Federalism and the law of evidence in Nigeria: Does Benjamin v Kalio constitute a simplistic route to justice that overlooks a pitfall?

Introduction

On Friday 15 December 2017, the Supreme Court of Nigeria decided Benjamin v Kalio. ¹ The decision was a reversal of an age-long position maintained by the Supreme Court of Nigeria that before a registrable land instrument could be pleaded and admitted in evidence, it must have been registered. This judgment in which the Supreme Court overruled its previous decisions ² has been hailed for having done justice. ³ However, the route taken by the Supreme Court to achieve justice and its implication(s) have not been seriously considered. This is what this article seeks to address. This article is divided into seven parts. The first part introduces the study. The second part discusses the Nigerian legal system and its essentially federal character. ⁴ This is germane to the study so as to understand the context within which the case was decided. The third part discusses Benjamin. The fourth part raises the question of whether Benjamin has been overruled or not in light of another Supreme Court decision. The fifth part examines the concepts of existing law and deemed law which are brought to the fore by the decision in Benjamin but which the Supreme Court appears to have overlooked. The sixth part discusses the effect of Benjamin on existing law and deemed law with respect to evidence. The seventh part concludes the study.

The Nigerian legal system and its federal character

Nigeria has a federal constitution. ⁵ The Constitution which is in force is the Constitution of the Federal Republic of Nigeria 1999 as amended by various Alteration Acts (the Nigerian Constitution 1999). ⁶ Nigeria has a central government known as the Federal Government and 36 States under the control of various State Governments. ⁷ Nigeria has its capital at Abuja called the Federal Capital Territory. ⁸ The Constitution is supreme and its provisions are binding ‘on all authorities and persons throughout the Federal Republic of Nigeria.’ ⁹ The Nigerian Constitution 1999 provides for the doctrine of separation of powers. ¹⁰ Thus, it recognises the executive, ¹¹ the legislature ¹² and the judiciary. ¹³ Similarly, the recognition of the doctrine appears firmly established in sections 147(4) and 192(3) where it is stipulated that once a member of the legislative organ accepts an appointment as a member of the executive, such a member is deemed to have forfeited his or her position. Although the Nigerian Constitution 1999 provides for separation of powers, it also recognises checks and balances. With this, the President must assent to a bill before it becomes law. ¹⁴ The legislature has the oversight power over the actions of the executives. ¹⁵ In appointing certain judicial officers, the President who is a member of the executive will be the one to make the appointment, while the said appointment will be confirmed by the legislative organ. ¹⁶

As previously noted, Nigeria is a federation and the Nigerian Constitution 1999 which is in force recognises the doctrine of separation of powers. Thus, the executive, the legislature and the judiciary are recognised at both the Federal and State levels. ¹⁷ The executive power at the federal level is vested in the President who may exercise the power directly or through ‘the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation.’ ¹⁸ The legislative power at the federal level is vested in the National Assembly. ¹⁹ The National Assembly consists of ‘a Senate and a House of Representatives.’ ²⁰ The National Assembly alone can legislate on matters within the Exclusive Legislative List. ²¹ One of the matters upon which the National Assembly alone can legislate is ‘Evidence.’ This is listed in Item 23.

At the federal level, the judicial power is vested in the federal courts. ²² Federal courts that are relevant for this study are the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court and the High Court of the Federal Capital Territory, Abuja. ²³ With respect to the States within the Nigerian Federation, the executive power is vested in the Governor who may choose to exercise the power directly or ‘through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State. ²⁴ The legislative power is vested in the ‘House of Assembly of the State.’ ²⁵ The House of Assembly of a State can legislate only on matters within the Concurrent Legislative List ²⁶ and on those matters that are residual. ²⁷ Residual matters are matters which are not listed in both the Exclusive Legislative List and the Concurrent Legislative List. ²⁸ This means that States share legislative powers with the Federal Government in respect of matters in the Concurrent Legislative List. At the State level, the judicial power is vested in the courts ‘for a State.’ ²⁹ The only relevant court for this study is ‘a High Court of a State.’ ³⁰ If there is a conflict between the ‘law’ enacted by the National Assembly and the ‘Law’ enacted by the House of Assembly of a State, the ‘law’ enacted by the National Assembly prevails. ³¹ Although federalism applies to the executive and the legislature, it does not apply to the judiciary. Thus, from the High Court of a State, appeals lie to the Court of Appeal and the Supreme Court which are federal courts.

