INCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST v. ATTORNEY-GENERAL OF LAGOS STATE & Anor
(2010)LCN/3852(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of June, 2010
CA/L/542/07
RATIO
LAND LAW: STATUTES THAT PROVIDE FOR ONE FORM OF REGISTRATION IN LAGOS
There are three statutes in Lagos State that provide for one form of registration or the other pertaining to land. They are (1) Land Instrument registration law with 1st January, 1925 as commencement date (2) Registration of titles law with 4th April, 1935 as commencement date; and (3) Registered land law with 10th November, 1965 as commencement date. These three laws were the extant laws providing for registration of documents relating to land as at 2004 when the appellant commenced his suit in the High Court of Lagos State.The Land Instrument Registration Law, it is all agreed, is operational state wide. It makes it mandatory in sections 6 and 7 that every instrument executed after the commencement of the law shall be registered. All instruments executed before the commencement of the law but not already registered shall be registered. PER R.C. AGBO, J.C.A.
WORDS AND PHRASES: MEANING OF INSTRUMENT
It defines ‘Instrument’ as a document affecting land in Lagos State whereby one party confers, transfers, limits, charges or extinguishes in favour of another party any right or title to, or interest in land in Lagos State, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will. PER R.C. AGBO, J.C.A.
COURT: WHAT IS THE DUTY OF A COURT OF PLEADINGS
A court of pleadings tries only issues joined in the pleadings. The respondents in their pleadings were completely silent on that pleaded fact. They are therefore deemed to have admitted that fact. That is elementary. PER R.C. AGBO, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADRIZA GANA MSHELIA Justice of The Court of Appeal of Nigeria
Between
INCORPORATED TRUSTEES OF KURAMO DEVELOPMENT TRUST Appellant(s)
AND
1. ATTORNEY-GENERAL OF LAGOS STATE
2. REGISTRAR OF LANDS, LAGOS STATE Respondent(s)
R.C. AGBO, J.C.A.: (Delivering the Leading Judgment) The appellant was the complainant in suit no. LD/490/04 at the High Court of Lagos State in which suit the appellant claimed of the respondents now defendants in the amended statement of claim paragraph 21 as follows:
“21(a) A declaration that the deed of assignment dated 19th December, 2002 made between the Kuramo Development Trust and Mobil Oil Nigeria Plc in respect of a piece or parcel of land comprising of portions of Plots 6, 7 and 8 in Block 1 of Oniru Family Private Layout TPAO 987, Victoria Island Extension, Lagos State, more particularly described and delineated in the survey plan No. LAT/355/LA/98 dated 2nd October, 1998 is registrable under the Lands Instruments Registration Law (Cap.111 Laws of Lagos State of Nigeria 1994) and under no other law;
(b) A declaration that the registration fee inclusive of any late registration charges payable in respect of the aforesaid deed of assignment dated 19th December, 2002 made between the Kuramo Development Trust and Mobil Oil Nigeria Plc is the sum of N40.33 (forty naira and thirty three kobo only);
(c) An order that the sum of N1,047,709.67 (One million and forty seven thousand, seven hundred and nine naira and sixty seven kobo only) or any other sum found by this Honourable court to have been paid by the claimants to Lagos State Government in excess of the appropriate registration fee, inclusive of any late registration charges payable on the aforesaid deed of assignment dated 19th December, 2002 made between the Kuramo Development Trust and Mobil Oil Nigeria Plc be refunded to the claimants by Lagos State Government;
(d) An order directing the 2nd defendant to forthwith accept and register the aforesaid deed of assignment dated 19th December, 2002;
(e) Costs.”
Pleadings were filed and exchanged. The complainant in accordance with the extant rules filed the deposition of one witness. The defendants filed the deposition of one witness. The complainant called his one witness who was cross-examined by the defendants and closed his case. The defendants also called their one witness who was cross-examined by the complainant and thereafter closed their case. The parties exchanged written addresses. In a considered judgment the trial Judge found that the claimant’s case lacked merit and dismissed it. Not satisfied with the judgment the complainant filed this appeal.
The grounds of appeal are as follows:
“(i) The learned trial judge erred in law in holding that the Registered Land Law is applicable to all lands in Lagos State and that it therefore applies to exhibit ‘A’;
(ii) The learned trial judge erred in law in holding that the registration fee payable on exhibit A is N1,048,050.00;
(iii) The learned trial judge erred in law in applying the Registered Land Law, the Land Instrument Registration Law and the Registration of Titles Law of Lagos State, to exhibit ‘A’;
(iv) The decision of the learned trial judge was against the weight of evidence”.
