By O.G. Ogbom
When the full panel of the Supreme Court in Moses Benjamin & Ors v Kalio & Kalio(2018) 15 NWLR (PT. 1641) 38., on 15/12/2017, jettisoned the requirement of registration as a precondition for the admissibility of land documents in evidence and also held that as far as they are properly pleaded, land documents are admissible as proof of title, one thought that the supreme court has finally laid to rest the act of legislative trespass into the exclusive legislative list by State House of Assembly.
In it’s lead judgment delivered by Eko JSC, the Supreme Court had the opportunity to review the provisions of Section 20 of the Rivers State Land Instruments Law, Sections 4(3), and 5, and Item 23 of the 1999 constitution. It also considered its previous decisions in Repheal Waka Ogbimi V. Niger Construction Ltd. ( 2006) JELR 48068 (SC) Ojugbele v. Olasoji, (1982) 4 S.C. 31; Akintola v. Solano, (1986) 1 All N.L.R. (Part 1) 331, which had earlier affirmed the provision of the Land Instruments Law and held that an unregistered registrable instrument cannot be pleaded.
The Supreme court decided that in view of the inclusion of Evidence in the exclusive legislative list, section 20 of the State law is an act of legislative trespass into the exclusive legislative list and that the law was inconsistent with the constitution. And it came to the finally conclusion that a document that is pleaded and admissible under the Evidence Act cannot be rendered unpleaded and inadmissible by the State law. And so therefore, unregistered land documents are admissible even as proof of title.
As if it was a judgement delivered per incuriam that was never contemplated and without any amendment to the constitution and the Evidence Act, the same Supreme court, not long after the decision in Moses Benjamin v Kalio (supra) was given, again, considered the case of Alhaji Aminu Jubrillah Abdullahi & Ors v Christiana Iyabo Adetutu(2019)LPELR-47384(SC), in a shocking decision, held; that registrable instrument not registered as required by Instruments Registration Laws, will be inadmissible notwithstanding the fact that Evidence is in exclusive legislative list. The Supreme court went further to state that; 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 as it is in Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569. That the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title as was held in Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere (1994)1 NWLR (Pt. 321)375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74. That, 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,
For some legal scholars, the decision in Benjamin v. Kalio, that evidence is under the exclusive list and can only be legislated upon by the National Assembly or that only an Act of the National Assembly can regulate the admissibility of evidence, was not raised or form a ratio in the recent case of Abdullahi v. Adetutu. That the issue and arguments in Abdullahi v Adetutu is that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be tendered.
This argument in my opinion, is neither here nor there. The decision in Benjamin v Kalio is not in doubt, it does not require mathematical calculations. In Kalio (supra) the court held that an unregistered registrable land instrument is admissible in evidence to prove, not only the payment and receipt of the purchase price, but also the equitable interest of the purchaser in the subject land. It went further to state that only the National Assembly has the powers to make laws as to the registration of instruments if interested and not State House of Assembly. It did not create any dichotomy as to purpose or otherwise.
However, the case of Abdullahi V. Adetutu (supra), against the provisions of sections 4(3), and 5, and Item 23 of the 1999 constitution, the Evidence Act, restored the dichotomy as to purposes which Benjamin v Kalio had jettisoned and abolished. In other words, ABDULLAHI’s case has now reaffirmed the position established in the case of Ishola v IBN Ltd (2005) FWLR (pt. 256) 1202 at 1213, para G., where the Supreme Court maintained that the court can only use a document properly admitted before it for the purpose intended by the parties as pleaded. That purpose is usually determined by pleadings. This position as decided in Abdullahi v Adetutu, has again, made purpose relevant in determining admissibility or otherwise of an unregistered registrable instruments.
In considering the admissibility/inadmissibility of documents made inadmissible/admissible by state laws or rules of court, the case of Dunalin Investment Ltd v. BGL Plc & Anor (2016) 18 NWLR (Pt. 1544) 262, is instructive. In that case, the Court of Appeal considered the issue whether documents not frontloaded, as provided by the Lagos High Court Rules, are inadmissible. In resolving this issue, the Court noted that parties to an action are bound to obey and comply with the rules of court. But, it pointed out that it is the Evidence Act, and not the rules of court, that governs the admissibility of evidence. Hence, since there is no provision in the Evidence Act that states that a document which is not front-loaded is inadmissible, the rejection of the pleaded and potentially-vital document because it was not front-loaded was wrongful and would cause a miscarriage of justice. See also Ogboru v. Udiaghan (2011) 17 NWLR.
Flowing from the decision in Dunalin Investment Ltd v. BGL Plc & Anor (2016) 18 NWLR (Pt. 1544) 262, sections 4(3), and 5, and Item 23 of the 1999 constitution, and the Evidence Act, the undoubted clear intent of the case and provisions above is that State House of Assembly or Heads of Court are precluded and prohibited from enacting any laws on Evidence law or admissibility of evidence in proceedings before the law courts in Federal Republic of Nigeria. The Evidence Act is an Act of the National Assembly and cannot be amended thru the backdoor by State House of Assembly as stated by the Supreme Court in Abdullahi v Adetutu.
Finally, there is need to revisit the case to state it in line with the duty on every court, as was held in Shittu v Fashawe (2005) ALL FWLR (Pt. 278)1017, (2005) 14 NWLR (Pt. 946) 671, that in every proceeding, the court’s duty is to admit and act on evidence that is admissible in law under the Evidence Act or any other RELEVANT law VALIDLY enacted.
O.G. Ogbom is a partner at Law Freight Attorneys, Port Harcourt, Rivers State.