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.
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
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
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 Conveyancing 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 Conveyancing 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”.
Conveyancing 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:
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.
Thisis 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.