From the four grounds of appeal, the appellant distilled in its Appellant’s Brief of Argument two issues for determination to wit:
“(i) What law governs the registration of the deed of assignment in issue? (based on grounds (i), (iii) and (iv) of the grounds of appeal);
(ii) Whether the sum of N1,047, 750. 00 paid by the appellant is not in excess of all fee it is obliged to pay under applicable law for the registration of the deed of assignment in issue? (Based on ground (ii) of the grounds of appeal)”.
The respondents on the other hand distilled three issues for determination to wit:
“(i) Whether the Registered Land Law is applicable to all lands in Lagos State and that it applies to exhibit ‘A’;
(ii) Whether the Registered Land Law, the Land Instrument Registration Law and the Registration of Titles Law of Lagos State apply to exhibit ‘A’;
(iii) Whether it is right in law for the respondents to demand for registration fee and additional fee under section 50 of Registered Land Law”.
Appellant’s issue No. 1 and the respondents’ issue 1 are virtually the same. Respondents’ issue No. 3 is a subset of issue 1 and can only arise, if it is established that the Registered Land Law of Lagos State applies to the deed of Assignment exhibit ‘A’ otherwise it would be an academic exercise.
There are three statutes in Lagos State that provide for one form of registration or the other pertaining to land. They are (1) Land Instrument registration law with 1st January, 1925 as commencement date (2) Registration of titles law with 4th April, 1935 as commencement date; and (3) Registered land law with 10th November, 1965 as commencement date. These three laws were the extant laws providing for registration of documents relating to land as at 2004 when the appellant commenced his suit in the High Court of Lagos State.The Land Instrument Registration Law, it is all agreed, is operational state wide. It makes it mandatory in sections 6 and 7 that every instrument executed after the commencement of the law shall be registered. All instruments executed before the commencement of the law but not already registered shall be registered.
It defines ‘Instrument’ as a document affecting land in Lagos State whereby one party confers, transfers, limits, charges or extinguishes in favour of another party any right or title to, or interest in land in Lagos State, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.
Section 19 also provides for the filing of judgments made by the local courts pertaining to land.
Section 32 provides that the fees prescribed in the second schedule or such other fees as the state commissioner may by regulation prescribe shall be taken by the officers by or before whom the acts for which the fees payable are done. Regulations are subsidiary legislations. The laws of Lagos State 2004 do not disclose any regulation made by any commissioner pursuant to section 32 of the Land Instrument Registration Law.
The Registration of titles law section 5 provides for the Compulsory Registration of every conveyance of fee simple estate in any land for a consideration which consists wholly or in part of money; every grant of a lease of any land for a term of not less than 40 years; and every assignment of a lease of any land having not less than 40 years to run from the date thereof for a consideration which consists wholly or in part of money, executed after the creation of the registered district in which the land is situated. The punishment for failure to register is draconian.
Section 5(1)(c) provides that every assignment of a lease of any land having not less than 40 years to run from the date for a consideration consisting wholly or in part of money executed after the creation of the registration district in which the land is situated shall on the expiration of two months from the date thereof or of any authorized extension of that period become void. The same sub-section however empowers the registrar to extend the period, upon the payment of a fee to be prescribed for a period of not more than two months. The registrar is also empowered to remit or reduce the amount of the prescribed fee in any case in which he considers it desirable to do so.
Outside the instruments prescribed above that must be registered after the creation of the registration district, sections 6 and 7 of the law permits the registration of virtually all known instruments pertaining to land. Section 6(2) however expressly prohibits the registration after 9th April, 1979 of any instrument purporting to confer a fee simple estate on a grantee.
Section 86(1) exempts from registration under the law any document affecting land which originates an application for first registration and which is executed after the creation of the registration district in which such land is situate and no document affecting registered land executed after first registration shall require to be registered under the Land Instruments Registration Law. No registered owner, being a purchaser for value subsequent to first registration shall be affected by notice of any document under such law. The second schedule to the law set out different fees payable for different transaction including registration. Pursuant to section 2(1) of this law, 20 registration districts were created. District no. 17 was created for all that parcel of land in the Federal Territory of Lagos and known as Victoria Island, Lagos containing an area of 2.2 square miles with the boundaries described. The appellant in its amended statement of claim pleaded in paragraph 15 that the land the subject matter of the deed of assignment was not part of land described in the registration district No. 17.
For the Registered Land Law, the totality of section 1 and section 2 (1, 2 and 3) are of such import as to bear full reproduction.
