CASE REVIEW: Whether the Decision In IBRAHIM V. ADETUTU (2019) has dislodged the Principle in BENJAMIN V. KAILO (2017) on Admissibility of Unregistered Registrable Land Instruments in Nigeria By Festus Agbo And Sylvester Udemezue

CASE REVIEW: Whether The Decision In IBRAHIM V. ADETUTU (2019) Has Dislodged The Principle In BENJAMIN V. KAILO (2017) On Admissibility Of Unregistered Registrable Land Instruments In Nigeria

Major Discussants: 

✅ FESTUS O. AGBO ESQ

✅ SYLVESTER UDEMEZUE (udems)

 Cases in Focus:

  • Abdullahi v Adetutu (2019) LPELR-47384 (SC); and
  • Benjamin v Kailo (2018) 15 NWLR (PT. 1641) 38)(SC).
  • FESTUS AGBO:

Good morning, learned colleagues. May we be guided on the position of law on admissibility and effect of unregistered registrable land instrument. A careful reading of Abdullahi v Adetutu shows that no mention was made of the earlier case of  Benjamin v Kalio, and that the thrust of the decision in Abdullahi v Adetutu was the failure of the appellants to prove the authenticity of the unregistered Deed of Conveyance of 1969, the Survey Plan drawn in 1969 but signed and dated in 1986, and the purchase receipts which the court held were made in anticipation of the litigation. To that extent, I will submit that Benjamin v Kalio still stands, (though I have my reservations on the legal and practical application of this case). May I most humbly suggest that we take a position on these cases…. Our students have begun to ask questions as to the correct position of law on this issue following the decision in Abdullahi v Adetutu. A panel of 5 Justices of the Supreme Court decided Abdullahi v Adetutu, my Lord, Rhodes-Vivour, JSC presided and Centus Nweze, JSC delivered the lead judgment.

  • SYLVESTER UDEMEZUE:

Thank you, dear Chief Agbo. The Constitution of the Supreme Court in Abdullahi v. Adetutu 5 justices.  In Benjamin v. Kailo, it was seven. So, it is difficult to instantly declare that an express OVERRULING has occurred because constitution of the court appears relevant in determining whether or not a later case has EXPRESSLY overruled an earlier case, as explained in the case of EFFIONG V. STATE (1995) LPELR1026 (SC). On whether a conflict has occurred, it is clear that the case of Abdullahi v. Adetutu (2019) in effect clearly (albeit impliedly) departed from, contradicted, Benjamin v. Kailo (2017), thereby creating a situation of two judgments of the Supreme Court being patently contradictory/conflicting. The position of the law is that where two judgements of the  (Supreme) Court are clearly contradictory, the later in time must be taken to have impliedly overruled the earlier. The later in time must therefore be chosen over the earlier. The following cases explain further:

In OPENE V NATIONAL JUDICIAL COUNCIL (Suit No: CA/A/324/07 of 03/02/2011), reported in (2011) LPELR-CA/A/324/07, the Court of Appeal held as follows:

“when a court is faced with two conflicting decisions of the supreme court on an issue, it is bound to follow the latest. This is so because the Supreme court has an inherent power to overrule itself. ALHAJI M. C. DAHIRU & 1 OR VS ALH. KAMALE (2005) 9 NWLR (PT.929) 8. …. It is trite that when this court is faced with two conflicting decisions of the supreme court on an issue, it is bound to follow the latest. This is so because the Supreme court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. The case of YUSUF VS UBN was decided after the cases of DENLOYE, GARBA and LAOYE, as such I consider myself bound by that decision. see ALHAJI M. C. DAHIRU & 1 OR VS ALH. KAMALE (2005) 9 NWLR (PT.929) 8.”

In MUJAKPERRUO V AJOBENA (2014) LPELR-23264 (CA),  the court was called upon to determine the position of the law in a situation where a lower Court is faced with conflicting decisions of a superior Court on an issue. It was held as follows:

“Where there are conflicts in the ratio of the decisions of the apex Court as apparent from the two sets of decisions being considered on this issue, it is also settled that the proper procedure is to follow the most recent decisions on the subject matter. See Cardoso v. Daniel (1986) 2 NWLR Pt. 20 Pg. 1 at 38-39; Isaac Obiuweubi v. CBN (2011) 3 SCNJ 166.”Per OGUNWUMIJU, J.C.A (P.31, paras. A-C).  It must however be stressed that, as stated in *Adegoke Motors v. Adesanya* (1989) 3 NWLR (Pt. 109) 250 at 281, for the issue to arise, whether two cases decided by the same court are in conflict with each other, the facts of the two cases alleged to be in conflict must not be totally different from one another, yet the decisions are inconsistent. Finally, I think the only option open to a lower court in cases of genuine conflict between two (higher court) cases which are on all fours is to follow the LATER decision, except where the facts of the two cases are DISTINGUISHABLE. See CHUKWU V. IDOWU [1982] 3 FNLR 346.”

