PHILLIPS V. OGUNDIPE

• Pages: 256-263

256

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

ining on it. We are not satisfied that the learned President of the Grade 'A' Court

properly exercised his discretion in refusing to order a retrial as it is obvious from

the record that no evidence was taken on which it could be safely said that the re-

mark about the insufficiency of the plan could be justified. Counsel for the de-

fendant had urged on us the fact that the plaintiff had had two opportunities of

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litigating the matter and had failed to establish his title to the land and that in those

circumstances we should not order a re-trial. We do not know why the first re- trial

was ordered and we are not convinced that this fact by itself alone is sufficient

to preclude us from ordering a retrial. In similar circumstances the West African

Court of Appeal had ordered a retrial, see

Ate Kwadzo v. Robert Kwasi Adjei

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We have come to the conclusion in this case that we ought to make an order for

a re-trial. The appeal is therefore allowed.

The judgment of the High Court of the Oshogbo Judicial Division in Appeal No.

HOS/14A/64 is hereby set aside as well as all other judgments on which it is based.

It is ordered that the suit be tried,

de novo

before the High Court of Western State,

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the parties being at liberty to file fresh pleadings and produce proper plans if they

be so advised.

Appeal allowed. Retrial in the High

Court ordered.

PHILLIPS V. OGUNDIPE

20

25

HENRY B. PHILLIPS

V

JOSEPH 0. OGUNDIPE

APPELLANT

RESPONDENT

SUIT NO. SC 210/1967

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35

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

COKER,

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J.S.C.

MADARIKAN,

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J.S.C.

24th November, 1967

Legislation - Registration of Titles Act, sections 28, 53 and 61(3)(b) - Land

Registration Act, 1925, ss.33(1)(2), 37.

Land Law - Registration of Titles - Statutory transfer of land without prior

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registration of transferor's title - Transfer ineffective against third party claiming

ownership - Transferee's title as subsequent registered owner being purchaser

for value; whether protected - Rectification of register to delete his name.

ISSUES:

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1.

Whether

a

transfer of land is valid against a third party where the instrument

of transfer is executed when the transferee was not the registered owner of the

land

2.

Whether section 53(2) of the Registration of Titles Act can validate a spurious

transfer.

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FACTS:

The land in dispute was situated in a voluntary registration area. In 1963 cer-

tain persons claiming to be the owners conveyed the land to one Michael Alatishe

(M). He executed a statutory transfer of the land in favour of the defendant (re-