REGISTRATION

Registration provides a safe and easy means of recording transactions on land. Since the hall
mark of any transaction on land is security of title which unregistered conveyancing does not
assure, the law prescribes certain methods of registration to assist the conveyancer in the course
of investigating title to land. This topic examines basically two popular methods of registration
in Nigeria namely: Registration of Instruments and registration of title.

I. REGISTRATION OF INSTRUMENTS

The Law regulating registration of instruments in Nigeria is the Land Instruments Registration
Law of the various states in Nigeria. 1 One common feature of this method of registration is that it
deals only with registration of documents (otherwise known as “instruments”) affecting land in
Nigeria. The law prescribed registration of any instrument executed before or after the
commencement of this Law.

To facilitate registration, the Law established in every state, a Lands Registry under a Lands
Registrar charged with the responsibilities for the registration of instruments affecting land in the
state and to keep registered books and file in relation thereto.2

What are Registrable Instruments?

A registrable instrument is defined as:

a document affecting land whereby one party called grantor confers, transfers, limits, charges or
extinguishes in favour of another party, called the grantee, any right or title to or interest in land
and includes a Certificate of Purchase, a Power of attorney under which any instrument may be
excluded, but does not include a Will.3

1
The precursor of the state Laws was the Land Registration Act No. 36 of 1924 (Cap 515 LFN 2004) which was
enacted for the whole country and later adopted and re-enacted in the various states under different nomenclature.
See Cap 56(W/N) 1959 adopted for example; as Cap 70 Laws of Oyo State of Nigeria 2000, Cap 64 Laws of Osun
State of Nigeria 2002, Cap 74 Laws of Ondo State of Nigeria 2006, Cap L54 Laws of Ogun State of Nigeria 2006;
Cap 72 (E/N) 1963 adopted for example as Cap 75 Laws of Anambra State of Nigeria 1991; Cap 58 (N/N) 1963
adopted for example as Cap 83 Laws of Kwara State of Nigeria 2007, Cap 75 Laws of Taraba State 1997, Cap 82
Laws of Jigawa State 1998, Cap 77 Laws of Bornu State 1994, Cap 85 Laws of Kaduna State 1991, Cap 74 Laws of
Katsina State 1991, Cap 67 Laws of Niger State 1992, Cap 77 Laws of Kano State 1991; and Cap L58 Laws of
Lagos State of Nigeria 2003.
2
Land Instrument Registration Law Cap L58 Laws of Lagos State and corresponding provision in the Law of other
states.
3
lbid, s. 2.
It is necessary to point out that under the Land Instrument Registration Law of the former
Western Nigeria; registrable instrument included in addition, "an estate contract and a deed of
appointment or discharge of trustee containing estate expressly or impliedly a vesting declaration
and affecting any land to which Section 27 of the Trustee Law extends.4

From the foregoing provision, a registrable instrument is generally speaking, a document which
transfers or creates a right, title or interest in land in favour of the grantee. But a Will is expressly
excluded from the ambit of registrable instruments.

What is material in construing any document for the purpose of registration under the relevant
Land Instrument Registration Law is not the form in which the document is written but its
contents.5

A purchase receipt is not a registrable instrument if it is a mere acknowledgment of payment

and does not confer or transfer any interest in land. However under the Property and
Conveyancing Law, applicable in Oyo, Ondo, Ekiti, Ogun, Osun, Edo and Delta States of
Nigeria, and under the property legislation applicable in the various states in Nigeria, a receipt of
mortgage money may operate as a surrender or conveyance of the mortgage term and therefore
registrable.6

A document of Partition which transfers seeparate interest to the different individuals is a

registrable instrument. But where it does not transfer or extinguish any right in law, it is not
registrable.

In the former Western Nigeria, a contract made by a person with respect to an interest in land is
registrable from the date of the contract. Also, instrument creating an equitable mortgage is
registrable as an estate contract.

A written agreement for a lease is a registrable instrument except in Lagos state where the
relevant Regulation exempts agreement to sell or lease from registration. Also, outside the
former Western States of Nigeria, a sale agreement is generally not a registrable instrument", But
4
s.2 Land Instrument Registration Law Cap 56 Laws of Western Nigeria 1959; Ibrahim v. Osunde (2003) 2
NWLR (Pt.803) 241.

