By Mashe Umaru Gwamna
An Estate Surveyor and Valuer Acholonu Valerian said Nigeria has documents of tittle for federal lands .
Acholonu stated this yesterday in Abuja.
She said that federal lands are those lands compulsorily acquired by the government of the Federation in any part of the Country. This is as expressed in Part 11 Section 6(2)(c) of the Lands Use Act, Cap 1.5 Laws of the Federation of Nigeria.
“The laws of the Federation Of Nigeria especially Cap Ill (Land Use Act) itemized the instruments through which alienation of interest in property could be legally effected.
“It is however a thing of worry that notwithstanding the provisions of the law, many Nigerians do not yet know the instruments of title to Federal lands”.
According to her”
The history of land ownership in Nigeria predates medieval ages when agricultural cultivation by man started. Ownership was generally communal. Land was held collectively in families, clans and villages.
“The right to land ownership was obtained through membership of a community. Local customs recognize the rights of community,villages through their headships, chiefs to control the use of land resources within the boundary and to select and use portion of land for family or personal use without paper documentation”.
She said “For development to take place, land was needed. This resulted in the initial acquisition of land by the colonial masters. Laws governing land ownership in the urban areas were enacted.
“Public Lands Acquisition Ordinance 1876, Public Lands Acquisition Act 1917, English & Cause Consolidation Act 1845 and others were introduced.
It is expedient at this time to explain the distinction between Local Governments, States and Federal Lands.
A simple explanation could be found in Section 6 of Part 11 of the Land Use Act (PRINCIPLES OF LAND TENURE, POWER OF THE
GOVERNOR AND LOCAL GOVERNMENTS, AND RIGHT OF OCCUPIERS)”.
“Here it is explained that the Governor has right over all lands in the State whether or not in an urban area. For land not in urban areas however, the Local Governments shall have dominion. “In practice however, this has not been so as the governors have never deemed it necessary to allow the local governments function effectively in every aspect of governance. “
Documents, Instruments of Title to Land in Nigeria
She said the law requires that any grant of an interest in land must be made by deed or writing as the case may be.
“ The grant must be signed by the person creating or conveying it or by an agent lawfully authorized in writing to act on his behalf. The implication is that notwithstanding that a property has been sold or that a gift of it has been made and that the purchaser has gone into possession, the legal title remains with the grantor who, at law, is competent to make a valid grant of it to someone else”.
She said as soon as the deed is executed, the title granted becomes vested in the grantee.
“Prior to the promulgation of the Land Use Act Cap 202 LFN, land documents used to take the form of Building Leases, Land Agreements (where there is outright sale), Deed of Conveyance, Sub-lease (where titles/interests in land were for a term of years).
“Today, they take the form of Statutory Right of Occupancy, Customary Right of Occupancy, Deed of Assignment, and Deed of Mortgage, Deed of Lease / Sub-Lease and Power of Attorney.
Certificate of Occupancy came into force in Nigeria with the introduction of the Land Use Act in 1978.
She stated that a deed is a document in writing which furnishes evidence or information about something, made of paper or the like and must be signed, sealed and delivered. “It must satisfy one of three conditions. It must either a) effect the transfer of a right or iterest in property; or b) create an obligation binding on some person/s or c) confirm some act whereby an interest, right or property has already been transferred.”
“Assignment is the legal transfer of the residue of permanent right of an individual over land for monetary considerations. The “assignor” transfers his interest to the “assignee” by virtue of his being in possession of a statutory certificate of occupancy. Encumbered properties are not eligible for perfection or approval for the grant of a Deed of Assignment. Consent to assign is based on the residue of the term granted in the Statutory Certificate of occupancy.
Where land or chattel is conveyed as security for the payment of debt or the discharge of some other obligation for which it is given, a mortgage is created. A mortgage may be legal or equitable. It is legal when it involves the signing of a mortgage deed under seal and the transfer of the legal title by the borrower (mortgagor) to the lender (mortgagee) subject to the mortgagor’s right of
redemption. “She said
An equitable mortgage is only an agreement to enter a legal mortgage.
A lease is a grant of an interest in land from one party (grantor/lessor) to the other (grantee/lessee) for a term less than that of the grantor. The legal document between parties to a lease is the Deed of lease/sublease.
“Power or Attorney is a document through which one person empowers another to represent or act in his stead for certain purposes in the presence of a witness. Registration of Title to Land
She said the Land Registration Act (1924) and the Land Instrument Registration Law (1959) make provision for registration in the Lands registry, of all documents and instruments affecting land. What is required to be registered is the instrument and not the interest thereby granted. An instrument is defined in the Act as
“A document affecting land in Nigeria whereby one party called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title or interest in land in Nigeria and includes a certificate of purchase and a power of Attorney under which an instrument may be executed but does not include a will”
A document/instrument requiring registration is ineffectual unless and until it is registered.
