Grant of land in the Federal Capital Territory like every other part of Nigeria is governed basically by the Land Use Act with the Registration of Titles Act the relevant statute for official documentation and administration of lands granted by the Honourable Minister, FCT under the Land Use Act.
The grant of land is statutorily covered by S.5(1)(a) of the Land Use Act which states–
“(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area to –
- a) Grant statutory rights of occupancy to any person for all purposes”
The Act further goes on in S.7 to place a restriction on allocation of land to persons under the age of 21 years where it states “It shall not be lawful for the Governor to grant a statutory right of occupancy or consent to the assignment or subletting of a statutory right of occupancy to a person under the age of 21 years”. This therefore raises a condition of capacity even in the case of natural persons.
S.38(1) of the Companies and Allied Matters Act states succinctly that “Except to the extent that the company’s memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorized business or objects, have all the power of a natural person of full capacity.”
It is thus irrefutable that only natural and juristic persons have capacity and are entitled to land allocation in Nigeria.
The entire process for land allocation in the FCT carry all the ingredients of a contract viz offer by the Minister of a plot, acceptance of same by the offeree and consideration in the form of a premium. Other fees are also payable as well as a condition to annually pay rent to the overlord over a defined period of time.
It is here submitted that dealings in land including but not limited to allocations itself is a form of contract to which it is trite law that capacity so to do must reside in all parties thereto. Same tallies with the writer’s opinion that like in any other contract, only natural persons with capacity and juristic persons with capacity conferred by statute are entitled to deal in land.
The Companies and Allied Matters act in granting life to organizations was clear in restricting this privilege to incorporated bodies registered under parts A and C only. This privilege is not enjoyed by business names (the topic of this paper) registered under part B of the CAMA. Such contraptions registered under part B are not juristic persons and cannot enter into contracts, sue or be sued in their own names and are actually the business descriptions of those who trade by them.
Indeed Nigerian courts over the years in decided cases have unequivocally declared the position of the law to be that “An unincorporated body is not a juristic person and cannot enter into any contract or transaction and/or own land in its unincorporated name…………….”. Bankole & Ors. V. Emir Industries Ltd. (2012) LPELR-19719.
See also F.C.D.A. v Unique Future Leaders Int’l Ltd. [2014] 17 NWLR
It is unfortunate that in spite of these illuminating plethora of statutes and legal authorities, many land registries in Nigeria (of which the FCT is no exception) are replete with land transactions between and allocations to registered entities “non sui juris” and wholly unregistered bodies which can only at best be described as nicknames of those who coined them.
If land allocations in the FCT can be described as contract between the Minister and the alotee, the question now arises as to which manner of contract can be concluded therefrom bearing in mind that one of the parties totally lacks capacity.
My submission is that the relationship entered into by the Minister FCT and the non juristic persons mentioned herein can only be described as “conditional contracts” which is defined by Black’s Law Dictionary as “An agreement that is only enforceable if another agreement is performed or if another prerequisite or condition is satisfied.”
One of the conditions and/or prerequisites of a valid contract being capacity, it then follows that if same is satisfied, the agreement becomes regularized. The non juristic allotee finds a way to acquire capacity and the initial conditional contract can thereafter be validated. Lack of capacity in the present instance does not (in the absence of any third party interest) void the agreement and the error can be corrected upon fulfilling the condition precedent to contracts.
This practical submission will endeavor to deal with the various scenarios present in the anomalous allocation of land to non juristic persons within the FCT.
After a census and ascertainment of these anomalous titles we may in a bid for practical resolution of the matter at hand distinguish between:
1) Names not registered under any statute
2) Names registered under part B of the Companies and Allied Matters Act or any statute which will for administrative purposes be categorized into
- a) Names of which the proprietor’s natural name forms a part;
- b) Names derived from a non natural juristic person
- c) Names having non juristic roots.
3) i) Physically developed premises
- ii) Empty plots of land.
Thereafter we look at the affected properties under the following categories:
4) Those with registered Third Party Interest
5) Those free from Litigation or any contention
6) Those with pending litigation.
Above delineations become necessary as there is no one size fits all solution to the regularization of the error of these non juristic bodies having being administratively allocated land “per incuriam”.
Names not registered under any statute
This category of alotees have in my opinion no plank to hold on to as these applications were illegal ab initio. The alotees were very much aware of their ineligibility to apply for land in names not theirs and the Land Use Act did not contemplate allocation of land to nicknames.
It is believed that in the absence of physical development thereon, such allocations being outrightly illegal should be forfeited to the authorities and government officers who participated in the allocations disciplined.
The developed ones may now subject to the Minister’s discretion be subjected to any regularization steps of which registration is compulsory.
In both cases the lands register should be altered to modify the previous errors.
Names registered under part B of the Companies and Allied Matters Act
As earlier stated, these can be divided into three groups viz:
- a) Names of which the proprietor’s natural name forms a part
- b) Names derived from a non natural juristic person
- c) Names having non juristic roots.
In the case of (a) above, the practical step would be for the allocation to be reissued in the name of the natural person after payment of administrative fees the quantum of which shall be determined by the authorities of the FCDA.
In treating (b), another division may have to be made thus:
- i) Business names registered and to whom land had been allocated prior to the incorporation of the mother company
- ii) Business names registered and to whom land was allocated after the mother company was incorporated.
In the case of (b)(i) this may be treated as a pre-incorporation act of the company and in this regard recourse may be had to the Companies and Allied Matters Act which states in S.72(1), “ Any contract or other transaction purporting to be entered into by the company or by any person on behalf of the company prior to its formation may be ratified by the company after its formation and thereupon the company shall become bound by and entitled to the benefit thereof as if it has been in existence at the date of such contract or other transaction and had been a party thereto.”
