms in the Act is not required. The dealing will be valid if the instrument substantially conforms with the requirements of the Act; and if it does, then it substantially conforms with the said Form.’
DIFFERING FROM THE POSITION IN JAMMAL & OWUMI
‘My Lords, I find myself in perhaps the unhappy position of having to differ from the rationes decidendi in Jammal (supra) and Owumi (supra); and I do so with considerable respect. In Jammal it was decided that failure to use an instrument which complies with Form 4 of the Schedule to Cap. 181 ipso facto renders the dealing under that instrument invalid because the Instrument itself not having been made in compliance with Form 4 aforesaid is itself void. In Owumi (supra) it was decided that not only was the instrument or deed ‘void’ for transferring any interest in registered land, it was also” of no effect whatsoever”.’
UNABLE TO AGREE THAT BECAUSE THE EXACT FORM IS NOT USED THE REGISTRATION IS NULL & VOID
‘I am, therefore, not persuaded to the view that, on a calm and proper reading of sub-section (2) of section 42 (Cap.181) together with sub-section (1) of section 14 (Cap. 181), the inescapable conclusion is that an instrument of lease of registered land not in strict compliance with Form 4 aforesaid (e.g. a deed inter parties) is invalid or void; and that this is so, because it fails to comply strictly with the Form aforesaid. Undoubtedly, the scheme of the Act directs and expects that the form aforesaid should be used in order that the instrument may qualify for acceptance for registration by the Registrar, but the Act also by sub-section (1) of section 79 gives the Registrar sufficient discretion to make allowance for modifications or additions in such instruments and to accept them for registration. After all, as I said earlier on, the scheme of the Act is merely to substitute title by registration for title by deed; the Act did not create any new class or classes of estates or interests. If I may repeat my earlier observations, the only spectacular and essential features of this scheme reflected in Form 5 aforesaid are (1) that the land the subject of the dealing is, registered land and (2) that the transferor of interest therein is the registered proprietor of the interest. When these features are present in a deed or instrument covering a dealing with registered land other essential elements such as implied covenants under the Act must, as a matter of law, follow (i.e. come into operation) unless provisions contrary thereto or in conflict therewith, are inserted in such a deed or instrument; in which case, the deed may be rejected for registration and consequently, the dealing with which the deed is concerned loses the protection given, and intended to be given, to it under the Act.’
ONCE THE REGISTRAR ACCEPTS THE FORM, IT IS CONCLUSIVE OF ITS SUFFICIENCY
‘It seems to me, therefore, that when an instrument of transfer of interest in registered land which strictly complies with the appropriate form set out in the First Schedule for such a transfer is used there is no question that it must be accepted by the Registrar for registration and the protection given to such a dealing under the Act is guaranteed. When, however, the instrument used is not in strict compliance with the appropriate form set out in the schedule, the parties to it are, Indeed, taking the risk that the instrument may be rejected by the Registrar for registration depending on whether or not such instrument is in substantial compliance with the appropriate form required for similar dealings under the Act; and in deciding whether or not there has been such “substantial compliance” it is necessary to examine the document or instrument to see whether it satisfies the scheme of the Act, or runs contrary to it. What is required, is that the instrument when properly examined, should ex facie show that it is an instrument made in pursuance of Cap. 181 – [see Crowley v. Templeton (1914) 17 C.L.R. 457]; a case I propose to examine in detail later on in this judgment. Further, it seems to me that by virtue of the combined effect of sub-section (1) of section 79 (Cap. 181) and sub-section (2) of section 14 (Cap. 181) once the Registrar has accepted such an instrument for registration and has in fact registered it, the Registrar’s acceptance and registration of the same is conclusive of its sufficiency in point of form’J. The position is the same with respect to charges and transfer of charges unregistered land by virtue of sub-section (2) of section 28.]’
OVERRULING OF THE DECISIONS IN JAMMAL & OWUMI BECAUSE THEY WILL CAUSE INJUSTICE
‘My Lords, I have, I believe said enough to show why I find it difficult to adhere to or conform with the view taken by this court of Sections 14(1), 28(2), 42(2) and 79(1) of Cap. 181 in the earlier decisions in Jammal and Owumi (supra). It seems to me, with the greatest respect, that the view taken in those cases is, indeed, capable of leading to considerable injustice. In addition, to allow parties to a deed (and in particular, the grantor of a lease) to challenge their own documents and resile from them in the manner, in effect, authorised by those two decisions does not appear to me to accord with justice. Such astonishing and alarming consequences could not have been intended by the Legislature. I should myself, therefore, overrule the two decisions in Shell- B.P. Co. Ltd. v. Jammal Engineering Co. Nigeria Ltd. (1974) 1 AllN.L.R. and Owumi v. Paterson Zochonis and Co. (Nig.) Ltd. (1974) 1 All N.L.R. Part 2 at 107.’]
‘It follows, therefore, that this appeal must be, and it is hereby dismissed. For the reasons given in this judgment, the decision of the Court of Appeal in Suit F. C.A./L/189/77 dated the 24th of May, 1979 together with the order for costs is hereby affirmed. The respondents will have costs in this court assessed at N300.00.’
➥ FURTHER DICTA:
⦿ PART OF JUDGEMENT THAT GOES BEYOND THE CLAIM MUST BE REGARDED AS OBITER DICTA
There was no claim, be it noted, for an order that the deed was “of no effect whatsoever”. Therefore, that part of the judgment which categorically states that the deed was “. . . and of no effect whatsoever” really goes beyond the claim and the issues raised in the pleadings in that case, and must, in my view, be regarded as Obita dicta. — Idigbe JSC.
⦿ FORMS IN STATUTES ARE PLACED MERELY AS A GUIDE OR EXAMPLE; THOUGH MAY BE STRICTLY FOLLOWED
It should be remembered that as a general rule forms in Schedule to enactments are inserted merely as examples and guides and are meant to be followed implicitly only so far as circumstances permit. As far back as 1843, Trindal, C.l. in a case relating to the use of forms relevant to the compliance of Voters List observed: “. . . we think that the decision of this question ought not to depend upon a crucial examination of the forms in the schedule, which are inserted merely as examples, and are to be followed implicitly, so far as the circumstances of each case admit. . .” – see Barlett v. Gibbs (1843) 5 Man. And G. 81 at 96 also 13 4 E.R. 490 at 496. This, however, is not to say that the use of forms is never imperative as, indeed, they sometimes have to be strictly followed if the language and the scheme of the enactment providing for their use so dictate. — Idigbe JSC.
Bucknor-Maclean and Anor.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
Mr. I.A. Cole.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ HOUSE OF LORD MAY EVEN DEPART FROM HIS PREVIOUS DECISION WHERE IT SEES FIT
As far back as 1898 the House of Lords finally agreed to be bound, and decided that it was bound, by its own decisions (see London Street Tramways v. London County Council (1898) A.C. 375). This has been the position for almost a century until 1966 when it had to qualify its stand by the following statement made by Lord Gardner, L.C. on behalf of the House (i.e. on behalf of himself and The Lords of Appeal in Ordinary): “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordship nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law. . .”see (1966) AIIE.R. 77.
➥ REFERENCED (OTHERS)