A Legal Practitioner, Sylvester Udemezue, has drawn the attention of the TheLoyal Nigerian Lawyer to an April 12, 2019 judgement of the Supreme Court of Nigeria in ABDULLAHI V. ADETUTU(2019), which appears to have departed from the earlier judgement of the same court in BENJAMIN V. KAILO (2017) on Admissibility of Unregistered Registrable Land Instruments.
(1). THE POSITION OF THE LAW BEFORE BENJAMIN V. KAILO (2017):
An an unregistered Registrable Land Instrument is not admissible (even if properly pleaded) to PROVE TITLE TO LAND. It could be admitted but only for purposes of proving existence of a transaction or payment of money.
(2). THE POSITION OF THE LAW AS ESTABLISHED BY BENJAMIN V. KAILO (2017): An unregistered Registrable Land Instrument is admissible (if properly pleaded) to PROVE TITLE TO LAND.
In that case (BENJAMIN V. KALIO (2018) 15 NWLR (PT. 1641) 38), the Supreme Court had considered and ruled on Admissibility of unregistered registrable instrument. In a unanimous decision delivered by a full panel on 15 December 2017 in that case, the Supreme Court had jettisoned the requirement of registration as a precondition for the admissibility of land documents in evidence to prove title. It held that as far as they are properly pleaded, land documents are admissible as proof of title, even if not registered. In the lead judgment delivered by Eko JSC, the Supreme Court had cause to review the provisions of Section 20 of the Rivers State Land Instruments Law, Sections 4(3), and 5, and Item 23 of the 1999 constitution. It had also considered its previous decisions in Ogbimi v Niger Construction Limited, Ojugbele v Olasoji, Akintola v anor. v Solano, Edokpolo & Co. Ltd v Ohenhen, which had earlier affirmed the provision of the Land Instruments Law and held that an unregistered registrable instrument could be admitted to prove title to land. The court (in BENJAMIN v. KAILO) came to the conclusion that in view of the inclusion of Evidence in the exclusive legislative list, section 20 of the Rivers State law was an act of legislative trespass into the exclusive legislative terrain. A document that is pleaded and admissible under the Evidence Act cannot be rendered inadmissible by the State law. Consequently, said the supreme court, ruled that an unregistered land document is admissible even as proof of title.
(3). THE CURRENT POSITION OF THE LAW AS ESTABLISHED BY ABDULLAHI V. ADETUTU (2019): An unregistered Registrable Land Instrument is not admissible (even if properly pleaded) to PROVE TITLE TO LAND. It could be admitted but only for purposes of proving existence of a transaction or payment of money.
In that Case (ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS v. MRS. CHRISTIANA IYABO ADETUTU (2019) LPELR-47384 (SC)), the Supreme Court appears to have Departed From The Principle In BENJAMIN v. KAILO (2017) On Admissibility of Unregistered Registrable Instruments. In ABDULLAHI V. ADETUTU (2019), the Supreme Court, while ruling on the position of the law as regards ADMISSIBILITY OF AN UNREGISTERED REGISTRABLE INSTRUMENT, made the following pronouncements:
“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, Akintola v. Solano (1986) 2 NWLR (Pt.24) 598; Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo (1992) 2 NWLR (Pt. 226) 690; Oredola Okeya Trading Co. v. Attorney General, Kwara State (1992)7 NWLR (Pt. 254)412; Co-operative Bank Ltd. v. Lawal (2007)1 NWLR (Pt.1015) 287; Etajata v. Ologbo (2007)16 NWLR (Pt.1061) 554; Gbiniie v. Odji  4 NWLR (Pt.1236) 103.
”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, Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd. v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra). Such a document, derided as an “amorphous document,” Umoffia v. Ndem (1973)12 SC (Reprint) 58, is not receivable in evidence for the purpose of establishing any right, title or interest in land being unregistered, Section 15, Land Instruments Registration Law , Umoffia v Ndem (supra). If it is however tendered to show that there was a transaction between the lessor and the lessee, it will be admissible as a purchase receipt. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded. Under these two conditions, such a document does not qualify as an instrument as defined in the Land Instruments Registration Law, Okafor v. Soyemi (2001)2 NWLR (Pt. 698) 465; Agboola v. United Bank for Africa Plc (2011) 11 NWLR (Pt.1258) 375; Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599. Other cases include, Akingbade v. Elemosho (1964)1 All NLR 154; Olowolaramo v. Umechukwu (2003)2 NWLR (Pt. 805) 537; Mojekwu v. Mojekwu (1997)7 NWLR (Pt. 512) 283; Tella v. Usman (1997) 12 168; Ole v. Ekede (1991)4 NWLR (Pt. 187) 569; Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326. Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting land but only to establish evidence of a transaction between the parties, Obienu v. Okeke (2006) 16 NWLR (Pt. 1005) 225; Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419; Agwunedu v. Onwumere (1994)1 NWLR (Pt.321) 375; Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599.
In effect, when a Court is determining whether or not to admit or reject an unregistered registrable instrument, it has to consider the purpose and the use to which it is being put, Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569. In the vocabulary of pleadings, the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title, Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere (1994)1 NWLR (Pt. 321)375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74; Oni v. Arimoro (1973) NMLR 237; Akingbade v. Elemosho (1964) I All NLR 154.
The explanation is simple. The filing of pleadings is primarily, to settle issues between the parties, Osuji v. Ekeocha (2009) LPELR – 2816(SC); (2009) 16 NWLR (Pt.1166) 81; Nwokorobia v. Nwogu and Ors. (2009) LPELR -2127 (SC); (2009) 10 NWLR (Pt.1150) 553. Thus, if a document is pleaded, it must be for a particular purpose.
As such, a document pleaded as transferring interest in land to a party cannot be considered for other purposes not pleaded, Edohoeket v. Inyang (2010)7 NWLR (Pt. 1192) 25; Gbinijie v. Odji (2011)4 NWLR (Pt.1236)103; Onwumelu v. Duru  10 NWLR (Pt. 525) 377; Agbodike v. Onyekaba (2001) 10 NWLR (Pt. 722) 576; Commissioner for Lands and Housing Kwara State v. Atanda (2007)2 NWLR (Pt.1018) 360.” Per NWEZE, JSC.(Pp.20-23,Paras.A-C).
ON WHETHER AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE TO PROVE TITLE TO LAND PRINCIPLE, the Supreme Court stated thus:
“What is more, the said Exhibit D8 was a registrable instrument by virtue of the provision of Section 15 of the Instruments Registration Law of Lagos State, as amended. However, by the non-registration thereof, Exhibit D8 has been rendered rather inadmissible… (Italics supplied for emphasis) From their pleadings and oral evidence, it is not in doubt that the said exhibit, (that is, Exhibit D8), was pleaded and sought to be tendered in evidence for the purpose of proving or establishing title to the land or interest in the land in dispute. The lower Courts were, therefore, right in their positions that it was inadmissible by virtue of its non-registration, being a registrable instrument, Akintola v. Solano (supra); Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo (supra), Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd. v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra); Umoffia v. Ndem (supra).” Per NWEZE, JSC.(P.24,Paras.A-F).
Has ABDULLAHI V. ADETUTU (2019) not departed from the principle in BENJAMIN V. KAILO (2017) ?