Admissibility of Unregistered Title Documents in Nigeria: A Paradigm Shift towards Justice
Moses Benjamin & 2 Ors v Adokiye Kalio & Anor  15 NWLR [Part 1641] 38
This article by Gbenga Bello, examines the position of the law vis a vis proof of ownership of landed property with unregistered documents of title, before the advent of Supreme Court’s landmark decision in the case of Benjamin v Kalio, which rendered the former position void, on account of it being inconsistent with the Constitutions of the Federal Republic of Nigeria
One of the most prevalent risks associated with the purchase and ownership of landed property in Nigeria, is the risk of a challenge to title to such property by a rival claimant. The bureaucracy and attendant high costs of registration and perfection of title to land in the various land registries located all over the country, usually leaves a purchaser overwhelmed when a rival claimant appears suddenly, with a seeming superior title document to the property. The situation is further aggravated by the fact that, in an ensuing suit over dispute to ownership of landed property, a party seeking a declaration of right to ownership has a steep mountain to climb. Such a claimant has an onerous task of leading credible evidence, to convince the court that he has a better to title to the property and can only rely on the strength of his case, rather than the weakness of
his adversary’s case – See Okelola v Adeleke (2004) LPELR-2438(SC): Pastor J. Akinlolu Akinduro v Alhaji Idris Akaya (2007) LPELR-344(SC).
Although the Supreme Court has in Idundun & Ors. v Okumagba & Ors. (1976) 9-10 SC 227 at Pp. 246-250,
decided that title to land may be established by (1) proof by traditional history (2) by production of document of grant (3) by proving acts of ownership (4) by proving long undisturbed possession (5) proving ownership of adjoining lands, however, proof of title by documentary evidence in modern times has become more pervasive. It is in this context that, the proof of title to land by documentary evidence will be discussed. Proving title to land by Documentary Evidence Prior to Benjamin v Kalio Prior to the decision in Benjamin v Kalio, a party seeking declaration of title to land, was expected to prove title, by tendering admissible title documents. One of the crucial conditions for the admissibility of any document relating to title, was that the title document must have been registered – See Okafor v Soyemi (2001) 2 NWLR (pt.698) 465; Obienu v Okeke (2006) 16 NWLR (pt.1005) 225; Alhaji Abubakar v Abubakar Waziri (2008) NWLR (pt.1108) 507; Nsiegbe v Mgbemena
(2007) 10 NWLR (pt.1042) 364. Proof of title by a Certificate of Occupancy (C of O) is relatively easy, as the C of O itself or the certified true copy (CTC) thereof (in case of loss or destruction of the original), is admissible for the purpose of proving title – See Section 86(1) and 89 (e) of the Evidence Act. For unregistered documents (Deeds of Assignment and other Conveyance) however, the Supreme Court had been consistent that, where a document which purports to vest title in land is a registrable instrument and such instrument is unregistered, the unregistered document is inadmissible for the purpose of proving title to the land - Shittu v Fasawe (2006) All FWR (Pt 946) 671 at 690 -691 C-D: (2005) 14 NWLR (Pt 946) 671; Ogbimi v Niger v (2006) All FWLR (Pt 317) 390 at 400 D-H; Djukpan v Orovuyevbe (1967) I All NLR 134. The jurisprudential basis for the
“....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”
inadmissibility of unregistered documents, is anchored on the fact that, by reason of several Land Instrument (Registration) Laws of various States, no instrument could be pleaded or given in evidence in any court as affecting land, unless the same had been registered - See Section 20 of the Land Instrument (Preparation and Registration) Law, Cap. 74, Laws of Rivers State 1999; Section 15 Land Instrument Registration Law (Cap L58), Laws of Lagos State of Nigeria 2005.
