Validity of Sale of Land without Governor’s Consent
“IT IS THE LAW THAT, WHERE A PURCHASER OF LAND OR A LESSEE IS IN POSSESSION OF THE LAND BY VIRTUE OF A REGISTRABLE INSTRUMENT WHICH HAS NOT BEEN REGISTERED, AND HE HAS PAID THE PURCHASE MONEY OR THE RENT TO THE VENDOR OR THE LESSOR, THEN THE PURCHASER OR LESSEE HAS ACQUIRED AN EQUITABLE INTEREST IN THE LAND, WHICH IS AS GOOD A LEGAL ESTATE”
The Appellant commenced the suit, claiming title to the plot of land situated at D9, Constitution Road, Kaduna. He traced his title to a certain Isa Yahaya, PW 1, who affirmed same and testified that, he had a Customary Right of Occupancy (R of O) evidenced by a Local Government Certificate of Occupancy (C of O). It was the case of the Appellant that PW 1’s C of O was mistakenly revoked in 1987, but the revocation was subsequently rescinded in 1988, and a new C of O was issued to him. PW 1 testified further that, he sold the disputed land comprising 6 rooms, a parlour and a fence, which was at lintel level, to the Appellant. This building was demolished by the Respondent.
The Respondent, a limited liability company, joined issues with the Appellant, claiming that it was the person legally and more entitled to the large expanse of land granted to it. The Respondent averred that, it was a beneficiary of the Kaduna State Government’s revocation of the Appellant’s title to the disputed land, which formed part of the larger expanse of land over which the Right of Occupancy No. 15424 (Exhibit 12) was granted to it by the office of the Military Governor of Kaduna State in April, 1988, after compensation was duly paid to the beneficiaries of the land in question. Its witness, DW 1, testified that the land was granted to it in public interest.
The trial court found for the Appellant, holding that the Customary Right of Occupancy (Exhibit 1) issued to PW 1 over the disputed land, was still valid and subsisting, having not been revoked. The court held further that, PW 1 had the right to dispose of the property as he did to the Appellant, vide a sale contract. An appeal by the Respondent to the Court of Appeal, was adjudged as being meritorious. The appellate court reasoned that, there is no evidence of the payment of the purchase price and acknowledgment of same, though the issue was not in contention between the Appellant and the Vendor – PW 1. The Court of Appeal also reasoned that, the Appellant did not establish that the PW 1 obtained the requisite consent of the appropriate authority for the alleged sale of land to him, thereby impugning his claim of title to the land. The decision of the Court of Appeal, necessitated the instant appeal by the Appellant to the Supreme Court.
Issue for Determination Whether the Appellant proved his case, so as to be entitled to the declaration of title sought.
Arguments Counsel for the Appellant submitted that, facts not disputed are deemed admitted and taken as established. The Respondent did not dispute the evidence of PW 1, to the effect that the land was allocated to him by the Kaduna Local Government and when he could not develop it, he sold it to the Appellant, a relative with means to develop same, and put him in possession. Counsel posited that, the finding of the appellate court that there was no evidence of payment and receipt of purchase price, stemmed from a misconception of the evidence before the court. To demonstrate his root of title, the Appellant tendered various exhibits which confirmed the holder’s title, emanating from relevant authorities. One of such is the undisputed approved building plan issued by the Kaduna State Urban and Property Development Authority (KASUPDA) - Exhibit 6, which underscores the legitimacy and existence of the Appellant’s title through PW 1. On the issue relating to failure of PW 1 to obtain necessary approval from relevant land authority before alienating the land to the Appellant, counsel submitted that, the transaction was inchoate; a mere agreement to sell or assign which fell short of an outright or absolute assignment of the interest of PW 1 to the Appellant in the legal sense.
