Mallam Tanko Mohammed Tella & Anor. V. Alhaji Ahmed H. Usman & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

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.”

2. 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.