The Supreme Court is at the apex of judicial hierarchy in Nigeria. ³² It has both an original and appellate jurisdiction. Original jurisdiction can be exercised in respect of disputes between States or between a State and the Federation ³³ or between the President and the National Assembly. ³⁴ The Court cannot exercise original jurisdiction in respect of any criminal matter. ³⁵ With respect to the appellate jurisdiction of the Court, the ‘Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.’ ³⁶ The Court cannot have more than 22 Justices at a time. These Justices are the Chief Justice and other Justices not exceeding 21. ³⁷ In exercising its jurisdiction, the Court must not be composed of less than five Justices. But, where constitutional interpretation or fundamental rights issues are involved, the Court must be made up of seven Justices. ³⁸

The Court of Appeal is next in judicial hierarchy to the Supreme Court. The Court has both original and appellate jurisdiction. Original jurisdiction is in respect of election petition of the President and the Vice-President. ³⁹ The appellate jurisdiction of the Court is in respect of both civil and criminal matters. ⁴⁰ The Court has ‘jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State…and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.’ ⁴¹ The Court is made up of the President and such number of Justices not less than 49. ⁴² In exercising its jurisdiction, the Court must be composed of not less than three Justices. ⁴³ The Federal High Court ⁴⁴ is a court of co-ordinate jurisdiction to the High Court of the Federal Capital Territory, Abuja ⁴⁵ and the High Court of a State. ⁴⁶ However, its jurisdiction is limited. It is largely confined to matters within the Exclusive Legislative List. These matters include companies and allied matters, bankruptcy, customs, etc. ⁴⁷ Criminal jurisdiction is confined to ‘treason, treasonable felony and allied offences’ ⁴⁸ and ‘criminal causes’ arising out of those matters upon which it ordinarily has jurisdiction. ⁴⁹ The National Assembly may however expand the jurisdiction of the Court in respect of matters it can competently legislate upon. ⁵⁰ The Court can exercise its jurisdiction by at least one judge. ⁵¹ The High Court of the Federal Capital Territory exercises its jurisdiction solely in Abuja. It has unlimited jurisdiction on all civil and criminal matters, except to the extent limited by the jurisdiction of the Federal High Court as defined under section 251 of the Nigerian Constitution 1999. ⁵² The number of Judges that make up the Court is the Chief Judge and such number of Judges prescribed by the National Assembly at a point in time. ⁵³ In exercising the jurisdiction of the Court, the Court has to be composed of at least one Judge. ⁵⁴ The High Court of a State exercises its jurisdiction within a State and it is in respect of all civil and criminal proceedings except to the extent limited by section 251 where the jurisdiction of the Federal High Court is defined. ⁵⁵ The Court can exercise its jurisdiction by at least one Judge. ⁵⁶

The case of Benjamin v Kalio

In Benjamin, ⁵⁷ the appellants instituted an action against the respondents at the High Court of Rivers State in Nigeria. In the action, the appellants sought a declaration of title to a parcel of land known as Awoka land or Awoka farmland which was located in Abuloma town, Port Harcourt, Rivers State. In their claim, the appellants traced their root of title. The respondents did not dispute the appellants’ root of title. However, the respondents claimed that the appellants had sold the parcel of land to them in 1979. The respondents counterclaimed. The respondents pleaded and tendered a deed of conveyance as evidence of the transaction between them and the appellants. The trial court admitted it. At the conclusion of the trial, the trial court dismissed the appellants’ claim but granted the respondents’ counterclaim. The appellants were aggrieved and appealed to the Court of Appeal. The Court of Appeal affirmed the judgment of the trial court. The appellants were dissatisfied with the judgment of the Court of Appeal. They appealed to the Supreme Court. At the Supreme Court, the appellants contended that the deed of conveyance admitted in evidence by the trial court and relied upon by the Court of Appeal ought not to have been pleaded and admitted in evidence by the trial court and relied upon by the Court of Appeal because it was a registrable land instrument not registered in accordance with the provisions of sections 20 and 37 of the Land Instruments (Preparation and Registration) Law of Rivers State. ⁵⁸

In determining the appeal, the Supreme Court considered section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State. The section stipulates that ‘No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.’ The Supreme Court dismissed the appellant’s appeal. In dismissing the appeal, the Supreme Court first defined what a land instrument was by relying on section 37 of the Land Instruments (Preparation and Registration) Law of Rivers State and stated that it meant a document affecting land in Rivers State whereby one party called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee or purporting to do so, any right or title to, or interest in land in Rivers State, and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will. ⁵⁹ The Supreme Court then stated that a registrable land instrument not registered in accordance with the law, like the Land Instruments (Preparation and Registration) Law of Rivers State, cannot be pleaded and is inadmissible in evidence to prove title, and if erroneously admitted in evidence shall be liable to be expunged therefrom. However, such an unregistered instrument is admissible to prove payment of money and coupled with possession may give rise to an equitable interest enforceable by specific performance. ⁶⁰