5
See Ogbimi v. Niger Construction Ltd (2006) 4 SC (PL.1) 110.
6
See Ogunbambi v. Abowaba (1951)15 WACA 222; Yaya v. Mogoaga (1947) 12 WACA 132.
an agreement to mortgage land is a registrable instrument under the various Registration Laws in
Nigeria.

A Power of Attorney is only registrable where it specifically relates to an interest in land. If 'A'
is given a Power of Attorney merely to collect rents on land as opposed to dealing in such land
e.g. selling or leasing the land in question, the document is not registrable. But where a power of
Attorney provides that the donee of the Power can enter into any arrangement with any person or
persons concerning the donor's land including exchange or sale or exchange, the Deed of
Assignment shall be executed by the donor, such Power of Attorney is a registrable instrument
within the contemplation of the Law.7

No instrument executed after the commencement of the in the Law where the Law where the
grantor or grantors is or are illiterates shall be registered unless it has been executed by such
illiterate grantor presence of a Magistrate or Justice of the Peace and is subscribed by such
Magistrate or Justice of the Peace as a witness thereto.

It would however appear that where the document is prepared by a legal practitioner, such a
requirement may be dispensed with.

A registrable instrument for purposes of registration must not only contain a detailed description
of the land, but must also be accompanied by a Plan of the land. In the case of a Power of
Attorney however, no such Plan is required.

Where an instrument is registered, a certified copy of it shall be received in evidence without any
further or other proof in all civil cases. Where an instrument has been duly executed in the sense
that all acts necessary to render it complete and give it validity have been performed, the mere
denial by one of the executants being a party to the execution cannot avail him nor affect the
validity of the registered instrument.

Effects of Non-Registration.

A registrable instrument affecting state land which is not registered within six months is void. A
regisrable instrument affecting land the subject of grant by a native to a non-native is void unless

7
See Uzoechi v. Alinnor (2001) 2 NWLR (Pt.696) 203.
registered within six months of execution from the date of consent of the Governor If such
instrument is executed outside Nigeria, non-registration within twelve months makes it void
from the date of execution.

A registrable instrument which is not registered is inadmissible in evidence as proof of a transfer

of an interest though it may be admitted as acknowledgement of payments. However, registration
of a registrable instrument is only a pre-requisite for the purpose of admissibility in evidence if
such instrument is tendered to establish title. Where a document of title which has not been
registered is tendered in evidence not as evidence of title, but simply to establish a fact which
one of the parties has pleaded, then such a document does not qualify as an instrument as defined
by Law and is therefore admissible in evidence without being registered"

Where a purchaser of land or lessee is in possession of land by virtue of a registrable instrument

which has not been registered, and has paid the purchase money or the rent to the vendor or the
lessor as the case may be, the purchaser or the lessee has acquired an equitable interest in the
land which is as good as a legal estate and the equitable interest can be defeated only by a
purchaser of the land for value without notice of the prior equity. Such registrable instrument
which not registered is admissible to prove such equitable interest and to prove payment of
purchase money or rent.

Where there are more than one instrument executed by the same grantor relating to same land,
priority is determined the date of registration where there are rival claimants.

In all cases where registration of an instrument is required the fact of such registration does not
cure a defect in the statute of the grantee. Thus where such grantee had no valid title in law the
registration, his title cannot be validated by registration. Also, registration does not cure the
defect arising from the absence of Ministerial approval or Governor's consent, and the mere fact
that an instrument which does not have the necessary consent endorsed on it was registered will
not ipso facto, raise the presumption that the Registrar was satisfied that such consent had been
given which led him to register the instrument.

II. REGISTRATION OF TITLE.

The basic idea behind registration of title is to confer on every purchaser a title guaranteed by the
state. As a learned writer put it, "the system was devised to make conveyancing simple, cheap.
speedy and reliable by obviating most of the difficulties and hazards to which a purchaser of land
is exposed under the system of unregistered conveyancings," Usually under the system of
unregistered conveyancing, a purchaser must satisfy himself from the abstract of title, the deeds,
his investigation of title, his searches and inspection of the land, that the vendor has a good title.
But with the introduction of this system of registration, once the title has been investigated and
put on the register, proof of title becomes easier as the register becomes an evidence of title.

