Conveyancing Procedure in Nigeria. Recommendations for Better Land Titles


Term Paper, 2021

18 Pages, Grade: 5.0


Excerpt

Contents

1.0. INTRODUCTION

2.0. DEFINITION OF CONVEYANCING AND CONVEYANCER

3.0. THE IMPORTANCE OF THE STUDY OF CONVEYANCING
3.1. Confidence in Conveyancing Procedure
3.2. Security of Titles to Land in Nigeria
3.3. It Creates a Knowledge-Base on How Land can be acquired
3.4. It Sensitizes Persons on the Importance of Engaging a Solicitor in Land Transaction
3.5. It Prevents Avoidable Land Disputes
3.6. It Fosters the Development of Society

4.0. THE PROBLEMS FACING CONVEYANCERS IN NIGERIA
4.1. Applicable Laws
4.2. Illiteracy
4.3. Registry practices
4.4. Professional Incompetence
4.5. Power of Attorney
4.6. The Death of Either Party
4.7. The Lack of Title Insurance in Nigeria
4.8. The Doctrine of Lis Pendens
4.9. Searches Conducted at the Land Registry
4.10.The Problem of Unregistered Interest in Land

5.0. CONCLUSION AND RECOMMENDATIONS

BIBLIOGRAPHY

ABSTRACT

The system of conveyancing in Nigeria today has posed series of problems, especially as regards land title. This is evident by the number of land disputes filed before the courts daily. These problems reduce the confidence of the public in conveyancing procedure in Nigeria and deny the government of revenue that ought to have accrued from land transactions like stamping fees, registration of title, and instrument. The agencies that are to cater for a smooth running of conveyancing procedure in Nigeria are themselves contributors to the issues that affect conveyancing. Dishonesty has become the order of the day amongst these agencies and even the solicitors. This paper is a deliberate attempt to look at the issues confronting conveyancing in Nigeria and proffer workable solutions that can stand the test of time. The paper sets out to look at the concept of conveyancing in Nigeria; the importance of studying conveyancing in Nigeria; the problems facing conveyancers in Nigeria; and solutions to the problems.

Keywords: Conveyancing; Conveyancers; Conveyancing procedure; Land title; Nigeria

1.0. INTRODUCTION

The process of conveyancing in Nigeria dates back to the pre-colonial era where land transactions were governed by various customs of societies that made up Nigeria. The divergence of customs and lack of adherence to the said customs resulted in a multiplicity of sales of one land to different purchasers. Hence in one case, the Supreme Court decided that whosoever purchases land from the Oloto family has purchased litigation.1 This shows that problem associated with the conveyancing procedure in Nigeria is not a new phenomenon.

With the influx of colonial laws, Nigeria received the common law, principles of equity, and statute of general application (as of 1st January 1900) into her municipal order.2 The statutes of general application have proved useful in the conveyancing process in Nigeria as they afforded States the opportunity of adjusting them to suit their local circumstances.3 This development though well-received has its problems that affect conveyancing procedure.

Conveyancing is a procedure by which interest in land is transferred from one party to another (vendor to the purchaser). It can broadly be categorized into two stages: the contract and the completion stage. The first stage is to culminate into a valid contract of sale of land, while the latter stage is to transfer the legal interest in land to the purchaser through an appropriate instrument under seal. It is worthy of stating that the practice amongst conveyancers in Nigeria is moving straight to the completion stage without formulating a binding contract of sale of land. The attendant effect is bad land titles and floodgates of land disputes.

This paper looks to clarify the concept of conveyancing and conveyancers in Nigeria, and also elaborate on the importance of conveyancing, while also identifying problems arising from the practice and proffering solutions to advance the land economy and system.

2.0. DEFINITION OF CONVEYANCING AND CONVEYANCER

The term ‘conveyancing’ has not been statutorily defined. However, the Black’s law dictionary defines conveyancing as “…the act or business of drafting and preparing legal instrument that transfers an interest in real property.”4

On the other hand, conveyance which is a closely related concept to conveyancing has been defined under section 2(v) of the Conveyancing Act, 1881 as follows:

“A conveyance includes any assignment, appointment, lease, settlement and other assurances and covenants to surrender made by deed on sale, mortgage, demise or settlement of any property or any other dealing with...”

Conveyance has also been defined under section 2(1) of the Property and Conveyancing Law, 1959 as:

“A conveyance is a mortgage, charge, lease, assent, vesting declaration and every other instrument except a will.”

From the above definition of conveyance, it is clear that conveyance is a document that expropriates interest in land. Hence, conveyancing can best be described as a process in which interest in land is alienated in favour of the assignee or purchaser. Conveyancing is wide enough to include the act of performing the various functions related to the creation, transfer, variation or extinction of interest in land, such as conducting searches at the lands registry, drafting, and perfecting the instrument.5

A ‘conveyancer’ can aptly be described as a competent professional who carries out the business of conveyancing. He must have acquired the requisite knowledge and training before he can be conferred with the status of a conveyancer. Usually a solicitor or professional estate surveyor and valuer.

