ADMISSIBILITY OF UNREGISTERED TITLE DOCUMENTS: BENJAMIN V KALIO REMAINS THE LAW
By Elvis E. Asia[i]
Introduction
In its revolutionary decision in Moses Benjamin & 2 Ors v Adokiye Kalio & Anor[1], the Supreme Court put paid to the perennial issue of admissibility of unregistered land documents. The court held that once the document is pleaded and relevant, it is admissible. In doing so, the court overruled decades of authorities on the point on the premise that the various land instruments’ registration laws in the country, which makes registration a condition sine qua non for admissibility, are unconstitutional. The court reasoned that admissibility is governed by the Evidence Act which is a Federal Legislation and therefore any document or evidence admissible under the Evidence Act cannot be made inadmissible under state law.
Ejembi Eko JSC who delivered the lead judgment of the Court, pontificated as follows:
“It is obvious to me, upon a painstaking and dispassionate perusal of Section 20 of the Law, Cap 74 of Rivers State, that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical, that no land instrument, mandatorily registrable, which is not so registered ‘shall not be pleaded or given in evidence in any court as affecting land’. This is clearly an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 20 of the Law Cap. 74 Rivers State, has therefore, rendered inadmissible Exhibit L, a piece of evidence that is relevant and admissible under the Evidence Act… … … … In my judgement; a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act, cannot be rendered unpleadable and inadmissible in evidence, by a law enacted by a State House of Assembly under the Prevailing constitutional dispensation.”
The salutary effect of the above decision is unquantifiable. The decision is perhaps the best thing that has ever happened to proof of title to land in this country in over a century. In an educative exposition on the case, Gbenga Bello captured this succinctly when he wrote[2]:
“This decision brings an encouraging comfort to purchasers of land or property who are yet to register their title, to use Conveyances to prove their title in court, and thereby doing away with technical objections to admissibility of such instruments. This decision lends support to commercial pursuit, as it will encourage transfer of property with relative ease, so that a purchaser who is yet to register his title will, nonetheless, be able to prove his title by evidencing the sale and conveyance without technical objections. This, in the writer’s view, is a move towards achieving justice over technicalities, in our courts”
It must however be pointed out that admissibility is one thing but the value and weight to be attached to the document is another. An unregistered document, though now admissible, can only establish equitable title.
Attempt to reinstate the old order
In what is becoming a problem for judicial administration in this country and a challenge to the settled principle of judicial precedent, the Supreme Court restated the old position of the law in Abdullahi & Ors. vs. Adetutu[3] without consideration of its decision in Benjamin v. Kalio. The court on April 12, 2019 per Nweze JSC held that a registrable instrument tendered to prove title, and not merely as receipt or payment for land, is inadmissible in evidence and concluded that the document in issue was inadmissible. The court concluded thus:
“What is more, the said Exhibit D8 was a registrable instrument by virtue of the provision of Section 15 of the Instruments Registration Law of Lagos State, as amended. However, by the non-registration thereof, Exhibit D8 has been rendered rather inadmissible… (Italics supplied for emphasis) From their pleadings and oral evidence, it is not in doubt that the said exhibit, (that is, Exhibit D8), was pleaded and sought to be tendered in evidence for the purpose of proving or establishing title to the land or interest in the land in dispute. The lower Courts were, therefore, right in their positions that it was inadmissible by virtue of its non-registration, being a registrable instrument, Akintola v. Solano (supra); Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo (supra), Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd. v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra); Umoffia v. Ndem (supra).”
Benjamin v Kalio remains the law
Since the decision of the Supreme Court in Abdullahi v. Adetutu, many commentators have opined that the court has overruled Benjamin v. Kalio or that there are now conflicting decisions of the Supreme Court on the issue. The comments have been so deafening that in the past one week, no day has gone by without seeing an article or a broadcast on lawyers’ social media platforms on the issue.
It is submitted that the view that Benjamin v kalio has been overruled is absolutely incorrect. There is also no conflicting decision of the Supreme Court on the issue of constitutionality of Land Instruments Registration laws as they relate to evidence. In the first place, Benjamin v Kalio was decided by a full court (a panel of seven justices) of the Supreme Court. The full court sat over the case because of its constitutional and jurisprudential significance. On the other hand, Abdullahi v Adetutu was decided by a penal of five justices and the constitutionality or otherwise of Section 15 of the Instruments Registration Law of Lagos State was not raised by either of the parties.