Counsel for the Respondent on his part argued that, PW 1 did not seek or obtain the approval and or consent of the relevant authority, before purportedly alienating his interest in the disputed land to the Appellant. He submitted that, this failure rendered the transaction between PW 1 and the Appellant void, by the combined effect of Sections 5(1), 6(1)(a), 21(a) & (b) and 22(1) of the Land Use Act. Further, Exhibit 5, the purported receipt of purchase price in consideration of assigning the interest of PW 1 in the land to the Appellant, was rejected on the ground that being a registrable instrument, it was not so registered in accordance with the provisions of Section 15 of the Land Instruments Registration Law, Cap 85 of the 1991 Laws of Kaduna State. Thus, no instrument was executed in evidence of the assignment of the land to the Appellant. Court’s Judgement and Rationale The Apex Court noted that, going by decided authorities, once the Defendant claims to be the owner of the disputed land or where the Plaintiff claims damages for trespass as well as declaration of title and injunction to restrain further trespass by the Defendant, title is said to be in issue. In such instance, the Plaintiff must succeed on the strength of his own case, and not on the weakness of the defence. This he does by credible evidence, satisfactory to the court – FABUNMI v AGBE (1985) 1 NWLR (Pt. 2) 299. The Appellant here traced his title to PW 1, who testified that he obtained a Certificate of Occupancy from the Local Government. This certificate was mistakenly revoked in 1987, and the revocation was rescinded in 1988 and a new certificate was issued to him. The Respondent’s case was that, the land was acquired by the government for overriding public interest and assigned to it for public purpose. Revocation or otherwise of a Certificate of Occupancy, is a matter within public domain, which upon diligent conduct of searches at the relevant land office or registry, any member of the public can easily establish. The Respondent’s witness admitted the existence of customary titles, prior to government’s acquisition and grant of Statutory Right of Occupancy to the Respondent. Exhibit 6 is an approved building plan issued by an agency of the Kaduna State Government, authorising the erection of structures built by the Appellant. This raises the presumption of regularity under Section 168(1) of the Evidence Act, in favour of the subsistence of the title asserted by the Appellant. This is especially so, as the Respondent did not prove that the title of the Appellant or PW 1 had been revoked, before the acquisition for public purpose. The proof of compulsory acquisition for public purpose is not by mere allusions as the Respondent did in this instance, the burden must be discharged by empirical evidence in line with Sections 131, 132 and 133 of the Evidence Act.
On the issue of alienation of interest in the land without prior consent or approval of the relevant authority, the Supreme Court found that, by the evidence of the Appellant, the sale transaction was nothing but a mere agreement to sell or assign the disputed land to him by PW 1. This testimony was further substantiated by the fact that, the building approval and other approvals were processed from the authorities in the name of PW 1. In SAVANNAH BANK PLC v IBRAHIM (2000) FWLR (Pt. 25) 1626, a clear distinction was made between an agreement to sell and an outright sale. While an agreement to sell or a conditional sale subject to the necessary consent being obtained, is not prohibited by the Land Use Act, an outright sale/assignment without consent, is null and void. From the evidence before the court, the assignment alluded to was inchoate or a mere escrow transaction which is not prohibited by Section 21 of the Land Use Act.
It is the law that, where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered, and he has paid the purchase money or the rent to the vendor or the lessor, then the purchaser or lessee has acquired an equitable interest in the land, which is as good a legal estate. This equitable interest can only be defeated, by a purchaser of the land for value without notice of the prior equity – REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR v JAMES & ANOR (1987) LPELR-2946(SC).
“There are two broad stages that culminate in the vesting of title to the purchaser, in a land transaction. The first stage, is the agreement or contract stage. This stage does not require the consent of the Governor under Section 22 of the Land Use Act. At this stage of entering into contract for sale of land, no alienation has taken place as envisaged by the said Section 22, and therefore, the requirement of the consent of the Governor does not arise. ... The second stage involving alienating or transferring the vendor’s right of occupancy, and which is done by a conveyance or deed. Because this stage invariably involves the vesting of title in the purchase, consent of the Governor must as a legal prerequisite, be sought and obtained.”
The Respondent in this case cannot feign ignorance, that it is a bonafide purchaser for value without notice. More so, the sale agreement (Exhibit 5) was rejected in evidence, on the ground that it was not registered in accordance with the provisions of Section 15 of the Land Instruments Registration Law of Kaduna State. Thus, no instrument was executed in evidence of the assignment of land between the Appellant and PW 1. It follows therefore, that the finding of the lower court that PW 1 assigned his interest in the land without previous consent or approval of the relevant authority, is unfounded. Appeal Allowed.
Representation Henry Akunebe Esq., with Florence Omoruyi, Esq. for the Appellant. Chris A. Esq., (Solicitor-General of Kaduna State) with E.K. Bakami Esq., State Counsel for the Respondent. Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))