A purchaser or any other transferee of interest in land shall not therefore require any evidence of
title, but shall depend on the evidence derived from the register as well as from a statutory
declaration as to what do not constitute incumbrancess. The advantage of registered title as the
Supreme Court pointed out in Onagoruwa v. Aderemi is that:

[T]he purchaser can discover from the mere inspection of the register
whether the Vendor has power to sell the land and what the more important
incumbrances are except in the case of what may be classified as overriding
interest..... which binds the proprietor of registered land even though he has
no knowledge of them and no reference is made of them in the register.
Otherwise, a registered owner of land is not affected by notice of any
unregistered estate, interest or claim affecting the estate of any previous
owner, nor is he concerned to inquire whether the terms of any caution or
restriction existing before he was registered as owner of such land have
been complied with.

The advantages of title registration equally applies to other forms of transfer as prescribed by the
Registration of Titles Law.

Originally, the system of registration of title was first introduced into Nigeria by Registration of
Titles Act 1935 then applicable to the Southern Provinces and since the regionalisation of the
Laws, has become a Regional Legislation. The Act as amended was subsequently adopted by
Lagos State as the Registration of Titles Laws" applicable to some parts of Lagos municipality. It
has also been adopted by the Federal Capital' Territory as Registration of Titles Act Cap 546
Laws of the Federation of Nigeria (Abuja) 1990. The provisions of the statutes are substantially
similar, their non-corresponding sections notwithstanding.
Types of Registration

There are two classes of registration under the Registration of Titles Law namely: compulsory
registration and voluntary registration

a. Compulsory Registration

Registration is made compulsory in respect of:

i. a conveyance of [the whole] estate [which means a right of occupancy after the
enactment of Land Use Act] for a consideration which consists wholly or in part in
money.
ii. a lease granted for a term not less than 40 years.
iii. an assignment of a lease not less than 40 years to run which consists wholly or in part
in money.

Application for first registration of the interest comprised in the conveyance, grant or assignment
must be made by the grantee within 2 months of its execution, or where the time extended, any
extension thereof otherwise, the instrument is void as regards the grant or conveyance of the
legal estate

b. Voluntary Registration

Registration is optional in respect of the following categories of:

persons who may apply to be registered as owners of the respective interests namely:

i. any person who has power to sell or is entitled at law or in equity to [a right of
occupancy] in any land whether or not subject to encumbrances.
ii. any person entitled at law or in equity to a lease of any land for an unexpired term of
not less than 5 years whether subject to encumbrances or not.

It is important to note that with effect from 9 February, 1979 no registration shall be in fee
simple under the Law

The nature of the title conferred by a registered interest and the consequences of registration are
the same as in the case of compulsory registration.

Process of First Registration

Application for first registration must be made to the Registrar of Titles who has a duty to
investigate the title of the Applicant. The Registrar is required to advertise the application in the
official Gazette and at his discretion, in any newspaper circulating in Nigeria, and take any
further steps to assist in an effective investigation of the Application. Any objection to such
advertisement must be received within two months of the Notice.

In investigating the title of the Applicant, the Registrar is enjoined to act exclusively on legal
evidence, or evidence ordinarily required by Conveyancers, and if satisfied, register accordingly.
The type of legal evidence required by the Registrar depends on the nature of title sought to be
registered. Title derived from documents maybe verified by examining the same on the face of it
and in this regard, the Registrar may require such evidence of the authenticity of the document to
be filed, its due execution, the identity of the person and of the documents or facts giving
occasion for the entry as in each case he may think necessary". Title derived from adverse
possession may require evidence of possession through witnesses and documentary evidence
such as the Survey Plan in the name of the adverse possessor showing beacons demarcating the
land in question supported by concrete evidence to show that the paper owner has been
dispossessed or has discontinued with possession of the land. Mere reliance on a Survey Plan is
not sufficient for, whilst that may be evidence of possession by the applicant, it is not a
conclusive evidence of the paper owner's dispossession or discontinuance of possession; neither
does it foreclose the existence of a better right to possession.

The Registrar's power is confined to acceptance or refusal of the application for registrations, he
cannot decide a question as to ownership of land. Thus, in Majekodunmi v. Abina, the Supreme
court held that whilst an adverse possessor of land who established his title under the Limitation
Law was a person "entitled at law or in equity to an estate...in that land" and could apply to be
registered as owner, investigation of title with a view to registration by the Registrar was not an
appropriate forum for a determination as to whether the title of the real owner of land had been
extinguished by dispossession or discontinuation.

