Major issues confronting conveyancing in Nigeria include but are not limited to the multiplicity of laws, illiteracy, customary land tenure, purchasers securing the services of solicitors at the tail end of conveyance, no full appreciation of the value of contract before conveyancing, archaic mode of storing and recording information, professional incompetence or lack of diligence on the part of many conveyancers, slavish following of precedents and greed among legal practitioners as well as bureaucracy.
The most conspicuous conundrum, it would seem, is greed which of course is the vice fueling corruption. A Typical scenario, which interestingly, may encompass most, if not all of the aforementioned demerits is a case where for example:
Mr. A is allocated Blackacre and he goes ahead to carry himself as the true owner of the land in question when unbeknownst to him, the same land in question is allocated to Mr. B and so on and so forth.
ISSUES FOR DETERMINATION
- Whether any respite exists for the true owner or assignee of an unexpired interest of a property and how can same be enforced when the subject matter is equally assigned to another party?
- Whether the rule Nemo dat quod non habet applies to make inefficacious any subsequent illegal assignment and whether there exists any exceptions?
The Supreme Court has held in a locus classicus decision in IDUNDUN V. OKUMAGBA (1976) 910 SC 229 that in order to prove ownership of a piece of land, there are five ways this can be done, to wit:
- By traditional evidence
- By production of documents duly authenticated and executed
- By acts of ownership extending over a period of time
- Proof of ownership of adjacent land
- By acts of long possession.
SEE ALSO OYADARE V. KEJI (2005) 1 SC (PT 1) 28
It would appear that the most common means employed to prove ownership of land since the coming in to force of the Land Use Decree (Now Act) is the production of duly authenticated and executed documents of title. This is to be expected because the Land Use Act clearly provides that all lands in a state shall vest in the governor of that state who shall hold same in trust for the citizens SEE SECTION 1. The act also empowered the governor to grant a right of occupancy (deemed grants and express grants SEE SECTION 4, 5, 34 AND 36) and to revoke the grant of a right of occupancy SEE SECTIONS 27 AND 28. Therefore, what exists upon grant by the governor (since he owns the land) is a lesser interest often termed ‘right of occupancy’ which may be likened to a lease.
The law is trite that a lessor has a reversionary interest in the property which he lets to the lessee. This situation also applies to a right of occupancy because the owner of a right of occupancy only holds the property for a term of 99 years. Hence, should he sub-lease the property in question, or ‘assign’ as is used in ordinary parlance, he is only transferring the unexpired residue of the 99 years in question. The right of occupancy is evidenced by a certificate of occupancy, which as we will later canvass, is, without more, no good root of title. See the case of OGUNLEYE V. ONI (1990) 2 NWLR PT. 135
Thus, the fact that one can account for or has traditional history in his favor still suffices in this regime but it is no longer as prevalent as it used to be except in cases of customary land tenure. This is also ideal because the Supreme Court has likewise held in the case of DABO V. ABDULLAHI (2005) 2 SC (PT 1) at 91 that one does not need to prove more than one of the five methods. Thus, the list is disjunctive and not conjunctive.
A DEED IS AN AUTHENTIC MEANS OF PROVING TITLE
Generally speaking, a deed is a document which passes interest in property or which binds a person to perform or abstain from doing an action. Certain factors qualify a document embodying an agreement to pass interest as a deed, to wit: The document must be signed, sealed and delivered.
The Apex court has also emphasized in the case of ALIYU V. SODIPO (1994) 5 NWLR PT 342 S.C
“A duly executed deed of assignment is enough to support the award of title”
The court also held in the case of OGUNLEYE V. ONI, Supra that a deed is a good root of title and this decision lends so much credence to this discourse in that, it did hold that the certificate of occupancy cannot stand on its own as a good root of title because it is just a number which makes no statement as to title except for deemed grants directly from government as envisaged by sections 5,6,34 and 36 of The Land Use Act.
For ease of reference, examples of good roots of title as enumerated by the Court in the case of OGUNLEYE V. ONI as well as the case of OLOJUNDE V. ADEYOJU are deed of assignment duly perfected, deed of legal mortgage duly perfected, assent, court vesting order/ declaration, registered title, deed of gift and certificate of purchase(emphasis mine).
The examples of bad roots of title are license, lease, contract of sale, receipt of purchase, letters of administration/probate, Power of attorney, certificate of occupancy where no other documents are attached to prove ownership (emphasis mine).
The above phrases were emboldened to emphasize the position of the law that a deed duly perfected, that is, undergone governor’s consent, stamping and registration, ranks above a mere power of attorney, or a mere certificate of occupancy. It is therefore, very discouraging that some states transfer title by virtue of a power of attorney. It is advised that a prudent lawyer should still prepare a deed of assignment in those jurisdictions like Abuja were a deed is not required for transferring interest in respect of an undeveloped land. This is so as to curb the situations where that same land is allocated to yet another person, he would not have only a mere power of attorney or certificate of occupancy to rely on in proof of title.
To buttress more, after the governor grants consent, the Solicitor must ensure that the stamp duties charged on the transaction are paid. Also, it is important that the document be registered to vest legal interest on the person who registers it, when not registered, it cannot be pleaded and as such is inadmissible in evidence and the courts cannot give effect to it and as such it cannot be used as a document of tile to land. See ATUFE V. OGHOMIENOR (2004) ALL FWLR part 224. Also, the registration of a document gives priority. Priority is very important in the case of competing interests of two holders bearing deeds of assignment that are registered. The person who holds only a certificate of occupancy does not stand a chance.
Conclusively, where there are rival instruments that are registered, the first in time will be reckoned with. This is expressed in the Latin maxim, qui prior est tempore portio est jure (he who is first has a stronger right) see the case of ORUMWENSE V. AMU (2008) ALL FWLR part 442.
Hence, a power of attorney and a certificate of occupancy in themselves do not pass as good roots of title. The person who seeks to enforce his right should have these and a duly perfected deed of assignment. In that way, he is safe. Registering with power of attorneys alone should be discouraged because same does not transfer title but only empower another to do certain acts on one’s behalf.
The principle of Nemo dat quod Non Habet connotes that a person cannot give what he does not have, hence, a person who is not a rightful owner or allottee, cannot transfer the title. The exception to this is that when a person conveys title that does not belong to him to an innocent purchaser who did not know that the person who sold to him does not own the title, the purchaser has a right. He is called a Bona-fide purchaser for value without notice. Again, that brings us to the first issue, where such a situation occurs, the real owner has to adduce evidence which may include a registered deed and which we contend is authentic for all intents and purposes.
Ademola Bashiru is a Lagos-based lawyer.
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