Secondly, the decision of the court in Benjamin v Kalio was not considered in Abdullahi’s case. By the doctrine of stare decisis, the Supreme Court is bound to adhere to its own previous decisions and can only depart or deviate from them where there is a breach of justice, on ground of public policy; and perpetuation of injustice[4]. Therefore, since Benjamin v Kalio was not even considered in the later case, it is out of place to argue that it has been overruled.
Closely linked to the above is that, the Supreme Court in Abdullahi’s case relied on old authorities of the court which were expressly overruled in Benjamin v Kalio. As already noted, the parties did not refer to Benjamin’s case. This is understandable because the briefs may have been settled before the decision. There is no doubt that the Supreme Court would have decided differently if its earlier decision in Benjamin v Kalio was brought to its attention. It is submitted with trepidation but with the law as a shield that the decision of the Supreme Court in Abdullahi’s case was decided per incuriam.
Though the law is now settled that the Court of Appeal is bound to follow the latest decision of the Supreme Court[5] and cannot refuse to follow it on the ground that it was reached per incuriam[6], this will not be the case if the ratio decidendi of the decisions are different. The Supreme Court considered the constitutionality of Land Instruments Registation Law only in Benjamin’s case. Therefore, when that issue arises in any case, the lower courts are bound to follow the decision and not Abdullahi’s case.
Conclusion
The watershed decision in Benjamin v Kalio is alive and kicking, the darts of Abdullahi’s case notwithstanding. Abdullahi neither overruled Benjamin nor conflicts with it. For Benjamin’s case to be overruled, another full panel of the court must be invited to do so expressly. Such an attempt will not succeed because the decision was founded on sound constitutional premise. Lower courts will have no problem refusing to apply Abdullahi’s case when the issue of constitutionality of the Land Instrument Registration Law is raised[7].
It
must however be pointed out that Abdullahi’s case underscores the need for
adherence and consideration of precedent before the Supreme Court and indeed,
any other court, decides a matter. The current trend of conflicting decisions
brings the administration of justice to ridicule. There is need for investment
in justice administration by the employment of clerks and researchers to assist
judges in keeping pace with case law. There is also the need for intellectual
law reporting. The present practice of reporting all judgments without
consideration of their significance and relevance to existing precedent does
not help the bar and bench[8].
[1] [2018] 15 NWLR [Part 1641] 38, decided on December 15, 2017.
[2] Thisday Newspaper, 28 May 2019. Available online at https://www.pressreader.com/nigeria/thisday/20190528/281818580309025
[3] (2019)LPELR-47384(SC)
[4] See Bronik Motors Ltd & Anor V. Wema Bank, reported in (1983) NSCC P.225, Abdulkarim V. Incar Nigeria Ltd reported in (1992) 7 SCNJ P.366 and VEEPEE INDUSTRIES LIMITED V. COCOA INDUSTRIES LIMITED (2008) LPELR-3461(SC) and SHEMA & ORS v. FRN (2018) LPELR-43723(SC)
[5] See GLAXO SMITHKLINE PLC v. JIYA (2014) LPELR-22902(CA), KOFA & ANOR v. KAITA & ORS (2011) LPELR-8952(CA), KANU v. ASUZU & ANOR (2015) LPELR-24376(CA) and OPENE v. NJC & ORS. (2011) LPELR-4795(CA )
[6] Dalhatu V. Turaki (2003) 15 NWLR Pt. 823 Pg.310 @ 336, Ogunsola v. NICON (1998) 11 NWLR (Pt. 575) 683 @ 692 Ogboru v. Ibori (2007) Vol. 34 WRN 52 at 75 – 76, Songhai Energy Service Ltd. v. Maersk Nig. Ltd. (2001) 14 NWLR (Pt. 732) page 45, Egbe v. Hon. Justice B. Belgore (2004) 8 NWLR (Pt. 875) page 336, FGN v. Oshiomhole (2004) 9 WRN 129; (2004) 3 NWLR (Pt. 860) page 305 and ONYEMAIZU v. OJIAKO & ANOR (2000) LPELR-10373(CA)
[7] The Court of Appeal is already relying on Benjamin’s case. See for example See CHIDI UKACHUKWU VS MR. AMOS OLATOKUNBO KUKOYI & ORS LER [2019] CA/L/854/2008
[8] Taiwo
Kupolati in his refreshing book, “The Art and Practice of Law Reporting”, 2005,
had opined that decisions for reporting should be those that materially modify
existing principles or which settles or materially settles doubtful questions.
He also called for regulation.
[i] Elvis. E. Asia is a Senior Counsel in Nigeria. Mr. Elvis can be contacted at elvis.easia@futurelawjournals.com, 09017163850
