(1980-LCER-2127-SC)
Other Citations
IN THE SUPREME COURT OF NIGERIA
On Friday, the 29th day of August, 1980
SC.83/1979
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
KAYODE ESO….. Justice, Supreme Court
ANTHONY NNAEMEZIE ANIAGOLU….. Justice, Supreme Court
MUHAMMADU LAWAL UWAIS….. Justice, Supreme Court
Between
MRS BUCKNOR MACLEANS & ORS
Appellants
And
INLAKS LTD
Respondent
HELD:
Appeal dismissed.
RATIO DECIDENDI:
C. IDIGBE, J.S.C. (Delivering the Lead Judgment): This appeal, brought here by leave of this court, challenging the validity of the unanimous judgment of the Federal Court of Appeal holden in Lagos (Ogunkeye, Okagbue and Uthman Mohammed, J.J.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.1904/71 by which he found in favour of the claims of the appellants, the plaintiffs in the said suit.
P.1
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-years subject to payment by the lessees in advance:
“(a) during the first twenty years of a rental of 400pounds per annum.
(b) during the second twenty years of a rental of 500pounds per annum.
(c) during the third twenty years of a rental of 600pounds per annum.
(d) during the fourth twenty years of a rental of 700pounds per annum. And
(e) during the remaining nineteen years rental of 800pounds 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. In respect of the foregoing observations, I think it is relevant to quote from the statement of claim in these proceedings which states in paragraph (5) thereof as follows:
“The deed aforesaid (i.e. the deed of lease of 29th August, 1962) was lodged for registration in the Register of Title by or on behalf of the defendant company on the 26th day of November, 1962, and the Registrar of Titles made entries in the Register under Title Number L03181 accordingly and also registered the defendants as the owners of the lease under Title Number L04811.”
P.2
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. L04811 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. L04811 aforesaid, and
(b) The deletion from the Charges Register in respect of Title No. L03181 of all entries therein relating to the purported lease hereinbefore mentioned.”
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. L04811 is null and void, and ordered that it be cancelled from the Register of Titles. The relevant portions of the said judgment read:
“. . . I would not go as far to say that the deed in question is null and void although I think that it does not pass a valid title to the defendants under the Registration of Titles Act and that a lease in Form 4 of the First Schedule is the proper form which should have been accepted for the purpose of registration . . . The deed as such is not null and void although it is not sufficient for the purpose of registration under the Act. I am therefore inclined to make an Order for a declaration that Title No. L04811 granted to the defendants herein is null and void.
The position that now arises, in my view, is that the plaintiffs will remain the owners of the land, within the meaning of sections 28 and 42 of the Act, until the proper registration is completed. The defendants have not filed a counter-claim and I am unable to make any order, declaratory or otherwise in their favour in the present proceedings. I want to say nothing in these proceedings that should give the impression to the parties or their counsel that by this decision it is intended to convey the idea that no rights accrue to the defendants by virtue of Exhibit 4 (Le. the deed of lease of 29th August, 1962 aforesaid).
P.3
The plaintiff’s claim succeeds and I make order for a declaration that Title No. L04811 granted to the defendants herein is null and void. Accordingly I make order, further for the cancellation of that Title and for the deletion from the Charges Register (of) all entries in respect of Title No. L03181 in relation to the purported lease. Costs against the defendants. . .”
The defendants, the respondents herein, appealed from the judgment set out above to the Court of Appeal. Three grounds of appeal among others were argued on behalf of the respondents, then appellants, in that court and these read:
“(1) The learned trial Judge erred by his failure to find that in as much as the Title of the appellants has been registered the validity of the lease is conclusive as to form having regard to section 14(2) of the Registration of Titles Act, Cap. 181 which was applicable to the transaction.
(2) The learned trial Judge having found that ‘the deed as such is not null and void although it is not sufficient for the purpose of registration under the Act’ ought to have dismissed the respondents’ claim instead of giving judgment for a relief not claimed in the suit.
(3) The learned trial Judge . . . erred by failing to direct himself that the respondents’ case is not within section 61 of the Registration of Titles Act. On proper consideration of section 61 aforesaid, the learned trial Judge ought to have dismissed the claim of the respondents.”
The Court of Appeal after considering the various sections of the Registration of Titles Cap. 181, 1958 Edition of the Laws of the Federation of Nigeria relevant to the matters raised in the appeal before them (Le. sections 14,18,42 and 79) and a number of cases, including Shell-B.P. Petroleum Company v. Jammal Engineering (Nigeria) Ltd. (1974) 1 All N.L.R. 542, Owumi v. Paterson Zochonis and Co. (Nigeria) Ltd. (1974) 1 All N.L.R. (Part 2) 107 and Morelle v. Wakeling (1955) 1 All E.R. 708 came to the conclusion that the judgment of the High Court was erroneous and, allowing the appeal, dismissed the claims of the respondents, the appellants herein. 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.