I respectfully submit that the case of ABDULLAHI V. ADETUTU (2019). has departed from BENJAMIN V. KAILO (2017). The two cases are contradictory. ABDULLAHI. V. ADETUTU must therefore be taken to have IMPLIEDLY overruled BENJAMIN V. KAILO. It is only cases of EXPRESS overruling that requires a consideration of the CONSTITUTION OF THE COURT. The issue in the present scenario is not a case of express overruling since Benjamin v. Kailo wasn’t considered in ABDULLAHI v. ADETUTU. In conclusion, I humbly suggest that ABDULLAHI v. ADETUTU is the current law regarding admissibility or otherwise of unregistered registrable land instruments in Nigeria. It is further submitted that where two similar decisions of a court are in conflict, the later in time must be followed. However, a conflict must FIRST be established to exist before this can apply. And the cases must be SIMILAR Or substantially so. Thank you, Chief.  Best regards

  • FESTUS AGBO

Thank you for a job well done. However, I strongly maintain that Abdullahi v Adetutu has not impliedly overruled Benjamin v Kalio. The two cases are distinguishable even though their facts are similar. In Abdullahi v Adetutu, the main reason for rejecting the unregistered Deed of Conveyance was its want of credibility/authenticity/genuineness. Such issue never arose in Benjamin v Kalio, where the parties were agreed that the Gobo Family sold the land in dispute to the respondent, and they executed the unregistered deed. With due respect to the Supreme Court in Abdullahi v Adetutu, it reeled out the cases on inadmissibility of unregistered registrable land instrument without pointedly relating it to the particular facts of that case. Again, neither the parties nor the SC on its on volition adverted to the constitutional implication of section 15 of the repealed Lagos State LIRL considered in that case on admissibility of evidence. So, that point was not decided in the case. There is no good reason for the SC to have overruled itself so soon. See Anagbado v Faruk (2019) 1 NWLR (Pt. 1653) S.C. 292, similar to Benjamin v Kalio. I still suggest that it is prudent that we do not examine students on this issue for now until we have a common position. Abdullahi v Adetutu, for me, is a just decision founded/sustained on a non-existing principle of law by the SC. The decision can stand on another ground: want of authenticity of the unregistered Deed of Conveyance and the accompanying Survey Plan, and failure of the claimant to prove actual possession of the land in dispute. Supposing the appellants had questioned the decision on constitutional grounds, the respondent through a Respondent’s Notice of Contention would still have won.

  • SYLVESTER UDEMEZUE

Dear Chief Agbo, thank you so much for your opinion. But, with due respect, you’ve muddled up the material issues here, and thereby confused a clear resolution thereof. The only aspect of BENJAMIN V. KAILO that we are bothered about here is the declaration by the Supreme Court that PURPOSE for which the document/instrument is tendered was no longer relevant in determining admissibility or otherwise, of an unregistered registrable land instrument. Specifically, the Supreme Court had said in KAILO that whether tendered to PROVE TITLE or to prove existence of a transaction or payment of money, an unregistered registrable land instrument was/is admissible, if pleaded. According to the SC, the state laws that made registration a CONDITION PRECEDENT TO admissibility TO PROVE TITLE was void. According to Benjamin v. Kailo, distinction as to Purpose of tendering was a requirement of State law which itself was made ultra vires, and therefore must be struck down.

Now, respected learned friend, Hammeed Opasola, writing on LPD (Legal Practice Discourse), believes, just as you, that ABDULLAHI V. ADETUTU has not displaced BENJAMIN V. KAILO. Read Mr. Opasola, below.

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“Another view” (By Hammed Opasola Esq) — The cases of *BENJAMIN v. KALIO* and *ABDULAHI v. ADETUTU* are distinguishable. The Supreme Court has not departed. Respectfully Sir!

  • The Supreme Court has not departed from the principle in Benjamin v. Kalio. What form the ratio decidendi of each case depends on the issues raised therein.
  • The issues as to the admissibility of unregistered land instruments raised in the two cases under reference are different. The issue and argument in Benjamin v. Kalio is that evidence is under the exclusive list and can only be legislated upon by the National Assembly. In effect only an Act of the National Assembly can regulate the admissibility of evidence and no other enactment.
  • The provisions under the Land Instruments Registration Law in respect of admissibility and inadmissibility of evidence are ultra-vires and null and void. This issue was not raised or form a ratio in the recent case of ABDULLAHI v. ADETUTU
  • The issue and arguments in the case of *ABDULLAHI v. ADETUTU* as to the admissibility of an unregistered registrable instrument is that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be tendered.
  • The issues/arguments in the two cases are different and the SC based its decisions on the issue and arguments canvassed by the parties. I believe if the arguments in the cases were the same, the Abdullahi’s case would have followed Benjamin. The Supreme Court does not change like weather cock in climatology.”

 

  • SYLVESTER UDEMEZUE

 

Mr OPASOLA’s view had led me to do a detailed analysis of the facts, issues and decisions in ABDULLAHI and KAILO with a view to leaving NO one in doubt that the former is in conflict with the latter. Please see my view, below. And Please, take this opinion of mine (my rejoinder to MR OPASOLA) as a direct riposte to your suggestion that ABDULLAHI is not in conflict with KAILO.

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(In)Admissibility of Unregistered Registrable Instruments to Prove Title to Land in Nigeria — Has Abdullahi v. Adetutu (2019) Not Displaced Benjamin v Kailo (2017)? A Reply to Hammed Opasola

 

By Sylvester C. Udemezue

Dear Hammed Opasola, thank you for your opinion on the Supreme Court decisions in Abdullahi v Adetutu (2019) LPELR-47384 (SC) and Benjamin v Kailo (2018) 15 NWLR (PT. 1641) 38), bothering on admissibility of unregistered land registrable documents to prove title. But please permit me to suggest to you, with due respect, that you completely muddled everything up, and confused the issues and actual legal effects of the judgments in the two judgments of Nigeria’s apex court. I would in this short piece try to address your comments with a view to showing you that the judgment in Abdullahi v Adetutu (2019) is a clear departure from the principle of law established by Benjamin v Kailo (2017). Off I go!

