By the progression of Land holding in Nigeria, from “Communal Land”, and/or “Family Land” to individual land ownership, it became imperative, ‘ because of obvious competing interests and the magnitude of it, that a land owner, should possess some documentary or other easily ascertainable evidence of ownership or title. Over the years, such evidence has been inter alia, purchase receipt, Registered Conveyance, Land Certificate and Certificate of Occupancy.
Let us start by examining the Certificate of Occupancy. The Certificate of Occupancy as the name implies, merely confers possessory rights on the holder. What therefore is enjoyed, is right to occupy and use land, with ownership vested by law, in the Governor of each State, who is a deemed trustee thereof. The counterpart of the Certificate of Occupancy at the “Rural” level of land holding, is the Customary Right of Occupancy.
The Certificate of Occupancy and The Customary Right of Occupancy since 29th March, 1978, are being issued pursuant to the Land Use Decree, 1978. Since then, Land transactions have been largely with the consent of the. Governor or if in rural areas, the consent of the affected Local Government. In practice, this demarcation of what is “Urban” or “Rural” Land has never been clear. But in both cases, it is envisaged that any occupier enjoys a Right of Occupancy.
I do not intend presently, to go into the consequential legal implication of conferring a previous owner with mere possessory rights, but instead, I am concerned with the practical usefulness and worth of such evidence of title.
Ordinarily, possessing that magic document, should have put the mind of a purchaser of interest in real estate at rest, but experience has shown that this is not always the case. There have been instances, when multiple certificates surface on the same piece or parcel of land, thereby making the finality of such document in terms of confirming what it infact represents to convey suspect.
One major reason for this rather unfortunate situation is that, the progression of the process for securing one, especially in the so called “Urban” areas is fraught with loopholes. Never mind, that advertisement is usually made in the Newspapers for possible objectors; fraudulent applications and others short of full disclosure, escape scrutiny. The Land Use Decree unfortunately created an incongruous situation whereby, the so – called Trustee of all land, the Military Governor, does not know what land, except “Government Layout,” is readily available for allocation by him and therefore upon which he may issue a certificate.
What happens is that this fundamental lacuna, is filled, by the prospective applicant, stepping forward with his own papers of previous ownership – usually a conveyance or purchase receipt to which the Governor/ Trustee was never a party. Most times, of course, back dated! It is on these papers/documents of “title” that the Governor basis his judgment, after inviting other people through the dailies by advertisement, to “Come See” what the applicant has brought, usually within twenty-one days, after which he feels free to sign and issue his certificate, the evidence of title. Pray, how many illiterate land owners read Newspapers? What about the itinerant elite land owner; “London today, Milan Tomorrow Nko”?
It therefore follows, that the Governor after deriving his revenue, sometimes allows the camel to pass through the eye of the needle and this explains why every prospective land owner or purchaser interested in real estate, should beware. The truth is that inspite of the bogus and enormous powers conferred on the Governor/Local Govt. (as the case may be) under the Land Use Decree, beyond issuing the certificate, the issuing authority, bears no further responsibility in guaranteeing good title.
Indeed, on his issuing the certificate, he will be no more concerned with your complying with the terms of his grant to you, never mind that having being armed with your Certificate of Occupancy (that ought, at the minimum, to be your right to posses, and occupy and use the land comprised in the Certificate), you are unable to occupy the land not to talk of using it. Sometimes you may have in your hand a freshly issued Certificate of Occupancy, only to discover that there exists on the same piece of land, a land certificate or even Registered conveyance, dating back to 1950. Of course, like the computer, garbage in garbage out!
What is more, your certificate might just have been issued over a fraction of land comprised in a previously existing deed or certificate, which fraction had infact being developed and occupied forty years- ago! Your vendor has simply played a fast one on you, by putting forward the Certificate he has freshly obtained” So as to hide his previously registered transactions over the same piece of land. In such case, an expensive war ensues between the deemed grantor and actual holder of Certificate thereof.
Everyone who has interest of whatever type in Land, will have to warn himself and be on his/her guard at all times. Indeed, there have been instances, where certificates have been obtained over somebody else’s developed property and mortgaged to a bank. The original owner and occupier holding under a Registered conveyance or Land Certificate, knew nothing until the auctioneer arrived! It will not be long especially in Lagos, before sign such as “THIS HOUSE IS NOT UNDER MORTGAGE” is splashed on the walls. In this regard, the banks and other financial institutions, will have to advise themselves and pay more attention to search reports conducted on their behalf.
The kind of paltry sums being paid to solicitors for conducting searches, need to be looked into, if they ever wish to retain experienced land solicitors. Paying a reasonable fee to ensure that a loan transaction is not built on a bottomless pit, sure make good business sense, than spending a fortune fighting lost battles. A wise solicitor knows, that not all searches should end at the land registry, sometimes land surveyors are brought in so as to cover the field. Furthermore, the banks who reject Registered conveyance and land certificates, in preference for Right of Occupancy documents (C of O) should have a rethink.
While the Land Use Decree remains with us, everyone with interest in land, should take interest in Government Notices concerning applications for grant of Certificate of Occupancy and raise any objection when necessary. It appears for now that only some land owning families are doing that, though most times, for malevolent reasons.
It is also observed that a lot of holders of Certificate Occupancy, go to bed as if it were, after obtaining same, forgetting that the terms and conditions contained in the document are not for fun. They are meant to be complied with and the fact that immediate compliance is not being required in some States, is no reason or sufficient excuse, when its enforcement is brought, up as reason for revocation thereof. It will certainly be a most unpleasant experience, for many certificate holders today, were the respective Governments to wield the Big stick. A lot of property “Owners” will simply wake up to the realization that they in fact hold nothing. It will be in their best interest, to ensure compliance today, for tomorrow may be too late.
Extract taken from
HINTS ON LAND DOCUMENTATION AND LITIGATION IN NIGERIA
(Published by LAWBREED LIMITED)
First published in July, 1999
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