P.4
The Court of Appeal, in addition, took the view that the decisions of this court in Shell-B.P. Petroleum v. Jammal Engineering (Supra) and Owumi v. Paterson Zochonis (Supra) are not applicable to the case in hand. It is necessary in this connection to set out portions of the judgment of Ogunkeye, J.C.A. who gave the decisions of that court, reflecting their views on the relevance of the decisions in those two cases (i.e. Jammal Engineering (Supra) and Owumi (Supra)) to the case in hand; these portions read:
“Now in the Shell-B.P.’s case, the instruments were neither presented for registration nor registered before the action was brought. In the case in hand, the lease was not only presented for registration, it was accepted by the Registrar and registered. It must be presumed that the Registrar was satisfied that there was substantial conformity with the form before he accepted the lease for registration.
In Morelle v. Wakeling (1955) 1 All E.R. 708 in a case arising under the English Land Registration Rules 1925 it was held at p. 724:
‘. . . if the rules categorically enjoined that a particular form and none other should invariably be used for transactions of a particular kind the use of a different form for a transaction of that kind might be held to invalidate the transaction.’
But Rule 74 provides:
‘The forms in the schedule hereto shall be used in all matters to which they refer, or are capable of being applied or adapted, with such alterations and additions, if any, as are necessary or desired and the Registrar allows’.
After quoting some other rules which are not altogether relevant here, the judgment continues:
‘The Registrar is thus given a wide discretion as to the forms to be used and his discretion extends to authorising a departure from the general rules if satisfied that he can properly do so. It follows that although the present transaction was completed otherwise than in accordance with Rule 121 owing to the adoption to the registry of a view as to the law of Mortmain now held to be erroneous, the acceptance for registration of the form of transfer used, such acceptance being in law the act of the Registrar must be taken as conclusive of, its sufficiency in point of form’ .
P.5
The English Rule 74 is similar to our section 79(1) of the Registration of Titles Act though not using the same words. Both have an amount of discretion to the Registrar. It is our view that the decision is Morelles case is applicable to the case in hand. We think that Shell-B.P. case is distinguishable from the case in hand for the reasons given.
Finally on these ground the respondents have already demonstrated, by claiming a declaration in respect of the deed (Exhibit 4) and not in respect of Title No. L04811 that the two are not one and the same thing. The learned trial Judge by holding that the deed was not void but that Title No. L04811 was, recognised the difference between the two. The respondents not having brought a claim to nullify the Title No. L04811, the learned trial Judge was wrong to have declared it null and void . . . Learned counsel for the respondents referred to the case of Owumi v. Paterson Zochonis & Co. (Nig.) Ltd. (1974) S.C.1 to submit that (sic) registration which is not in the prescribed form could be deleted from the register. This may well be so. But the deed must first have to be declared null and void . . . in the instant case it has been held that the deed is not null and void, and there is no appeal against that finding . . . The result is that for the reasons already given this appeal succeeds and is allowed . . . The respondents’ claim in the High Court is dismissed.”
The plaintiffs now appeal to this court on the following grounds among others:
“(1) Judgment is against weight of evidence.
(2) The Federal Court of Appeal erred in law in failing to observe that a purported grant or creation of an estate right, title or interest in registered land by an Instrument other than one in the form prescribed by the Registration of Title Law is null and void and of no effect as a transaction affecting land to which such laws applies and the Instrument itself is also null and void and of no effect.
(3) The Federal Court of Appeal erred in law in failing to observe that once it is shown that any grant or creation of an estate right, title or interest is null and void for the reasons indicated in (sic) Ground (1) above read: Ground (2) above, all entries in the Register pursuant thereto or based upon an instrument which is null and void for non-compliance with the prescribed form must be deleted from the Register. “
P.6
My Lords, the foundation of the argument of Chief Williams, learned Counsel for the appellants, is that the deed of lease of the 29th day of August, 1962 (Exhibit 4) which was made, not in the form prescribed by the Registration of Titles Act Cap. 181 aforesaid but, in the ordinary and usual form of conveyancing at Common Law (i.e. conventional form) must be considered “null and void and of no effect”. That being so Exhibit 4 was incapable of transferring title or legal estate to the respondents whether or not it was subsequently accepted by the Registrar of Titles. Learned counsel referred the court, in support of his contentions ,to sections 14, 28, 42 and 79 of the Registration of Titles Acts (hereinafter referred to simply as “Cap. 181”) and to the decisions of this court in Jaffar v. Ladipo (1969) 1 All N.L.R. 165; Shell B.P. etc. v. Jammal Engineering Nigeria Ltd. (1974) 1 All N.L.R. 542; Owumi v. Paterson Zochonis and Co. (Nigeria) Ltd. (1974) 1 All N.L.R. (Part 2) 107. It is necessary, I think, to set out at this stage the sections of Cap. 181 under reference and consideration; they read:
“14(1) the registered owner of land may in the prescribed manner lease the land to the same extent as if the land has not been registered.
(2) the lease shall be completed by registration of the lease as an incumbrance, and of the lessee as owner of the lease, and by filing the original lease or copy thereof in the registry.
(3) provided that the foregoing provisions of this section as to registration of the lease and lessee and filing the lease shall not be obligatory where the lease is for a term of less than five years and the leased land is occupied under the lease.”
“28(1) the registered owner of any land or charge may in the prescribed manner transfer such land or charge or any part thereof.
(3) The transfer shall be completed by registration of the transferee as owner of the land or charge transferred, and filing the transfer in the registry but until such registration the transferor shall remain the registered owner of the land or charge . . .