 

  • You wrote that “the issue and argument in Benjamin v. Kalio is that evidence is under the exclusive list and can only be legislated upon by the National Assembly. In effect only an Act of the National Assembly can regulate the admissibility of evidence and no other enactment.” My reply to you on this is as follows: I agree with you that what the Supreme Court said in Benjamin v Kailo was that only the National Assembly has powers to legislate on any matter that falls within the Exclusive Legislative List of the Federation. And that the issue of admissibility of evidence being an issue within the exclusive list, the House of Assembly of a State lacks powers to legislate thereon. Accordingly, said the apex court, section 20 of the Rivers State Land Instruments Law, being a “legislative incursion into a matter covered by Section 4(3) and 5 of the Constitution and Item 23 of the Constitution of the Federal Republic of Nigeria, 1999,” is void for being ultra vires the Rivers State House of Assembly.

 

Dear Mr Opasola, I think the question to ask is as to what exactly is the legal implication of the declaration of the Supreme Court in Benjamin v Kailo. My answer is this: Benjamin v Kailo was on admissibility of an unregistered registrable instrument. The Court had jettisoned the requirement of registration as a precondition for the admissibility of land documents in evidence to prove title. It had held that land documents were/are admissible as proof of title, even if not registered. According to the Supreme Court, section 20 of the Rivers State Land Instruments Law which required that an unregistered registrable land was inadmissible was void for being an act of legislative trespass into the exclusive legislative terrain. The principle of law established in Benjamin v Kailo could be summarized thus: an unregistered Registrable Land Instrument is admissible (if properly pleaded) to PROVE TITLE TO LAND. Please, note that prior to Benjamin v Kailo, the position of the Law was that:

  • An unregistered Registrable Land Instrument was NOT admissible TO PROVE TITLE TO LAND; .and
  • An unregistered Registrable Land Instrument could be admitted but only for purposes of proving existence of a transaction or payment of money.

The decision in Benjamin v. Kailo changed the first point, above– i.e., (a)– but did not tamper with the second — i.e., (b).

  • In respect of Abdullahi v Adetutu (2019), dear learned friend, Mr. Opasola, you wrote that

“the provisions under the Land Instruments Registration Law in respect of admissibility and inadmissibility of evidence are ultra-vires and null and void. This issue was not raised or form a ratio in the recent case of ABDULLAHI v. ADETUTU. The issue and arguments in the case of ABDULLAHI v. ADETUTU as to the admissibility of an unregistered registrable instrument is that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be tendered. The issues/arguments in the two cases are different.”

My Reply on this point is this:

With due respect, Sir, you missed it. The issues in the two cases are not different. In fact, they are similar/the same. Take a look.

  • In Benjamin v. Kailo (2018) 15 NWLR (PT. 1641) 38), the issue for determination was whether a Land Instrument whose registration is made mandatory by a State Law, is inadmissible to PROVE TITLE TO LAND at a time when it is not registered. The Supreme Court answered the question in the affirmative, holding that the State Law (section 20 of Rivers State Land Instruments Law) was a legislative trespass on/to the Exclusive Legislative List which is the exclusive preserve of the National Assembly. According to the supreme court, the Rivers State House of Assembly has no powers to require registration of a land document as a mandatory condition precedent to its admissibility to prove title to land, when there is no Federal Law that approves of such requirement, evidence being a subject within the exclusive legislative competence of the National Assembly. Consequently, concluded the Supreme Court, a Land Instrument whose registration is made mandatory by a State Law (as a condition precedent to admissibility to prove title to land), remains admissible to PROVE TITLE TO LAND even if not registered, because such provision of a State Law is void for being inconsistent with Item 23 of the Exclusive Legislative List in the 1999 Constitution. It is important to recall also that in Benbjamin v Kailo, the Supreme Court had considered and jettisoned its own earlier/previous decisions in Ogbimi v Niger Construction Limited, Ojugbele v Olasoji, Akintola v anor. v Solano, Edokpolo & Co. Ltd v Ohenhen, which had earlier affirmed the provision of the State Land Instruments Laws. The apex court then held (in Benjamin v. Kailo) that an unregistered registrable instrument could now be admitted to prove title to land.
  • In Abdullahi v. Adetutu (2019), the lower courts (both the High Court and the Court of Appeal) had decided that an unregistered registrable Land Instrument (in this case Exhibit D8) was not admissible (even if properly pleaded) to PROVE TITLE TO LAND. It could be admitted but only for purposes of proving existence of a transaction or payment of money. In other words, that a Land Instrument (in this case, Exhibit D8) whose registration is made mandatory by section 15 of the Land Instruments Registration Law, Lagos (state law), as a condition precedent to admissibility to prove title to land, remains inadmissible to PROVE TITLE TO LAND if not so registered, but may be admitted to prove existence of a transaction or payment of money. The major issue for determination at the apex court was, to use the exact words of the court, “whether the lower Court [Court of Appeal] erred when it agreed with the trial Court that the appellants’ document of title, exhibit D8, was inadmissible” to prove title, on grounds of its non-compliance with section 15 of the Land Instruments Registration Law, Lagos.
  • Dear Mr Opasola, Sir, one may want to explain the distinction between the two cases in this way, for a better understanding:
  • Before the Supreme Court decision in Benjamin v Kailo (2017), the position of law had been that “an unregistered instrument is not admissible to prove title. It is admissible to prove payment of money and coupled with possession may give right to an equitable interest enforceable by specific performance.” See Ojugbele v. Olasoji (1982) 4 SC 31; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598, (1986) 4 SC 141, (1986) All NLR 395; Edokpolo v. Ohenhen(1994) 7 NWLR (Pt. 358) 511, (1994) 7 SCNJ 500 referred to] [P. 17, paras. A-B. Now, in 2017, the Supreme Court in Benjamin v Kailo specifically considered all those cases and expressly departed from them —- indeed, jettisoned the aspect that said that "an unregistered instrument is not admissible to prove title.” However, in April 2019, in Abdullahi v. Adetutu (2019) the Supreme Court ignored the decision in BENJAMIN V. KAILO and restored all its judgements (in Ojugbele v. Olasoji (1982) 4 SC 31; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598, (1986) 4 SC 141, (1986) All NLR 395; Edokpolo v. Ohenhen(1994) 7 NWLR (Pt. 358) 511, (1994) 7 SCNJ 500, referred to] [P[P. 17, paras. A-B.), thereby restoring the pre-2017 position.
  • Note that there is one aspect of the Pre-2017 position which the apex Court had left undisturbed in Benjamin v. KAILO (2017); it is that "an unregistered registrable Land document is admissible in evidence to prove (1) existence of a transaction and (2). Payment of money.” This position had always been there, and BENJAMIN V. KAILO didn’t change it. Accordingly, that aspect is not part of (is not relevant to) the present discussion. What the Court did in Benjamin v. KAILO was to change the Pre-2017 principle that said that "an unregistered registrable Land document is not admissible in evidence to prove TITLE to land.” Before Benjamin v Kailo (i.e., before 2017), the purpose for which an unregistered registrable Land document was tendered in court was the MAJOR DETERMINANT of whether or not the document would be admissible in court. (a) If it was tendered to prove TITLE TO LAND, it would NOT be admissible (because the Land Instrument Registration Law places registration as a MADATORY CONDITION PRECEDENT to admissibility of instruments affecting or transferring interests in land. (b) If on the other hand it was tendered to prove EXISTENCE OF A TRANSACTION or PAYMENT OF MONEY, it would be admissible even though not registered. With Benjamin v. Kailo, the purpose of tendering an unregistered registrable land document became irrelevant in determining admissibility. An unregistered registrable document thus became admissible both to prove title and also to prove existence of transactions or payment of money. KAILO thus removed the distinction which had hitherto existed as to PURPOSE/reason for tendering the document.
  • Flowing from (3) (b) above, it is clear that beginning from 2017 and until April 2019, all unregistered registrable instruments became admissible for ALL purposes – to prove title, to prove (existence of) transaction, and to prove payment or transfer of other valuable consideration. However, in April 2019, the Supreme Court in ABDULLAHI V. ADETUTU restored distinction (as to PURPOSE) which KAILO had removed. In other words, ABDULLAHI V. ADETUTU has now returned us to the position of the law Pre-2017, with the result that PURPOSE has once again become relevant in determining ADMISSIBILITY or otherwise of an unregistered registrable land instrument. The current position (as stated in ABDULLAHI V. ADETUTU) is that an unregistered registrable Land document is admissible in evidence to prove (i) existence of a transaction and (ii) payment of money. But it is NOT admissible to prove title to land. That is the point at which ABDULLAHI V. ADETUTU departed from, and thus displaced BENJAMIN V. KAILO.

