PETER OKEREKE v. JUDE UBA & ORS
(2019)LCN/13444(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/OW/155/2017
RATIO
WHETHER THERE MUST BE A STRICT ADHERENCE TO THE PROVISIONS OF SECTIONS 2 AND 15 OF THE LAND INSTRUMENTS LAW OF A STATE IN NIGERIA
In fact, the strict adherence to the requirements of the provisions of Sections 2 and 15 of the Lands Instrument Registration Law of a State in Nigeria has been watered down by the Supreme Court in the case of Anagbado vs. Faruk (2018) LPELR-SC.496/2016, per Eko, J.S.C., wherein His Lordship, Eko, J.S.C., stated thus: ?The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to the Respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna State, 1991 before it would be admissible in evidence. Section 15 of the said Law, Cap, 85, provides: No instruments 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 purport of this law, as argued by the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me. The Law, Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.”PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
PETER OKEREKE
(for himself and on behalf of Okereke Ugwo family of Aro Ujalli Community Okigwe Appellant(s)
AND
1. JUDE UBA
2. DAMIAN OKOLI
3. MRS. GLORIA OKOLI
4. NELSON OVURU
5. MRS. UDOKA KANU Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant and one Boniface Kanu initiated the proceedings at the lower Court against the Respondents and sought for four reliefs against them. They filed and exchanged their pleadings and hearing commenced in earnest. In the course of the proceedings particularly on the 20th March, 2017, and during the evidence-in-chief of P.W.1, learned Counsel for the Plaintiff applied to tender two documents identified by the Appellant as: (1) The Agreement of Purchase of Ukwuagu land on 19/12/1946 and, (2) A document pleaded at paragraph 6 of his Further amended Statement of Claim dated 17/8/1949. The Defendants? Counsel objected to their admissibility which led to the parties’ respective Counsel addressing the trial Court thereon. Then on the 22nd March, 2017, the trial Court delivered its Ruling and rejected the admissibility of the documents by holding that although the said documents were pleaded and are relevant, they failed the third condition for admissibility in evidence being that the document must be one admissible in law for the purpose it is pleaded and
1
tendered. It expressed in the body of the Ruling that for the purpose and the facts they intended to establish, the documents must be shown to be registered instruments. It further held that the law is that a Purchase Receipt relied on to claim title to land, whether under customary law or English transaction, must be registered to be admissible in evidence.
Being distraught at the ruling, the Plaintiff filed a Motion on Notice on 27/3/2017 for the leave of the lower Court to appeal against the said interlocutory decision of the Court delivered on the 22nd March, 2017. The application was heard on the same 27/3/2017 and granted by the trial Court following which the Appellant filed his Notice of Appeal on the 5th April, 2017 which was pivoted on one ground of appeal. The record of appeal was transmitted out of time on the 7th September, 2017. It was regularised on the 14th March, 2018. The Appellant?s Brief and the Respondents? Brief of Argument were respectively filed on 6/6/17 and 5/7/17 and were equally deemed as duly filed and served on the same 14/3/2018 after the regularisation of the record of appeal.
2
The sole issue distilled from the lone ground of appeal is Whether a Purchase Receipt of land must be shown to be a Registrable Instrument duly registered under the Lands Registration Law so as to be admissible in evidence.
In the Appellants Brief of Argument, it was submitted by his Learned Counsel, Dr. E. E. J. Okereke that receipts are relevant and material and ought to have been admitted to show transaction and that if an instrument is not required by law to be registered, it can be admitted in evidence to prove title. He stated that the two receipts are fundamental and central to the case. He referred to the trial Courts remark regarding Section 2 of the Lands Instrument Registration Law which defined the term Instrument and Section 15 of the said Law which provides that such instrument if not registered,, cannot be pleaded or given in evidence. He stated that it is the wording of a document that determines whether it is a registrable instrument under the the law or the purpose for which it is being tendered. Learned Counsel cited the cases of Coker vs. Ogunye (1939) 15 NLR 57; Yaya vs. Mogoga (1947)12 WACA 132;
3
Obijuru vs. Ozims (1985) 4 SC Part 1 page 42; Fakoya vs. St. Paul?s Church Shagamu (1996) 1 All NLR 74; Ogunbambi vs. Abowab (1951) 12 WACA 222 at 225; Nwabuoku vs. Ottih (1959) All NLR 487; Lamidi L. Obawole & anor vs. Olusoji Coker (1994) 6 SCNJ 20; Agwundu vs. Onwumere (1994) 1 SCNJ 106 Ratio 7 and Encyclopedia of Evidence Law and Practice 2nd Edition, 2009 Vol. 1 page 435 (i-j) on Purchase Receipt by Sir T. A. Nwamara, where it had been articulated that a receipt for payment of money for the purchase of land is no more than evidence that there was an agreement for sale and the consideration for such sale has been made by the purchaser. Such a receipt is not an Instrument within the definition of that word in the Land Registration Act. The reason being that a receipt cannot be accepted by any discreet purchaser as a title to property.
