By Victor Obinna Chukwuma
Few years ago, the Nigerian legal space was awash with heated arguments by lawyers regarding the position of the law on the admissibility of an unregistered registrable land instrument. Views in this respect were polarised by two seemingly conflicting decisions of the Supreme Court: Benjamin v Kalio (2018) 15 NWLR (Pt. 1641) 38 and Abdullahi v. Adetutu (2020) 3 NWLR (Pt. 1711) 338.
In Benjamin v Kalio (supra), the Supreme Court held that such instruments are admissible, and the Court further outlawed section 20 of the Land Instrument Registration Law of Rivers State which required the instruments to be registered before they can become admissible. This decision sparked a lot of legal discussions as regards its impact on land transactions and the law of evidence. While the decision seemed to provide a relief for buyers and sellers in real estate transactions who experience bureaucratic challenges in the registering their title and are consequently enmeshed in litigation, it shook an already established jurisprudence and its misinterpretation could arguably have the effect of reducing land registration across the states since the biting force of the land registration law was thereby removed. It is no wonder that, roughly two years after the aforesaid decision, the Supreme Court in Abdullahi v. Adetutu quickly restored the old position by holding that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be admitted. The Court held that if the instrument is sought to be tendered for the purpose of proving or establishing title to land or interest in land, it would be inadmissible under Land Instruments Registration Law.
However, despite the decision of the Supreme Court in Abdullahi v. Adetutu, the storm of arguments on the issue persisted. Pro-registration lawyers argued that Benjamin v Kalio was no longer the law on the point in light of the decision of the apex Court in Abdullahi v Adetutu. On the other hand, some lawyers contended that Benjamin v Kalio was still in force as it relates to the vexed issue. Their argument was hinged on the fact that the Supreme Court in Abdullahi v. Adetutu did not expressly make reference to Benjamin v Kalio in order to distinguish or overrule same. It was also considered that the panel that decided Abdullahi v Adetutu was lesser in number (5 Justices) compared to that of Benjamin v Kalio (7 Justices). Given the uncertainty, Benjamin v. Kalio continued to receive legal citation in support of the proposition that unregistered registrable instruments are admissible to prove title.
What simply emerged from the whole controversy was a clarion call for the Supreme Court to confirm whether it has indeed departed from its position in Benjamin v Kalio. Thus, in the recent case of Taan v. SCOA (Nig.) Plc (2025) 6 NWLR (Pt. 1985) 1, the Supreme Court, Per Abiru, J.S.C. at pages 63-64 paragraph H, answered the question in the affirmative by holding as follows:
“Counsel referred to the decision of this court in Benjamin v. Kalio (2018) 15 NWLR (Pt.1641) 38, (2018) All FWLR (Pt. 920) 1 wherein he said the court nullified the effect of section 15 of the Lands Instruments Preparation and Registration Law and held that its provisions could not render inadmissible a document which is admissible under the Evidence Act. Counsel conveniently forgot to mention that this court has since abandoned this decision and has subsequently restored the position of the law to as it were in the case of Abdullahi v. Adetutu (2020) 3 NWLR (Pt. 1711) 338.”
The Supreme Court further held that its decision in Benjamin v. Kalio went “against a deluge of other decisions” delivered by it on the same point, and that the decision therefore “did not jurisprudentially constitute good law.” Although the above quoted decision was from a concurring judgment in the case, it provides the needed answer to the vexed question of whether Benjamin v Kalio is good law on the issue of admissibility of unregistered registrable instruments. The leading judgment, Per Ogbuinya J.S.C, at page 44, paras C-D, also confirmed that Abdullahi v Adetutu is the correct law on the issue, as follows:
“Recently, in Abdullahi v. Adetutu…, this court, per Nweze, JSC, of the blessed memory, re-echoed the misfortune of an unregistered registrable instrument in these illuminating words: An unregistered registrable instrument, sought to be tendered for the purpose of proving or establishing title to land or interest in land, would be inadmissible under section 15 of the land Instruments Registration Law …”
Finally, the apex Court’s departure from Benjamin v Kalio demonstrates that the “Supreme Court is final not because it is infallible; but it is infallible because it is final.” The recent decision in Taan v. SCOA (Nig.) Plc provides an important clarity on the impact of registration of land instruments on the proof of title to land in Nigeria.
Victor is a Lawyer and a Doctoral Student