A mere estate agent who has not undergone proper training ought not to be regarded as a conveyancer. Unfortunately, this is not the case in Nigeria. The question of who should be regarded as a conveyancer has been neglected for a long time, such that there is no longer integrity in the business.

3.0. THE IMPORTANCE OF THE STUDY OF CONVEYANCING

3.1. Confidence in Conveyancing Procedure

When conveyancers are aware of the process of acquiring land in Nigeria, there is a high probability that land titles would be more secured and it will encourage persons in the society to invest in real property either for residence or business.

3.2. Security of Titles to Land in Nigeria

The process of carrying out pre-contract enquiries and drafting a formal contract of sale of land is to ensure that encumbrances and defects associated with the vendor’s title are uncovered. This is further reinforced by the requirement of conducting searches in the land registry.6 Without the study of conveyancing, the conveyancer and the purchaser would be unaware of the importance of carrying out searches. The registration of title also offers a measure of protection to the purchaser unless in the face of overriding third-party interest.

3.3. It Creates a Knowledge-Base on How Land can be acquired

Conveyancing enables persons who desire to acquire land in Nigeria to know how to go about it. The various means of acquiring land are; Grant; Purchase; Deed of Gift (Gift intervivos); by Inheritance; Family land under customary law: conquest7, laches and acquiescence, allotment and apportionment. Some lawyers have wrongly attributed the means of proving title to land established in Idundun v Okumagba 8, to be ways of acquiring land in Nigeria. The Supreme Court in Adisa v Oyinwola 9 attacked this attitude and held that the five ways of proving title to land are not exhaustive of the means of acquiring title to land.

3.4. It Sensitizes Persons on the Importance of Engaging a Solicitor in Land Transaction

A solicitor is required both at the contract stage and the completion stage. The purchaser would be entitled to various benefits when a solicitor is engaged due to the formulation of a contract of sale of land which protects the purchaser whereby a reasonable time is negotiated by the solicitor so that investigation would be made on the vendors’ title before a deed of assignment is executed. Many intricacies involved in a land transaction require a solicitor due to his expertise and knowledge of the law.

3.5. It Prevents Avoidable Land Disputes

When land titles are good resulting from proper conveyancing practice and knowledge, there would be a reduction of disputes that arise from defective titles of land in Nigeria.

3.6. It Fosters the Development of Society

When the conveyancing process is known and well defined under the law, it would encourage both foreign and domestic investors to invest in real property in Nigeria. Furthermore, the government acquires revenue from payment of fees associated with conveyancing procedure like stamp duties (ad Valorem) and fees for registration, which applies to both a contract of sale of land and instrument of transfer.

4.0. THE PROBLEMS FACING CONVEYANCERS IN NIGERIA

Various challenges plague the conveyancing process and affect conveyancers in Nigeria. Many of the problems to be discussed below can be attributed to the lack of development of the conveyancing practice in Nigeria unlike in other jurisdictions like the United Kingdom, New Zealand, Australia, and etcetera. They include:

4.1. Applicable Laws

This problem can be viewed from the following perspectives:

4.1.1 The multiplicity of laws: the subject of property and conveyancing in Nigeria have series of laws that govern it. Some of such laws include; Conveyancing Act 1881, Settled Land Act 1882, Land Use Act 1978, Land Tenure Law of various states, Mortgage law 2010 of Lagos state, Land Instrument Registration Law of various states, Property and Conveyancing Law, 1959, Statute of Fraud 1677, Registration of Title Law of various states, etcetera. Most of these laws touch the same subject area which poses a significant problem for both lawyers and judges. For instance, Lagos State consolidated her property laws to form Mortgage and Property Law 2010 (amended in 2015). The law however failed to repeal the Conveyancing Act 1881 (a statute of general application). The implication is that any area not covered by the Lagos Mortgage law would be covered by the Conveyancing Act.

4.1.2 Most of the applicable laws are obsolete. Nigeria adopted many of the laws that were made in England before 1/1/1900 and those laws still apply even after they have been amended or repealed in England. A good example is the Conveyancing Act 1881 which is applied in 24 states out of 36 states of the federation. That law provides for the rule of intresse termini which has been repealed in the U.K. Also, the rule in Bain v. Fothergill10 has been abolished by Section 3 of the Law of Property (Miscellaneous Provision) Act of 1989 (United Kingdom).

4.1.3 The difficulty of interpretation of statutes on property and conveyancing law. Most of the statutes are not reader-friendly due to their poor paragraphing and drafting style.11 Most of the obsolete laws make use of archaic languages coupled with bad punctuation which renders interpretation of the provisions somewhat tasking. The Land Use Act, 1978 which is the principal legislation for land ownership in Nigeria has given judges an onerous task in construing its wordings due to the poor drafting of the statute.

4.1.4 Some property laws are discriminatory by excluding its application from some territories which it ought to govern. The Tenancy Law, 2011 of Lagos State is a good example. Section 1(3) of that law excludes its application from Ikeja GRA, Apapa, Victoria Island, and Ikoyi. That section further grants the governor of Lagos state discretion to exclude certain areas in Lagos state from the application of the law.

