FOUR (4) INTERESTING FACTS ABOUT THE SUPREME COURT’S CONFLICTING DECISIONS IN BENJAMIN V. KALIO (2018) ALL FWLR (PT 920) 1 SC; AND ABDULLAHI & ORS V. ADETUTU (2019) LPELR-47384 (SC).

“We are final not because we are infallible; rather we are infallible because we are final”. Per Chukwudifu Akunne Oputa JSC in Adegoke Motors Ltd v. Dr Babatunde Adesanya & Anor (1989) 3 NWLR (Pt 109) 250 at 274

The cases of BENJAMIN V. KALIO and ABDULLAHI & ORS V. ADETUTU provide a perfect ground for a wonderful reminiscence on the above wise words of the learned Jurist of blessed memory. Both cases addressed the issue of whether or not, an unregistered registrable instrument is admissible in evidence. This issue is borne out of the different provisions of the Registration of Instrument Laws of different States. An instance, is Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999 which was considered in Benjamin v. Kalio. The section provides that, “no instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered”. Similarly, Section 15 of the Land Instruments Registration Law of Lagos State as amended, that was relied on by the Supreme Court in Abdullahi & Ors v. Adetutu equally provides that no instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.

The Supreme Court in Benjamin v. Kalio held that such instrument is admissible in evidence. The Court went further to state that in addition to its admissibility as a proof of payment, a position which has been held earlier in Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt 358) 511 and Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt 401) 225, such instrument can be admitted to prove the existence of an equitable interest in land. This decision was a twist to the precedent earlier laid by the Supreme Court in a plethora of cases on the issue.

About Sixteen (16) months after the decision in Benjamin v. Kalio was reached, the Supreme Court made a further twist when it was presented with the same issue in the case of Abdullahi & Ors v. Adetutu. Therein, the Supreme Court held that the admissibility of such instrument primarily depends on what proof it is sought for. It went further to state that the instrument would be admissible, as a purchase receipt, if it is sought to prove the existence of a transaction between the parties; or, to prove a fact which has been pleaded by one or both parties. The instrument, in both instances doesn’t qualify as an instrument under section 15 of Land Instruments Registration Law of Lagos State. However, such instrument would not be admissible to prove any right, title or interest in land.

A dispassionate but thoughtful review of both cases would disclose some interesting points that would further direct future enquiries into the jurisprudence of the admissibility of unregistered registrable instruments in Nigeria. Those points, I shall hereafter, set out seriatim.

  1. Benjamin v. Kalio was decided by a full court unlike Abdullahi & Ors v. Adetutu.

The decision in Benjamin v. Kalio was reached by a seven (7) man panel of the Supreme Court. A sub issue raised in the matter required a constitutional interpretation. Consequently, the case was heard and decided by a full court. On the other hand, Abdullahi & Ors v. Adetutu was decided by a five (5) man panel of the Supreme Court.

Some legal commentators are of the opinion that this latter decision cannot stand against the earlier decision on the ground that the latter was decided by a five (5) man panel. Other scholars have struggled so hard to distinguish the two cases so as to provide an escape route for lower courts that would be unwillingly to follow this latter precedent. We shall address this issue and others that spring from both cases in a latter publication.

2. The question of the legislative competence of the States Houses of Assembly to make laws on evidential issues was not raised in the latter.

The Supreme Court by its analysis in Benjamin v. Kalio, rendered Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999 ultra vires the legislative powers of the Rivers State House of Assembly. It found out that the said provision would not stand given the extant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); precisely, item 21 of the Exclusive Legislative List which listed Evidence as a matter on the Exclusive Legislative List of powers and sections 4(3) and 5 which conferred an exclusive jurisdiction on the National Assembly over the items on the Exclusive Legislative List. It therefore amounted to an act of legislative trespass into the exclusive legislative terrain of the National Assembly.

For the sake of emphasis, Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999 provides that “no instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered”. This provision unambiguously relates to evidence which is solely governed by the Evidence Act, 2011 being a federal law.

Whereas section 15 of Land Instruments Registration Law of Lagos State which was considered in the latter case of Abdullahi & Ors v. Adetutu has the exact provision as Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999, the legislative competence of the Lagos State House of Assembly was not called to question over the said provision as was done in the earlier case. Neither was recourse made to the case of Benjamin v. Kalio as being probably, the most recent authority at the time, on the matter.

3. Both decisions were reached unanimously in both cases.

That all the members of each panel concurred with the lead judgment in the different cases is not unusual, a fact. However, it is noteworthy in this discourse because of the next point which shall follow immediately.

4. Two of the members of the full court that decided Benjamin v. Kalio were also part of the panel in Abdullahi & Ors v. Adetutu.

 The learned Justices who decided the case of Benajmin v. Kalio are Olukayode Ariwoola JSC, John Inyang Okoro JSC, Amiru Sanusi JSC, Amina Augie JSC, Ejembi Eko JSC, Paul Adamu Galinje JSC and Sidi Dauda Bage JSC. The panel was presided by Olukayode Ariwoola JSC while the lead judgment was delivered by Ejembi Eko JSC. The latter case of Abdullahi & Ors v. Adetutu was decided by the following learned Justices: Olabode Rhodes-Vivour JSC (Presided), Kudirat Motonmori Olatokunbo Kekere-Ekun JSC, Chima Centus Nweze JSC (Lead judgment), Amina Adamu Augie JSC and Paul Adamu Galinje JSC.

Both Amina Augie JSC and Paul Galinje JSC were part of the panel that upheld the admissibility of an unregistered registrable instrument on the ground, inter alia, that Section 20 of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999 runs afoul of the constitutional provisions vesting exclusive jurisdiction on the National Assembly over matters on evidence and admissibility. While concurring with the lead judgment of Ejembi Eko JSC in Benjamin v. Kalio, Paul Galinje JSC stated as follows:

I have had the privilege of reading in draft, the judgment delivered by learned brother, Eko JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has admirably stated the position of the law with respect to exhibit L, an exhibit which learned counsel for the appellants forcefully argued that it is inadmissible. It is plain that the Rivers State House of Assembly is not competent to make laws with respect to evidence which is within the exclusive preserve of the National Assembly. To that extent, section 20 of the Rivers State Law Cap 74 is void to the extent of its inconsistency with the Second Schedule, Part 1, Item 23 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which places evidence in the Exclusive Legislative List.

However, in Abdullahi & Ors v. Adetutu, his Lordship also affirmed the lead judgment of Chima Centus Nweze JSC which rejected the admissibility of an unregistered registrable instrument, thus;

I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Chima Centus Nweze JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has adequately considered and resolved all the issues submitted by the parties in such a way that I have nothing useful to add. For the same reasoning articulated in the lead judgment which I adopt as mine, this appeal shall be and is hereby dismissed.

It is quite curious and thought provoking that his lordship, sixteen (16) months after he had expressly affirmed the admissibility of unregistered registrable instruments, had nothing useful to add when the same question was being decided in the negative.

In concluding this discourse, it is important to state that the judicial system/practice in Nigeria is strongly rooted on precedents. While it is indisputable that the Supreme Court reserves the right to set new precedents, we only hope that such precedents should be set only when the need arises.

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