“42(1) Any person whether being registered owner or not, having a sufficient interest or power in or over registered land may dispose of or deal with the same, and create any interests or rights therein which are permissible in like manner and by the like models of assurance in all respects as if the land were not registered: Provided that all interests and rights disposed of or created under this section (whether by the registered owner or any other person) shall be capable of being overridden by registered dispositions for valuable consideration.
P.7
(2) Nothing in this section shall be construed as authorising any disposition of any estate, interest or right or other dealing with land to the effected under this section if the disposition or dealing is one which could be effected under any other sections, and any such disposition or dealing shall be effected under and in the manner required by such other section, and when so required shall be registered or protected as provided by this Act.”
“79(1) the forms in the First Schedule to this Ordinance shall be used with such modifications and additions as are necessary or desired, and allowed by the Registrar.
(2) An instrument for which no form is provided by the said First Schedule shall be in such form as the Registrar may approve.
(3) …………………………
(4) …………………………
(5)…………………………. ” .
In Jammal Engineering (Supra) this Court observed in its judgment as part of the ratio decidendi:
“To put together the effects of the relevant sections of the Act, we point out that a lease by virtue of section 14 must be made ‘in the prescribed manner’ in order to escape the proscription of section 42(1) and to escape the disqualification of section 42(2). If like Exhibit W it is not so made, it does not come with section 14(1) and section28(1) [it need not comply with section 28(2) and apart from lacking the protection of section 42(2). Now, section 42(2) requires that such dealings shall be affected under and in the manner required by the Act – a requirement which postulates that any disposition or dealing which discountenances it must be invalid under the Act.
We are of the view that learned counsel for the defendants was right in his contention that the lease Exhibit W is void. Although section 14(1) has employed the word ‘may’ in its requirement of compliance, it seems to us clear that where the dealing contemplated is one for which provision is made in the prescribed manner, the transferor or transferee has no alternative but to use such ‘prescribed manner’ in order to make the disposition or dealing valid under the Act . . .”see (1974) 1 All N.L.R. Pages 567-568.
P.8
In other words, this court took the view in Jammal Engineering (Supra) that the word “may” in section 14 of Cap. 181 must, indeed, be read as “shall”. The position then is this: that the deed of lease dated 29th August, 1962, not having been made in compliance with section 14, Cap. 181 must, if Jammal’s case is to be followed, be regarded as invalid under the Act for the purpose of transferring to the respondents the legal estate, right or interest in the registered land.
The decision in Owumi (supra) is to the same effect. I would like, however, to observe that in both Jammal Engineering (Supra) and Owumi (supra), the expression used, in regard to such a deed of lease (Le. one which was not made in compliance with the form prescribed in the First Schedule to Cap. 181) is that the deed of lease is “void” and – as was added in Owumi (supra) – “of no effect whatsoever”; in other words, that such a deed is “absolutely void”.
My Lords, I would like to draw attention to the precise wording of the claims in Owumi (supra): they were for:
“(ii) a declaration that the deed dated 24th September, 1969 and made between Chief Modupe Johnson of the one part and the defendants (Le. P. Z & Co. Nigeria Ltd.) of the other part ‘confers no estate on defendant’ in or over ‘the land registered under Title No. L05243;
(ii) An order that the Register kept at the Lands Registry pursuant to the Registration of Titles Act is rectified by deleting there from any entry made to give effect to any estate purported to be vested in the defendants by virtue of the aforesaid deed.”
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.
P.9
Further, I regret that for reasons which I will state later in this judgment I must, respectfully, record my dissent from the view that the deed of lease of a registered land which is not in compliance with Form 4 prescribed in the First Schedule of Cap. 181 is (a) void and (b) of no effect whatsoever.
Learned counsel for the respondents, Mr. J. A. Cole, contends that the decisions of this court in Jammal Engineering (Supra) and Owumi (supra) are not applicable to the facts in this case. The deed in the present case was accepted for registration by the Registrar, who in fact registered the same; that was not the position in Owumi (supra). In the circumstances, such registration must confer legal estate on the respondents; and for this submission, learned counsel relied on sub-section (2) of section 14 of Cap. 181. Owumi’s case (supra) is, therefore, in the opinion of learned counsel for the respondents distinguishable.
Further, learned counsel contends that section 79(1) of Cap. 181 gives the Registrar sufficient discretion in deciding upon which forms he should accept for registration; when, therefore, he accepts and registers a deed although not in strict compliance with the form set out in the First Schedule aforesaid such acceptance and registration must be regarded as conclusive of its sufficiency in point of form. For this proposition, Mr. Cole referred us to the decisions in Morelle v. Wakeling (1955) 1 All E.R. 708; Frazer v. Walker (1967) 1 All E.R. 649; Boyd v. Mayor, and the Corporation of Wellington (1924) N.Z.L.R. 1174.
Chief Williams, on behalf of the appellants seeks to distinguish the case of Morelle v. Wakeling (supra) on two grounds. He contends that
(1) under the Land Registration Rules 1925 (England) on which the case of Morelle (supra) was decided, the Registrar – himself a lawyer – has very wide discretion and
(2) in any case, the parties in Morelle in fact used one of the several forms prescribed by the relevant law (i.e. under the Land Registration Act and Rules 1925) albeit the wrong form; form 19 was used instead of form 35. He drew our attention to the fact that Morelle’s case (supra) has been followed in a recent case of Smith v. Morrison (1974) 1 All E.R. 957. Both cases [i.e. Morelle and Morrison (supra)], however, learned counsel contends, cannot apply to this case now being considered under our own Registration of Titles Act because there is not, under our law, the sufficiently wide discretion conferred on the Registrar of Title under the English Law.