4.2. Illiteracy

The literacy level on property and conveyancing is very low amongst the Nigerian populace. Yet a majority of persons refrain from employing competent hands that would assist them with the conveyancing process. They often engage the services of estate agents or “do it themselves”, resulting in defective land titles in Nigeria. Even the elites in Nigeria exhibit this wrong attitude. Unknown to purchasers, the defective title is conveyed in subsequent land transactions which end in bitter litigation. Estate agents have become increasing in number, most of whom are touts carrying out questionable land transactions. They attract members of the public with their cheap yet unprofessional services, having undergone no significant training on the law of property and conveyancing.

4.3. Registry practices

In Nigeria, there are land registries at the federal, state, and local government level which forms part of the bureaucracy of government. The Federal land registry, a division of the Department of Land in the Federal Ministry of Works administers Federal Government lands. This is a major contributor to delay and frustration experienced by conveyancers at the land registries.

Relevant conveyancing documents that ought to guide conveyancers are non-existent.12 Most land registries do not have guidelines that prescribe conveyancing procedures. Even some land registries that have such procedure could be questioned based on it being drafted by non-legal personnel13 who would take the easy route by adopting precedent from other jurisdictions without altering it in line with the local circumstances of the state. The issue is worsened when the administrative directives issued out by the land registries are not backed up by law, but clothed with the toga of legality and enforced. This is contrary to the rule under administrative law that every administrative body must not go beyond the scope of power delegated to it by its enabling law unless such an act will be substantive ultra vires.14 Hence registry practices must conform to the law to be enforceable. In the English case of Strand Securities Ltd. v. Caswell ,15 the Court held that it would not give weight to the established practice of the Land Registry if that practice was contrary to the law.

Furthermore, the lack of qualified officials of the land registry has made it difficult for lawyers coming new into the jurisdiction to learn directly from a registry staff as to the procedure obtainable in the land registry. Due to the high level of unqualified professionals, many irregularities are condoned resulting in defective titles.

[...]


1 Isaac Talabi Ogunbambi v. Adeniji Soyombo Abowaba (1951) 13 WACA 222, at 223. Verity C.J held that, “The case is indeed in this respect like many which come before this court; one in which the Oloto family either by inadvertence or design sell or purport to sell the same piece of land at different times to different persons. It passes my comprehension how in these days, when such disputes have come before this court over and over again, any person will purchase land from this family without the most careful investigation, for more often than not they purchase a law suit, and very often that is all they get.”

2 Section 45 of the Interpretation Act, 1964. It provides that, subject to this section, and to any federal legislation, the common law of England, principle of equity and state of general application as at 1/Jan/1900 shall be in force in Lagos, and in so far as it relates to the legislative competence of the federal government, shall be in force elsewhere in Nigeria.

3 As under the Property and Conveyancing Law 1959 which applies in states in the former western Nigeria; the various Land Instrument Registration Laws of states; Stamp Duties Law of various states.

4 Black’s Law Dictionary 7th Edition P. 334

5 S.O. Imhanobe: Legal Drafting and Conveyancing, Temple Legal Consult. 3rd edn (2010) P. 277

6 The Supreme Court in David v. Sasegbon (1956) SCNLR 281, held that “a purchaser who did not take the trouble to investigate the title of the vendor at the Land Registry where he would have discovered the existence of any encumbrance would have himself to blame for not doing so.”

7 An act of conquest following a war or warlike undertaking by any person or group of persons is criminalized under the s.42 of the Criminal Code Cap C27 LFN 2004.

8 (1976) 10 SC 227.

9 (2000) 10 NWLR [Pt 674] 116 at 178.

10 (1874) LR 7 HL 158

11 S.O. Imhanobe: Op cit. p. 285

12 This is in contrast with the U.K jurisdiction that has general conditions of sale, special conditions, national conditions and the Law Society conditions which have specifically been made to offer assistance to conveyancers.

13 Imhanobe recalled a conversation he had with a Director of one of the land registries in a State of the Federation, who was not a lawyer neither was he a professional estate nor valuer; he informed him that he designed the forms used by the land registry in that State.

14 O. Oyewo: Modern Administrative Law and Practice in Nigeria. University of Lagos Press, 2016 p.82

15 (1965) Ch. 958

Excerpt out of 18 pages

Details

Title
Conveyancing Procedure in Nigeria. Recommendations for Better Land Titles
College
University of Lagos
Grade
5.0
Author
Year
2021
Pages
18
Catalog Number
V1064728
ISBN (eBook)
9783346486370
ISBN (Book)
9783346486387
Language
English
Tags
Conveyancing, land administration, africa, nigeria, landlaw, conveyancing procedure, landregistry landuseact
Quote paper
Joel Odili (Author), 2021, Conveyancing Procedure in Nigeria. Recommendations for Better Land Titles, Munich, GRIN Verlag, https://www.grin.com/document/1064728

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