I was doing a personal research into Land Titles and discovered
this beautiful piece written in Jun 13, 2014 by Pastor Olatayo Beckley LLB,
BL, ACIS, ACIARB, MIOD
Lawyer, Chartered Secretary, Tax Expert, & Arbitrator based in Lagos
Nigeria.
I decided to post it to educate the forum and have our legal minds
buttress and explain further the points that have been made. Our amiable Omonile
Lawyer of the forum has been quiet recently though. Seems he is getting tired
of omonile cases and looking at the more juicy cases from politician. wink@Lawyer over to you.
About a month ago, I stumbled upon a discussion by some people
(who are not legal minds) on the issue of legal title over land and they all
concluded that the highest and safest form of legal title over landed
properties in Nigeria is the one conferred by the Certificate of Occupancy
issued by the government.
They safely gave this conclusion on the fact that the Land Use Act
of 1978 (the main legislation on real estate in Nigeria) has transferred the
ownership of all lands to the government and it is the government that can pass
such ownership title in respect of land to individuals and corporate entities
via the certificate of occupancy. I then intruded into their discussion and
informed them that this is not the position of the law. The law actually
recognizes five types of legal land ownership in Nigeria and the certificate of
occupancy is just one of them. In fact, there are many instances where the
court has nullified a certificate of occupancy where the root of title is not
found in one of the types of legal ownership recognized by the law.
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Thankfully on Wednesday the 9 of June 2014, the Honorable High
Court sitting at Ota Ogun State awarded judgment in favour of my clients in
respect of a vast expanse of land in Ogun State where the information I passed
to the discussants above was further highlighted and reiterated.
I will therefore highlight these five types of legal ownership for
the purpose of informing Nigerians and non Nigerians on this position of the
law because I believe that information is power.
The Supreme Court in the case of ELEGUSHI V OSENI (2005) 14 NWLR
(PT 945) AT 348 aptly stated the five types of legal land ownership in Nigeria
and they are as follows
1, By traditional evidence.
2. By acts of Ownership extending over a sufficient length of time
which acts are numerous and positive enough to warrant the inference that they
are owners
3. By acts of long possession and enjoyment of the land in dispute
4. By the production of the documents of title which must be
authenticated
5 By proof of possession of connected or adjacent land in
circumstances rendering it probable that the owners of such connected or
adjacent land would in addition be the owners of the land in dispute.
I will try and explain each of these types of ownership:
1. BY TRADITIONAL EVIDENCE. The Nigerian law first and foremost
gives recognition to traditional or customary land ownership notwithstanding
the Land Use Act. This means in effect that people who have “founded” and
“settled” on land over the years in the olden days are deemed to be the owners
of such land. Consequently the title of traditional land owners is legal,
proper and genuine. They need not have certificate of occupancy to prove their
land ownership
2. BY ACTS OF OWNERSHIP EXTENDING OVER A SUFFICIENT LENGTH OF TIME
WHICH ACTS ARE NUMEROUS AND POSITIVE ENOUGH TO WARRANT THE INFERENCE THAT THEY
ARE OWNERS.
The Nigerian law also gives legal ownership over land to people who
cannot by positive traditional evidence show how they “founded” or “settled” on
the said land if they can show that they and their ancestors have lived on the
land for years without being challenged.
3. BY ACTS OF LONG POSSESSION AND ENJOYMENT OF THE LAND IN
DISPUTE.
Where the land owner cannot prove their land ownership by positive
traditional evidence or show that their enjoyment of the land is not challenged
or controverted , but if they can show that their adversaries in respect of the
land have failed to take positive legal steps to “wrestle” the ownership land
in dispute from them over a long period of time, they will then be deemed to
have legal ownership of the said land.
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4. BY THE PRODUCTION OF THE DOCUMENTS OF TITLE WHICH MUST BE
AUTHENTICATED:
This cover all instances of formal land documents which will
include the certificate of occupancy and other documents issued by the
government
It is very important that such documents of title must be premised
and authenticated upon the earlier mentioned roots of title. Consequently, a
mere certificate of occupancy will not confer legal ownership if it can be
shown that the root of title is defective. A certificate of occupancy procured
through fraud and misrepresentation will be set aside and considered to be of
no legal effect whatsoever.