After having stated thus, the Supreme Court proceeded to consider the ‘position of evidence law viz-á-vis constitutional law development since the 1963 Constitution.’ ⁶¹ The Supreme Court stated as follows:

Evidence was not on the Exclusive Legislative List under the 1963 Constitution, it was under this constitutional scenario that the Federal Legislature and the Regional (State) Legislatures re-enacted the 1945 Evidence Ordinance as Evidence Act and Evidence Law respectively. The situation however changed in 1979. Under the 1979 Constitution, evidence was brought into the exclusive legislative list as item 23. It has remained so since then. It is currently item 23 of the Exclusive Legislative List in Part 1 in the Second Schedule to the extant Constitution. ⁶²

Having stated thus, the Supreme Court considered sections 4(3) and (5) of the Nigerian Constitution 1999. Section 4(3) stipulates that

The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.

Section 4(5) stipulates that

If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.

The Supreme Court then held that ‘the undoubted intent of the current Constitution (as amended) from section 4(3) & (5) of the same Constitution 1999 is that the State Houses of Assembly are precluded and prohibited from enacting any laws on evidence…or admissibility of evidence in the proceedings before the law courts in the Federal Republic.’ ⁶³ The Supreme Court added that ‘the Evidence Act is an Act of the National Assembly or an Act deemed to have been enacted by the National Assembly pursuant to its legislative powers under the Constitution since 1979 to date.’ ⁶⁴ With respect to the specific question of the validity of section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State, the Supreme Court held that ‘the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence’ ⁶⁵ and that ‘this clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979.’ ⁶⁶ The Supreme Court, however, stated obiter that ‘even if section 20 of the Rivers State Law were applicable,’ ⁶⁷ the Supreme Court would still have ruled in favour of the respondent because ‘an unregistered “registrable land” instrument is admissible in evidence to prove, not only the payment and receipt of the purchase price but also the equitable interest of the purchaser in the subject land.’ ⁶⁸ The Supreme Court then concluded that this ‘has been the entrenched position in our jurisprudence until evidence was lifted into the exclusive legislative list in the second schedule to the Constitution.’ ⁶⁹

The Supreme Court decision, in this case, recognised two concepts. The first concept is that of existing law. Having recognised that the Land Instruments (Preparation and Registration) Law of Rivers State preceded the Nigerian Constitution 1999, the Supreme Court has recognised it as an ‘existing law’. The second concept is that of a ‘deemed law’. By stating that the Evidence Act could be deemed to be an Act enacted by the National Assembly, the Supreme Court recognised this concept. However, in spite of these, the Supreme Court treated the relationship between the Evidence Act and the Land Instruments (Preparation and Registration) Law of Rivers State as that between an ordinary Act of the National Assembly and an ordinary ‘Law’ of the House of Assembly of a State. But, before analysing the implications of the concepts of existing and deemed laws, it is pertinent to examine the issue of whether the decision in Benjamin has been overruled in light of the decision in Aminu Jubrillah Abdullahi and others v Christiana Iyabo Adetutu. ⁷⁰

Has Benjamin v Kalio been overruled?

In Abdullahi, ⁷¹ the appellants as plaintiffs filed an action before the High Court of Lagos State, Ikeja Judicial Division. They sought a declaration of title against the respondent as a defendant. The respondent as a defendant filed her defence and also counterclaimed. While the suit was pending, the defendant as the plaintiff filed a separate action against the fourth and the fifth appellants claiming a declaration of title. The pending suit and the one filed by the respondent in the appeal before the Supreme Court were consolidated. The High Court, after having heard the parties, found that the parties were contesting ownership and claimed to have derived their title from the same root. However, the respondent was able to show possession by oral evidence in addition to her evidence of having purchased the land through a registrable land instrument which was indeed registered at the Lands Registry in Lagos. The appellants on the other hand tendered a land instrument dated 1969 to which a survey plan dated 1986 was attached. The plan was prepared in 1969 but was signed in 1986, 17 years after. The land instrument on the face of it showed that it was doctored for the purpose of the suit. With respect to possession, evidence before the court showed that the appellants sought to acquire possession by destroying what the respondent had put on the land. The trial court, therefore, invoked the rule that where two parties are contesting possession and one of them is able to prove a better title, the one who establishes a better title has possession. In addition, the trial court stated that the discrepancy on the date rendered the land instrument ineffective. However, the trial court stated that ‘what is more the said Exhibit D8 [the said land instrument] was a registrable instrument by virtue of the provision of Section 15 of the Instruments Registration Law of Lagos, as amended. However, by the non-registration thereof, Exhibit D8 has been rendered rather inadmissible.’ The trial court then decided in favour of the respondent.

