- 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.
- Documents of title
2.1 Some clients come to us with only a registered survey plan wrongly claiming that they have a document of title to their land. After the Land Use Act 1978, the acceptable standard document of legal title to land is the Certificate of Occupancy. There can be only one C of O issued for each property and subsequent purchasers will receive the original C of O from the vendor. The Deed of Assignment with Governor’s consent endorsed is also a valid document of legal title to land as such a document will have fulfilled the condition for validity of title required by section 22 of the Land Use Act. Section 34 also recognizes the deemed right of occupancy for owners who held land before the Land Use Act. Many of such pre-1978 land owners have a registered conveyance or a land certificate which are still valid documents for legal title to land.
2.2 A document of title still may not transfer title where there is a defect in the root of title or the registration process. In Romaine v Romaine (1992), the Supreme Court described the requirements of a valid document of title,
“I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant: See Idundun v. Okumagba (1976) 9-10 S.C. 227; But it does not mean that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.”
- Order of priority of title
3.1 In the absence of legal title then, possession coupled with payment of purchase price or a deed of assignment without consent confers equitable title on the purchaser of land. However, where there are competing interests and one is legal title and the other is equitable title, then the legal title is superior to the equitable title (unless he had notice of the equitable title) and a legal title acquired later in time extinguishes an earlier equitable title and there can be no dispute as to priority of title. However, where both parties with competing interests in land both have only equitable title then the rule of priority in equity will apply. Where a common vendor has sold land to the purchaser earlier in time, there can be nothing left to give another purchaser who takes later in time. The principle, nemo dat quod non habet, meaning one cannot give what he does not have, applies. See, Olohunde v Adeyoju (2000)SC.
3.2 In Ashiru v. Olukoya (2006), the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities pursuant to the well recognized maxim, qui prior est tempore, portior est ure, meaning that he who is first has the strongest right, dictates that the first in time takes priority. See also, Ejuetami v. Olaiya (2001)SC. In Labode vs Otubu (2001), the Supreme Court held that, in law and equity, the basic rule is that estates and interest primarily rank in order of creation and he who is earlier in time is stronger in law. Also, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other.
3.3 In Kachalla v Banki (2006), there were competing interests in land both holding a statutory right of occupancy. The Supreme Court per Musdapher JSC said,
“In property law, many different question of priority may arise these may concern rival conveyances of property or as in this case competing interests in the holding of the right of occupancy. The fundamental rule is that competing interests will generally rank according to the order of their creation. See Barclays Bank Ltd. v, Bird (1954) Ch. 274; Ugbo v. Aburime (supra); Labode v. Otubu (supra) and Okoye v. Dumez (supra). In Owosho v. Dada (1984) 7 SC 149. This court per Aniagolu JSC said at 173: The law has been well and long settled, that where a person pays for land and obtains receipt for the payment followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land, that was affirmed to be the state of the law in Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97.”
3.4 Where the equities are equal and neither claimant has the legal estate, the first in time prevails. In Omale v Maikudi (2022), the Court of Appeal explained the order of priority where there are competing equitable interests in land,
“On another score, Exhibits “C” and “E” revealed that the Appellant bought the purported land in dispute on the 30th day of June, 1996 while the Respondents’ bought theirs on the 26th day of July, 1999 and to this effect, the learned authors of the 17th Edition of SNELL’S PRINCIPLES OF EQUITY stated the applicable rule of priority at pages 45-46 inter alia: “At law, as in equity, the basic rule is that “Estates” and “Interest” primarily rank in the order of creation. Qui prior est temporer potior est jure; he who is earlier in time is stronger in law.” The law is therefore settled, that the interest of the Appellant takes priority over that of the Respondents’ since he was the first to purchase the land. Again, where there are two competing equitable interests, the general rule of equity is that the person whose equity is attached to the property first would be entitled to it over the other. Accordingly, it follows that since the interest of the Appellant ranked first in the order of priority, he is automatically earlier and stronger in law than the Respondents. See the authorities of AYANWALE V. ODUSAMI (2010) 12 SCNJ 362 AT 379; OLUKOYA V. ASHIRU (2006) 5 SCNJ 107 AT 121.”
See also, Onwuzo v Minister FCT (2022) LPELR-57699(CA), Joseph Ero v Iyiola Olukayode Tinubu (2012) LPELR-7869(CA), Olagun v Akerele (2012) LPELR-9791(CA)
- The equities must be equal.
4.1 The principle of order of priority in equity only applies where the equities are equal and where the competing parties can trace their title from a common grantor or vendor. In Pate v Muhammad (2016), the Court of Appeal per Bdliya JCA said,
“However, the principles of law governing equity and interest in land in order of creation only applies where the equities are equal. See Kachalla v. Banki (2001) 10 NWLR (Pt. 721) P. 442 @ 462, when two parties are disputing over land and both claim to derive title from the same source, the trial Court is duty bound to consider the evidence of both sides carefully, and decide on the balance of probabilities, which side it will accept and act upon. Akintola v. Balogun (2000) 1 NWLR (Pt. 642) 532; Fashanu v. Adekoya (1974) 6 SC 83. In the case before the lower Court, the equities were not equal. The plaintiff claimed to have purchased his land from Alhaji Abubakar Sallau Zuntu, while the defendant purchased the land from Alhaji Salisu Na-Ayuba. The appellant and the respondent did not trace their title to a common grantor rather they traced their titles on the same piece of land to different grantors. The doctrine of priority is not applicable to two competing grantees who traced their title to a common predecessor-in-title but to two competing claimants who traced their title to a common grantor. Therefore, the prerequisite for the invocation and application of the doctrine was not appropriate in the case before the Court.”
4.2 The equities must be equal. Therefore, where one party proved title by purchase from a vendor but the other could not prove purchase of the land, the principle cannot apply. In Meadows v Fabanwo (2013), the Court of Appeal per Ikyegh JCA said,
“Priority of title would only be invoked where the equities are equal. So, the 2nd appellant’s case that he bought the disputed piece of land in 1996, while the respondent bought it in 1998, cannot bring into operation the principle of priority of title, as the 2nd appellant did not prove title by purchase which he had pleaded and relied upon at the court below; unlike the respondent who had pleaded and proved complete title by purchase to the disputed piece of land. See Ugbo v. Aburime (1994) 8 NWLR (Pt.360) page 1, where the Supreme Court held that the principle of priority of title that he who is first in time prevails is only applicable where the equities are equal.”
- Conclusion: Buyer beware
The lesson is that, where a person seeks to buy land and circumstances point to the probable existence of an earlier purchaser of the land, then that person must be extremely cautious. The maxim caveat emptor, meaning let the buyer beware applies and it is the duty of the buyer to properly investigate the title of any property which he seeks to purchase using the help of professionals, in order to avoid competing claims of adverse title from earlier buyers. In Kumo v Bappari (2022), the Court of Appeal per Sankey JCA, sounded a note of warning,
“The law is that only a bona fide purchaser of a legal estate for value without notice of any defect in title can take priority over someone who had acquired a prior equitable interest or title over the property – Ohiaeri v Yussuf (2009) LPELR-2361(SC). …… The fundamental principle in all land transactions is captured in the Latin maxim, “caveat emptor“, which means, let the buyer beware. A purchaser is required in law to first of all conduct a search in the relevant registries before committing his money in any property transaction.”
