Mallam Tanko Mohammed Tella & Anor. V. Alhaji Ahmed H. Usman & Anor. (1997)
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OGEBE, J.C.A.
This is an appeal against the interlocutory decision of Kaduna State High Court delivered on the 26th day of January, 1993 rejecting the admission of a sale agreement on the disputed land on the ground that it was an unregistered instrument contrary to Section 15 of the Land Registration Law of the Laws of Northern Nigeria 1963 as applicable to Kaduna Slate. The appellants in Para. 4 of their statement of claim before the lower court averred as follows:-
“The plaintiffs aver that on or about the 25th day of November, 1988, the 1st plaintiff otherwise called Mohammed Dahiro Tanko, in conjunction with his brothers and sisters, sold to the 2nd plaintiff the piece or parcel of land the subject matter of this suit measuring 0.652 acres lying and situate between beacons No. ZA 6364 and ZA 6365, and a small stream. The said parcel of land is adjacent to Zurmi close, Bamawa GRA, Kaduna.”
While the respondents by their Para. 2 of the statement of defence denied Para. 4 of the statement of claim in the following words:-
“The first defendant denies paragraph 4 of the statement of claim and shall put the plaintiffs to the strictest proof of the facts therein alleged.”
PW 1 Alhaji Tanko Tella Mohammed Dahiru while giving evidence before the trial court testified that he and members of his family sold the disputed land to the second appellant. He wanted to tender the agreement of sale when the learned counsel for the respondents objected to the admissibility of the document for two reasons; the first was that it was not pleaded, and the second was that it was a registrable instrument within the meaning of Land Registration Law, and since it was not registered, it was inadmissible.
The learned counsel for the appellants before that court replied on the second ground of objection that the sale agreement was being tendered to prove the fact of sale and not transfer of the property. The learned trial judge ruled that the document was a registrable instrument as defined by Section 2 of the Land Registration Law applicable to Kaduna State and was therefore inadmissible by virtue of Section 15 thereof. The court therefore rejected the document in evidence.
Dissatisfied with the decision of the trial court the appellants appealed to this court on two grounds of appeal and filed a brief of argument in which two issues for determination were distilled as follows:-
“1. Whether or not an unregistered agreement which evidences payment of purchase price by the purchaser to the vendor in respect of a piece of land is ipso facto, inadmissible in evidence.”
- Whether or not the rejected document contains clauses that are severable and if so, whether the trial court was not in error to have rejected the document as a whole without any regard to admissible part of the document.”
The respondents also filed a brief of argument and identified one issue for determination. It reads:-
“1. Whether the Agreement and or Deed of Conveyance the plaintiff wanted to tender is an instrument pleaded and produced as affecting land that need to be registered before it can be admitted in evidence.”
There is only one issue in this appeal, and that is the first issue formulated by the appellants and the sole issue formulated by the respondents. The second issue formulated by the appellants did not arise from any matter canvassed before the lower court and is not a proper issue before this court. It is accordingly struck out. See Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275.
On the first issue the learned counsel for the appellants submitted that the trial Judge was wrong in rejecting the sale agreement as inadmissible. He said that the rejected document was being tendered in support of Para. 4 of the statement of claim as evidence of a sale transaction between the first and the second appellants. It was not being tendered to prove transfer of land. He argued that it was admissible to prove purchase of a land. He referred to the following cases:- Sajere v. Irelor (1991) 3 NWLR (Pt. 179) 340; Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) 237 and Dr. Joseph Okoye v. Dumez Nig. Ltd. (1985) 6 S.C. 3; (1985) 1 NWLR (Pt.4) 783.
The learned counsel for the respondents in their brief of argument defined “instrument” as defined in Section 2 of the Lands Registration Law Cap. 58 of the Laws of Northern Nigeria applicable in Kaduna State and submitted that the rejected document was a registrable instrument within the meaning of the law and since it was not registered it was inadmissible by virtue of Section 15 of the Lands Registration Law and the trial court properly rejected it.
Section 15 of the Land Registration Law reads:-
“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.”
Instrument is defined in Section 2 as follows:-
“Instrument’ means a document affecting land in Northern Nigeria whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter 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.”
It is quite clear from these two sections that any document which ought to be registered but is not registered is on the face of it inadmissible to prove transfer of land. However in a number of cases this court and the Supreme Court have held that 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.
In the case of Dr. Joseph Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (Pt. 4) 783 (1985) 6 SC 3 at pages 11 to 12, Bello J.S.C (as he then was) put the legal position thus:-
“I accept the submission of Chief Onyiuke that Exhibits E and F are instruments within the meaning of section 2 of the law and are registrable. I do not however agree with his contention on the legal effect and consequences of their non-registration having regard to the facts and circumstances of this case.
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 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 (1937) 13 NLR 141, Ogunbambi v. Abowab (1951) 13 WACA. 222, Fakoya v. St. Paul’s Church Shagamu (1966) 1 All NLR 74, Oni v. Arimoro (1973) 3 S.C. 163, Bucknor-Maclean v. Inlaks (1980) 8 – 11 S.C 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 4th April, 1985, unreported yet.”
See also the recent case of Oredola Okeya Trading Company v. A.G. Kwara State (1992) 7 NWLR (Pt. 254) 412 in which the Supreme Court held that the disputed document in that case was a conveyance and a registrable instrument which was inadmissible without registration. It was not a mere sale agreement.
The rejected document is copied at the back of the record of appeal. It is purely a sale agreement. The paragraph before the signatures of the parties and witnesses reads:-
“The land and the properties contained therein is sold for the net sum of N9,000.00 (Nine thousand naira). The witnesses to the sale, who visited the site and surveyed the property, are named in Schedule III and V.”
There is no part of the sale agreement which pretends to convey the property to the buyer. In my respectful view therefore the document is purely a sale agreement and is not a registrable instrument within the meaning of the Land Registration Law. Agreement for sale of land is excepted from the provisions of the Land Registration Law by Regulation 4 of the Land Registration Regulations. It reads:-
“Agreements for sale or for lease affecting land shall be excepted from the provisions of the law whether made before or after the coming into operation of these regulations.”
Even if the document is a registrable instrument it is admissible simply to prove the fact of purchase and no more. Indeed, the learned counsel for the appellants in the lower court made it clear in his submission that he was tendering the document to establish the fact of sale as pleaded in Para. 4 of the statement of claim and denied in Para. 2 of the Statement of defence.
I am therefore satisfied that the trial Judge was wrong in rejecting the document. Accordingly his ruling of the 26th of January 1993 rejecting the document is hereby set aside. In its place I substitute an order admitting the document as Exhibit CAI. The case is remitted to the lower court for continuation of the trial. This is another unfortunate case in which an interlocutory matter has been allowed to delay the substantive case for over four years. It is hoped that the trial court will now dispose of the case without further delay. The appellants are entitled to costs of N1,500.00 in this appeal.
Other Citations: (1997)LCN/0253(CA)