The appellants were dissatisfied and filed their appeal before the Court of Appeal which allowed the appeal in part. With respect to the trial court's pronouncement on the registrable land instrument in question, the Court of Appeal affirmed the said pronouncement. Dissatisfied again, the appellants appealed to the Supreme Court. The Supreme Court affirmed the decision of the Court of Appeal. With respect to the decision of the Court of Appeal on registrable land instrument in question, the Supreme Court affirmed the position of the Court of Appeal.

While the pronouncement of the High Court as affirmed by the Court of Appeal and the Supreme Court tends to suggest that the Supreme Court has overruled itself in Benjamin, however, a closer scrutiny shows that the pronouncement at the trial court was just an obiter. The expression: ‘what is more…’ suggests that the trial court had attached no weight to the document for the discrepancy in the date and that the registrability was just a secondary consideration. However, if this argument appears unsatisfactory, the point is that the constitutionality of section 15 of the Land Instruments Registration of Lagos State which is in pari materia with section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State was never canvassed. Also, it is pertinent to note that Benjamin was decided by 7 (seven) Justices of the Supreme Court whereas Abdullahi was decided by 5 (five) Justices of the Supreme Court. ⁷² In addition, while the Supreme Court could depart from its previous decision; when it intends to do so it often clearly indicates which was the case in Benjamin where previous decisions were reviewed but not the case in Abdullahi.

Having established that Benjamin was not overruled, the concepts of existing and deemed law which were recognised in the case but never appreciated for their implications will now be examined.

The concepts of existing law and deemed law

The concepts of existing law and deemed law are intertwined and they are contained in section 315 of the Nigerian Constitution 1999. Section 315(4)(b) states that ‘“existing law”’ ‘means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.’ Section 315(1) (a) and (b) stipulates that ‘subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws and (b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.’ The implication of this provision is that if an enactment is a state legislation before the coming into effect of the Nigerian Constitution 1999 (which makes it an existing law) and its subject matter now falls under the competence of the National Assembly, such an enactment is now an Act of the National Assembly (by being deemed). On the other hand, if an enactment is a federal legislation before the coming into effect of the Nigerian Constitution 1999 (an existing law) but its subject matter now falls under the competence of the House of Assembly of a State, such an enactment is now a Law of the House of Assembly of the State (by being deemed).

This argument raises two questions. The first one is that is it the whole of the statute that is going to be deemed or any provision of that statute? The second question is that if the Law of a State is deemed to be an Act of the National Assembly, does that deemed Act apply to the whole of the Federation? With respect to the first question, the whole statute may be deemed or any of its provisions depending on the circumstances of each case. If a provision of that statute can be severed using blue pencil rule ⁷³ and the remaining part of the statute can still make sense, the severed part will be the deemed Act or Law. However, if after having severed the deemed part, the whole statute becomes meaningless then the whole statute will be the deemed Act or Law. At this point, it becomes apposite to raise the question of who will apply such deemed Act or Law if it provides that a specific institution or an entity under the deemed Act or Law is to perform a specified function that does not exist at the federal or state level for which the law is deemed. In answering this question, sections 315(2), 315(4)(a) and (c) become applicable. Section 315(2) stipulates that ‘“The appropriate authority”’ may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution. Section 315(4)(a) states that ‘appropriate authority’ means ‘(i) the President, in relation to the provisions of any law of the Federation,’ ‘(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State,’ or ‘(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State.’ Section 315(4)(c) states that ‘“modification”’ ‘includes addition, alteration, omission or repeal.’ Therefore, such a deemed Act or Law can be altered and a new entity at the State or Federal level can be empowered to perform the function which was to be performed by a different entity under the Act or Law before it was deemed.

With respect to the second question, the answer is that once the Law of a State is deemed to be an Act of the National Assembly, that deemed Act does not apply to the whole of the Federation, instead it applies to that part of the Nigerian Federation. The answer is predicated on section 4(2) of the Nigerian Constitution 1999 which stipulates that ‘The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List.’ Therefore, since the Law of a State ordinarily operates in the territory of a State in which it operates, once it becomes a deemed Act of the National Assembly, it continues to operate in that State alone and it will be taken that the National Assembly has legislated for that ‘part’ of the Nigerian Federation.