She stated that the aim of the Act is to provide prospective purchasers of land with information of existing claims on the land. Registration of an instrument does not in any way enhance its value. Section 19 of the Act expressly provided that registration does not affect the validity or otherwise of an instrument. Failure to register does not attract sanctions either but may void the document. However in all cases, this results to loss of priority in relation to a subsequent registered instrument affecting the same land and also non-admissibility of the instrument in evidence in judicial proceedings.
Instrument of Title for Federal Lands
She stated that this requirement is for Governor’s , Minister’s consent is necessary four all instruments of title for Federal Lands. Let it be explained that the Land Use Act specifically designated enormous powers to the Governor who holds the land in trust for the citizens of the State. Where the land is a Federal Land, the power is shifted to the Minister who exercises that authority on behalf of the President of the Federal Republic of Nigeria.
Among all the instruments of title for Federal Lands, it was observed during investigation that the use of Power of Attorney far outstrips others. Assessments of the instruments being used and registered in Nigeria indicate that Power of Attorney is most recourse to. Enquiries made at the offices of Real Estate owners/investors, Solicitors, Estate Surveyors & Valuers, Public servants and other professional versed in the art of advising investors in real estate reveal that the choice of Power of Attorney is hinged upon bottlenecks encountered in processing the variety of instruments.
It must be expressly stated that the English Conveyance & Property Act 1881 applies to all parts of Nigeria except Lagos and the Western states where the Property Conveyance Law 1959 (Cap 100 LFN) applies. Power of Attorney is recognized by the Act (1881) only as an instrument given by one person to another as an authority to act on his behalf or in his place and stead.
“The power ordinarily is given by deed and should be strictly followed. As stated in section 8 of the Act,
if a power of attorney given for valuable consideration is in the instrument creating the power expressed to be irrevocable, then, in favour of the purchaser, the power shall not be revoked at any time, either by anything by the donor of the power without the concurrence of the donee of the power or by death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power.”
With the introduction of the Land Use Act since 1978, power of attorney was given its proper place.
“Let it be restated that the instruments recognized by the Land Use Act include Deed of Assignment, Deed of Sublease, Deed of Mortgage and Certificate of Occupancy (Statutory and Customary). Part IV, sections 21 and 22 of the Act were explicit on this.
s 21. “
It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever….
S 22. “It shall not be lawful for the holder of a statutory right of occupancy granted by the governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the governor first had and obtained
It is absurd that anybody could interpret the word howsoever to mean way (whether authorised or unauthorised).
A number of judicial pronouncements have rested this argument.
From the foregoing, it is clear that the Governor’s consent is not required in the creation of Power of Attorney. It need not be because it is not an instrument of title (revocable or irrevocable). “Alienation that does not comply With the provisions of the Land Use Act is void not just voidable. Part Ill section 20 of the Act specifically dwelt on this; restating the obvious that all transfers of interest in land must be as recognized by the Act. The recalcitrance and obvious intransigence of vendees and vendors must be addressed. The professional owe a duty to his client and to all those who may come in contact with his work. If he fails, he may be sued for negligence. Where proved, he may not get his fees and even where paid, may be recovered through appropriate action. “The seeming ineptitude of some professionals in this regard is a betrayal of trust and confidence of their unassuming clients. Indeed most Governors are utilizing the opportunity and increasing their internally generated revenue. This they do by charging additional penal rent for unlawful alienation.
She noted that, “It has further been observed that holders of certificates of occupancy transfer their interest by Power of Attorney to the detriment of the purchaser who inevitably may be unaware of the implications. “Ultimately, title syndication is rife, unprofessional conduct of solicitors and other property consultants is on the increase, property racketeering is stifling the economy while the touts are hiding in their safe heaven.
“A Power of Attorney normally confers on the donee (agent) power to do certain things in the name of the donor (principal). The donee of a Power of Attorney could always apply in his name for the grant of a statutory right of occupancy. The property for which he applied for can only vest in him on being granted the right of occupancy and its attendant certificate”.
She emphasized that the governor’s consent is not required and indeed will not be safe in a Power of Attorney.
Unlike the recognized title documents that are processed by way of plan charting, deposition of plan, site inspection, publication, valuation, etc, Power of Attorney does not undergo these processes before registration. Understandably, the usual due process employed in the issuance of the recognised documents of title to land especially certificate of occupancy makes it take time.
“ Parties to land transactions may resort to the use of Power of Attorney as an interim measure. It is not an instrument of title and must not be taken as one”,she said.