P.10
Further, learned counsel, seeks to impress upon us that because the Registration of Titles Act intends that all persons who have dealings by subsequent registrations with registered land under the law relating thereto should take advantage of all benefits which ensures for the parties who come on the land by first registration the law provides and insists, by so prescribing in several sections therein, that particular or special forms of conveyancing should be employed in dealings relating to registered land.
The form recommended he submits, must be used; a deed poll, not a deed inter partes, is appropriate. Learned counsel, Chief Williams, then referred us to the case of Chelsea and Walham Green Building Society v. Armstrong (1951) 1 Ch. 853 and also the Australian case of Crowley v. Templeton (Registrar of Titles, Victoria) (1914) 17 C.L.R. 459. Finally, Chief Williams submits that this court has in two cases [Jammal Engineering (supra) and Owumi (supra)], which ought to be followed, decided that conveyances in respect of dealings relating to registered land must be in compliance with the forms set out in the First Schedule to Cap. 181; and he does not accept the distinction which Mr. Cole seeks to place on Owumi. According to Chief Williams the instrument involved in that proceeding was accepted for registration by the Registrar who in fact registered the same.
With regard to the question of the use of forms prescribed in the Schedule to Cap. 181 in dealings relating to registered land, it has to be borne in mind that the scheme of the relevant law (i.e. the Registration of Titles Act Cap. 181 aforesaid) is, indeed, to substitute title by registration of title by deed. In the main, the Act seeks to provide an easier mode of transfer by the proprietor of a registered land of his interest or estate therein to another person; and an essential feature of such transfer is simply the alteration of the register in the manner prescribed by the Act.
In seeking to provide an easier mode of transfer the Act introduces the use of special forms; it eliminates the necessity for the use of seals in deeds which are required for such transfers, for it provides that “an instrument which is expressed to be made or to operate as a deed shall be deemed to be a deed and shall operate accordingly but shall not on that account require to be sealed” (section 80 (1) refers); it provides that “covenants for titles may be implied in any such deed by the use of the appropriate words in accordance with the provisions of the Conveyancing and Law of Property Act, 1881”
P.11
(section 80 (2) Cap. 181 refers); it provides also that subject to any stipulation to the contrary between the parties to a deed of transfer of a registered lease “there shall be implied in every transfer of a registered lease a covenant by the transferee with the transferor to pay, perform, and observe the rent, covenants and conditions by and in the registered lease reserved and contained and on the part of the lessee to be paid, performed and observed, and to keep the transferor and his estate and effects indemnified against all suits, expenses and claims on account of non-payment of the said rent or any part thereof, or the breach of any of the said covenants and conditions”
section 29 Cap. 181 refers); it also makes almost similar provisions in respect of covenants in existing registered charges which are being transferred (section 21 Cap. 181 refers). All these are pointers to the fact that the scheme of the Act is, indeed, to provide for easier transfer of interests in registered land.
The Act then goes on to provide in the Schedule Forms which need only reflect
(1) that the land the subject matter of the dealing is registered land,
(2) that the transferor of interest therein is the registered proprietor thereof, and
(3) allows parties to the dealings to add any other covenants they may deem fit save that, although there is no express provision to this effect in the Act, it allows that such other or additional covenants should not be contrary to, or conflict with, the provisions relating to implied covenants under the Act Sections 21 and 29, nor in any other way impede the scheme of the Act]; and
(4) finally, the forms reflect the fact that the transferee (see Form 4) or Charge see Form 5) has applied to be placed on the register as the proprietor of the estate, interest or incumbrance brought about by the dealing.
These then, in the main, are the features and objects, of the forms set out in the schedule; and they have to be borne in mind in the course of this judgment, and more so when considering the effect or consequence of a departure from the “prescribed forms” (i.e. the use of forms not strictly in compliance with the forms set out in the schedule aforesaid) in dealings with registered land.
P.12
It is, therefore, obvious that the format of these special forms aforesaid seeks to eliminate the usually cumbersome, unwieldy and rather verbose instruments of conveyance in use at Common Law. Ideally, the special forms aforesaid ought to be followed as, ex facie, they show clearly that the dealing with which they are concerned relates to registered land and parties adhering strictly to them are less likely to have their instruments rejected for registration under the Act by the Registrar. The questions which naturally arise are:
(i) 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)]?
and if it does,
(ii) will the dealing remain invalid even after the Registrar of Titles (hereinafter referred to simply as “the Registrar”) has not only accepted the same for registration but has in fact registered the dealing under the Act [as decided in Owumi (supra)]
I will proceed to answer these questions anon. 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.J. 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. . .” (Italics by me) – see Barlett v. Gibbs (1843) 5 Man. and G. 81 at 96 also 134 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.
