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Insecurity of land title in Lagos: Suggestions for reforms

By Gbenga Ojo

Presently, land transaction in Lagos state is chaotic. Lawlessness, violence, murder, arson, wanton destruction of properties are regular fallouts of dispute arising from land transactions. This is as a result of multiple sales of land to different purchasers by the land owning families. In most cases, the buyer purchases law suits and litigations while the families smile to the bank. Central to all these are the Omo oniles, the unscrupulous members of land owning families, land agents and mercenaries called land grabbers.

There are other instances where a bona fide purchaser of legal estate would lose his land after several years because the party that sold the land to him did so when there was pending litigation over the land and the party has been adjudged as a trespasser. Meanwhile, no amount of due diligence would reveal the pendency of the suit. There is also the problem of acquisition of title to land by adverse possession. By adverse possession, a trespasser/squatter on account of being in possession of the land for 12 years without the consent of the real owner, would have his trespass turn to ownership of the land and the title of the real owner extinguished. This is legislative endorsement of land theft.

Gbenga Ojo

The Lagos state government has been very responsive in a bid solve the problems with various legislations like Land Registration Law of 2015 and Property Law of 2016 popularly called Land Grabbers Law. But even the promulgation of Land Use Act with its high expectations also failed to achieve the desired result. All these laws are merely palliative; they treat the cause and not the effect. This is because notwithstanding all the laws, the problems of insecurity of title to land remain prevalent in the state.

The situation under customary law

The hallmark of good management and administration of land tenure system is simple, cheap and systemic acquisition of good title and disposition of the land devoid of controversies or litigations. This cannot be said of acquisition of title to land particularly in the Lagos state and by extension in southern states of Nigeria. Land in Lagos State is generally held under the customary laws. The important characteristic of customary land holding is that land belongs to the community, the family, relatively and in recent times, to individuals. To acquire title to land under the customary laws, there are requirements of obtaining multiple consents. This means the consent of the head of the family or community as well as the consents of the majority of the principal members of the family or community. The multiple consents have been turned into an engine of fraud. Central to the sales are the notorious land speculators.

The sales of land under customary law are informal. No documentation of the title of the family or community is required. So, in most cases, with the connivance of the land speculators, the buyers buy the land either without the consent of the head of the family or community or without the consent of the principal members. In both cases, the buyers have bought nothing but litigation.

Lis pendens

While the search for guaranteed good title to land continues, there is another problem of equal proportion constituting a stumbling block on acquisition of title to land in Nigeria. This is caused by the doctrine of lis pendens.  While a case on title to land is pending in court, one of the parties, to cut his loss{es} would sell the land to unsuspecting innocent buyers, who cannot, no matter the level of the investigation of title to land discover that there was a pending court case on the land. The buyer or buyers meanwhile, ignorant of the pending law suit, would have invested a lot of money on the development of the land. The fortunes or gains of the purchaser of such land will be dictated or determined by the result or outcome of the litigation.

The buyer or buyer{s} would get to know about his misfortune, several years after, when the judgment creditors come calling with the officers of the court to enforce the judgment by wrestling from him under the compulsion of law vacant possession of the property that has served as his home for several years. It does not matter that in between, he has obtained a certificate of occupancy over the land from the government. Ironically, one arm of government gives him a certificate of occupancy while another arm of government dislodges the purchaser from the property notwithstanding the certificate of occupancy.

It becomes more complicated, where the buyers have mortgaged the land to a bank using the certificates of occupancy as security for the lending. This is becoming rampant in Lagos state in particular. The best practices in other jurisdiction like England, India and other countries is statutory modification of the raw doctrine of lis pendens. In all these countries, pending litigation over title to land are made registrable, The registration is mandatory. The registration will serve as notice to the public. Apart from searching for title at the Land Bureau or the office of Surveyor General, the prospective buyer will also search at the Lis Pendens Registration to find out, if there is any pending case or litigation on the land. With deployment of ICT, the searches can be done on line with money paid to the government.

It serves two purposes. Generate revenue for the government and also helps to reduce insecurity of title to land in the state. I have done a lot of academic work/researches in this area. I have published two papers on this. I titled one Lis Pendens and insecurity of title to land in Nigeria. I can proudly say with all sense of modesty that “Lis Pendens” is my baby. I am willing even pro bono to assist the government with the implementation of lis pendens in Lagos State.

