Ad­mis­si­bil­ity of Un­reg­is­tered Ti­tle Doc­u­ments in Nige­ria: A Par­a­digm Shift to­wards Jus­tice

Moses Ben­jamin & 2 Ors v Adokiye Kalio & Anor [2018] 15 NWLR [Part 1641] 38

THISDAY - - LAWYER -

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

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