The Supreme Court had, on this basis, rejected admissibility of unregistered documents relating to land until the case of Benjamin v Kalio was recently decided by it. Suffice to say however, that, unregistered title documents may be admitted in evidence for other purposes, other than to prove title. The Supreme Court had held in several cases that, although such unregistered instrument is not admissible to prove title, it is however, admissible to prove payment of money, coupled with possession, to establish an equitable interest in land which may give rise to enforcement by an order of specific performance - See Edokpolo & Co Ltd v Ohenhen (1994) 7 NWLR (Pt. 358) 511; Anyabunsi v Ugwunze (1995) 6 NWLR (Pt. 401) 255; Ogunbambi v Abowaba (1951) 13 WACA 22.
Benjamin v Kalio: The facts In this case, the Appellants instituted an action at the High Court of Rivers State, claiming declaration of title to a piece of land, and averred that the land formed part of a larger parcel of land originally owned by Chief Otopo, the founder of Otopo House of Abuloma town in Rivers State. The Appellants claim was also that the family enjoyed exclusive possession of the land, without any rival claim. The Respondent did not dispute the Appellants’ root of title to the land, but claimed that the disputed land was sold to them by the Appellants’ family, and that by reason of the sale, the Appellants ceased to exercise ownership rights over the disputed land. The Respondents tendered the Deed of Conveyance evidencing the sale transaction, which was admitted as Exhibit ‘L’ by the trial court, upon a finding that the deed of conveyance was properly pleaded and admissible. At the conclusion of trial, the court dismissed the Appellants claim, and granted the Respondent’s counter-claim and also awarded the Respondents damages for trespass. On appeal to the Court of Appeal, the Court of Appeal affirmed the judgement of the trial court, but reduced the award of damages from N1,500,000 to N750,000. The Appellants further appealed, to the Supreme Court.
One of the issues raised at the Supreme Court, was whether Exhibit L, a registrable land Instrument which was not registered in accordance with the provisions of the Rivers State Land Instruments (Preparation and Registration) Law Cap. 74 1999, was admissible in evidence. In view of fact that, the issue touched on the interpretation of the Constitution, the Supreme Court empowered a full panel of Seven Justices of the Court, to consider the issue of the constitutionality of Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law.
The Supreme Court considered the provisions of the Constitution, vis-à-vis the provisions of Section 20 of the Land Instrument Registration Law of Rivers State and Ejembi Eko JSC delivering the leading judgement of the Court, held 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.” Okoro JSC in his concurring judgement, was even more categorical when he held that, to the extent that Section 20 of the Land Instrument (Preparation and Registration) Law Cap 74, Laws of Rivers State, 1999 purports to legislate on the admissibility of a document, which is an exclusive preserve of the Evidence Act, the provision of the Law is void to the extent of its inconsistency with item 23 part 1 of the second schedule to the Constitution 1999, which places evidence on the exclusive legislative list.
The Supreme Court therefore, unanimously rendered the provisions of State laws requiring registration as a pre-condition for pleading and admissibility of documents relating to title, unconstitutional and void for inconsistency with the Constitution.
The effect of this judgement is clear, the first being that, a State law cannot purport to render inadmissible a piece of evidence which is admissible under the Evidence Act (a legislation enacted further to the exclusive legislative list of the National Assembly). By this token, the Supreme Court restated the cascading hierarchy of our laws. It would also appear that, the Apex Court has by implication overruled
its earlier decisions in Shittu v Fasawe (2006) All FWR (Pt 946) 671 at 690 -691 C-D: (2005) 14 NWLR (Pt 946) 671; Ogbimi v Niger v (2006) All FWLR (Pt 317) 390 at 400 D-H; Djukpan v Orovuyevbe
(Supra) which hitherto decided that, an unregistered title document cannot be pleaded and was inadmissible.
Secondly, the relevant provisions of the various Land Instrument (Preparation and Registration) Laws of the various States which states that, unregistered instruments cannot be pleaded and admitted to prove title, are now void for being inconsistent with the Constitution, as such objections to their admissibility for the purpose of proving title to land are no longer tenable in our courts, based on the Supreme Court’s decision in Bejamin v Kalio.
Furthermore, 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.
Gbenga Bello, Legal Practitioner, Partner, Folashade Alli & Associates, Lagos