In Jaffar v. Ladipo (1969) 1 All N.L.R. 165 this court observed with respect to the provisions of sub-sections (1) and (2) of section 42 of Cap. 181, at p.172 as follows:
“We agree that section 42 ensures for the benefit of any person whether he be a registered owner or not of interest in registered land but we are satisfied that to come within this sub-section such a person must have dealt with the land ‘in like manner and by like modes of assurance in all respects as if the land were not registered land’.
P.13
This means that the person claiming the type of interest prescribed in any registered land may deal with the same outside the provisions of the Act, viz: by dealing not in compliance with the provisions of the Act; and the proviso to section 42(1) states clearly that such a dealing outside the Act will be capable of being overridden by a dealing within the Act. Section 42(2) then proceeds to give effect to dealings with registered land in conformity with the provisions of the Act and so disqualify expressly such dealings as are capable of being effected in compliance with the Act but have been effected outside the Act. In this connection some comments are apposite. Neither section 28 nor 42 of the Act mentions equitable interests; section 28(2) does not convert the interest of a transferee whose transfer is in the process of registration into an equitable interest. It simply states that until the transfer to him is completed by registration the transferor shall remain the registered owner of the land . . .”
I think it should be pointed out straight away that:
(1) There is, in my respectful view, no “disqualification” express (as stated in the foregoing quotation) or implied in sub-section (2) of section 42 (Cap. 181) of dealings which, although capable of being effected in compliance with the Act, have in fact been effected outside the Act; and (2) although sub-section (2) of section 28 (Cap. 181) does not expressly convert the interest of a transferee whose transfer is in the process of registration (i.e. not registered) into an equitable interest, it nevertheless does not exclude the application of general equitable principles (and, in particular, the doctrine of Walsh v. Lonsdale 21 Ch. D. 9) to such transactions.
Section 3 of Cap. 181 defines the term described” as meaning “prescribed by this Act, or subject to the provisions of this Act, by rules made under this Act, or, subject to the provisions of this Act or any such rules, by the Registrar”.
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.
P.14
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, I will return to this aspect of the question raised in this appeal later in this judgment.
Learned counsel for the appellants has urged upon us that this court being a final court (a court of last recourse) like the House of Lords in England ought, except in very rare circumstances or occasions, to be bound by its own decisions. What is more, he contends that this court should be very wary in overruling its previous decisions on the construction of statutes and he prays in aid of his contentions a host of decisions of the House of Lords in England.
These include, Regina v. National Insurance Commissioners: Ex parte Hudson (1972) A.C. 944; Fitzleet Estates Limited v. Cherry Inspector of Taxes (1977) 1 W.L.R.1345.
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.
P.15
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) All E.R. 77.
I have no doubt that this Court will, and I do, treat this pronouncement of the House of Lords with considerable respect. All the same I share the view of Lord Morris in Convay v. Rimmer that “though precedent is an indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interest of justice and the proper development of the law” [see (1968) 1 All E.R. 874 at 892 D-E]. With particular reference to the recent cases of Jammal (supra) and Owumi (supra), based as they are in part on some of the statements in another recent case of Jaffar v. Ladipo (supra), I see no more justification for perpetuating recent error than for retaining uncorrected; any error in much older decisions of this court.
My Lords, I find myself in perhaps the unhappy position of having to differ from the ratio 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”.
This last phrase is, of course entirely obiter since there is no claim in Owumi for a declaration that the instrument of transfer of interest to Paterson Zochonis which was in issue in that case is “of no effect whatsoever”. I bear in mind, of course, that many Obiter dicta have had the force of ratio decidendi and the weight accorded to dicta vary with quality; after all, the negative proposition for which Rylands v. Fletcher L.R. 3 H.L. 311 at 330 is generally cited as authority was not a necessary part of the decision.
However, since in my very respectful view the statement that an instrument of transfer of interest in registered land, such as was made in favour of Paterson Zochonis and considered in Owumi (supra) “is of no effect whatsoever” is, not only erroneous but, capable of leading to injustice in lower courts where the statement although obiter is very much likely to be treated as binding on them, I deem it necessary to make specific comments on that aspect of the decision in Owumi (supra). While it is true [as stated in Jaffar (supra)] that neither section 28 nor 42 Cap.181 makes any mention of equitable interest, an instrument of transfer of interest in registered land is, primarily, an agreement and in the case of Owumi (supra) it was an effective lease which, at least, must be considered as binding agreement for a lease.
P.16
The effect of not registering such a document would, it seems to me, be that the lessee, if he is already in possession pursuant to the instrument, holds the demised premises not as legal owner of the term but as a person who entered into a binding agreement for a lease. The position of such a person is that he holds the premises just as if a lease has been granted; the landlord has his legal remedy against him, for example, by distress as if a lease has been granted.
This he can do by virtue of the terms and contents of the ineffective instrument of lease; “and he the landlord can only re-enter on such terms as the lease (operating as an agreement) allows. . . and, indeed, it may well be that the position of the lessee until registration (is effected) is simply that he has no marketable title – a defect, however, which he can remedy at any time by (subsequently) applying for registration” – [see Courtis and Rouff on Registered Conveyancing, 1938 Edition p.236 (Italics by me) Again, a lease for more than three years which, by the joint operation of the Statute of Fraud 1677 and the Real Property Act 1845 -sec. 3 (now section 54 of the Law of Property Act 1925), is “void at law unless made by deed” is, however, valid as an agreement for a lease [and is not of no effect whatsoever”] – see Parker v. Taswell 27 L.J. Ch. 812; and if the agreement is made for valuable consideration and the lessee is in possession he (the lessee) can on the doctrine of Walsh v. Lonsdale (supra) ask for a proper or valid lease from the lessor.
