A new approach to Land Documentation – Kehinde Adekunle, PH.D.

Land, an endowment of nature, is God’s free gift to humanity. And, although naturally free, land is however regarded as a pricey commodity which every one ought to possess. So, among all the physical human possessions which money can buy, land is about the most valuable item that every person craves to own. The desire is so much that a learned Judge observed that:

“It passes my comprehension how in these days, when such disputes have come before this Court again and again, any person will purchase land…without the most careful investigation, for more often than not they purchase a lawsuit, and very often that is all they get!”

The above quoted statement clearly underscores the degree of man’s craze to own land. Why? It is simply because land is immovable, indestructible and appreciates in value as the days go by. It is so useful to man that there is hardly anything man can do on earth without making use of land one way or the other. For right from the very first day of human existence, he depends on land for his dwelling, working and resting place. Hence, the Holy Scriptures even confirm that “Dust thou art, to dust returneth.“  This importance of land was aptly captured by the words of a legal scholar who says that:

“Every person requires land for his support, preservation and self actualisation within the general ideals of the society. Land is the foundation of shelter, food and employment. Man lives on land during his life and upon his demise, his remains are kept in it permanently. Even where the remains are cremated, the ashes eventually settle on land. It is therefore crucial to the existence of the individual and the society. It is inseparable from the society. Man has been aptly described as a land animal.”

The great importance which humanity attach to land in the manner explained above has necessitated the need to look at the method(s) adopted by legal practitioners in effecting the preparation of land title documents in favour of intending purchasers of landed property. The need becomes more imperative in view of the provision of the Land Use Act, 1978 which forbids the sale, transfer or conveyance of land by one person to another unless one goes through the Governor of the State where the land is situated. Thus, Section 1 of the Land Use Act, 1978 provides that:

“Subject to the provisions of this Decree, all land comprised in the territory of each State of the Federation are hereby vested in the Governor of the State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Decree.”

Land having been vested in the Governor of each State of the Federation by this provision, it follows that land can no longer be owned outrightly by an individual. The only title which can be passed now to any individual under the Land Use Act is the right of occupancy and this can be either statutory or customary Right of Occupancy depending on the location of the land involved.

In view of the above provision of the law, many believe that unless a land agreement is backdated to a date which precedes the year 1978 when the Land Use Act was promulgated, such an agreement would not be valid. It is thus common to see land agreements being backdated from time to time. In fact, many people believe that only legal practitioners who were called to the Bar before 1978 could prepare land agreements. If this were so however, who would be preparing land agreements for people after the demise of all lawyers who were called to the Bar before 1978? Again, if all land agreements must be backdated to a period which predated 1978, how would people born after 1978 own landed property? Or will such group of people not own land or build their own houses? All these and other similar posers have called the wisdom of the legal practitioners who prepare backdated agreements to question.

To this end, a piece of useful advice to legal practitioners and draftsmen will suffice here as regards the method of drafting Land Agreements without necessarily offending the provisions of the Land Use Act, 1978 or backdating such land agreements. A reasonable method of making such land agreements legally tenable is to prepare an agreement to sell, transfer or assign the land involved to the Purchaser. Thehabendum of such an agreement will look thus:

“In pursuance of the agreement to sell the land in consideration of the sum of …paid by the Purchaser to the Vendor (the receipt whereof the Vendor hereby acknowledges), the Vendor as the absolute owner under Native Law and Custom and the deemed holder of the appropriate Right of Occupancy in respect of the said land under the Land Use Act, 1978 hereby agrees to SELL AND TRANSFER to the Purchaser the totality of his interest, estate, right or title in ALL THAT piece or parcel of land situate, lying and being at . . . measuring approximately . . . square metres the exact boundaries of which are shown in the Survey Plan No . . . “

Once an agreement to sell, transfer or assign is prepared in this manner and the full purchase price is paid by the Purchaser to the Vendor, a valid contract of sale of land has been concluded. This proposition of the law has support in the case of Ogunbambi V. Abowab in which the Plaintiff bought a parcel of land direct from the Oloto family in 1929 and got a purchase receipt signed by them. The Defendant traced his own title to a Conveyance made for his predecessor-in title by the same Oloto family in 1948. The Defendant challenged the Plaintiff’s purchase receipt as being inadmissible in evidence because it was not registered under the Land Instruments Registration Ordinance and the Court was also urged to consider whether the land was validly sold to the Plaintiff under native law and custom. While holding that the purchase receipt was admissible in evidence as an acknowledgement of the payment of money and that there was a valid sale under Customary Law, Verity, Ag. P., who read the Judgment of the Court said:

“There can be no doubt that by such law and custom, no such things as written contract or Conveyance are necessary to effect a valid sale. The payment of purchase money and the delivery of possession are enough.”