It is therefore very important that all prospective purchasers,
investors or dealers in respect of real estate or landed properties must conduct
investigation and ensure that the root of title of such documents of title is
good, proper and founded on other evidences of title ownership before any
reliance can be placed on them
5. BY PROOF OF POSSESSION OF CONNECTED OR ADJACENT LAND IN
CIRCUMSTANCES RENDERING IT PROBABLE THAT THE OWNERS OF SUCH CONNECTED OR
ADJACENT LAND WOULD IN ADDITION BE THE OWNERS OF THE LAND IN DISPUTE.
This
would probably occur where there is no dispute that a particular vast expanse
belongs to a particular persons or persons. Such persons would also be deemed
to be owners of smaller surrounding parcels of land if there is no other
evidence to the contrary
It is therefore very important that all investors and dealers of
real estate in Nigeria should arm themselves with this piece of information in
order to protect their investment.
CERTIFICATE OF OCCUPANCY
This is the most important land title document used to certify the
legal and ownership status of any land in Nigeria irrespective of its usage. It
is a legal document indicating that an owner of any land has been granted a
statutory right of occupancy by the executive governor of the state where the
land situates or a customary right of occupancy by the local government
chairman if the land is in a rural (non-urban) area.This statutory right of
occupancy is different from a Customary Right of Occupancy, which is usually
granted by Local Government Council.
A Certificate of Occupancy is the land title document that is
delivered to the owner of a piece or larger parcel of land by the government
attesting to the owner’s title to the land whose ownership is in accordance
with the applicable law. Over time, users of land and financial institutions
have elevated this type of land document to be conclusive evidence of the
ownership of the land described in it, to the exclusion of any other party
claiming title to the same piece of land.
RIGHT OF OCCUPANCY (R of O)
The Land Use Act introduced the right of occupancy system in
Nigeria. Right of occupancy is a right to use and occupy land in accordance
with the provisions of the Land Use Act. Right of occupancy is completely
different from ownership of land known under both customary and common laws
which exists before the promulgation of the Land Use Act.
It is the right granted to an individual or corporate organization
over a plot or parcel of land in an approved government layout. The right is
for a period normally, a maximum of 99 years lease is granted for residential
purpose, while other uses range from 35 to 70 years depending on the value of
improvements.
It is the grant to an individual or corporate organization over a
plot or parcel of land in an approved government layout. The right is normally
granted by the Governor of the state where the land is located and the
Minister, in case of land under the control and management of the Federal
Capital Territory.
A certificate of occupancy is therefore the evidence of the right
of occupancy. A certificate of occupancy is a document that shows that the
person disclosed there in is entitled to the right of occupancy. It must be
noted that certificate of occupancy is the only method devised by the Land Use
Act which links a person to a right of occupancy.
DEED OF ASSIGNMENT/CONVEYANCE
This is a very important document that must be demanded for and
given to a purchaser after the conclusion of any land/property transaction between
such purchaser/buyer and the owner/seller of the land/landed property in
question.
Section 2(v) of the Conveyance Act 1881 provides the definition of
conveyance as follows: “A conveyance includes any assignment, appointment,
lease, settlement and other assurances and covenants to surrender made by deed
on sale, mortgage, demise or settlement of any property or on any other dealing
with or for any property; and convey, unless a contrary intention appears, has
a meaning corresponding with that of conveyance”.
Also section 2(1) of the Property and Conveyance Law, 1959 states
that: “A Conveyance is a mortgage, charge, lease, assent, vesting declaration
and every other instrument except a will”. Conveyances are described as
including “assignment, appointment, lease, settlement and other assurance and
covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement
of any property, or any other dealing with of for any property”.
Conveyance is the process by which ownership of land is transferred
between a seller and a buyer. This can include both residential and commercial
land transactions.
It refers to the mutual agreement between an owner or seller of a
land/landed property and the purchaser/buyer of such land/landed property
showing evidence that the owner/seller of the land/landed property has
transferred all his/her ownership, interest, rights and title on the
land/landed property to the purchaser/buyer who has bought the land/landed
property from him/her.
A Deed of Assignment therefore is an agreement where an assignor
states his promise that from the date of the assignment or any date stipulated
therein, the assignor assigns his ownership in that Land to the assignee.
The deed contains very pertinent information for a real estate
transaction. It spells out the date when the ownership of the property
transfers from one owner to the other. The deed also gives a specific
description of the property that is included in the transfer of ownership.
It is very compulsory and mandatory for a Deed of Assignment
document to be recorded at the appropriate land registry to show legal evidence
as to the exchange of ownership in any land/landed property transaction in
order to make the general public and government aware of such exchange and/or
transaction.