I pause to draw attention to the observations of a much respected Judge (Lord Chelmsford) in Parker v. Taswell (supra):
“The Legislature appears to have been very cautious and guarded in language, for it uses the expression ‘shall be void at law’. If the legislature had intended to deprive such a document of all efficacy, it would have said that the instrument [i.e. of a lease for more than 3 years ‘not’ made by a deed] should be void to all intents and purposes (i.e. “absolutely void” or “of no effect whatsoever”).
P.17
There are no such words in the Act. I think it would be too strong to say that because it is void at law as a lease it cannot be used as an agreement for a lease in Equity, the intention of the parties having been that there should be a lease and the aid of the Equity being only invited to carry that intention into effect . . .”
I am quite mindful of the provisions of section 53(1) of Cap. 181 and I also bear in mind the ejusdem generis rule of interpretation. The way I read that section is that a document of transfer of interest in registered land which is void and of no effect whatsoever (i.e. absolutely void) – and among many such documents are a forged document or an instrument vitiated by fraud – can confer no estate whatsoever on a registered owner who comes directly on the land by such a document. The position is, however, different with respect to a third party who takes a subsequent interest bonafide for value and without notice of the fraud or forgery -[see Re Leighton’s Conveyance (1936) 1 All E.R. 667 per Luxmoore, J.; Frazer v. Walker (1967) 1 All E.R. 649 P.e.; and our own section 53(2) of Cap. 181].
Is it, therefore, right to hold as was decided in Jammal (supra) that just because a dealing in respect of interest in registered land (in that case, a transfer of a lease) is not made by a deed poll in strict compliance with Form 4 to the First Schedule to Cap. 181 (i.e. a deed not set out strictly as in Form 4 aforesaid) such a dealing is void?
In my respectful view, I think not. As I stated earlier on, the expression “may in the prescribed manner” in sub-section (1) of section 14 Cap. 181 are directory and not mandatory. 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 partes) 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.
P.18
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.
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 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.
P.19
The position is the same with respect to charges and transfer of charges under registered land by virtue of sub-section (2) of section 28.]
With regard to the view which I expressed on “substantial compliance” with the form set out in the Schedule, I am fortified by the statements of, and opinions expressed by, Griffith, C.J., Isaacs and Gavan Duffy, 11. in the High Court of Australia in Crowley v. Templeton (Registrar of Titles, Victoria) (1914) 17 C.L.R. 457 at pp.464-5, 466-7. Section 99 of the Transfer of Land Act 1890 (Australia) (which enactment governs the Registration of Titles in Victoria, Australia) provides that “the proprietor of any freehold land under the operation of this Act may lease the same for any term exceeding three years by signing a lease thereof in the form in the Ninth Schedule hereto” . A lease for five years in respect of registered land was made but it began with the words:
“This Instrument” and was under seal. It did not show that the lease was in respect of registered land for it did not recite that the lessor was its registered proprietor. It did not refer to any incumbrances on the land. It did not adopt covenants implied under the Transfer of Land Act but contained covenants inconsistent with those implied under the Act. It was held that there was not substantial compliance with the Form in the Ninth Schedule and that the Registrar rightly refused to accept the same for registration. It is, indeed, pertinent to set out some of the relevant observations in the passages in the judgment of the court. Griffith, C. J. at pp.463-5 observes:
“The other question raised is whether the variation in the document sought to be registered from the form in the Ninth Schedule is matter of importance… Section 100 provides that in every lease there shall be implied certain covenants… The form of the instument now sought to be registered is much more like what is a common law conveyance…It does not recite the fact that the lessor as the Registered Proprietor adopts the covenants implied under the Transfer of Land Act 1890 but adopts a different set of covenants of the land.
It does not in the body of it refer to any incumbrances on the land . . . It is under seal. It does not. . . If the matter rested on those objections I should be very much inclined to say that the variation was not matter of substance within section 240 [substitute our section 79 Cap. 181]. But there appears to be other difficulties in the way, one of which, at any rate, is very serious . . . so far as the covenant for re-entry for non-payment of rent is concerned, that in the document is different in substance from that mentioned in the Transfer of Land Act . . .”
And in their joint judgment, Isaacs and Gavan Duffy, J. J.O observed:
“. . . Slavish adherence to form is not demanded.
P.20
Technical and immaterial departures from them do not deprive the dealing of efficacy. Substantial compliance is sufficient. But a document offered for registration must show at least substantial compliance on its face. The Act requires it to be in writing and the writing does not comply with the requirements of the statute unless those it affects or who are to act upon it, including the Registrar of Titles, whose duty, it is to register, can see from the document itself, when fairly read, that it is an Instrument made In pursuance of the Act . . . The first contention for the appellant, namely, that whatever its form a lease is registrable is therefore unsustainable . . .
