ABSTRACT

The admissibility of evidence is a cardinal point in admitting a document as evidence in court. Admissibility is provided for by the Evidence Act, 2011. However, some State legislatures have also made laws regarding the admissibility of unregistered land instruments and the court have given vent to it as well.

This paper argues against these laws and the correctness of the decisions of court on the point, particularly x-raying the recent cases of Benjamin v. Kailo (2018)15 NWLR (Pt.1641)38 and Alhaji Aminu Jubrillah Abdullahi & Ors v.Mrs. Christiana Iyabo Adetutu (2019)LPELR-47384(SC)

It is also canvassed here that the doctrine of Stare Decisis that allows for the following of precedents of decided case is not to be rigidly followed, but each case must be distinguished according to the facts and the reasons in a judgment. It is argued that it is not correct law to seek to set aside or follow a decided case without considering the reasons of that court in reaching its judgment.

INTRODUCTION

Real Property is one that no man can take lightly. Hence, Land owners take concrete steps to ensure that the property is well protected. But sometimes, for many reasons including the cost of registration, ignorance or even sheer negligence, many fail to register their titles. Registration of title gives the title holder a prima facie equitable validity to the claim he lays, as a result of the priority that registration of land instruments provide for land owners. Thus, many litigant often assert their right to a property vide the evidence of a registered documents, and the courts in so many cases have cemented this practice, following the provisions of many state laws on the inadmissibility of unregistered title documents, causing serious set-backs to not a few litigants.

It is settled law that before a document can be admitted in court as evidence, it must be admissible. Thus once a document is properly pleaded and tendered, it is to be admitted as evidence in court once deemed admissible by the court. In a long line of cases, the admissibility of unregistered title instrument has met with rejections as a result of various state laws on the registration and inadmissibility of land instruments, declaring same not to be admissible in court once it is deemed to be an unregistered documents. You may wish to see the following cases on the point: Akintola v.Solano (1986)2NWLR (Pt.24)5998; Registered Trustees of muslim mission Hospital committee v.Adeagbo (1992)2NWLR (pt.226)690; Etajata v. Ologbo (2007) 16NWLR (pt.1061)554. It was held in these cases that an unregistered instrument for the purpose of proving title is not admissible as evidence. If however tendered as proof that a transaction took place as in the form of a purchase receipt, then it will be admitted.

However, in a unanimous decision of the Supreme Court, a full court, the decisions in the aforementioned line of cases were set aside in the case of Moses Benjamin & 2Ors v. Adeokiye kailo & Anor (2018)15 NWLR (pt.1641)38. In this case, the Supreme court had cause to review Section 20 of the Rivers state Land Instrument law, section 4(3)(5), item 23 of the Exclusive list of the constitution. In the lead judgment led by Justice Eko, JSC, the court held that section 20 of the law was an act of legislative trespass and by the inclusion of evidence on the exclusive list, it is a matter left solely for the National Assembly. Therefore, unregistered documents properly pleaded and tendered can be admitted as evidence in court, as the Evidence Act covers admissibility. The decision relief to land owners who were yet to register their title Instruments, as well as Investors alike.

STARE DECISIS IN ABDULLAHI v. ADETUTU (supra)

The joy that came with this judgment was however short-lived, as in April 2019, the same Supreme Court failed, refused or neglected to consider this decision but gave a decision in line with the old order. This was in the case of Alhaji Aminu Jubrillah Abdullahi & Ors v.Mrs. Christiana Iyabo Adetutu(2019)LPELR-47384(SC);while ruling on it ,the court declared as follows:

“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 registrable instrument depends on the purpose for which it is being sought to be admitted…….an unregistered instrument, sought to be tendered for the purpose of establishing or proving title to land or interest in land, would be inadmissible under section 15 of the Land Instruments Registration Law……..”

The court cited the long line of cases on the point including Umoffia v.Ndem (1973)12 SC, 58; Etajata v. Ologbo (supra) and others. The important question for this discourse is as to whether the said decision has consequently set aside the judgment of the same court in Benjamin v. kailo (supra).The author shall answer in the negative. It is believed strongly that the decision in Abdullahi was reached per incuriam. However, it is the Law that where there are conflicting decisions on a point, the latter in time shall prevail and lower courts must abide by it despite it being reached through want of care.

The doctrine of Stare Decisis is to the effect that decisions of Superior court that are similar in fact with a present case in question must be followed by lower courts. It is worthy of note that the essence of Stare Decisis is hinged also on the ratio decidendi and not just the similarity of facts. Thus, it is necessary that a careful distinguishing of the cases be done before a decision can be reached properly according to the Law.

PER INCURIAM IN ABDULLAHI v. ADETUTU: HOW SO?

When it is said that a decision of the court was reached per incuriam, it suggest that the decision was made with want of care to statutory or constitutional provisions, recent judicial precedents or as to the facts of the case. In Abdullahi v. Adetutu. (supra) the Supreme Court did not consider the recent Judicial precedent of Benjamin V.Kailo (supra) nor gave attention to the vital constitutional backing to which that case was decided. This in itself is a dangerous slip, a decision that considered the earlier decisions of the courts on the point and gave a different decision was not even considered in Abdullahi ’s case but gave its judgment based on the old order. The case of Benjamin v. Kailo was decided by a full panel of the Supreme Court, being one with constitutional flavour.