At this point, the case of Emelogu v The State ⁷⁴ becomes apposite. In this case, the appellant was convicted in the High Court of Imo State of an offence of robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions Act) 1970, No. 47. The appellant appealed to the Court of Appeal. The Court dismissed the appeal. The appellant then appealed to the Supreme Court. The principal issue before the Court was whether or not the Attorney-General of Imo State lacked competence to prosecute the Appellant in the Imo State High Court. In answering the question, the Supreme Court had to consider whether the Robbery and Fire-arms (Special Provisions Act) 1970, No. 47 which was initially Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 ⁷⁵ was a federal or state legislation. The Court noted that as a Decree, it was enacted by the Federal Military Government. The Decree was enacted during military era to stem the tide of armed robbery in Nigeria. After the exit of the military, it became known as an Act of the National Assembly as if it was enacted by the National Assembly. But under the Constitution of the Federal Republic of Nigeria 1979, criminal law was a matter for the federating States. The Supreme Court then held that the Decree should be deemed ‘Law’ applicable in each of the federating States. The Supreme Court per Eso JSC who delivered the lead judgment stated as follows:

…the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, as amended by various other enactments, though a Federal Legislation, is to be regarded as a Legislation made to operate in each State of the Federation…For once it is operative in a State. By virtue of section 191 of the 1979 Constitution, the power is in the State Attorney-General to institute and undertake all criminal proceedings including proceedings dealing with Armed Robbery. Again, and more importantly, is the fact that the legislation which was in force immediately before the enactment of the 1979 Constitution became, by virtue of s.274(1)(b) of the Constitution, deemed to be a Law made by a House of Assembly to the extent that it is a law with respect to any matter (in this case Robbery) on which the House of Assembly of a State (in this case the Imo State) is empowered, by the 1979 Constitution, to make. ⁷⁶

Nnamani JSC in his concurring judgment stated that ‘because Section 2 of Decree No. 47 of 1970, which defines arms, would seem to cover such weapons as matchet, sticks, pen, knife, and wood,’ ⁷⁷ he ‘cannot see, however, how armed robbery can be incidental or supplementary to arms, ammunition and explosives’ ⁷⁸ which are matters under the Exclusive Legislative List upon which the National Assembly alone can legislate. Karibi-Whyte JSC in his concurring judgment somewhat distinguished between a federal legislation that operates as a state law ⁷⁹ and a federal legislation that becomes a state law by metamorphosis ⁸⁰ due to constitutional change. He stated that ‘it is wrong to regard the surviving provisions of the Robbery and Firearms (Special Provisions) as a Federal law. As of 1 October 1979, the National Assembly ceased to have legislative responsibility in respect thereof and could not legislate on it.’ ⁸¹ Therefore, ‘It is a State Law.’ ⁸² It is noteworthy that Emelogu was decided by seven Justices of the Supreme Court of Nigeria.

Similarly, in Mohammat v Sele, ⁸³ the Supreme Court affirmed the position in Emelogu. In this case, the appellant was convicted of armed robbery under the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 by the High Court of Lagos State. Feeling dissatisfied, the appellant appealed to the Court of Appeal which affirmed the decision of the High Court. Feeling dissatisfied again, the appellant appealed to the Supreme Court. One of the appellant's contention at the Supreme Court was that he was not properly tried and convicted under the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 having been repealed and made inapplicable in Lagos State by virtue of section 2 of the Criminal Code (Amendment No 1) Law 1980 of Lagos State. The Supreme Court held that although the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 had been repealed by virtue of section 2 of the Criminal Code (Amendment No. 1) Law 1980 of Lagos State, it was the law in force in Lagos State at the time the crime was committed and that it was that law, not the one at the time of trial, with which the appellant would be tried and was indeed tried. In stating how the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 came to become the Law of Lagos State, the Supreme Court cited Emelogu with approval, invoked the concept of existing law and deemed law and held that ‘Thus all subject matters in the legislative list of the Constitution within the competence of the National Assembly, shall be deemed to be Acts, and those within the competence of the House of Assembly of a state shall be deemed laws.’ ⁸⁴