“1 (1) If it appears to the Governor to be expedient to provide for the adjudication of interests in land or rights in land in Lagos State and for the registration of titles thereto, the Governor may by order declare the whole or any part of Lagos State to be an adjudication area for the purposes of this law; and upon publication of the order in the Lagos State Gazette, this law shall apply to the adjudication area so declared and have effect accordingly.
(2) An order under this section shall define the situation and limits of the adjudication area to which it relates either by means of a plan or by description; and shall provide that the demarcation of parcels and presentation of claims to interests in land or rights in land within the adjudication area may begin at any time after a period to be prescribed.
(3) Where by reason of an order made under this section this law is to apply and lists of titles are prepared for the purposes of an adjudication, no instrument or other document whatsoever shall be registered under the Land Instruments Registration Law or the Registration of Titles Law as the case may be, before the compilation of the register for the appropriate section of the adjudication area, without the consent in writing of a registration officer.
“2 (1) There shall be appointed a fit person to be an adjudication officer for the purposes of this law who shall be an officer of the High Court and shall have power to inquire into and adjudicate upon claims to land and interests or rights in land within the adjudication area for which he was appointed or, subject to the terms of his appointment, for any adjudication area.
(2) An adjudication officer shall, in respect of claims to land within an adjudication area have all the powers of a judge of the High Court, and shall exercise general control over all adjudications.
(3) There shall also be appointed for the purposes of demarcation of parcels and of registration of title to and rights and interests in land subject to this law, fit persons as demarcation officers and registration officers, who shall have the powers conferred upon such officers by this Part of this law”.
Subsequently in part 2 of the law, the law made provisions for the creation of land registration districts and land registers. Sections 21, 22, 26, 27, 28 and 29 bear reproduction:
“21 (1) The City of Lagos shall, until other provision is made under subsection (2), be the land registration district for the purpose of this law; and all land affected by a final adjudication record as well as land duly registered under the Registration of Titles Law shall be included in the land registration district and may be registered accordingly.
(2) The boundaries of the land registration district may at any time by order of the Governor published in the Lagos State Gazette, be amended for the purpose of constituting any new land registration district or of adjusting boundaries of any existing land registration district.
“22 There shall be maintained in every land registration district a Land Registry in which there shall be kept in accordance with the provisions of this law-
(a) a register of land to be known as the register;
(b) a map to be known as the Land Registry map;
(c) parcel files containing the instruments, which support subsisting entries in the register, and any filed plans and documents;
(d) a book in the prescribed form to be known as the presentation book in which shall be recorded all applications numbered consecutively in the order in which they are presented to the Land Registry;
(e) a record to be known as the mutation record;
(f) an index to be known as the Nominal Index in which shall be kept in alphabetical order a record of the names of the proprietors (other than banks, building societies and such corporations as the Registrar may from time to time direct) of land, leases and charges of any description with such information as to the parcels affected;
(g) a register of powers of attorney.”
“26 (1) The Registrar may divide a registration district into parcels of land to be known as sections, and may open registers therefore and for registered leases thereof; and accordingly all land dealt with at the time of an adjudication in respect of a registration section which is included therein (whether or not also included in the adjudication record) shall be entered in the relevant register.
(2) The Registrar shall compile the register in the following manner, that is to say:
(a) if a section or, as the case may be, any lease thereof is registered under the Registration of Titles Law the register shall show all subsisting interests registered under that law;
(b) if a section included in an adjudication record under the provisions of Part 1 of this law is not registered under the Registration of Titles Law:
(i) every person entitled in the adjudication record to ownership shall be registered as proprietor of the parcel recorded in his name therein subject to any limitation, restriction, or incumbrance affecting the parcel of land;
(ii) where no owner has been found, the parcel shall be registered as State land subject to any rights or interest in respect of it shown in the adjudication record; and
(iii) in any other case, the person named in the adjudication record as entitled to the benefit of any rights or interests in any parcel shall, subject to overriding interests under this law affecting the right or interest, be registered accordingly.
“27(1) Where interests are registered under the Registration of Titles Law, and they are included in a register opened under this law, the Registrar shall, as soon as may be thereafter, give notice in writing of the fact to all persons having any such interests.
(2) on the giving of any notice under this section, the Registration of Titles Law shall cease to apply to any such interests.
(3) The holder of a certificate of title, or charge certificate, issued under the Registration of Titles Law shall when so notified, surrender his certificate to the Registrar and, if such holder so requests, he shall receive a certificate under this law in substitution therefore.
“28 Registration of any instrument after land is brought under this law shall, on payment of the prescribed fees, be effected by an entry in the register made in such form as the Registrar may from time to time direct.