What was the reason behind the judgment of the court in Benjamin v. Kailo (supra)? The court reviewed the provisions of section 4(3) (5) and item 23 0f the Exclusive list in the second schedule of the constitution. One need not go deep to see that the section of the Constitution gave power to the National Assembly to make laws for the peace, order and good governance of the country on matters on the Exclusive list, and sub-section (5) of section 4 went on to make void any law of a State House of Assembly that is from the Exclusive List, and evidence finds a pride of place on the Exclusive List. The Supreme Court thus went on to finally obey the constitution, and declared void the provision of section 20 of the Rivers State Land Instrument Law.

Sadly, the panel in v. Abdullahi Adetutu (supra) did not consider these facts neither was it even mentioned .It is this disregard for the constitutional provision of Section 4 of the constitution of the Federal Republic of Nigeria and the item 23 of the Exclusive List of same that in the author’s view puts it within the realm of decisions reached Per Incuriam.

EFFECTS OF A DECISION REACHED PER INCURIAM:

It is clear that the decision of the court reached per incuriam stands on its own and the Supreme Court is not bound to follow same. Where a decision is given per incuriam, it does not possess for the Supreme Court any binding effect and the court is entitled to disregard it. See Young v. Bristol Aeroplane Co.Ltd (1944)K.B.718 .In Okonji Ngwo V. Raphael Monye (1970)LPELR SC235/1967,it was held that; when a decision is impugned on the ground that it has been arrived at by the court only because the court has acted in ignorance or concealment of an authority, statutory or otherwise, which is binding on the court, the decision is said to have been given per incuriam and constitutes a special case where the court(that is the supreme court) is not bound to apply the principles of Stare Decisis. The Court also cited the case of Nicholas v.Penny (1950)2 K.B.466, whereat Pg73 Lord Goddard, C.J. said:

“that where material cases or statutory provisions ,which show that a court has decided a case wrongly ,were not brought to its attention, the court is not bound by that decision in a subsequent case”.

CONCLUSION

The decision in Benjamin V. Kailo (supra) in the author’s view was not overruled by the case of Abdullahi v. Adetutu (supra).This is because if that were to be the intention of the court, It would have mentioned the case, reviewed it before reaching its current position. This is as the Benjamin’s case was only recently made and overruled the other cases on the point, making it conflicting with the past precedents. The Supreme Court has a right to overlook its own decision and set it aside, but when it intends to set aside a precedent, it ought to have reviewed the said decision.

Many would equally argue whether the court needs to call in all its precedents before it can set aside its decision? No one would envisage that but when a new precedent is set, the court should review that precedent, especially when it is relatively new and has not birthed many other decisions on the point.

We concede that for the present the law is the case of Abdullahi being the latter in time, but it did not set aside the case of Benjamin v.Kailo (supra) having been reached per incuriam, in direct contravention of the Constitution of the Federal Republic of Nigeria(1999)as amended; particularly Section 4(4)(5) and item 23 of the Exclusive list, at best it kept it in abeyance.

Infact, the case of Abdullahi and the plethora of cases on the same points and all the State laws on land Instruments violates the principle of supremacy of the constitution as enshrined in Section 1(1)(3) of the constitution. The provision reads thus: “This Constitution is supreme and its provisions shall have a binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Subsection 3 provides that; If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

Clearly, the Justices of the Supreme Court are authorities bound by this Constitution and their judicial powers are derived from the Constitution. It therefore means that their decisions must accord due reverence to the Constitution, and where not so respected, that decision is made Per Incuriam, and cannot be said to have overruled a prior conflicting decision. In like manner, the State Legislatures are also authorities bound by this Constitution and ought not to be making laws inconsistent with the Constitution. At any rate, the laws of the various States on the inadmissibility of unregistered Land Instruments are inconsistent with the Constitution and must bow to it. The Court should and ought to give vent strongly to the supremacy of the Constitution at all times. All that a litigant need do is to help the court distinguish the reason given in the case of Benjamin from that of Abdullahi.

As for why this was never challenged until recently, it is argued that it is one of the disadvantages of the doctrine of Stare Decisis, it gives the idea of rigidity to precedent without challenge. It is also hoped that this canvassed position be tried in court and let the Supreme Court have another opportunity to validate and restore the case of Benjamin V. Kailo (supra) as it is preferable with regards to the Law. It is never too late for the right thing to be done; and the Courts must be ready to bring the law on the admissibility of unregistered land instruments to its correct position with the Constitution and the Evidence Act. Teachers of the law must pay attention to the position of the court in the case of Benjamin v.Kailo (supra) and must not become adamant to change but to demand that the supremacy of the Constitution be respected by the court and not see this position as upturning the table on this subject but giving the law better efficacy.

Written by Christian N. Oti, Esq. (chrislaw.co@gmail.com)