Adverse possesssion

Adverse possession is a possession that is hostile, under a claim or color of title, actual, open, notorious, exclusive and continued for the statutory period of years and thereby giving an indivisible right of possession or title to the adverse possession under the Limitation Laws. Limitations Laws have two consequences. One, no action shall be brought to recover land after the expiration of twelve years from the date of accrual of right of action. The action is said to be statute barred.  Two, title of the rightful owner of the land will be extinguished on the expiration of the statutory period fixed by the limitation law. A person pleading adverse possession has no equities in his favor as he is trying to defeat the title of the true owner. It is for him to plead and establish all facts necessary to establish his possession. He must plead and lead evidence not necessarily when he entered possession but when his possession becomes adverse to that of the paper owner.

Criticism

Acquiring title to land by adverse possession is a legislative endorsement of trespass or land theft. The law is harsh and inequitable. An adverse possessor is a trespasser/squatter who is liable in damages for trespass. Granted that the law should not encourage stale claim but to go to the extent of extinguishing the title of the rightful owner for a trespasser on account of account of lapse of time without having regard to the knowledge of rightful owner or circumstances that make it impossible for the rightful owner to protest against the trespasser is illogical and indefensible.

A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely. However, if as it is the present case, the owner of the land has no immediate use for it and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire land for nothing from the owner simply because he has been permitted to remain there for 12 years. To say that in such circumstances the owner who has sat on his rights should therefore be deprived of his land appears to me illogical, and disproportionate.

However the Land Registration Act of 2002 has over hauled the law of adverse possession in England and Wales. Under the new legal regime, mere lapse of time cannot in itself bar the rights of a registered proprietor. It is immaterial, whether or not the registered proprietor has commenced legal proceedings to terminate the squatter’s proceedings.. The Act promotes the fundamental concept of indefeasibility that is a feature of registered title by placing the onus on the squatter.

There are three special cases, in which despite opposition/objection, the adverse possessor may succeed n registration. They are:

{1} where it would be “unconscionable because of an equity of estoppel” for the registered proprietor to seek to dispose the applicant the circumstances are such “that the applicant ought to be registered as proprietor” of the estate in question.

{2} where the applicant is entitled “for some other reason” {eg under uncompleted contract of purchase} to be registered as proprietor

{3} reasonable mistake as to boundary

In India, the quest for change in the law of Adverse possession has reached the highest level with the Supreme Court of India playing the leading way. Judicial activism of some sort. The courts in India are championing the cause for legislative change of title by adverse possession, where there are trenchant criticism of the doctrine of adverse possession.

In England, fundamental changes of great proportion has been effected on the law of adverse possession. In India, there are judicial agitations for the change in the law.

In Singapore, Title by adverse possession used to be one of the recognized mode of acquiring title to land in Singapore. However, Land Titles Act 1993 {027 of 1993} which came into force on the 1 March 1994, title by adverse possession was abolished. In the case of TSM Development pte Ltd v Leonard eline nee Pereira Supreme Court of Singapore held that the object of Land Titles {Cap 157, 1194 Rev Ed} {“LTA”} was to abolish adverse possession as a means of acquiring title to land, whether registered or unregistered subject to the saving provisions for possessory title already acquired as at 1st March, 1994 when LTA came into effect.

 

In Hong Kong

So presently title by adverse possession is currently in operation in Hong Kong. The rules relating to acquisition of land through adverse possession are found in the Limitation Ordinance {Cap 347} and relevant case law. Except in case of government land, for which limitation period is sixty years, no action to recover land is allowed after twelve years from the date upon which the right of action accrued. Time will start running when the land owner has been dispossessed or where he has discontinued possession of the land and adverse possessor has taken possession of the land. In order to prove adverse possession, a squatter must establish that he has both the physical possession of the land and the required intention to possess it {animus possidendi}

Recommendation:

I strongly recommend that adverse possession should be abolished in Nigeria. The law is robbing Peter to pay Paul. It is anachronistic, out dated, reprehensible and encouraging land theft or robbery. Title to land by adverse possessions need legislative rethinking and total over hauling in Nigeria. If we must retain it in our statute book, I  recommend the English model, which is being followed in Hong kong with its check and balances.

Resulting Trust

There is yet another problem. It is the doctrine of resulting trust. More specifically, the specie of the resulting trust known as purchase price resulting trust or contribution to the purchase price resulting trust. The beneficial interest in any property belongs to the person who provides the purchase price or to the extent of his contribution to the purchase price. The person in whose name documents of title is written is holding the land in resulting trust for the person who paid the purchase price. Equity does not aid a volunteer in the underlying equitable maxim for this doctrine. As between the person that provides the purchase price and the person in whose name the conveyance was written, there is hardly any problem conceptually, though there are few cases where the transferee denies the equitable interest/title of the person that paid for the land, relying on the title document in his name as his root of title.