He submitted that it is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase price or the rent to the vendor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land
4
which is as good as a legal estate and his equitable interest can only be defeated by a purchaser for value without notice of the prior equity. He restated the principle that a Registrable Instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent. An unregistered registrable instrument can neither be pleaded nor be admissible in evidence in Court but it may however be admitted in evidence for the purpose of establishing the existence of a valid contract. Absence of registration does not affect admissibility of the purchase receipt as evidence of the personal obligations created by the contract for sale of land. He therefore, urged this Court to allow the appeal.
Submitting with respect to the lone issue postulated by the Respondent, i.e. whether the relevant law in determining the admissibility or otherwise of the documents in evidence, which documents unfortunately are not compiled and transmitted with the records of Appeal, is not the Lands Instruments Registration Law Cap 72 of Eastern Nigeria as applicable to Imo State of Nigeria, and if it is, whether the said documents are not
5
pleaded as instruments conferring title to land, but are unregistered registrable instruments, his learned Counsel, I. C. Ubani, Esq., firstly pointed out that the documents complained about were not transmitted to this Court with the record of appeal and as such should be struck out.
It was however submitted that the relevant law in determining the admissibility or otherwise of the two purchase receipts in evidence is the Lands Instrument Registration Law of Imo State of Nigeria because the parties are resident in Okigwe, Imo State within the jurisdiction of the Court and the Ukwagu land the subject matter of the suits is situated in Okigwe, Imo State. He referred to paragraphs 2 and 3 of the Appellant?s Further Amended Statement of Claim where he pleaded that the purchase receipts were issued to his father upon his purchase of the said portions of land. He also referred to Sections 2 and 15 of the said Lands Instruments Registration Law and the cases ofEkpemupolo vs. Edremoda (2014) 52 WRN 120 ratio 2; Agwunedu vs. Onwumere (1994) 1 NWLR Part 321 page 375 or 1994 1 SCNJ 106; Onafowokan vs. Shopitan (2009) ALL FWLR Part 450 page 685;
6
Agbodike vs. Onyekaba (2001) FWLR Part 62 page 1915; Adesanya vs. Aderonmu (2000) FWLR Part 15 page 2492; Salami vs. Osoba (2015) 15 WRN 134 ratio 1 and Adegebo vs. Owokalu (2014) 1WRN 171 at 175 ratio 2 and submitted that the documents were not pleaded and relied on as acknowledgment of receipt of payment of money but as purchase receipts relied on to claim title to the Ukwagu land now in dispute being the sole purpose for which it was pleaded and relied on by the Appellant. It was argued that the effect of an unregistered registrable instrument is that the document is forbidden from admissibility by Section 15 of the said Law. Being inadmissible, it ought not to be expunged except if pleaded as a receipt or a kind of Memorandum evidencing transaction. He stated that the Appellant is being sentimental by urging that the purchase receipts which are unregistered registrable instrument be admitted in evidence and then urged that the appeal be dismissed.
The Appellant pleaded they are owners in possession and that they inherited the lands in dispute through their late father who purchased the said parcels of land from Umuchima Village Urban Okigwe through Okpara Dim
7
sometimes about the 19th December, 1946. Mazi Okereke Ugwu also purchased another parcel of land from Okwara Dim on the 17th August, 1949. He pleaded those who witnessed the purchases. He did not plead that any unregistered Deed of Assignment or Power of Attorney was prepared and signed by the parties. In essence he pleaded purchase of the said pieces of lands customarily which then explained the reasons for highlighting the presence of witnesses thereat. The Appellant obviously pleaded the said documents as providing evidence of purchase of the land. It is immaterial that the Appellant did not indicate whether they covered full payment or part payment of the purchase price because as depicted by the Supreme Court in Ohiaeri vs. Yusuf (2009) 6 NWLR Part 1137 page 207 at 224, per Tabai, J.S.C., where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part-payment of the purchase price to the vendor and in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as
8
a legal estate and cannot, therefore, be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person. By this, a purchase receipt whether evidencing full payment or part payment of the purchase price of the land is admissible in law.