Going by section 315 of the Nigerian Constitution 1999 and the decisions of the Supreme Court in Emelogu supported by Sele, the Land Instruments (Preparation and Registration) Law of Rivers State having been enacted by Rivers State before the coming into effect of the Nigerian Constitution 1999 is an existing law and should have been deemed an Act of the National Assembly on evidence which is a subject matter on which the National Assembly is competent to legislate by virtue of its being in item 23 of the Exclusive Legislative List, Part 1, Second Schedule to the Nigerian Constitution 1999. If the Land Instruments (Preparation and Registration) Law of Rivers State becomes an Act of the National Assembly, the implication is that the Supreme Court would have had to render inadmissible the land instrument in Benjamin which invariably would have perpetrated injustice. However, injustice may not necessarily be perpetrated. First, the Supreme Court itself stated obiter that if section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State applies to Benjamin, it would have ruled in favour of the respondent because while an unregistered land instrument cannot be used to establish title, it can be used to evidence purchase and coupled with possession equitable right would have been established. Second, the Supreme Court would have had recourse to the same Nigerian Constitution 1999 to declare unconstitutional the provision of section 20 of the Land Instrument (Preparation and Registration) Law of Rivers State as an Act of the National Assembly. This will not be on the ground it did but on a different ground entirely. This is because it was declared unconstitutional as a State Law not as an Act of the National Assembly.

The most relevant provisions of the Nigerian Constitution 1999 for the purpose of declaring an existing and deemed Act of the National Assembly unconstitutional are sections 1(1), 6(6)(b), 17(2) and 315(3). Section 1(1) of the Nigerian Constitution 1999 stipulates that ‘This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.’ Section 6(6)(b) provides that ‘The judicial powers vested in accordance with the foregoing provisions of this section(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.’ Section 17(2)(e) states that the State social order is founded on ideals of freedom, equality and justice and that in furtherance of the ‘social order’ ‘the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.’ Although section 17(2)(e) is part of ‘social objectives’ under the Fundamental Objectives and Directive Principles of State Policy which is not justiciable, nonetheless when read in conjunction with other justiciable provisions of the Nigerian Constitution, it becomes justiciable. ⁸⁵ Section 315(3) states that ‘Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-(a) any other existing law; (b) a Law of a House of Assembly; (c) an Act of the National Assembly; or (d) any provision of this Constitution.’ The implication of the joint reading of these provisions is that the Supreme Court as an entity in the judiciary can declare the Land Instrument (Preparation and Registration) Law of Rivers State as an Act of the National Assembly unconstitutional. If the Supreme Court will declare it unconstitutional, section 6(6)(b) constitutes a ground. The section allows free access to the court. The rationale behind section 20 of the Land Instrument (Preparation and Registration) Law of Rivers State is to raise revenue for the government. ⁸⁶ To deny access by foreclosing pleading a land instrument which is relevant because it is not registered denies access to court. Access is denied because what is needed to obtain justice is prevented from being tendered. It is unreasonable to say that someone can approach the court if the person is aggrieved but that the person cannot bring evidence to obtain justice. In the United Kingdom case of R (on the application of UNISON) v Lord Chancellor, ⁸⁷ the issue before the United Kingdom Supreme Court was whether fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals and the employment appeal tribunal were unlawful because of their effects on access to justice. The United Kingdom Supreme Court held that it was unlawful. Similarly, in the Canadian case of Trial Lawyers Association of British Columbia v British Columbia (Attorney General), ⁸⁸ the issue before the Supreme Court of Canada was whether regulations imposing hearing fees that denied some people access to court was unconstitutional. The Court held that it did.

Apart from these provisions, the fair hearing provision of the Nigerian Constitution may also be a good ground to declare the Land Instrument (Preparation and Registration) Law of Rivers State as deemed Act of the National Assembly unconstitutional. ⁸⁹ Section 36(1) of the Nigerian Constitution 1999 stipulates that in the determination of a person's civil rights and obligations, such ‘a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.’ It can be argued that the right of access to justice is implicit in the right to a fair hearing. Thus, it is a derivative right from the right to fair hearing. Therefore, to the extent that a law prevents a piece of evidence such as land instrument from being tendered on the ground of raising revenue and not on the ground of doing justice, such law is unconstitutional.

Similarly, section 315(3) empowers the court to declare invalid any provision of an existing law for being inconsistent with any other existing law. In this respect, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act ⁹⁰ becomes apposite. This Act implements the provisions of the African Charter on Human and Peoples’ Rights. The Act took effect in Nigeria on 17 March 1983. Therefore, it is an existing law since it predates the Nigerian Constitution 1999. The implication is that section 20 of the Land Instrument (Preparation and Registration) Law of Rivers State as a deemed Act of the National Assembly can be declared to be inconsistent with any provision of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. This argument appears to be reinforced by the decision of the Supreme Court of Nigeria in Abacha v Fawehinmi ⁹¹ that a statute which implements a treaty is superior to the one not implementing a treaty in the hierarchy of norms in Nigeria. Since the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act implements the African Charter on Human and Peoples’ Rights which is a treaty, it is superior to the Land Instrument (Preparation and Registration) Law of Rivers State as a deemed Act of the National Assembly which does not implement a treaty. Therefore, section 20 of the Land Instrument (Preparation and Registration) Law of Rivers State as a norm can be tested against the superior provision of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