(4)  Final illustration:

  • See what was Applicable Pre-2017— If Mr Abu tendered an unregistered Deed of Assignment in 2015 to prove his title to BlueAcre (a piece of land), the Deed was inadmissible because it didn’t satisfy the requirements of mandatory registration as a pre-condition for admissibility of the documents, to PROVE TITLE. But if Mr. Abu tendered the unregistered Deed of Assignment in 2015 to prove that he had a pending transaction with the assignor (Mr Sani) or that he had paid some money to Mr Sani, the Deed would be admissible in evidence.
  • See What Applied from 2017 to April 2019 —If Mr Abu tendered a an unregistered Deed of Assignment in October 2018 to prove his title to BlueAcre (a piece of land), the Deed was ADMISSIBLE because it didn’t need to satisfy the Land Instrument Registration Law (LIRL) or land Registration Law (LRL) requirement of mandatory registrations as a pre-condition for admissibility of the Deed, to PROVE TITLE, (because, according to Benjamin v. Kailo (2017), such requirement of the LIRL was a legislative trespass on the powers of the National Assembly as set out in the Exclusive Legislative List. Also, if Mr. Abu tendered the unregistered Deed of Assignment in October 2018 to prove that he had a pending transaction with the assignor (Mr Sani) or that he had paid some money to Mr Sani, the Deed would be admissible in evidence.
  • See What Applied After/post APRIL 2019 —If Mr Abu tendered an unregistered Deed of Assignment in June 2019 to prove his title to BlueAcre (a piece of land), the Deed was NOT admissible because it didn’t satisfy the requirements of mandatory registrations as a pre-condition for admissibility, to PROVE TITLE. But if Mr. Abu tendered the unregistered Deed of Assignment in June 2019 to prove that he had a pending transaction with the assignor (Mr Sani) or that he had paid some money to Mr Sani, the Deed would be admissible in evidence. Abdullahi v. Adetutu (2019) is in direct conflict with Benjamin v. Kailo (2917). While Benjamin v. KAILO had dislodged the Pre-2017 position, Abdullahi v. Adetutu restored the Pre 2017 position.

 (5)   I will now reproduce the exact words used by the Supreme Court in its Judgement in each of the two cases:

  • BENJAMIN V KAILO (2018) AFWLR: The Supreme Court started, on Inadmissibility of unregistered registrable land instrument and when admissible, by declaring that an unregistered instrument is not admissible to prove title. It is admissible to prove payment of money and, coupled with possession, may give right to an equitable interest enforceable by specific performance. [Ojugbele v. Olasoji (1982) 4 SC 31; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598, (1986) 4 SC 141, (1986) All NLR 395; Edokpolo v. Ohenhen (1994) 7 NWLR (Pt. 358) 511, (1994) 7 SCNJ 500 referred to]P. 17[P. 17, paras. A-B], while ruling on the legality of section 20 of the Rivers State Land Instrument Law, the Court proceeded to reverse itself immediately. See paragraph (5) (a) (ii), BELOW. On whether section 20 of Rivers State Land Instrument (Preparation and Registration) Law which bars the pleading and admissibility of unregistered registrable instrument is valid, the court declared (per EKO JSC at pp. 17 – 19, paras. D-C):