“29 If the number or the nature of the entries so require or the Registrar thinks fit, the Registrar may at any time open a new register in substitution for the existing register. The substituted register shall show subsisting entries; and all other entries that have been determined or have ceased to have any effect shall be omitted.
The import of these provisions particularly section 27 is that a register maintained under the Registration of titles law is distinct from a register maintained under the Registered Land Law. It is clear from section 26 that the register under the Registered Land Law deal with land the subject matter of an adjudication proceeding within a duly declared adjudication area. Section 50 of the Registered Land Law which makes provision for punishment for late registration is only relevant to land within the adjudication area properly created under the law. Section 28 makes provisions for registration of instruments after land has been brought under the said law. Land is brought under the said law by the Governor, acting pursuant to section 1 (1) declaring an area an adjudication area and having same published in the Lagos State Gazette. Section 152 of the law makes provision for the payment of fees for the purposes of registration. Such fees are to be prescribed by regulations made under the said law. Laws of Lagos State 2004 disclose no such regulations. Section 166 provides that where by reason of the declaration of an adjudication the law is to apply, the laws mentioned in the schedule that is to say the whole of Land Instrument Registration Law and sections 32 and 34 of the state land law shall cease to apply. It is clear from the above that unless and until the Governor of Lagos State declares the whole or some areas of Lagos State adjudication areas and regulations are made prescribing fees payable for those transactions requiring payment of fees as prescribed, the provisions of the Registered Land Law of Lagos State shall remain inapplicable in any part of Lagos State. The Honourable trial judge clearly misinterpreted the provisions of section 166 of the Registered Lands Law when she held that pursuant to the provisions of this section, the Land Instrument Registration Law has been superceded.
From the provisions of that section she interpreted, Land Instruments Registration Law is only superceded when an area has been declared an adjudication area by the Governor of Lagos State. Amazingly, the judgment was silent as to the want of the regulation as provided for in the said law prescribing fees payable for registration of instruments pursuant to the provision of the said law. She was completely silent on the basis for the assessment of fees made by the Registrar of titles in the instant case.
Now, to answer the question raised by the first issue for determination by both parties and that is, what is the law governing the registration of the Assignment the subject matter of this transaction? It is clear from the analysis above that Registered Land Law is inapplicable in the transaction as the Governor had not, at the time of the transaction, declared the area the property is situate an adjudication area nor had he made a regulation prescribing the fees payable for transactions under the law. The Registered titles law and the Land Instruments Registration law have not been abrogated. There are clear provisions in all of them determining the relationship between them. The appellant as claimant in paragraph 15 of its statement of claim stated clearly that its property the subject matter of the instrument sought to be registered was not within the area covered by Registration Area no. 17 – Victoria Island. The determination of which registration area a portion of land is situate is a matter of fact. The respondents did not join issues with the appellant on this pleading. A court of pleadings tries only issues joined in the pleadings. The respondents in their pleadings were completely silent on that pleaded fact. They are therefore deemed to have admitted that fact. That is elementary. By section 2 the Governor may by order apply the law to any area in Lagos State. Such an area shall be referred to as a registration district. It has not been established that the land the subject matter of the instrument sought to be registered belong to any of the districts set out in the districts contained in the subsidiary legislation Cap R4 Laws of Lagos State 2004. The deed of assignment is therefore not subject to registration under the Registration of Titles law. I must however state that had it been established that the property was at the material time part of any of the registration districts, I would have had no difficulty in holding that the Registration of Titles law was the relevant law for the purposes of the registration of the instrument in question, notwithstanding the fact that the registrar of titles purportedly said his computation of fees was made under the Registered Land Law as reference to the wrong law does not obviate the appellant’s clear responsibility to the State.The appellant’s assignment is clearly not registrable under the Registration of Titles Law.The only law availing to the respondents is the Land Instrument Registration Law.It’s application is state wide and binding on all the parties. Issue 1 is determined in favour of the appellant. Having held the Registered Land Law of Lagos State inapplicable in the instant case, the respondents’ issue 3 cannot stand as section 50 cannot be excised from the Registered Land Law in which it applies and made applicable to land registrable under the Land Instrument Registration Law to which it is certainly inapplicable.
The appellant’s issue 2 challenges the 2nd respondent’s assessment of the payable fee of N1,047,750.00 as being in excess of all fees it is obliged to pay for the registration of the said deed of assignment. I have already concluded above that the proper legislation under which the instrument in question should be registered is the Land Instrument Registration law. Schedule 2 to the said law, provides the scale of fees payable under the said law. The computation of fees demanded of the appellant by the 2nd respondent was not made pursuant to any known regulation. The Registered land law under which the 2nd respondent purportedly acted contains no schedule of fees nor has there been made any regulation prescribing fees payable for transactions under the law. The Registrar of Lands was clearly on a frolic of his own. The computation of payable fees must be made pursuant to the second schedule of the Land Instrument Registration Law. The appellant had paid over to the 2nd respondent the sum of N1,047,750.00 which sum the 2nd respondent assessed as penalty.
