3PLR – IDRIS ALAYA V. PASTOR J.A. AKINDURO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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IDRIS ALAYA
V.
PASTOR J.A. AKINDURO
COURT OF APPEAL
(KADUNA DIVISION)
CA/K/181/96
TUESDAY, 24TH FEBRUARY, 1998
3PLR/1998/13 (CA)
OTHER CITATIONS
4 NWLR PART 545 PG. 311
BEFORE THEIR LORDSHIPS:
UMARU ABDULLAHI;
JAMES OGENYI OGEBE;
ATINUKE OMOBONIKE IGE.
REPRESENTATION
MAIN ISSUES
PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Unregistered registrable instrument or document – Admissibility of – Use to which it can be put – Principles governing.
LAND LAW – Instrument affecting land – Non registration of registrable land instrument – Effect of.
Issues:
1 . Whether the trial court was right to have admitted Exhibit 1, the sale agreement, in evidence and relied on same to hold that there was a valid sale of the disputed land to the respondent when the said Exhibit I was not registered as required by law and was therefore inadmissible in law.
- Whether from the totality of the case, the respondent who was claiming a declaration of title succeeded in proving same in accordance with any of the five methods of proving title to land under the law.
Facts:
The respondent sued the appellant at the High Court, Ilorin claiming as follows:
(a) A DECLARATION that the land at Tanke Ilorin sold to the plaintiff by the defendant is at all time his property.
(b) A PERPETUAL INJUNCTION: Restraining the defendant from preventing the plaintiff or any of his agents and workman from enjoying quiet possession of the premises.
(e) SPECIAL AND GENERAL DAMAGES: In the sum of N40,000 for loss sustained by the plaintiff as a result of the defendant’s obstruction of the plaintiff on his land.”
The respondent’s case was that he bought the land in dispute from the appellant as evidenced by Exhibit 1. The appellant denied the sale and maintained that he never sold that particular plot described in Exhibit 1 to the Respondent but another plot of land.
After reviewing the evidence of the parties and taking addresses from Counsel, the trial court cave judgment partly in favour of the respondent by granting him the first and second arms of his claims. The trial court however dismissed the claims for Special and General Damages.
Dissatisfied with the decision, the appellant appealed to the Court of Appeal. In determining the appeal, the Court of Appeal considered the provisions of Section 15 of the Lands Registration Law, Cap 58 Laws of Northern Nigeria, 1963 applicable to Kwara State which provides:
A15, 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″.
MAIN JUDGEMENT
Held:
- Ownership of land may be proved in any of the following five ways:
(a) by traditional evidence;
(b) by production of documents of title which are duly authenticated;
(c) by acts of selling, leasing, renting out all or part of the land, or farming on it or a portion of it;
(d) by acts of long possession and enjoyment of land; and (e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. [Idundun v. Okumagba (1976) 9-10 SC. 227 at 246 referred to].
- Under Section 2 of the Land Registration Law of Northern Nigeria, an instrument of title means a document affecting land in Northern Nigeria, whereby one party called grantor confers, transfer, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in land in Northern Nigeria and includes a Certificate of Purchase and a power of attorney under which any instrument may be executed but does not include a Will. (P. 319, paras.G-H)
- By the combined effect of sections 2 and 15 of the land Registration Law of Northern Nigeria, 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. Where it is not so registered, it shall not be pleaded or given in evidence in any court as it affects any land. In the instant case, Exhibit 1 (the sale agreement) was wrongly pleaded and wrongly admitted in evidence by the trial court as a document conferring title on the respondent. [Oredola Okeya Trading Co. v. A-G Kwara State (1992) 7 NWLR (Pt. 254) 412; Changichangi & Sons Ltd v. N.R. C. Ltd (1996) 5 NWLR (Pt. 446) 46 at 56 referred to].
- An unregistered instrument or document is admissible as evidence of payment under customary law and not as an instrument or conveyance in the English form. In the instant case, Exhibit I is a sale agreement tendered by the respondent to prove that he bought a plot of land from the appellant at Tanke, Ilorin. It will be admissible in evidence as a receipt and not as a Title Deed. [Ogunbambi v. Abowab 13 WACA 222; Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) 757 at 783; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167; Erinosho v. Owokoniran (1965) NMLR 475; Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 415 referred to].
- While generally an instrument affecting land shall not be pleaded or given in evidence unless it is registered, a registrable instrument which has not been registered is admissible to prove an equitable interest and to prove payment of purchase money or rent. [Tella v,. Usman 12 NWLR (Pt. 531) 168;Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) 783 referred to and relied upon].
- 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 money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity.
DISSENTING OPINION OF OGEBE,
- A fresh point cannot be entertained on appeal except under special circumstances and with leave of the Court. Where these conditions are not fulfilled the fresh issue is incompetent and is liable to be struck out. In the instant case, the question of the inadmissibility of exhibit l, the sale agreement for non-registration under the Land Registration Law was never raised in the trial court. The document was attacked on the ground that it was not stamped and did not emanate from proper custody. It follows therefore that the issue of non-registration under the Land Registration Law was raised for the first time in the Court of Appeal and the appellant required leave by virtue of Order 6 3(a) of the Court of Appeal Rules. The appellant’s first issue is therefore incompetent. [Bank of the North Ltd v. Maidamisa (1997) 10 NWLR (Pt. 525) 404 referred to].
- OGEBE,
“Both sides are agreed that the appellant sold a piece of land to the appellant through a 3rd party who measured out the plots to numerous buyers. Exhibit I is a sale agreement which the parties signed. The respondent was shown the plot in dispute which he started developing before the appellant told him to leave it for another plot because he was given the wrong plot which he did not intend to sell. What is the effect of Exhibit 1?
In the case of Dr. Joseph Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (Pt. 4) 783 (1985) 6 Sc.3, Bello J.S.C. (as he then was) put the legal position thus:-
AIt 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 money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent; Savage v. Sarrough (1973)13NLR 141, Ogumbambi v. Abowab (1951) 13 WACA 222, Fakoya v. St. Paul’s Church Shagamu (1966) 1 All NLR 74, Oni v. Arimoro (1973) 3 Sc. 163, Bucknor Macleen v. Inlaks (1980) 8-11 Sc. 1 and Obijuru v. Ozims SC. 48/1984 (1985) 2 NWLR (Pt. 6) 167 delivered on 4th April, 1985, unreported yet.” Following this decision of the Supreme Court I am of the view that the appellant cannot eat his cake and have it. By exhibit 1 he has created an equitable interest in the land in favour of respondent which he cannot now avoid. It is as good as a legal estate which the court must protect.”