“Under the 1979 Constitution, evidence was brought into the Exclusive Legislature List as item 23. It has remained so since then. It is currently item 23 of the Exclusive Legislative List in part 1 in the second schedule of the extant Constitution. Section 4(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), states in clear and unambiguous terms…The undoubted intent of the current Constitution, as amended, from section 4(3) and (5) of the same Constitution, 1999 is that State House of Assembly are precluded and prohibited from enacting any laws on evidence law and/or admissibility of evidence in the proceedings before the law courts in the Federal Republic. The Evidence Act is an Act of the National Assembly or an Act deemed to have been enacted by the National Assembly pursuant to its legislative powers under the Constitution since 1979 to date. It is obvious to me, upon 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 registerable, which is not so registered “shall not be pleaded or given in evidence in any court as affecting any land”. This clearly is 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 of Rivers State has therefore rendered inadmissible exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act. Because, in my firm view, exhibit L is a piece of evidence pleadable and admissible in evidence by virtue of the Evidence Act read together with Item 23 of the Exclusive Legislative List and section 4(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions in pari materia with section 4 (3) and (5) of the 1979 Constitution, it cannot, accordingly, be rendered unpleadable and inadmissible in evidence in any proceedings before any court of law by any law enacted by the State House of Assembly, as the Rivers State House of Assembly had purportedly done by their enactment of section 20 of the law Cap. 74. In my firm view, the argument of the appellant, that section 20 of the Land Instruments (Preparation and Registration) Law, Cap. 74 of the Laws of Rivers State has rendered exhibit L, a land instrument, unpleadable and inadmissible in the proceedings at the trial court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law. Admissibility of exhibit L is governed by Evidence Act; not the Rivers State Land Instrument (Preparation and Registration) Law, Cap. 74. In my judgment, 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 learned trial judge (Mary Peter-Odili, J – as she then was) was therefore right when she stated at page 141 of the records that exhibit was ‘properly pleaded and cannot therefore be said to be inadmissible’.”

  • ABDULLAHI V ADETUTU (2019) — EVIDENCE – On ADMISSIBILITY OF UNREGISTERED REGISTRABLE INSTRUMENT: Position of the law as regards the admissibility of an unregistered registrable instrument.

“The arguments under this issue are almost ubiquitous arguments in land matters. I must note right away, that the admissibility or otherwise of an unregistered registerable instrument depends on the purpose for which it is being sought to be admitted, Akintola v. Solano [1986][1986]R (pt.24) 598; Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo [1992][1992]R (pt. 226) 690; Oredola Okeya Trading Co. v. Attorney General, Kwara State [1992][1992] (pt. 254)412; Co-operative Bank Ltd v. Lawal [2007][2007] (pt.1015)287; Etajata v. Ologbo [2007][2007]LR (pt.1061) 554; Gbiniie v. Odji [2011][2011]R (pt.1236) 103. An unregistered registrable instrument, sought to be tendered for the purpose of proving or establishing title to land or interest in land, would be inadmissible under Section 15 of the Land Instruments Registration Law, 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). Such a document, derided as an “amorphous document,” Umoffia v Ndem [1973][1973] (Reprint) 58, is not receivable in evidence for the purpose of establishing any right, title or interest in land being unregistered, Section 15, Land Instruments Registration Law , Umoffia v Ndem (supra). If it is however tendered to show that there was a transaction between the lessor and the lessee, it will be admissible as a purchase receipt. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded. Under these two conditions, such a document does not qualify as an instrument as defined in the Land Instruments Registration Law, Okafor v. Soyemi [2001][2001]R (pt. 698) 465; Agboola v. United Bank for Africa Plc [2011][2011]LR (pt.1258) 375; Abu v. Kuyabana [2002][2002]R (pt. 758) 599. Other cases include, Akingbade v. Elemosho (1964)1 All NLR 154; Olowolaramo v. Umechukwu [2003][2003]R (pt. 805) 537; Mojekwu v. Mojekwu [1997][1997]R (pt. 512) 283; Tella v. Usman [1997][1997]8; Ole v. Ekede [1991][1991]R (pt. 187) 569; Tewogbade v. Obadina [1994][1994]R (pt. 338) 326. Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting land but only to establish evidence of a transaction between the parties, Obienu v. Okeke [2006][2006]LR (pt. 1005) 225; Monkom v. Odili [2010][2010]R (pt. 1179) 419; Agwunedu v. Onwumere [1994][1994]R (pt.321) 375; Abu v. Kuyabana [2002][2002]R (pt. 758) 599. In effect, when a Court is determining whether or not to admit or reject an unregistered registrable instrument, it has to consider the purpose and the use to which it is being put, Ole v. Ekede [1991][1991]R (pt. 187) 569. In the vocabulary of pleadings, the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title, Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere [1994][1994]R (pt 321] 375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74; Oni v. Arimoro (1973) NMLR 237; Akingbade v. Elemosho (1964) I All NLR 154. The explanation is simple. The filing of pleadings is primarily, to settle issues between the parties, Osuji v. Ekeocha (2009) LPELR – 2816(SC); [2009][2009]LR (pt.1166) 81; Nwokorobia v. Nwogu and Ors (2009) LPELR -2127 (SC); [2009][2009]LR (pt.1150) 553. Thus, if a document is pleaded, it must be for a particular purpose. As such, a document pleaded as transferring interest in land to a party cannot be considered for other purposes not pleaded, Edohoeket v. Inyang [2010][2010]R (pt. 1192) 25; Gbinijie v. Odji [2011][2011](pt.1236)103; Onwumelu v. Duru [1997][1997]LR (pt. 525) 377; Agbodike v. Onyekaba [2001][2001]LR (pt. 722) 576; Commissioner for Lands and Housing Kwara State v. Atanda [2007][2007]R (pt. 1018) Per NWEZE, J.S.C. (Pp. 20-23, Paras. A-C)

