- Introduction
Land is a very important asset and ownership or proof of title can be a very contentious matter. The certificate of occupancy is widely regarded as the best evidence of title to land in Nigeria but it is not the only recognised way to prove ownership of land. It is settled law that there are five ways to prove title to land. Therefore, the fact that a person holds or acquires a certificate of occupancy over a plot or parcel of land does not mean that the title to that land cannot be challenged.
- Proof of title to land
In the locus classicus of Idundun v Okumagba (1976), the Supreme Court stated that title or ownership of land can be proved in any of the following five (5) ways; (i) by traditional evidence; (ii) by production of documents of title duly authenticated; (iii) by proving acts of possession and ownership extending over a sufficient length of time which are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner; (iv) by proving acts of long possession and enjoyment of the land; (v) by proof of possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is the owner of the land in dispute.
- Certificate of occupancy
3.1 Since the enactment of the Land Use Act in 1978, the certificate of occupancy has become the standard title document issued by any land registry in Nigeria. However, other documents of title, such as the land certificate or the registered conveyance, issued before the promulgation of the Land Use Act remain valid instruments. Also, the Land Use Act recognises a “deemed right of occupancy” which protects the ownership of every person to any land held before 1978 and such a person can apply for a certificate of occupancy to be issued over the said land. See section 34 of the Land Use Act.
3.2 A Governor cannot issue a certificate of occupancy to extinguish the pre-1978 “deemed right of occupancy” created or granted by section 34 of the Land Use Act. In Ibrahim v Mohammed (2003), the Supreme Court, per Ogundare JSC said,
“I am satisfied that the correct view is that where there is an existing right held or deemed to be held by a person over a piece of land, the Governor cannot without first revoking that right under section 28 and paying compensation under section 29 of the Act, validly issue a right of occupancy (C of O) over the same land pursuant to his powers under section 5(1) to any other person.”
- Judicial authority
A certificate of occupancy raises the presumption that the holder is the valid owner of the land in dispute but that presumption is rebuttable and the certificate of occupancy can be challenged by someone with a better root of title. In Madu v Madu (2008), the Supreme Court (per Aderemi JSC) held that,
“A Certificate of Occupancy properly issued where there is no dispute that the document was properly issued by a competent authority raised the presumption that the holder is the owner in exclusive possession of the land. The Certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it can be proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy in that case the Certificate of Occupancy will stand revoked by the court.”
See also, Adole v Gwar (2008), Ogunleye v Oni (1990), Olohunde v Adeyoju (2000), Nigeria Engineering Works v Denap (2001), Omiyale v Macaulay (2009), Otukpo v John (2012).
- Practical example
Lets us paint a scenario. Mr A acquired a plot of land in 1965. He built a house and lived there but did not register ownership or obtain any title document to the land. In 1985 the Governor issued a Certificate of Occupancy over the same plot of land to Mr. B who then became the first registered holder of title to the land. After 1978, upon the enactment of the Land Use Act Mr. A had become the holder of an existing right and a deemed right of occupancy over the plot of land. Furthermore and regardless of the absence of a document of title, he could prove his ownership by the continuous and uninterrupted possession and enjoyment of the land from 1965 to 1985. (See Idundun v Okumagba above). Therefore, Mr. A could successfully challenge the title of Mr. B even though he was later issued a Certificate of Occupancy over the said plot of land.
- Conclusion
Finally, where any person disputes title to land and intends to commence legal action for a declaration of title and recovery of possession of the land, then litigation must be commenced within 12 years from the date of dispute or cause of action. This is because valid ownership of land may be acquired by uninterrupted adverse possession after a period of twelve (12) years. Failure to observe this 12 year period of limitation will mean that the claims for title will become stale and all right, title or interest to the land will be lost for all time.
