⦿ CASE SUMMARY OF:
Tijani Jolasun v. Napoleon Bamgboye (2010) – SC
⦿ LITE HOLDING
He that alleges has the duty to prove. He that alleges redemption of a mortgage has the duty to prove it.
⦿AREA OF LAW
– First registration.
– Ownership of land.
(2010) JELR 43552 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed, J.S.C.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The Appellant in this appeal was the Applicant in the Land Registry of Lagos in Lagos State in respect of first registration in his favour an interest in the property known and described as No. 43, Shifawu Street, Surulere, Lagos. This application was made on 16th April, 1986 pursuant to Section 9(2) of the Registrartion of Title Law Cap 121 of the Laws of Lagos State.
The Application which was supported by the relevant documents of the title to be registered was duly advertised by the Registrar in accordance with the requirements of Section 8 of the law. Following the advertisement, the Respondent filed his notice opposing the Appellant’s application for first registration of the property as an objector on the main ground that the property belong to his late father.
The Respondent’s objection and the application for registration were set down for hearing by the Registrar of Titles where both the Appellant/Applicant and the Respondent/Objector, were duly represented by their respective Counsel. The matter was heard between 29th October, 1975 and 21st March, 1979 by B. O. Martins, the Registrar of Titles before arriving at his decision to dismiss the Respondent’s objection to the first registration of the property in question, No. 43 Shifawu Street Surulere in favour of the Applicant who is now the Appellant.
The Respondent who lost was not happy and therefore appealed to the High Court against the decision of the Registrar of Titles. The appeal was heard by the High Court and in its judgment delivered on 19th January, 1994, dismissed the appeal and affirmed the decision of the Registrar of Titles.
However, on further appeal to the Court of Appeal Lagos Division against the judgment of the High Court, the Respondent who was the Appellant in that Court, was successful when his appeal was allowed and the judgment of the High Court was set aside while the Appellant’s application for the first Respondent of the Property No 43 Shifawu Street Surulere was dismissed in the judgment of the Court of Appeal given on 11th December, 2000.
Aggrieved by that decision, the Appellant is now on a further and final appeal to this Court.
1. What was the Respondent required to do under the law in challenging the registration?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. On the state of the evidence on record and the law therefore, the Court below was in error when in its judgment now on appeal, it placed or heaped the burden of proof on the Appellant/Applicant who did not make the assertion of the redemption of the property. Taking into consideration the evidence on record that was before the Registrar of Titles, the Respondent who opposed the application for first registration of the property, having failed to satisfy the Registrar that the property the subject of registration had been redeemed by his late father before his death in 1935, the Registrar was right in dismissing the Respondent claim and in directing the first registration of No. 43 Shifawu Street Surulere in favour of the Applicant now Appellant.
⦿ SOME PROVISION(S)
Section 6(1) of the Registration of Titles Law CAP 121 of the Laws of Lagos State which says – “6(1) subject to the provisions of this law – (a) any person who has power to sell, or, entitled at law or in equity, to estate in fee simple, in any land, whether subject or not to incumbrances, may apply to be registered in the registry as the owner of the fee simple of that land; and (b) any person entitled, at law or in equity, to a lease of any land for an unexpired term of not less than five years whether subject incumbrances or not, may apply to be registered in the registry as owner of that lease.”
Section 9(1) of the Registration of Titles Law CAP 121 of the Laws of Lagos State: “9(1) In investigating a title with a view to first registration the registrar shall accept and act on legal evidence or evidence ordinarily required by conveyancers. (2) If after investigation of an application for first registration the registrar is satisfied that the applicant is entitled to be registered as the owner of the whole or part of the land claimed, he shall be registered accordingly. In every other case the application shall be dismissed.”
Section 10(1) of the Registration of Titles Law CAP 121 of the Laws of Lagos State which provides as follows – “10(1) If any person opposing an application for first registration claims and proves to the registrar that the land is family land under customary law, the registrar shall, unless the family should consent to registration dismiss the application.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
As the existence of the mortgage had been admitted by the Respondent, what had been admitted needed no further proof. – Mahmud, JSC. Jolasun v. Napoleon (2010)
There can be no doubt that the burden of proving a particular fact lies on the party who substantially asserts the affirmative of the issue. – Mahmud, JSC. Jolasun v. Napoleon (2010)
Generally, an appellate court will not interfere unless compelling reasons are shown which justify interference. – Fabiyi, JSC. Jolasun v. Napoleon (2010)
In the interpretation of the foregoing, the court has a duty to give it a plain, ordinary and literal meaning except where such interpretation will lead to manifest absurdity. The duty of the court is to interprete the language of a statute in its grammatical meaning to convey the intention of the law maker. – Adekeye, JSC. Jolasun v. Napoleon (2010)
As was remarked earlier on, the Registrar of Titles does not have power to declare title but merely registers it after investigation. His duty does not involve settling contentious evidence as to ownership of title between the parties wishing for first registration but is confined to investigating evidence of title presented to him to ascertain if it is satisfactory for such registration. He will refuse first registration when it involves a decision as to ownership until the contending parties resolve their claims to title in court. – Adekeye, JSC. Jolasun v. Napoleon (2010)
It is quite clear from the provisions of sections 9 and 10 of the law, that while section 9 enjoined the registrar on being satisfied with the legal evidence or evidence ordinarily required by conveyances that the Applicant is entitled to be registered as owner of the whole or part of the land claimed, proceed to register the same, section 10(1) of the law on the other hand empowered the registrar to dismiss the application where any person opposing the application for first registration claims and proves to the registrar that the land is family land under customary law. Therefore under the law, the burden of proof lies both in the Applicant to prove his ownership of the land to the satisfaction of the registrar to be entitled to registration, while the Objector or person opposing the registration to prove to the satisfaction of the registrar that the land being the subject matter of the application for first registration, is a family land to justify the application being dismissed by the registrar. – Mahmud, JSC. Jolasun v. Napoleon (2010)
The respondent objected to the application by the applicant for first registration of his interest in the stated property. He maintained that the land belonged to his father. Under cross-examination, he admitted that his father mortgaged the property to the Scottish Nigeria Mortgage and Trust Company Limited. He claimed that the property was redeemed by his late father. He did not produce a deed of release from the Land Registry to support his claim. – Fabiyi, JSC. Jolasun v. Napoleon (2010)
The five ways [of proving title to land] are: – (1) Proof by traditional history or evidence of tradition. (2) Proof by grant or the production of documents of title. (3) Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such acts is the owner of the land (4) Proof by acts of long possession. (5) Proof by possession of connected and adjacent lands in circumstances rendering it probable that the owner of such lands would in addition be the owner of the land in dispute. – Adekeye, JSC. Jolasun v. Napoleon (2010)