The property records shall therefore be made in the name of the incorporated company upon application and payment of fees.
In dealing with (c), the owners will after due incorporation of the name as a limited liability company have the affected property documents made in the name of the incorporated company.
In both cases board resolutions of the incorporated company in an acceptable format shall be part of the application documents to be submitted to the Honourable Minister for his consideration.
Stage of Physical Development.
It is recommended that premises yet to be developed by business name holders after expiration of two years of grant be recalled.
Owners of physically developed premises will be advised to regularize their papers and upon doing the needful, new documents will be issued to them subject to payment of fees.
Registered third party interests
Registered third party interests (depending on the terms thereof) will now be issued new documents to reflect the new interests and in this regard reliance is had on S.51 of the REGISTRATION OF TITLES ACT [CAP.546] “A registered holder of any land or charge, being a purchaser for value, is not affected by notice, whether express or implied, of any unregistered estate, interest or claim affecting the estate of a previous registered holder, or concerned to inquire whether the terms of any caution or restriction, so far as they relate to the time prior to the registration of himself as holder of the land or charge, have been complied with.”
Titles with pending litigation.
It is recommended that out of court settlement to resolve the knotty issue of title be explored by FCDA (who is always a party to practically all title disputes), the failure of which will necessitate awaiting the matters’ conclusion.
PROCEDURE
S.26 states of Land Use Act that “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void”. It follows therefore that in the context of this discussion, all instruments viz Rights of Occupancy, Certificates of Occupancy, etc issued to non juristic persons over land in Abuja are null and void.
In my humble opinion such “instruments” being defective ought to be “surrendered” back to the originator and in this wise S.27 of the Land Use Act states “The Governor may accept on such terms and conditions as he may think proper the surrender of any statutory right of occupancy granted under this Act.”
Surrender in this context is by operation of law as defined in Black’s Law Dictionary 7th Edition which defines Surrender by operation of law as “An act that is an equivalent to an agreement by a tenant to abandon property and the landlord to resume possession, as when the parties perform an act so inconsistent with the landlord-tenant relationship that surrender is presumed, or when a tenant performs some act that would not be valid if the estate continued to exist.” Both parties in my humble opinion performed a contractual act over land which can be described as invalid.
Said surrender would be accompanied by release documents executed by both parties liberating each party from any obligation, duty, or demand; and same is regarded by the same book as “the act of giving up a right or claim to the person against whom it could have been enforced. — Also termed discharge; surrender. 2. The relinquishment or concession of a right, title, or claim. 3. A written discharge, acquittance, or receipt.”
The use by non juristic alottee of land “allocated” to him can in this context be regarded as a mere grant to use with him having no seis or legal title on the land. He would then be regarded as a cestui que trust, “One who possesses equitable rights in a property and receives the rents, issues and benefits from ; BENEFICIARY”. Black’s Law Dictionary 7th Edition.
In England in the not too distant past, an English statute of 1535 (which can be deemed a statute of general application), viz the Statute of Uses, converted holdings held by a cestui que use (i.e., a beneficiary) to a legal one in order to make the cestui que use liable for feudal dues, as only a legal owner (feoffee to uses) could be. The statute discouraged the granting of property subject to another’s use by deeming the person who enjoys the use to have legal title with the right of absolute ownership and possession.
It then follows that such rectification of defective titles is not unknown in the history of the law and land administration.
In the present instance, The Registration of Titles Act CAP 546 provides in S.3 for establishment of land registries and appointment of a registrar and his duties. It also makes mandatory in S.6 thereof the registration of all grants and leases on all land within the Federal Capital.
The Land Register for the purposes of registration is defined and particularized in S. 66 of the same Act and in S.67 states that “Before filing any documents or making an entry in the register, the register may require such evidence of the authenticity of the documents to be filed. Its due execution, the identity of persons, and of the documents or facts giving occasion for the entry as in each case he may think necessary.”
S.52(1) of the Act states “The registrar shall issue to the registered holder of any land or charge a certificate of title in the prescribed form showing in the prescribed manner all subsisting entries in the register affecting that land or charge.”
The root of all entries being the Ministerial approval which is conveyed by the Registrar, it follows therefore that the root be surrendered back to him.
It is submitted that once the jaundiced instrument of grant is surrendered (and even in cases where same is not formally done) same having made in error, the next thing would be rectification of the Register by the Registrar with S.56 providing that “The registrar may, with the consent of all persons appearing by the register to be affected, alter the terms of a registered lease, charge or other document, and alter the register accordingly.”
S.57. also goes on to say “The registrar may cause to be corrected any error or omission in the register which does not affect any person appearing by the register to be interested in the land, lease or charge concerned, and, with the consent of all persons appearing by the register to be so interested, may cause all other errors or omissions in the register to be corrected.”
58(1) The register may be rectified pursuant to an order of the court or by the registrar, subject to an appeal to the court, in any of the following cases, but subject to the provisions of this section—
(c) in any case and at any time with the consent of all persons interested;
(f) in any other case where, by reason of an error or omission in the register, or by reason of an entry made under a mistake, it may be deemed just to rectify the register.
58(2) The register may be rectified under this section, notwithstanding that the rectification may affect any estate, right, charge or interest acquired or protected by registration, or by an entry on the register, or otherwise.
58(5) On every rectification of the register, the certificate and any charge certificate which may be affected shall be produced to the registrar unless an order to the contrary is made by him.
After the surrender of the old title and the rectification made in the register, the Registrar shall in accordance with S.52(2) reissue the certificate or issue a new certificate in lieu of that certificate.”
In the view of the writer, this is believed to be a way out of the peculiar problem posed by the earlier error of allocating land to non juristic persons.