Equally important is the decision of the Court of Appeal in the case of Omoniyi V. Alabi in which it was held that the purport of backdating land agreements to 1977 was to deceive the Governor as the consenting Officer and that such agreements are void and unenforceable.

Going by this decision of the Court of Appeal, it follows therefore that all the land title documents which had been backdated over the years were meant to deceive the Governor of the various States of the Federation and, as such, are all void and unenforceable. Why then do we deceive ourselves? Do we need to backdate land title documents to make them valid in law? I think not!

Even though it may be argued that Omoniyi’s case has not been given the benefit of the pronouncement of the Supreme Court of Nigeria but then another case which was decided not long ago by the apex Court would seem to have confirmed the above position of the law enunciated by the Court of Appeal in Omoniyi’s case. The case in question is Kachalla V. Banki. This was a case in which the Appellant bought a 24-bedroom storey building from one Alhaji Bukar Kumshe, the legal owner of the building, on 16th March 1994 and was given a receipt and put in possession. However, on 22nd August, 1994, the same building was sold on the order of an Upper Area Court in Maiduguri which delivered a valid Judgment against Alhaji Bukar Kumshe, the holder of the Certificate of Occupancy in respect of the building. The Appellant’s claim that he was a bona fide owner of the property and that the subsequent sale thereof to the 2nd Respondent on the order of the Upper Area Court was null and void was dismissed by the trial Court on the ground that the Appellant only had “an equitable interest” while the 2ndRespondent had a “legal estate” in the property. The Appellant’s subsequent appeal to the Court of Appeal was also dismissed. The Appellant ultimately appealed to the Supreme Court.

While allowing the appeal of the Appellant, the Supreme Court held:

“Even if the 2nd Respondent had acquired legal estate or the property was properly conveyed to him, he had to take the property subject to the existing rights and interest of the Appellant.”

Musdapher, JSC who wrote the leading Judgment of the Court then referred to and relied on Ogunbambi V. Abowab in which it was held that even though the Defendant relied on a Conveyance, he was bound by the equitable interest in the prior Purchaser.

Now, it is noteworthy that part of the factors that affected the mind of the Court in Kachalla’s case were that:

  1.         A receipt was issued by the holder of the Certificate of Occupancy, Alhaji Bukar Kumshe, to the Appellant when the property was transferred to the latter;
  2.         The said holder of the Certificate of Occupancy put the Appellant in possession of the property immediately the sale of the property was effected; and

  iii.        The Appellant actually went into possession through the tenants whom he took over from Alhaji Bukar Kumshe.

It could thus be derived or deduced from the above facts that:

  1.         The issuance of the receipt to the Appellant constituted an equitable interest in favour of the Appellant; and
  2.         The act of putting the Appellant in possession coupled with the fact that the Appellant actually went into possession constituted sufficient notice to all intending subsequent Purchasers.

In order to make a thorough job in the preparation of land agreement therefore, it is essential to add another clause to the habendum suggested above in the following terms:

NOW THIS AGREEMENT WITNESSES as follows:

  1. In pursuance of the said agreement and … (insert the above suggested habendum)
  2. The Vendor hereby further agrees with the Purchaser as follows:
  3.         To apply for Governor’s approval for the formal grant of Certificate of Occupancy to the Purchaser at the Purchaser’s expense whenever the latter is ready for that exercise;
  4.         To allow and permit the Purchaser to enter, make use of and remain in possession of the said land permanently until the approval of the Governor is obtained and formal grant of the right of Occupancy of the land is made in favour of the Purchaser; and

                   iii.        To save harmless and keep indemnified the Purchaser against all losses, charges and damages and expenses which the Purchaser may sustain, pay or be put to by reason or as a result of any adverse claim in respect of the piece or parcel of land the subject matter of this agreement or if the approval of the Governor is refused for want of title on the part of the Vendor.

With the clauses herein suggested, the draftsman would have taken care of the acknowledgement of receipt of the purchase price, the handing over of the land to the Purchaser and putting him in effective possession of the landed property. And of course, once the Purchaser goes into possession either by himself or by his privies or agents, the law will stand firmly on his side.

Consequently, the Attorneys-General of all the States of the Federation are hereby advised to direct the officials of their respective States’ Ministry in charge of land matters to stop forthwith, where such practice still obtains, the unwholesome idea of requesting for land agreements backdated to the year 1977 (before the advent of the Land Use Act) from the people applying for Certificates of Occupancy before the issuance of such Certificates. The continuous insistence on that method will not only amount to deceiving the Governor of each State to issue such important documents as was held by the Court of Appeal in Omoniyi’s Case but will even amount to erecting the superstructure of documents of title to land in the Country on a faulty foundation.

Dr. Kehinde Adekunle, a senior legal practitioner, is of the University of Ibadan.

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