On ADMISSIBILITY OF UNREGISTERED REGISTRABLE INSTRUMENT: Whether an unregistered registrable instrument is admissible to prove title to land

“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… [Itali[Italics supplied for emphasis]their pleadings and oral evidence, it is not in doubt that the said exhibit, [that [that is, Exhibit D8]pleaded and soughtto 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).”Per NWEZE, J.S.C. (P. 24, Paras. A-F)

  • I respectfully think it is clear that the case of Abdullahi v Adetutu (2019) is in conflict with Benjamin v Kailo (2017). The question now is,  what are the options open to Nigerian Lawyers and the courts lower than the Supreme Court? The later decision did not make any reference previous decision; yet the later has handed down a ruling that is in clear conflict with the earlier. Besides, Benjamin v Kailo was decided by a full Panel of the Supreme Court (seven justices) while Abdullahi v Adetutu was decided by a panel of five justices. The next section addresses this and other relevant issues. Respectfully, Udems
  • FESTUS AGBO

I muddled no issues at all. I read the two cases carefully. In one sentence, it is my submission that the SC relied heavily on the old position of law on unregistered registrable land instrument without due regard to the peculiar facts of the unregistered deed in Abdullahi v Adetutu; and that the constitutional angle was not one of the points decided in that case. In order words, if the two cases are placed side by side, it will not be difficult to come to the conclusion that the later case was decided in error. It was not just about purpose not being relevant to determining admissibility of unregistered registrable land instrument, the reason behind the decision in Benjamin v Kalio was the conflict between State Law- LIPRL and an Act of the National Assembly-the Evidence Act. It is a constitutional question. And if that point arises for determination in future, the court may most likely follow the decision in Benjamin v Kalio. What we are holding here are opinions. But we should not hold it in vacuum. What questions were the SC called upon to determine in the two cases? Don’t forget that the constitutional question was a sub-issue under the admissibility or otherwise of the unregistered registrable land instrument in Benjamin’s case, and it carried the day. Was there any such question in Abdullahi’s case? No. So, it could not have overruled Benjamin v Kalio.

  • SYLVESTER UDEMEZUE

Permit me, dear Chief, Sir, to point out to you that you have moved us further into greater confusion. I say this with all due respect. Only one issue is up for determination: the admissibility of an unregistered registrable instrument admissible to PROVE TITLE? Benjamin v KAILO held that if it is pleaded, it is admissible for such purpose. It gave its reasons. It held that the only reason such documents were hitherto held inadmissible was because STATE LEGISLATURES made laws to forbid such admissibility. Benjamin v. Kailo then queried the right of state Legislature to legislate on such matters, concluding that such provisions in state laws were ultra vires (for being a trespass upon the powers of the federal legislature) and as such could not stand to PREVENT what the federal legislature did not forbid. it was on account of this LEGISLATIVE TRESPASS theory, alone, that the Kailo case had destroyed a century-old principle of law.

On the other hand, and without referring to KAILO (perhaps because no one drew its attention to Kailo), the same Supreme Court in April 2019 declared that ”unregistered registrable Land instrument is not admissible to prove title” Without any reference to KAILO nor to the reason for the decision in Kailo, the case of ABDULLAHI v. Adetutu proceeded in 2019 to restore what Kailo had displaced.

There is a CLEAR conflict on that ISSUE ALONE. The problem before us now is how to resolve the issue of conflict created by ABDULLAHI which failed to consider KAILO, but nevertheless had gone ahead to restore what KAILO  had cancelled. Abdullahi did not address the reason behind the RESOLUTION reached in KAILO. But that does not detract from the fact that Abdullahi has departed from KAILO. And, if you agree it has departed from it, nothing else matters other than to apply the principal laid down by the Supreme court for resolving such conflicts. I had earlier addressed this: THE LATER DECISION MUST BE PREFERRED FOR THE FORMER, unless the latter could be distinguished on grounds that the two cases are dissimilar.  Further, if you agree  that a similar issue arose for consideration in the two cases and (2) that the two decisions reached different, conflicting resolutions on that one/similar issue, then you  should be willing to accept that the latter has displaced the former, ON THAT PARTICULAR ISSUE ALONE, even if you think the latter was decided per incuriam.  Assuming Abdullahi was decided per incuriam, what is the implication? The effect is that the decision (Abdullahi) remains binding on us all until overruled (expressly or impliedly) by a future decision.

Dear Chief Agbo, Sir, you have introduced two other elements that ought to have been left out of the current discourse, if we must arrive at a quicker resolution. If the later case was decided in error, as you now suggest, are you saying we are entitled to disregard a supreme court decision that has not been overruled, only on grounds that we think (mere thinking) that the decision was reached per incuriam? That is not the law. Respectfully, a decision of a competent court remains binding until set aside or otherwise overruled. So if you agree (as you appear to have, now) that ABDULLAHI v. ADETUTU has departed from BENJAMIN V. KAILO, then you ought to agree also that, whether wrongly or rightly decided, the LATER decision must be preferred to the earlier decision, as far as the precise area of conflict (between the two) is concerned .