The relevant provision of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act against which section 20 of the Land Instrument (Preparation and Registration) Law of Rivers as a deemed Act of the National Assembly can be tested is article 7. Article 7 stipulates that ‘Every individual shall have the right to have his cause heard.’ It can be argued that section 20 of the Land Instrument (Preparation and Registration) Law of Rivers State as a deemed Act of the National Assembly is inconsistent with article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act because when a piece of evidence such as a land instrument which is relevant to a case is prevented from being tendered on the ground of raising revenue, the person whose interest is affected cannot be said to have had his or her ‘cause heard.’

The effect of Benjamin v Kalio on existing law and deemed law with respect to evidence

The effect of Benjamin on existing law and deemed law that provide for evidence is that such provisions are unconstitutional and have no effect. The most important casualties of this decision are section 30 of the Criminal Code and section 50 of the Penal Code. The Criminal Code took effect on 1 June 1916 and it applies to each of the State in the Southern part of Nigeria as Law. Similarly, the Penal Code took effect on 30 September 1960. ⁹² The first paragraph of section 30 of the Criminal Code stipulates that ‘A person under the age of seven years is not criminally responsible for any act or omission.’ This stipulation is an irrebuttable presumption of law. ⁹³ But is it a rule of evidence law or a rule of substantive law? Cross regards irrebuttable presumptions of law as ‘rules of substantive law or procedure expressed in presumptive form.’ ⁹⁴ Murphy states that ‘such rules are rules of substantive law, and have nothing to do with the rules of evidence. Though sometimes termed ‘irrebuttable’ or ‘conclusive’ presumptions, they are clearly not presumptions at all. An irrebuttable presumption is a contradiction in terms.’ ⁹⁵ In spite of their assertion, it is noteworthy that the law of evidence generally addresses four issues. They are what is to be proved (and as a corollary, what is not be proved); how to establish proof, that is, the form in which evidence is to be presented; who carries the burden of proof; and the extent to which the burden is to be carried. To the extent that irrebuttable presumption of law relates to what is not be proved, it can be regarded as a rule of evidence law. On the other hand, since it is not what to be proved, it can be argued that it is just a substantive rule of law. It is like saying anyone below the age of 7 years cannot be found guilty of a crime. The implication is that the decision in Benjamin will render null and void section 30 of the Criminal Code and section 50 of the Penal Code if they are rules of evidence law but may not have any effect on them if they are substantive Law of a State on crime.

From another perspective, it can be argued that presumptions are often discussed by authors under ‘Proof Without Evidence’ ⁹⁶ and that this makes irrebuttable presumptions both a rule of evidence and a rule of substantive law. The implication is that a ‘concurrent’ relationship can be said to exist between the Federal Government and each of the federating States on presumptions. ⁹⁷ This is because the Federal Government through the National Assembly will be able to legislate on it as a matter of evidence within its legislative competence while each of the federating States will also be able to legislate on it through its House of Assembly as a matter of crime. The implication is that if there is a conflict between an enactment of the National Assembly and that of the House of Assembly of the State with respect to the issue of presumptions that of the National Assembly prevails. In this respect, if one considers the first paragraph of section 30 of the Criminal Code which does not allow evidence to be led against a person who is under 7 years, this has affected the Evidence Act 2011 since it envisages that evidence has to be led in all instances and that it would have on its own provided if it has intended to set a limit. In other words, the paragraph is inconsistent with the Evidence Act 2011 by necessary implication if not by direct conflict. In this instance, the decision in Benjamin which negatives any State Law on evidence though not on substantive law has rendered a nullity the paragraph to the extent that it seeks to limit the extent evidence can be led. The above argument also applies to section 50 of the Penal Code where in paragraph (a) it is stipulated that ‘No act is an offence which is done…by a child under seven years of age.’ It is worth mentioning that while presumptions are often discussed under the head: ‘Proof Without Evidence’ by authors, with the consequence that presumptions may be classified as a rule of evidence and a rule of substantive law at the same time, the head does not bind the court if it has to classify. The head at best makes for easy reading and understanding although it may be taken cognisance of by the court if it has to classify.