The question, then is: Does the lease in this case, speaking for itself, appear to be a lease made under the Transfer of Land Act, and substantially in accordance with the form prescribed for such a transaction? In our opinion it does not. All the Schedules to the Act refer to the Act in some way; and in the forms of transfer, whether they be transfers of the fee, or of a lease, mortgage or charge, and in the forms of the original lease, sub-lease, mortgage, charge, sheriffs transfer, made under decree of the court, and Power of Attorney, there is expressly stated the basic fact of a certain person being the registered proprietor of the land or estate or interest to deal with . . .
The lease here in question nowhere contains the least indication that the land is under the Act.
The lessor is called the ‘proprietor’ not the ‘registered proprietor’. The Act is not referred to . . . There is thus a deliberate avoidance, not only of actual mention of the Transfer of Land Act, but also of the method of negativing or modifying covenants as provided in section 137 (our sec. 29 of Cap. 181); and the latter omission in itself appears to be to some extent a negation of the document being one under the Transfer of Land Act. The presence of a seal by both parties in a given case may or may not be material, according to the tenor of the document. A lease may, notwithstanding a seal, appear clearly to be under the Act, and the seal may therefore be superfluous. . .”
I pause, My Lords, to ask you to bear with me while I quote further from the judgment of Isaacs and Gavan Duffy, 11. Since I consider that the portions from which I am about to quote have very material bearing on the submissions which have been urged upon us in this appeal and, in particular, the submission on behalf of the appellants that no question of “substantial compliance” should arise unless the instrument connected with the dealing is ex facie in the form specified in the First Schedule although it has variations or additions. Continuing their judgment, their Lordships (Isaacs and Gavan Duffy, J. J) observe:
P.21
“But in the present case there is strong reason for considering the presence of the seal as showing the lease to be one not under the Act, and this is why we consider section 3 of so much importance. This is a lease for two years, and therefore by section 3 of the Landlord and Tenant Act (the Statute of Frauds) it is required to be in writing. Super-added to this is section 163 of the Real Property Act 1898, (section 3 of) which declares that ‘a lease required by law to be in writing of any land’ shall be ‘void at law unless made by deed’.
Now, the question presents itself, why was this lease made in the form of an indenture (i.e. a deed under seal) notwithstanding the specific declaration in Section 92 of the Transfer of Land Act (see our section 80(1) Cap. 181) that every instrument shall be deemed of the same efficacy as if under seal.
It will be observed that the demise is of furniture as well as of land, and that an undivided rent is stipulated for both land and furniture. Standing by itself, that would not be a determining circumstance, because. . . a furnished house must be premises that can be leased, and the principle that in such a case the rent issues out of the land only would apply . . . But taken in conjunction with the fact of its seal it has that effect. If the rent is to be regarded as attributable to the land alone, the only apparent reason for sealing is to overcome the provisions of section 163 of the Real Property Act, and this would by reason of section 92 (i.e. Transfer of Land Act) be unnecessary if the lease were to be under the Transfer of Land Act.
On the other hand, if to escape this result, the seal is, by a wider meaning given to the word ‘rent’, to be attributed to the covenant to pay the rent so far as it concerns the furniture, it leaves the amount of rent for the land itself undefined [this contravenes the requirements of section 100 of the Transfer of Land Act 1890 (Australia) that rent for the land be defined; see also our section 29 Cap. 181 and this would be a substantial departure from the required form . . .
P.22
All these circumstances ‘taken together’ leave no doubt that the appellant has failed to show that the document relied on is one made under the Transfer of Land Act and substantially in the form prescribed . . .” see 17C.L.R. 468-469;
Before leaving Crowley v. Templeton, I consider it necessary to set out briefly the format of the required Form under the Ninth Schedule to the Transfer of Land Act 1890 (Australia); it reads:
“AB . . . (hereinafter called the lessor) and who is registered as the proprietor of an estate [here state the nature of the estate] in the land hereinafter described subject to the encumbrances notified hereunder Hereby lease to CD . . . (hereinafter called the lessee), all that piece of land being . . . to be held by the lessee for the term of . . . years . . . subject to the covenant and powers implied under the Transfer of Land Act 1890 (unless hereby negatived or modified) and also to the covenants hereinafter contained” (Italics mine)-(see 17 C.L.R. 464 in the judgment of Griffith, C.J.)
I have quoted at length from the judgment in Crowley v. Templeton (supra) in order to show clearly how the issue relating to the use of forms prescribed in enactments relating to Registration of Titles in other legal systems similar to ours and how certain specific provisions therein which are In pari materia to ours now under consideration, have been judicially considered and interpreted. While I concede that the decision in Crowley (supra) is, indeed, merely persuasive, it definitely supports my view on the question of “substantial compliance” with the forms prescribed in Cap. 181 (in this case, Form 4), that a departure from the form set out in the Schedule to the Registration of Titles Act does not ipso facto invalidate the dealing covered by an instrument which has so departed. Slavish adherence to the forms in the Act is not required.
The dealing will be valid if the instrument substantially conforms to the requirements of the Act; and if it does, then it substantially conforms to the said Form.