At this juncture, please permit me to quickly point out that we are law teachers, not law makers. We may disagree with a decision of a court of law. We may even loathe or abhor it or whatever. But there is one thing we do not have any power to do; we cannot change the law. We have an obligation to uphold the law as it is. It is not within our powers or rights, merely by offering an OPINION, to try to twist the law AS IT IS, in order to suit our view of the law AS IT OUGHT TO BE. On your suggestion that ABDULLAHI made no reference to KAILO neither did the constitutional question of legislative trespass arise for determination in the later case of ABDULLAHI, may I humbly point out to you as is following: to be held to be in conflict with an earlier decision of the same court, a later decision need not contradict or refer to all issues that arose for determination in the earlier case. It is sufficient if the later case conflicted with just one or two material issues in the ratio decidendi of the previous case, in which case the latter would be held to have contradicted only those issues from which it departed, in the previous decisionIt is only to the issues the later case raised and decided upon that we must limit our discussion of the case. That, I submit, with respect, is the law.

Dear Chief, let me give an analogy that would help to make final resolution of this discussion much easier:

In the morning, Mr Abu ordered his daughter (Agnes) to leave the bedroom because the AC system was too cold for her. An hour later, Mrs Alda (Abu’s wife and Agnes’ mother) returned from the market and (quite unaware of the reason behind the husband’s earlier order to Agnes) ordered Agnes to move back into the room, without any reference to the condition of the room.

This, in think, is a perfect analogy about what has happened between ABDULLAHI and KAILO; Take  KAILO’s case as Mr  Abu while Abdullahi’s case represents Mrs Alda. Could anyone validly argue that Mrs Alda’s orders were not in conflict with those of Mr Abu, only because Mrs Alda (1), while issuing her orders, made no reference to Mr. Abu’s earlier order or (2) did not address the reason behind Mr Abu’s earlier orders? I answer in the negative! The mere fact that the case of Abdullahi failed to address the constitutional issue that had arisen in KAILO, does not adversely affect the fact that ABDULLAHI in 2019 restored a legal position which KAILO had in 2017 cancelled. Therein lies the conflict. There overruling that exists in this instance, is not EXPRESS while the conflict is not total; that an IMPLIED overruling and a PARTIAL conflict exist (between the case of Abdullahi and the case of Kailo) is near impossible to rule out.

Accordingly, as far as the question of admissibility or otherwise of an unregistered registrable land instrument for purposes of ESTABLISHING TITLE TO LAND, is concerned, ABDULLAHI v. Adetutu, not Benjamin v. Kailo, is the current position of law. And until that decision in Abdullahi (which in your opinion was made per incuriam) is displaced by another, future decision of the supreme court, it remains the law for what it has decided, and not for what it has not. It may well be that a future panel of the supreme court may (in a later case) prefer BENJAMIN V   KAILO to ABDULLAHI V. ADETUTU, as you have prayed and hoped for, but until then, we are obliged to remain bound by ABDULLAHI V. ADETUTU (the later decision of the same Court). I gave the legal authorities earlier (as to why in situations of conflicting decisions of the same Court, the later decision must have its way and carry the day). One may blame the apex court for going up and down and creating confusion here and there. Indeed, I agree with Professor RACE Achara’s observation last night on LPD (Legal practice Discourse). Hear the learned professor`s frustrations with the attitude of the apex court:

“What’s happening to our judicial system, biko? These flip-flops and Chancellor’s foot incoherence have a rule of law implication, ultimately.”

However, “To whom does one run for rectification of the perceived anomaly (if any exists)?” is the big, material question, especially in view of the admonition handed down by the same supreme court on Friday, 19 May 1989: ”…. We are final not because we are infallible; rather we are infallible because we are final.” (Per Hon. Justice Chukwudifu Akunne Oputa, J.S.C.  (late), of the most blessed and remarkable memory when he delivered the leading judgment (to which Obaseki, Nnamani, Karibi-Whyte and Agbaje, JJSC all agreed)) in the popular case of ADEGOKE MOTORS LTD v. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (pt 109) 250 at 274; (1989) 5 S.C 113 at 129. Please do not forget that it is in the same case (Adegoke Motors v. Adesanya) that the Supreme Court declared thus:

” … I think the only option open to a lower court in cases of genuine conflict between two (higher court) cases which are on all fours is to follow the LATER decision, except where the facts of the two cases are DISTINGUISHABLE.”

See also CHUKWU V. IDOWU [1982][1982]R 346. Does distinguishing apply here. I think not. I stop here, for now. Good night, Chief. Your subject is loyal. Respectfully, UDEMS.

  • FESTUS AGBO

Thank you, learned UDEMS. Your analysis can hardly be faulted. The point I am labouring to make is that laws are applied to facts established before courts to determine points in controversy between parties. If that is true, the two cases under reference are distinguishable. The latter did not determine the constitutional implication of a State Law impugning an Act of the National Assembly. Even if the constitutional question was raised in Abdullahi, the decision of the court would have been same, not on the inadmissibility of unregistered registrable land document as a whole but that particular unregistered deed which the court disbelieved for not being credible. I may agree that there is a partial conflict between the two decisions of the SC. But how far could the conflict go where the two cases are distinguishable? Has anything changed since the decision in Benjamin? Has evidence moved away from Exclusive Legislative List? If I appear before the SC for an appellant and the issue for determination is the admissibility of unregistered deed of conveyance, I will be able to distinguish the two case, and urge the court to follow Benjamin provided that the unregistered deed is worthy of belief by the court. Until the Supreme Court  clears the “partial conflict” created between the cases, we will keep on arguing. This is where I rest my case, and expect no response from me on this matter. Kind regards, sir.