Any recorded Deed of Assignment at the appropriate land registry
will be authenticated in form of either a Governor’s consent or Registered
Conveyance after it has been stamped at the Stamp Duties office. Under the Land
Use Act of 1978, when parties exchange documents of sale (A Deed of
Assignment), what is being sold is the amount of time unexpired from the 99
year right of occupancy called “the unexpired residue of the term”.
Most importantly, apart from the Certificate of Occupancy, a deed
of assignment or conveyance is the most recognized document of title on matters
relating to land and landed properties’ ownership/transaction in Nigeria as it
helps to trace the history of how such land and landed property that is been
transferred gets to its present owner as well as any disputes that may have
occurred as to the rightful owner of such land and landed property.
These documents (especially the Sale Agreement and the Deed of
Assignment/Conveyance) must contain the names and descriptions of the parties,
proper description of the property, the agreed purchase price, the
acknowledgement of receipt of that amount, the capacity in which Vendor is
selling, a Warranty that he has a right to sell in that capacity, condition
that the contract shall be conditional on the obtaining of any requisite
consents to the transaction, etc.
DEED OF LEASE:
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The use of Deed of Lease was quite common from the passage of the
Land Use Act in 1978 to transfer property especially government properties in
Ikoyi, Surulere, Victoria Island axis of Lagos state during the mid-70s and 80s
after the promulgation of the Land Use Act. These lands were mostly federal
government lands and high profile lands and it was the first foray into the
issuance of the certificate of occupancies for the first time to people.
DEED OF SUB-LEASE:
This is another relevant tile document in any land and landed
property ownership/transactions. It is the legal document duly signed and
stamped indicating land and landed property transaction between a leaseholder
of land sub-leasing his/her unexpired lease term to a third party.
LAND CERTIFICATE:
This is a document of title as to the ownership of a piece or
large parcel of land issued by a government’s land registry for registered
freehold or leasehold lands in Nigeria prior to the promulgation of the Land
Use Act of 1978.Land Certificate was usually issued to owners of land and
landed properties when the Property Conveyancing Law of 1959 was still in
effect.
It refers to the Prima facie evidence of land ownership prior to
the promulgation of the Land Use Act which vests on lands in the governor of each
state of the federation.
DEED OF MORTGAGE:
Mortgage is defined as the transfer of interest in land as
security for the discharge of a debt or the performance of an obligation
subject to redemption.
It refers to a security for loan with an undertaken for repayment
and cesser upon redemption.The common types of mortgage transactions are; Legal
Mortgage and Equitable Mortgage
Legal mortgage is a type of mortgage which transfers the legal
interest one has/owns in land, whether leasehold or freehold in consideration
for loan advancement. It is usually created by a deed in accordance with the
covenants of the mortgage contract or by use of a statutory form resulting in
perfecting of instrument by which it is created.
Equitable mortgage on the other hand is a type of mortgage that
transfers merely an equitable interest in land or some other properties to the
mortgagee. It refers to an agreement to enter into a mortgage transaction but
which is created on the rules of equity. Hence, a mere deposit of title deeds
in exchange of a mortgage loan without a written agreement is an equitable
mortgage.
SURVEY PLAN:
This is another important title document that helps
to reveal the true ownership status in any land and landed properties’
transactions. It also helps to reveal if such land is not under any government
acquired or committed lands/area.
In a situation where the land to be purchased by the prospective
buyer is just a bare land without any improvement or building on it, it is
compulsory for the buyer to carry out a proper scrutiny on the authentication
of the land survey plan at the appropriate survey ministry or agency so as to
establish the rightful owner of the land and if the land to be purchased does
not fall under any known government acquired or committed land.
Whatever title document that is presented during any land and
landed property transaction by the owner/seller to the purchaser/buyer, it is
compulsory for the parties involved in the transaction to obtain the governor’s
consent as well as have the document duly registered with the appropriate
government agency after completion of the transaction to make it legally
binding on all parties involved in the transaction.
The land use act of 1978 makes it mandatory for a holder of right
of occupancy (both actual grant or deemed grant) when carrying out subsequent
transactions on the land, to obtain Governor’s consent, either by way of
assignment, mortgage, transfer of possession, sublease or as otherwise
applicable.
Always carry out a thorough search at the appropriate government
lands registry to determine the true ownership status of any land and landed
property prior to final completion of the real estate transaction
For Further enquiries, site inspection and presentation, call:
T: +234 7011406853 OR 08110227156
E: simeono@divineaccesshomes.com.ng
W: www.divineaccesshomes.com.ng