Paragraph 2 of section 30 of the Criminal Code provides that ‘A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.’ While the provision of the first paragraph appears debatable, this appears not to be. In the first place, the word ‘prove’ is used suggesting that it relates to evidence. Also, presumption in this instance appears to have shifted the burden of proof to the prosecution which may have to prove that although the child was under 12 years at the time of omission or commission, he or she still knew what he or she was doing. Therefore, it is a rule of evidence law to the extent that it provides for who carries the burden of proof. Since a State cannot legislate on evidence by virtue of Benjamin, it is a nullity.

With respect to the Penal Code, the wording is different. Paragraph 2 of section 50 of the Penal Code stipulates that ‘No act is an offence which is done…(b) by a child above seven years of age but under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequence of that act.’ While the use of the word ‘prove’ in section 30 of the Criminal Code makes the shifting of the burden of evidence explicit, it appears that under section 50 of the Penal Code, the shifting of the burden is implicit. The reason is that if the child has attained sufficient maturity even though such a child still falls between the ages of 7 and 12 years, such a child can still be prosecuted. The implication is that this section has also provided for who carries the burden of proof. Nonetheless, since a State cannot legislate on evidence by virtue of Benjamin, it is also a nullity.

Paragraph 3 of section 30 of the Criminal Code stipulates that ‘A male person under the age of twelve is presumed to be incapable of having carnal knowledge.’ While it is debatable whether this presumption makes sense in the 21st century in light of the exposure of children to the internet and cable television together with their growth in consciousness; this provision is also a nullity in light of Benjamin if it is regarded as a rule of evidence law. If it is a rule of substantive law, it is in conflict with the Evidence Act 2011 by necessary implication if not by direct conflict. This is because it sets a limit in terms of the extent that evidence can be led. It is noteworthy that section 50 of the Penal Code does not contain this provision, neither does it have any one similar to it.

But it can be questioned if the Interpretation Act ⁹⁸ has not salvaged the above situation by virtue of its provision under section 32(1). Section 32(1) stipulates that ‘Subject to the provisions of this section and except in so far as other provision is made by Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the first day of January 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.’ The implication of this provision is that even if section 30 of the Criminal Code or section 50 of the Penal Code is a nullity, the common law can fill the gap since the provision of section 30 and that of section 50 are more or less a codification of the common law. While this argument is persuasive, there is an issue it may have to contend with. The issue is that after common law is codified at a time when the codifying authority had competence in law, has the common law rule at that point not been taken completely by statute such that if any of the codes is repealed either directly or by a change in constitutional order; the common law cannot be revived?

Similarly, it can also be questioned if the Child's Rights Act ⁹⁹ which provides for juvenile justice system has not indirectly rendered section 30 of the Criminal Code and section 50 of the Penal Code otiose? If a child can stand ‘trial’ ¹⁰⁰ does it make any difference whether 7 or 12 years as long as the child has not attained 18 years which is the age of majority? ¹⁰¹ It can be argued that since the Child's Rights Act only provides for 18 years which is the maximum and not the minimum, a child below 7 years could only be prevented from being prosecuted by virtue of section 30 of the Criminal Code or section 50 of the Penal Code. However, if each of them has been rendered null and void, such a child can be prosecuted. Similarly, since section 30 of the Criminal Code and section 50 of the Penal Code limit the offence with which a child could be prosecuted, the Child's Rights Act does not have effect on this.

Against the backdrop of the above analysis, it appears that if the effect of Benjamin on section 30 of the Criminal Code and section 50 of the Penal Code comes to be canvassed before the Supreme Court, its classification of section 30 and section 50 will be the determining factor. This is going to be a questionable enterprise irrespective of the decision taken. This would have been avoided if the concepts of existing law and deemed law within the context of the Nigerian federalism are considered in Benjamin. The reason is that if section 30 of the Criminal Code and section 50 of the Penal Code are rules of evidence law, they would have become federal enactments and if not would have remained State Laws. Where they are rules of evidence and substantive law at the same time, they would have been contrary to the Evidence Act 2011 by necessary implication as rules of substantive law.

Conclusion

The Supreme Court of Nigeria overruled its previous decisions by holding that unregistered land instruments could be pleaded and tendered in evidence because section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State is unconstitutional for not being within the legislative competence of Rivers States. By necessary implication, all similar laws by States are also unconstitutional. This judgment has been praised for having done justice. However, this is a simplistic route to justice having not taken cognisance of the Nigerian federalism and the concepts of existing and deemed laws. The consequence is that existing and deemed laws on presumptions such as section 30 of the Criminal Code and section 50 of the Penal Code when considered as rules of evidence law may be rendered null and void or rendered null and void as rules of substantive law for being in conflict by necessary implication with the Evidence Act 2011. This tends to constitute a pitfall.