It however becomes more difficult and complicated, where the transferee transfers the property to a third party. The third party, buys the property, in good faith relying on the documents without knowing about the party that paid the purchase price. This will create problems of rival claims of title to the land. The third party/buyer premises his title on the purchase from the ostensible owner and will tender the document of title as his root of title. This is understandable because production of document of title duly authenticated and executed is the second method of proving title to land. In addition to this, the purchaser will also rely on the doctrine of bonafide purchaser of a legal estate for value without notice of the equitable title of the person that provided the purchase price. The equitable owner relies on his equitable title by virtue of payment of the purchase price.

Suffices it to say at this stage, that the title of the equitable owner will be defeated by the doctrine assumpti super se.

SUGGESTION FOR REFORMS

Establishment of Land Commission

The first solution, which is critical is establishment of Land Commission in the state. The problem is more than what a task force can handle. The land Commission will be set up by a statute, with a Chairman and a Secretary. Government will determine the composition. The commission will have its investigators and prosecutors. The police should not be involved in this at all. This is because some of the bad eggs in the police are part of the problems. We can cite EFCC and ICPC as examples. When the police seemingly cannot handle cases of corruption, economic and financial, Federal Government set up these two bodies. At least in the fight against corruption, the bodies have done far better than the police. The problem of security to land and consequences demand this drastic measures. The punishment should range from 10 years to twenty one years with no option of fine. The commission will flush out from the state, land grabbers and fraudulent omo oniles

ESTABLISHING LIS PENDENS REGISTRY

I have canvassed elsewhere in this presentation that lis pendens should be made registrable within one week of filing the law suit. The starting point is to establish Lis Pendens Registry and a comprehensive legislation on the modalities and operations of lis pendens should be passed. This will contain the legal frame work with dos and don’ts. At the expense of sounding repetitive, I adopt my suggestions above. My papers dealt with this extensively

TITLE BY ADVERSE POSSESION UNDER LIMITATION LAWS SHOULD BE OVERHAULED AND UPDATED

I have suggested total over hauling of this concept. I suggest in this paper the Singaporean method. That is to abolish it. Such title could be dealt with under the ewuitable maxim of latches and acquiescence, the rule in Awo v Cookey Gam or the Islamic jurisprudence of hausi with so many exceptions. If we must retain it we should adopt English model with so many checks and balances

TITLE ALL LANDS IN LAGOS STATE

This is the final solution. Is it not strange that in Ikoyi, Victoria Island, some part of Yaba and few other places, there is no problem of insecurity of title to land. In those places, all lands are titled by the government. It creates indefeasibility of title to land. Government issued Land Certificate and guarantee the title of the land. Apart for few instances, the title is safe. I can give to the government a position paper on how this will work. It will involve office of Surveyor General, Ministry of Justice, Land Bureau and Physical planning. Because it is going to be capital intensive, it can be done in stages.

Ugandan Government obtained loan from world bank to embark on the same project. It is on going. The project will continue where the colonial masters stopped. It is clear. They titled the lands where they stayed and left other areas untouched. I do not know why this has not been done up till now. It will take time, huge funding but once achieved, Lagos State will not witness Omo Onile or Ajagungbale/land grabbers. Some areas of Ikorodu and Ibeju-Lekki are like war zones on account of the activities of the land grabbers. They kill, they maim and get away with it. They write fictitious petitions against owners of the land, alleging armed robbery, murder and other offences using their collaborators in the police. Some come of the incarceration blind. It is pathetic. I am not sounding false alarm. I am involved and I know. Despite the setting up of the Task Force on land grabbing, insecurity of title to land has not stopped. We need more than Task Force. We need a Land Commission. If well planned and implemented, land grabbing and activities of the fraudulent omo oniles will be a thing of the past in the state.

Finally, there is need to streamline and incorporate into a legislation or two, legislation on land matters in the nature of Companies and Allied Matters Act, 1990 in the state, though this is an aside. Law Reform Commission in the state should be able to handle this . Hitherto, there were different statutes on corporate matters. There was Companies Act of 1968, there were laws dealing with firms and enterprises as well as incorporated trustees. With the promulgation of Companies and Allied Matters Act, 1990, all these laws were brought together under one legislation. Nigeria legislations on land are too many, scattered and uncoordinated. There is need to consolidate these arrays of laws on land in the state in the nature of Companies and Allied Matters Act, where major legislations on corporate matters are put together under one enactment. It might be necessary to have similar enactment in property laws in Lagos State

 

 

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