Chief S. Owoola Lanlehin Vs Kola James (1985)

LawGlobal-Hub Lead Judgment Report

G. KARIBI- WHYTE, J.S.C. 

The only issue for determination in this appeal, is whether a registered registrable instrument to which a plan is attached, is inadmissible in evidence merely because the attached plan is both unsigned and uncountersigned.

On the 26th March, 1984, the Court of Appeal Division, sitting in Lagos, allowed the appeal, of the defendant, and set aside the ruling of the trial judge A.L.A.L. Balogun, J. of the High Court of Lagos State.

The learned judge had ruled partially sustaining the objection of the defendant against the admission in evidence both of the registered conveyance and the plan attached thereto. In his ruling the learned judge had admitted only the conveyance, but rejected the plan as inadmissible. His reason for so holding was that there were before him, as he thought, and held, two conflicting decisions of the Supreme Court, namely, Lydia Erinosho v. Owokoniran (1975) NMLR. 479 and Awomuti v. Salami & ors. (1978) 3 SC. 105 governing the issue.

The learned judge after a scholarly analysis of somewhat inordinate length of the binding nature of judicial precedents in lower Courts, came to the conclusion that Lydia Erinosho v. Owokoniran (supra), had been impliedly overruled by the subsequent decision of this Court of Awomuti v. Salami & ors. (supra) and that he was bound by the latter. Plaintiff appealed against this ruling to the Court of Appeal on the grounds

(1) That the trial judge erred in law in admitting the conveyance which was duly executed and registered without the attached survey plan.

(2) That the attached survey plan was inadmissible in evidence and

(3) The decision is against the weight of evidence ..

In the judgment reversing the ruling of the learned judge in the Court of Appeal after reprimanding him for impertinence in his views on his right to choose between two conflicting judgments of a superior court, and his observations on the correctness vel non of the decision of a higher court, held that the learned judge was wrong to hold, as he did, that the Supreme Court had impliedly overruled Erinosho’s case in Awomuti’s case. The Court of Appeal in a judgment concurred in by B.O. Kazeem and P. Nnaemeka-Agu, JJ.C.A., delivered by Ademola, J.C.A. cited and relied on the passage in Erinosho v. Owokoniran (supra) at p. 484 to the effect “That once the instrument is registered under Cap. 56, it should be admitted, as registered instrument in evidence (see S.16 Cap 56); if however the plan annexed thereto, is in fact defective in any way a different question will arise as to its evidential. The defendant has now appealed against the judgment of the Court of Appeal on two grounds as follows –

“(1) The learned Judges of the Court of Appeal erred in law in holding that the plan attached to the certified true copy of the deed of conveyance should be admitted in evidence when the plan is rendered inadmissible in evidence by the provisions of the Survey Act particularly section 23 of the Survey Act.

(2) The decision is against the weight of evidence.”

The appellant in this Court in seeking a restoration of the ruling of the learned trial judge which held admissible in evidence the deed of conveyance but rejected as inadmissible the plan filed along with him, seems to have modified the objection in the Court of trial which is a rejection of the admissibility of both the registered instrument and the defective plan attached thereto. It should be noted that the effect of the Court of Appeal judgment was to admit in evidence both the instrument and the plan attached. Counsel in this appeal have filed their briefs of argument, and in oral argument before us elaborated on their briefs. There is very little that can be gathered from the briefs filed because no arguments of any substance were advanced therein. There is no dispute on the facts which quite simply stated are as follows. At the trial of the action, indeed during evidence in chief of P.W.1, counsel to the plaintiff sought to tender in evidence the deed of conveyance dated 26th October, 1920 which was registered as No. 103 page 346 in Vol. 140 in the Lagos Land Registry dated 26th October, 1920. This deed of conveyance has attached to it a plan which does not bear any date, and neither the signature of any surveyor nor the counter signature of the Director of Surveys. Counsel for the defendants promptly raised the objection that the document, that is, the conveyance and the plan attached are inadmissible in evidence on account of the defect in the plan which are unsigned, thereby contravening the provisions of S.3 of the Survey Law of Western Nigeria, applicable to the land in dispute. He relied on the judgment of Alashe v. Olori-Ilu (1965) NMLR. 66. The land subject matter of this action are Plots 13 and 13A shown on Plan No. OA 1562 and situate off Isheri Road, Ikeja. The question which the learned judge was asked to consider and rule upon was, concisely stated, whether the defect in the plan attached, would render the conveyance and the plan already registered inadmissible in evidence. The subsidiary question about the position since the amendment of the law removing the requirement for countersignature by the Surveyor-General is not relevant since the law applicable is that prior to the amendment. There is no doubt that the issue is the simple one of the admissibility in evidence of a deed of conveyance registered under the Land Instrument Registration Law, Cap 64 of Lagos State with a plan which is not counter-signed as required by S.3(1) of the Survey Law, Cap 132, Vol. VII, Laws of Lagos G State. It is not contested that the deed of conveyance alone without the accompanying defective plan, since registered is inadmissible in evidence. Section 15 of the Land Instruments Registration Law, Cap 64 is unambiguous as to that.

In his submission before us, Mr. Shomade for the appellants has urged that Section 9 of the Land Instruments Registration Law should be read together with the provisions of section 3 of the Survey Law. In his view, since section 3 of the Survey Law deals with evidence, any plan attached to any instrument not conforming to its provisions should not be admitted in evidence. Counsel submitted that Awomuti v. Salami & ors. (1978) 3 SC. 105 and Alase v. Olori-Ilu (1965) NMLR. 66 represent the correct legal position. Counsel adopted the reasoning of the learned judge of the High Court that Erinosho v. Owokoniran (1965) NMLR. 479 had been impliedly overruled by Awornuti v. Salami & ors. (supra). Mr. Lanlehin supporting the judgment of the Court of Appeal submitted that the issue is entirely one of the admissibility in evidence of a registered instrument and is governed by S.15 of the Land Instruments Registration Law. To him, section 13 of the Survey Law is not applicable. Counsel relied entirely on Erinosho v. Owokoniran (supra), as the case applicable. In his view Alase & ors. v. Olori-Ilu & ors. (supra) 5 and Awomuti v. Salami (supra) are not applicable. He submitted that Awomuti v. Salami (supra) was concerned with the evidential value of a document admitted in evidence, whereas, Alase v. Olori-Ilu (supra) was concerned with the admissibility of a survey plan per se.

The issue contested in my opinion is concerned with the proper construction of the enabling statutory provisions, together with a careful examination and analysis of the judicial decisions on the sections. The following provisions of the relevant Laws are pertinent to the proper determination of this Appeal.