The registration fee according to the respondents is yet to be paid. From the foregoing, the respondents are entitled to only such fees as may be computed pursuant to the second schedule to the Land Instrument Registration Law.
The claim of the appellant for the refund of money is founded on paragraph 18 of the amended statement of claim relying on its own calculation based on the second schedule to the Land Instrument Registration Law. The respondents challenged the appellant’s right to the refund of any monies on (1) the principle of waiver (2) the fact that under the different laws including the second schedule to the Land Instrument Registration Law particularly paragraphs 1(b) and 2(b) which they claim purportedly provided that the appellant shall pay as part of his fees 10% of the value of the property the subject matter of the instrument sought to be registered, the computation of payable fees by 2nd respondent was right. In dealing with the issue of waiver, I may very well start by citing a very salient submission by the respondents in their brief of argument. It reads:
“The concept of waiver pre-supposes that the person who is to enjoy the benefit or who has a choice of two benefits is fully aware of his rights in the benefits but he either neglects to exercise his rights to the benefits or where he has a choice of two, he decided to take one or both. See: (1) Ariori v. Elemo (1983) 1 SCNLR; (2) Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250; (3) Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 445 paras. E-F.”
Exactly. In the instant case the benefit sought by the appellant was the registration of his deed of assignment. He was denied that benefit. The fees demanded of him were not benefits. Nobody likes to pay fees. A benefit promotes or advances. It gives an advantage. The payment of any of the fees would have constituted a benefit if the assignment had been registered as it ought to and in addition there was a waiver of a certain portion of the fees demanded. The principle of waiver certainly does not apply in this case. I do agree with Lord Goff in Woolwich Equitable Building Society v. IRC (1993) IAC 70 at 177 that:
“money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right”.
On the issue of the 10% tax on the value of the property the subject matter of the instrument sought to be registered, I must reiterate that the extant law applicable is the Land Instrument Registration Law Cap. L58 Laws of Lagos State 2004 Vol. 4. I have searched the provisions of the said law and the second schedule particularly paragraphs 1(b) and 2(b) of the said schedule and I do not see the provision for 10% tax or fee on the value of the land the subject matter of the assignment.
However, I have looked at paragraph 18 of the amended statement of claim and I find it unsatisfactory. This is because the appellant’s computation did not take into cognizance paragraphs 6, 7 and 8 of the second schedule to the Land Instrument Registration Law. This court will not go into the arithmetic involved as that is not one of its functions.
In the final analysis, this appeal succeeds. The judgment of the High Court of Lagos State on 17th November 2006 is hereby set aside.
In its place, I make the following orders:
(1) it is hereby declared that the deed of assignment dated 19th December, 2002 between the Kuramo Development Trust and Mobil Oil Nigeria Plc in respect of a piece or parcel of land comprising of portions of Plots 6, 7 and 8 in Block 1 of Oniru Private Family Layout TPA0987, Victoria Island Extension, Lagos State, more particularly described and delineated in the survey plan no. LAT/355/LA/98 dated October 1998 is registrable under the Lands Instrument Registration Law, laws of Lagos State 2004.
(2) An order directing the 2nd appellant to accept and register the aforesaid deed of assignment dated 19th December, 2002 after computing the registration fees pursuant to the provision of the 2nd schedule to the Land Instrument Registration Law, laws of Lagos State 2004 and deducting the said fees from the sum of N1,047,709.67 already paid over to the 2nd respondent by the appellant.
(3) To refund to the appellant any money left after deducting the said fees from the money already paid over.
(4) N50,000.00 costs to the appellant.
It is clear from what has happened in this case that, the implementation of the three laws dealing with registration of Land Instruments in Lagos State has created a lot of confusion in the Land Registry. It is in the interest of the state that these three legislations be abrogated and a single legislation made in their stead.
CLARA BATA OGUNBIYI, J.C.A: The appeal at hand as rightly arrived at by my brother Agbo J.C.A has merit. The reasonings and conclusions arrived thereat in the lead judgment are apt. I do not therefore have any further and useful thing to add but adopt the judgment as mine. I too allow the appeal in the like terms of the orders made therein the judgment of my brother, inclusive of costs.
Appearances
O. Ogunleye
T. OluborFor Appellant
AND
Absent.For Respondent
