JOFsolicitors

TRANSFER OF INTEREST IN LAND IN NIGERIA

NTRODUCTION

The fundamental incident of land ownership in Nigeria today, is that radical title and the management of all land in each state has been transferred and vested in the state governor by virtue of the Land Use Act 1978. Consequently, former land owners have no more absolute title of fee simple estate but only a kind of interest in diminutive form called a RIGHT OF OCCUPANCY which can only be alienated with the consent of the Governor or the Local Government.

There has been much controversy as to the scope of general and particular provisions which relate to transactions that fall within the statutory definition of “alienation” that will require consent, as well as increasing uncertainties over land rights.

This paper will attempt to throw sufficient light on the issue of alienation as it relates to transfer of right of occupancy; certificate of occupancy, registered instruments of transfer of interests and the great contrast between the right of occupancy system and the freehold system.

OWNERSHIP OF LAND IN NIGERIA

When the right of an individual to possess use and dispose of land is not subject to or restricted by the superior right of another person, the right of ownership is vested in him. This entails an infinite and absolute right on land.

The PCL defines land as “the earth surface and everything attached to the earth otherwise known as fixtures and all chattels real. It also includes incorporeal rights like a right of way and other easements as well as profits enjoyed by one over the ground and buildings belonging to another” By the provisions of S. 1 of the Land Use Act 1978 , all land comprised in the territory of each state of the Federation is vested in the Governor of that state and administered for the common use of all Nigerians.

By this same Act, the power of making grants is divided up between the chief executive of the state and the local government authority. According to the Interpretation Act, “Land includes any building and any other thing attached to the earth or permanently fastened to anything so attached but does not include minerals”.

PRE 1978- DEED OF CONVEYANCE

Before the Land Use Act 1978, there were at least four sources of ownership of land namely: Communal, family, individual and State ownership respectively. However, with the advent of the Land Use Act 1978, the ownership structure in Nigeria has been drastically transformed. Now the radical title to all land within the territory of a state in Nigeria has been vested in the governor of that state. What Nigerians enjoy now are rights of occupancy.

POST 1978 – CERTIFICATE OF OCCUPANCY

The fundamental incident of land ownership in Nigeria today is that radical title and management of all land that comprised in the territory of each state of Nigeria has been transferred and vested in the state Governor by virtue of the Land Use Act 1978. Consequently, former land owners have no more absolute title of fee simple estate but only an interest in a diminutive form called a Right Of Occupancy which can only be alienated with the consent of the Governor or Local authority.

Consequently, When a person is entitled to a statutory right of occupancy, The Governor issues a certificate under his hand in evidence of such right of occupancy. This certificate merely evidences title to interest in land as opposed to actual conferment of title. In other words, it doesn’t create a right; it is only a presumption that the right exist- it raises a presumption that the holder is in exclusive possession and has a right of occupancy over the land. Thus, where it is shown that another person has a better right to the grant, the court will if asked to set aside such a grant, as a certificate of occupancy issued pursuant to the land Use Act only gives right to use and occupy land and neither confers nor is it necessarily conclusive evidence of title.

A certificate of occupancy is an instrument of title; though not a title in the strict sense, it is nonetheless prima facie evidence of the holder’s right in the property (i.e. his right of occupancy). Note importantly, that the definition of title includes a document evidencing right. Further more, it has also been stated that “every right is a title, but every title is not a right…

Note that, in a registered conveyance, the C of O is the most important, though not the only source of acquiring an interest in land, as there are other oral grants under the customary system.

A C of O is the best evidence of title and valuable for the prevention of fraud (failure to produce it alerts a third party who intends to deal with party who purports a right to the interest and can act a most convenient source of notice and record of third party rights.

It also functions as a pledge to secure a loan, as any lender will have a hold over a proprietor who has handed over his certificate of occupancy to him as security In the same vein, it could also be a convenient means of securing a bank overdraft without the necessity of executing a formal charge. It can also be the means of identifying land registries entries efficiently and quickly without the risk of official errors, as it gives the land an official number.

AN UNREGISTERED DEED OF ASSIGNMENT AND CERTIFICATE OF OCCUPANCY

Even though by the provisions of section 2 of the land instruments Registration Law Cap 111 Laws of Lagos State 1094 an unregistered deed of assignment is not admissible in evidence, It is however trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchaser money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument, which has not been registered, is admissible to prove an equitable interest and to prove payment of purchase money or rent. The lands instruments Registration Law does not relate to directly to the issue of title, and does not affect the validity of the title or otherwise of the instrument not registered, rather it is intended to give some measure of security and protection against fraud.

On the other hand, the CERTIFICATE OF OCCUPANCY is prima facie evidence of a right of occupancy- a right to the use and occupation of the land. The major difference between the two is that while the former simply evidences the proof of payment of purchase money and equitable interest, the latter evidences title to property and legal interest. Note however, that where title is defective, the certificate of Occupancy evidences nothing and is a mere paper.
What this simply means is that even though it is prima facie evidence of title, possession and right of occupancy over land, where it is shown that another person has a better right to the grant, the court will set aside the grant. A better right to land can be conveniently proved by the following:

  • Traditional evidence
  • Documents that are duly executed
  • Acts of ownership e.g. selling, leasing etc
  • Acts of long possession
  • Acts of possession of adjacent or connected land

RIGHT OF OCCUPANCY SYSTEM

A right of occupancy is a right to use and occupy land subject to conditions and restrictions prescribed by law. It is devoid of absolute ownership or radical title and the person entitled to it is called a holder, this according to S. 51 of the Act excludes a transferee of an invalid assignment, a mortgage, sublessee or an underlessee. Any alienation of a right of occupancy contrary to the provisions of the Act may be ground for its revocation by the Governor for overriding public interest.The holder of a statutory right of occupancy enjoys a number of rights, powers and privileges with reference to the land and includes the following:
  • The use, occupation and beneficial enjoyment;
  • Possession;
  • Disposition
Note however, that the holder exercises these rights for a fixed period of time and is ultimately entitled to a document called a certificate of occupancy which is evidence of his title to the land. This certificate is a registrable instrument.