Undoubtedly, the spirit of the enactment requires that the forms prescribed should be used; and there is less likelihood of non-compliance with the requirements of the Act where the form is used. There is, therefore, dealing in the “prescribed manner” where the form used, although not in strict compliance with the form set out in the First Schedule for that particular dealing, is In substantial compliance therewith; and this is so if it contains all essentials features and requirements under the Act for that particular dealing. Enough has been said earlier on in this judgment to indicate what exactly is meant by substantial compliance.
P.23
This judgment, therefore, is not intended to be taken as imprimature or indiscriminate use of forms in dealings under Cap. 181; the Act expects dealings under the Act to follow the use of forms in the First Schedule with appropriate variations or modifications.
Earlier on, I observed that once the Registrar accepts an instrument offered for registration and actually registers the same his acceptance and registration of that instrument is in my view, conclusive of the sufficiency of that instrument in point of form. This is additional reason for my inability to share the views expressed in Owumi (supra) where, contrary to the headnote in the report of the case in (1974) 1 All N.L.R. Part (II) at p.107 to the effect that the lessee “failed to register” the instrument of lease in question in that case, there is some indication from the Record of proceedings in that case – admitted in the course of this appeal as Exhibit S. C. (1) – that the deed of transfer to Paterson Zochonis was in fact registered.
Instance, in the face of the provisions in sections 14(2) and 28(2) of Cap. 181 on the view that an instrument of transfer already registered in the Register of Titles by the Registrar can be subsequently challenged as to its sufficiency in point of form would, as stated by Lord Evershed, M.R. in Morelle v. Wakeling(1955) 1 A.E.R. at 724 lead to much difficulty and uncertainty in the administration of the Act. In that case, the Court of Appeal in England, considered the discretionary powers of the Registrar in respect of section 74 of the Land Registration Act 1925, which is in pari materia with section 79(1) of Cap. 181. Following this decision, the learned authors of Routt & Roper on Registered Conveyancing, 3rd Edition, observed as follows at p.444:
“The wide powers of the Chief Land Register to allow departures from the prescribed form is an effective bar to any claim that a particular transfer which has been completed by registration is void or ineffectively merely because it did not comply with the provisions of the Land Registration Rules as to form” (Italics by me)
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.
P.24
I should myself, therefore, overrule the two decisions in Shell Co. Ltd. v. Jammal Engineering Co. Nigeria Ltd. (1974) 1 All N.L.R. and Owumi v. Paterson Zochonis & 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.
FATAI-WILLIAMS, C.J.N. (Presided): I agree with the views and conclusions which have just been expressed by my learned brother Justice Idigbe in this appeal. As a matter of fact, I have had the advantage of reading in draft the judgment just delivered by him, and for the reasons which have been meticulously set out therein, I would agree, not only that the decisions in Shell B.P. etc. v. Jammal Engineering Nigeria Ltd. (1974) 1 All N.L.R. 542 and in Owumi v. Paterson Zochonis and Co. (Nigeria) Ltd. (1974) 1 All N.L.R. (Part 2) 107 be overruled, but also that the plaintiffs/appellants’ claims in the present case be dismissed. The appeal is accordingly dismissed and the judgment of the Federal Court of Appeal in F.C.A./L/189/77 dated the 24th day of May, 1979, dismissing the plaintiffs/appellants’ claims, together with all orders made as to costs should be and is hereby affirmed.
M. BELLO, J.S.C.: I have read in draft the judgment just delivered by my learned brother, Idigbe, J .S. C. and I entirely agree.
A. O. OBASEKI, J.S.C.: My Lords, I have had the advantage of reading in draft, the judgment just delivered by my learned brother ldigbe, J.S.C. who has expansively considered the issues involved in this appeal and the injustice which a contrary decision would of necessity perpetuate. I am in complete agreement that for the reasons he has given, the appeal should be dismissed. It would therefore be merely supererogation for me to furnish or repeat the reasons in my own judgment. I am also in full agreement with the order as to costs made by my learned brothers. The appeal is hereby dismissed.
P.25
K. ESO, J.S.C.: My Lords, I have had the privilege of reading in draft the judgment just read by my learned Brother my Lord ldigbe, J.S.C. I agree entirely with the reasoning and conclusion reached by my learned brother and I have nothing useful to add to the judgment.
I agree with the order made that the appeal be dismissed and it is hereby dismissed and that the decision of the Court of Appeal in Suit F. C.A./L/189/77 dated the 24th day of May, 1979 and the order for costs be affirmed. I also agree with the order as to costs in this Court.
A. N. ANIAGOLU, J.S.C.: I have read in draft the judgment which has just been delivered by my Lord, ldigbe, J .S. C. and I agree so entirely with the reasoning and conclusion that I have nothing whatever to add. I agree that the appeal should be dismissed, and is hereby dismissed; that the judgment of the Federal Court of Appeal in the case be, and is hereby affirmed, and that the respondents be awarded, and are hereby awarded, the costs as decreed in the said judgment.
M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment prepared and delivered by my learned brother, Idigbe, J.S.C. I entirely agree with the judgment, and for the reasons stated therein I would dismiss the appeal. I also agree with the order as to costs as proposed in the judgment.
Appeal dismissed.
P.26
Counsel
Chief F.R.A. Williams SAN (with him Professor A.B.Kasumu SAN and Apampa)…..For Appellant
And
Mr J.A Cole (with him Mr. P. Martins)…..For Respondent