In fact, the strict adherence to the requirements of the provisions of Sections 2 and 15 of the Lands Instrument Registration Law of a State in Nigeria has been watered down by the Supreme Court in the case of Anagbado vs. Faruk (2018) LPELR-SC.496/2016, per Eko, J.S.C., wherein His Lordship, Eko, J.S.C., stated thus: ?The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to the Respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna State, 1991 before it would be admissible in evidence. Section 15 of the said Law, Cap, 85, provides: No instruments 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 purport of this law, as argued by
9
the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me. The Law, Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the
10
provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.”
By the aforementioned recent authority of the Supreme Court, it follows that since the purchase receipts were pleaded and are material, relevant and are admissible under the Evidence Act, an Act passed by the National Assembly pursuant to the powers donated to it under Section 4(5) read with 4(2) of the 1999 Constitution of the Federal Republic of Nigeria and Item 23 of the Executive Legislative List set out in Part 1 of the 2nd Schedule to the Constitution, they cannot be rendered inadmissible by a Law passed by the House of Assembly of a State or a State Legislature that is inconsistent with the Federal Act. ?Further, on the point raised by the Respondents that the said purchase receipts were not compiled and
11
transmitted together with the record of appeal herein, it is instructive to note that by the provisions of Order 8 Rules 13 and 14 of the 2016 Rules of this Court, immediately an appeal becomes pending before this Court, parties are compelled to deliver to this Court all documents (being exhibits in the case or which were tendered as exhibits, admitted or rejected) which are in their custody or were produced or put in by them at the trial. Each party to an appeal shall be prepared to produce at the hearing of the appeal all exhibits other than the documents, which are in his custody or were produced or put in by him at the trial. An interesting aspect of the Rules is that no specific time within which the exhibits ought to have been delivered to this Court was stipulated. In fact, Rule 14 provides that they shall be produced at the hearing of the appeal meaning that even if they were brought or delivered to this Court at the date of hearing of the appeal, they would still be acceptable. In the instant appeal, the Appellant had through his Reply Brief filed on the 7th September, 2017 forwarded or delivered the said rejected exhibits before this Court.
12
In the end and for all the reasons given above, I find this appeal meritorious and hereby allow the same. Accordingly, the ruling delivered by the trial Court on the 22nd March, 2017 rejecting the two Purchase Receipts dated 17/8/1949 and 19/12/1946 pleaded by the Appellant in paragraph 3 his Further Amended Statement of Claim is hereby set aside as the two documents are admissible in law under the Evidence Act. I make no order as to costs.
ITA GEORGE MBABA, J.C.A.: I agree completely with the reasoning and conclusions of my lord, T.N. ORJI-ABADUA JCA, in the lead judgment that the appeal is meritorious.
The law has since developed to curb the injustice entrenched in undue adherence to technicalities of rejecting receipt of payments, documents evidencing purchase of land and/or treating the transaction as if it never existed, simply because of failure to register the document as land instrument. Of course, the document is admissible as evidence of payment or receipt for payment over the land transaction. The basic rule governing admissibility of document is relevance and the fact that it has been pleaded.
13
See Anagbado vs Faruk (2018) LPELR – 44909 SC. Iyua vs Paul & Anor (2019) 47266 CA; Dzawua vs Andza & ors (2019) LPELR – 47619 (CA); Etajata vs Ologbo (2007)16 NWLR (Pt. Ohiaeri vs Yusuf (2009) 6 NWLR (Pt.1137)207; Obi vs Nwagwu (2017) LPELR – 43281 CA.
I too allow the appeal and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
14
Appearances:
Dr. E. E. J. Okereke For Appellant(s)
I.C. Ubani, Esq.For Respondent(s)
Appearances
Dr. E. E. J. OkerekeFor Appellant
AND
I.C. Ubani, Esq.For Respondent
