INTRODUCTION
In view of the incessant dispute with regards to ownership or title to land in Nigeria and the uncertainties, doubts and suspicion that usually beclouds a would-be purchaser of land as to the genuiness of the title to the land he or she proposes to buy , this article seeks to examine the best ways of protecting the interest of a purchaser of land in Nigeria.
The article specifically focuses on the Certificate of Occupancy issued by the Governor in favour of the owner of the land in respect of which the certificate was issued and how effective is the said certificate with regards to establishing title of the holder of such certificate on the land.
Upon the issuance of the Certificate of Occupancy, does the existence of such Certificate give the holder the assurance that the acquisition of such certificate is conclusive evidence that the holder is the authentic and genuine owner of the land or does the holder of such Certificate needs to conduct further investigation of title despite being the holder or owner of the Certificate of Occupancy in respect of the land: This article seeks to address all the issues raised herein
WAYS OF PROVING TITLE TO LAND.
In an action for declaration of title to land the onus lies on the Claimant to prove the title he is claiming. He must succeed on the strength of his own case rather than the weakness of the defence. See ITAUMA V AKPE (2001) 7SC (PTII) 24.
There are various ways of proving title to land in Nigeria
By traditional history or evidence
By production of documents of title
By various acts of ownership numerous and positive , extending over a length of time as to warrant the inference that the person is the true owner
Acts of long possession and enjoyment of land
Proof of possession of adjacent land
See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227
However, in contemporary day to day transaction for the sale and purchase of land, most purchasers of land are insisting on the vendor producing title documents before entry into agreement for the sale or purchase of land. Documents like Registered Conveyance, Deed of Assignment, Purchase Receipt, Survey Plan etc, are being requested by the purchaser before entering into any transaction for the sale or purchase of land. However, the most requested for or sought after document of title is the Certificate of Occupancy. Many purchasers of land believe that the possession of a Certificate of Occupancy in respect of the land by the vendor is sufficient evidence that the land genuinely belong to the vendor.
It is against this background I shall now consider the legal efficacy of the production of a Certificate of Occupancy in establishing title to land.
WHAT IS A CERTIFICATE OF OCCUPANCY.
Prior to the promulgation of the Land Use Act, the general ally acceptable document evidencing title to land is the Registered Conveyance but upon the advent of the Land Use Act, the certificate occupancy became the most acceptable document of proving title to land. The question therefore is what is a certificate of occupancy.
A certificate of occupancy is the document issued by the Governor which evidences the grant of a Right of Occupancy over land under the jurisdiction of the Governor. See Section 9 of the Land Use Act.
A certificate of occupancy is the evidence of exclusive possession and exclusive right to ownership in respect of the Land in which the certificate was issued.
A certificate of occupancy creates a term of years in favour of the holder subject to conditions such as payment of rent. Every certificate of occupancy issued by the Governor is for a specific term, the longest of which is ninety nine (99) years.
LEGAL IMPLICATION OF THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY.
A Certificate of Occupancy properly issued by the Governor therefore gives the holder of such Certificate exclusive rights over the Land in respect of which the Certificate was issued.
In UBA PLC VS AYINKE (2000)7NWLR (PT 663) 83 at 100 – 101 it was held as follows:
“That apart it is the law that a Certificate of Occupancy properly issued by competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect hereof, Such a Certificate also raises presumption that at the time it was issued there was not in existence a customary owner whose title has been revoked”.
In the light of the above authorities it is clear that the position of the law is that a certificate of occupancy is prima facie evidence that the holder of such certificate has the title over the land in respect of which the certificate was issued.
Although a Certificate of Occupancy is prima facie proof of ownership of land but it is not a conclusive proof, but only raises a rebuttable presumption that the person whose name appears on it, is the owner or holder of an exclusive possessory right, over the subject land and that at the time it was issued there was not in existence, an owner of the land whose title has not been revoked.
In ATTA V EZEANAH SUIT NO.CA/A/83/99; (2000) 11 N.W.L.R. (Pt. 678) 363 at 385, It was held as follows:
"It is settled law that a Certificate of Occupancy is only a prima facie evidence of title or Right of Occupancy in favour of the person whose name is on the certificate of occupancy. Where a rebuttal is raised on that presumption the trial Court is bound to examine all the surrounding circumstances, including the nature of competing claims, why the certificate of occupancy is issued in that persons name and any other issues of law or fact on why a rebuttal of that presumption is raised. From pleadings of the parties and the evidence adduced before the trial Court the prima face evidence of ownership of the land by the respondent has been rebutted by the circumstances of the case.
In OLOHUNDE V. ADEYOJU Suit No. S.C. 15/1995; (2000) 14 W.R.N. 160 at 184; (2000) 10 N. W.L.R. (Pt. 676) 562 at 588, It was held as follows:
"Where a certificate of occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue." -
Also in OLOHUNDE V. ADEYOJU Suit No. S.C. 15/1995; (2000) 14 W.R.N. 160 at 184; (2000) 10 N. W.L.R. (Pt. 676) 562 at 588, It was held as follows:
"I think the point must be stressed that a certificate of statutory or customary right of occupancy issued under the Land Use Act, 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is, at , best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid and null and void.
CONCLUSION
In view of the above, it is my view that with respect to transactions for the sale of land, even though the land is covered by a Certificate of Occupancy, it is incumbent on the purchaser to conduct a thorough investigation on the land before consummating such a transaction.
In other words irrespective of the existence of a Certificate of Occupancy with respect to a landed property the would be purchaser of such landed property should conduct further investigation into the title of the holders of such Certificate of Occupancy or the title of the predecessors in title of such a holder of a certificate of occupancy as there is the likelihood that Certain Certificate of Occupancy might be defective and consequently transfer defective title to a subsequent purchaser of the Land.
*This article was written by Adenrele Adegborioye Esq Senior partner in the law firm of BA LAW LLP.*
TABLE OF BOOKS
Land Litigation in Nigeria (Practice & Procedure) by Hon. Justice Abiodun Akinyemi. Hints on land documentation and litigation in Nigeria by Layi Babatunde SAN
TABLE OF STATUTES
Land Use Act 1978
TABLE OF CASES
ITAUMA V AKPE (2001) 7SC (PT II) 24
IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227
UBA V AYINKE (2000) 7NWLR (PT 663) at 100 – 101
ATTA V EZEANAH (2000) 11 NWLR (PT 678) at 363
OLOHUMDE V ADEYOJU (2000) 10 NWLR (PT 676) 562
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