  • SYLVESTER UDEMEZUE (Concluding Remarks)

Since, as the Supreme Court has declared in ABDULLAHI v. ADETUTU, an unregistered registrable land document remains INADMISSIBLE as required by STATE LAWS, such declaration by the Supreme Court is a clear upholding (validation) of the affected provisions of the STATE LAW providing for mandatory registration as a PRE-CONDITION for admissibility to prove title. In his article titled, “Technicalities: requirement of registration as a precondition for the admissibility of land documents in evidence,” (and published here: https://www.google.com/amp/s/mikedugeri.wordpress.com/2018/12/01/technicalities-requirement-of-registration-as-a-precondition-for-the-admissibility-of-land-documents-in-evidence/amp/), Michael Dugeri summarized the decision in BENJAMIN V. KAILO as follows:

“In a unanimous decision delivered by a full panel on 15 December 2017, the Supreme Court in Moses Benjamin &ors.  v Kalio & Kalio jettisoned the requirement of registration as a precondition for the admissibility of land documents in evidence. It held that as far as they are properly pleaded, land documents are admissible as proof of title.”

It is not in doubt that this represents the decision of the Supreme Court in Benjamin v. Kailo. In April 2019, the same Supreme Court in ABDULLAHI V. ADETUTU IMPLIEDLY reversed Benjamin v. Kailo by expressly restoring the mandatory requirements of registration as a precondition for the admissibility of land documents in evidence to prove title. In ABDULLAHI, the Supreme court held that even if such (unregistered registrable) documents are properly pleaded in evidence, such unregistered registrable land documents are INadmissible as proof of title. Dear Chief Agbo, the conflict between ABDULLAHI and KAILO is direct and glaring. There is no doubting it at all. And by the authority and the guide given to us by the Supreme Court itself, the later decision must be preferred to the previous. Finally, I totally disagree with you that the two decisions are distinguishable! I disagree. You completely missed it. With due respect. LOOK AT IT THIS WAY. In BENJAMINV. KAILO, the issue for consideration (before the court) was the validity of SECTION 20 OF THE RIVERS STATE LAND INSTRUMENT LAW, which requires that a land instrument must be registered in order to be admissible to prove title to land. In ABDULLAHI V. ADETUTU, the major issue for consideration was the validity of SECTION 15 OF THE LAND INSTRUMENT REGISTRATION LAW OF LAGOS STATE, as amended. which required that a land instrument must be registered in order to be admissible to prove title to land. How, then, on planet earth did you even arrive at the conclusion that these two cases are not directly in conflict or that the issue arising for determination in both are not substantially similar/the same, or that these two cases are distinguishable from each other? How on earth? With respect, I am shocked you read those cases and still couldn’t see these SHOUTING CONFLICTS, which must be resolved in favour of ABDULLAHIV. ADETUTU. There is no doubt that ABDULLAHI V. ADETUTU is the law now. And, whether we criticize it or attack it or deride it or laugh at it, one thing will not go away: we are entitled. Nay, obliged, to embrace the decision (abdullahi) as the THE CURRENT LAW IN NIGERIA, until such a time as the Supreme Court decides to summersault again and turn its back on ABDULLAHI, if it ever will.

Permit me to now, humbly, respond to your proposition that ABDULLAHI V. ADETUTU was decided per incuriam, do you realize that the position (principle of law) upheld in ABDULLAHI V. ADETUTU is what the law had been in Nigeria hundreds of years before BENJAMIN V. KAILO entered with its confusion, and displacing a long line of cases that our LEGAL forefathers had bequeathed to us. I was expecting you to be happy that the OLD ORDER (which had been, unnecessarily, disrupted by BENJAMIN V. KAILO) had now been restored by Abdullahi v. Adetutu. Chief Agbo, dear Sir, a close look at the two decisions in focus would easily reveal that ABDULLAHI V. ADETUTU is a better law than BENJAMIN V. KAILO because ABDULLAHI is in tune with the standard earlier, already established and running for STAMPING and GOVERNOR’s CONSENT. To call a spade a spade, may I most humbly suggest to, and respectfully invite, you and all to please accept that BENJAMIN V. KAILO was bad law, a disruptor of established smooth order, destabilizer of consistency and dislocator of a reasonable order of things. Since BENJAMIN V. KAILO, I had been imagining exactly why the apex court would wake up one day to completely dislocate an order that had been put in place to safeguard fraud in land transactions and ensure orderliness and uniformity and certainty. The arrival of ABDULLAHI V. KAILO (2019) was therefore a huge relief for law authors, and land registries and all conveyancers who had been thrown into turmoil since BENJAMIN V. KAILO. This is a matter for another day. The important thing is, the PRE-2017 position has now been restored by ABDULLAHI V. ADETUTU. Finally, I plead with you to stop worrying about what the the Supreme Court might or would do in future when called upon to take a look at ABDULLAHI and KAILO. Although you feel that the Supreme would prefer to go with BANJAMIN V. KAILO, I respectfully say to you that it’s not yours to pre-judge or preempt what the minds of the wisemen of the apex court would do when and if they’re faced with a similar legal issues IN THE FUTURE. I suggest we should let the future take care of itself. As Eric Metaxas once said, “no one knows what the future holds, except the One Who holds the future!” You and I know who that One is; God. Finally, you have declared that you won’t reply me again! But I beg you to do, in the best interest of our students and of our own learning, I have learned a lot from conversing with you on these issues. And I can’t wait to have you take it further. However, permit me to say it for the first time, that this matter originally didn’t call for any argument at all  because the CONFLICT between BENJAMIN v. KAILO and ABDULLAHI V. ADETUTU is, to my mind, as glaring and obvious as the PATENT DEFECT we usually tell students about in investigation of title to real property. I thank you immensely for stepping out to offer me the privilege of having an enriching discussion with you. I enjoyed every stage of it while it lasted and would prayerfully look forward to another session in not a too distant time. Thank you, my Chief, Sir. Your subject is loyal, always. Respectfully, Sylvester Udemezue (Udems)

Festus Agbo (08184226560; inoshiogo@ymail.com) and Sylvester Udemezue (08021365545; udemsyl@hotmail.com) are legal practitioners & current Lecturers in the Department of Property Law Practice, Nigerian Law School.

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