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UNREGISTERED INSTRUMENT CAN SERVE AS EVIDENCE OF EQUITABLE INTEREST

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Even though Exhibit E, an unregistered deed of surrender or release is not in law a valid document capable of transferring any title or estate under the Property and Conveyancing Law, such a document is still enforceable by the court as evidence of an equitable interest of title. Thus, it is admissible to prove payment of a purchase price. This is based under the maxim “Acquitasfactum habet quodfieri oportui ” which means “equity regards as done that which ought to have been done”. Under the rule of equity a purchaser should not be made to lose the land purchased by him merely because the strict legal requirements of registration was not met. [Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326; Eso v. Adeyemi (1994) 4 NWLR (Pt340)558; Bello v. Otolorin (1996) 9 NWLR (Pt.470) 49 referred to].

— Adeyemo v. Ida & Ors. (1998) – CA/1/6/92

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UNREGISTERED INSTRUMENT CAN BE USED TO AFFIRM EQUITABLE TITLE

I agree with the learned trial Judge that Exhibit 3 is an instrument within the meaning of section 2 of the Land Instrument Registration Law and that having regard to the mandatory provisions of section 15 of the said law no registrable instrument which has not been registered should be given in evidence. But it was probably too wide a statement for him to have concluded that “no title” could be based on Exhibit 3. Certainly not a legal title but equitable title or interest, yes. In the case of Okoye v. Dumez Nigeria Ltd & Anor (1985) 1 NWLR (Pt.4) 783: (1985) 6 S.C. 3 Bello. J.S.C. (as he then was) delivering the lead judgment said on page 12 thus: “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 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. It follows from the foregoing that the 1st respondent’s lease under Exhibits E and F was as good as if the instruments had been registered.”

— Kutigi, JSC. Awaogbo & Ors. v. Eze (1995) – SC.69/1991

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LAND – REGISTRABLE INSTRUMENT NOT REGISTERED CREATES EQUITABLE INTEREST

It is however trite law that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered has thereby acquired an equitable interest which is as good as legal estate. This equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. Nsiegbe v. Mgbemena (2007) 10 NWLR pt. 1042, pg. 364, Okoge v. Dumez (Nig.) Limited (1985) 1 NWLR, pt. 4, pg. 783.

— O.O. Adekeye, JSC. Agboola v UBA (2011) – SC.86/2003

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REGISTRABLE UNREGISTERED INSTRUMENT CAN BE USED AS PROOF OF SALE OF LAND

On the findings of the Courts below, respondents have only claimed possession, not even exclusive possession. Chief Ajayi, S.A.N. has submitted that if Exhibit C was the basis of defendants’ title, and requires registration under the Land Instrument Registration Law Cap, 65 to constitutes evidence in this case, and is not registered to be admissible, not being registered it was inadmissible. The Court below ought not have relied on Exhibit C for rejecting the grant of the land in dispute. Exhibit C is however admissible as an acknowledgment of the receipt of money and gifts to Medusope Family. Our Courts have held in several cases that payment of purchase money and delivery of possession to a grantee creates a valid title by native law and custom – See Ogunbambi v. Abowaba 13 WACA. 22. On this principle appellant on the facts which was neither denied nor challenged had a valid title. In the circumstances the mere possession relied upon by the Court below ought not have been relied upon to defeat the claim to title of the appellant established on the facts.

— Karibe-Whyte, JSC. Adesanya v Otuewu (1993) – SC.217/1989

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THE PURPOSE OF REGISTERING INSTRUMENT

The purpose of registration is to protect third parties from fraud and the element of surprise likely to arise from non-registration. Hence where a purchaser with notice of the possession by a third party enters into contract, with respect to the land, with respect to the land he will not be entitled to rely on the want of registration by the third party. See Ogunbambi v. Abowab (1951) 13 WACA. 222. The equity of the non-registered instrument binds subsequent purchasers with the exception of bona fide purchasers for value without notice of the existence of the equity. – See Fakoya v. St. Paul’s Church, Shagamu (supra).

— Karibe-Whyte JSC. Okoye v Dumez & Ors. (1985) – SC.89/1984

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REGISTERED LAND SYSTEM VS UNREGISTERED LAND SYSTEM

The title which the plaintiff claims in respect of plots 89, 91 and 93 derived from the system of registration of title first introduced into Nigeria in 1935 and the law applicable to the case is the Registration of Titles Law Cap. 166, Laws of Lagos State of Nigeria, 1994. The courts below did not realise that the claim before them is in respect of land located in a Registration District under the aforementioned Cap. 166 Laws of Lagos State. The conveyancing of unregistered land depends upon production by the vendor of a series of documents which recite previous dealings or transactions affecting the land showing the ability of the vendor to convey what he has agreed to convey. In that case title has to be proved afresh each time a disposition of land is made. On the other hand, the conveyancing of registered land is different. As soon as title to land is registered, its past history becomes irrelevant, from that time title is guaranteed by the State and a purchaser can rely on it and transfer of land becomes the substitution of one person’s name for another’s in the Registry. The property register describes and identifies the land and the interest in the land which is the subject-matter of the title. Registration of titles is however distinct from registration of instruments, the former is simpler, cheaper, speedier and more reliable.

— Ogwuegbu, JSC. Onagoruwa & Ors. v. Akinremi (2001) – SC.191/1997

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REGISTRATION OF INSTRUMENT DOES NOT CURE INVALIDITY DUE TO LACK OF CONSENT

It must be accepted that the absence of the necessary ministerial approval or consent is a serious defect which affects the title sought to be conferred by the relevant instrument. It seems to me that if there is no evidence or ground upon which a presumption can be raised that such approval or consent had been obtained, the party whose reliance on the validity of a relevant transaction depends on that approval or consent has the burden to prove that it was obtained. It is not helpful to rely on the fact that the instrument evidencing the transaction was registered because registration does not cure the defect arising from the absence of the ministerial approval or consent, or indeed any defect in any instrument.

— Uwaifo, JSC. Rockonoh v. NTP (2001) – SC.71/1995

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