In that case, an application was made to the Registrar of titles, Lagos State in respect of title No.
OM11574 to both Nos. 66 and 68 Karimu Street, Surulere, Lagos. The Registrar of titles had no
difficulty in rejecting the application in respect of NO. 68 upon insufficient evidence adduced by
the applicant. The bone of contention in the case was No. 66 for which application for
registration of title was being sought by the applicant/respondent. The appellant objected on the
ground that the applicant respondent did not seek to register his title within the limitation period
stated in the Limitation Decree 1966 and that since he himself had been in possession for more
than that period, the applicant was barred from being registered as title holder. The
objector/appellant contended therefore that he had obtained title by adverse possession which
should be registered. The applicant/respondent traced his root of title to the Deed of Conveyance
dated August 10 1910 by which one Martins became entitled to the land and through to
September 1974 when the applicant/respondent, by a Deed of Conveyance became vested with
title which he sought to register. The applicant/respondent contended that the application before
the Court was to register the property at No. 66 Karimu Street, Surulere, Lagos and not an action
for declaration of title. In a judgment delivered by the Registrar of titles, it was held that the duty
and power of the Registrar were confined to the investigation of title to be satisfied before
registering same, and not to declare or confer title on any applicant who applied for registration.
It was found that going by the documentary evidence before him, the applicant /respondent was
the person entitled to be registered as the owner of No. 66 Karimu Street , Surulere Lagos. This
position was upheld by the High Court, the Court of Appeal, and the Supreme Court. In the
words of Uwaifo JSC (as he then was):

....the evidence the Registrar can act on must be adverse possession when
the title holder shows up and the dispute as to the title claimed by the
adverse possessor is raised. It seems to me the evidence he can accept must
be such conclusive evidence to the effect that the rights of all other people
to the land have invariably been extinguished....the Registrar cannot listen
to contending evidence as to whether the title of a landowner has been
incontrovertible. He cannot act on evidence of…… extinguished or not. To
do so is to undertake to declare title...

The Supreme Court found no justification in disturbing the findings of facts by the lower courts
and consequently dismissed the appeal in its entirety.

If after investigation, the Registrar is satisfied that the applicant is entitled to be registered as
owner of the whole or part of the land claimed, he shall register him accordingly otherwise, he
shall be obliged to dismiss the application. The Registrar's decision to register or not to register
an applicant's title is appealable to the High Courts.

Any transfer of title derived under the Registration of Title Law must receive the consent
of the Governor from the day the Land Use Act came into force, for it to be valid".

Objection based on customary title

Where an objection based on the ground that the land sought to be registered is family land and
the claim is proved, the Registrar shall dismiss the application unless the family consents to the
registration. Where the objector proves that the land is subject to native law and custom and by
virtue of which he has rights or interests, the Registrar may exercise the discretion to register the
applicant as the owner of the right of occupancy in the land or of a lease of land and enter on the
register such cautions, restrictions or other notices or entries as he may deem necessary to give
effect to the customary right. Upon failure to raise objection to the first registration by any
person claiming any rights or interests under native law and custom, the claim is foreclosed after
completion of the first registration.

Claim in unregisttered estates:

Claims in unregistered estates and interests are protected by the registration of a caution or a
restriction.

Caution:

There are two types of caution:

a. Caution against first registration. For having rights or interests in land under native law
and custom prescribed fee, as a lodgement of a caution against first registrations, A
successful opposition to first registration operates, upon payment of a prescribed fee, as a
lodgement of a caution against first registration.

b. Caution against dealings on land. For example, any person claiming an estate or interest
in registered land may lodge a caution with the Registrar against any dealing in the land
without notice to him. When this happens, the Registrar must give such notice to the
cautioner in case of any dealing with such land until the caution is disposed.
Restriction:

Restriction is a process whereby any dealing on registered land is prevented until certain
specified requirements are met. Thus, a person claiming jointly with the owner or claiming
certain benefits in the land may get his interest noted on the register. Restriction unlike caution is
a friendly act; it goes to the issue of ownership and not the issue of claim per se.

Dealings in registered land

Any transfer of an interest on registered land must be in the manner prescribed by the Act as to
registration whether of the whole estate [right of occupancy] or a grant of a lease [sublease].
Usually the transfer is done on the prescribed form and completed by registration of the grantee
of the whole estate [right of occupancy or lessee as the owner theereof". But where the transferor
is an applicant for first registration such transfer must be effected by the conventional Deed of
Conveyances.

It is worthy of note however, that any person whether or not a registered owner, having sufficient
interest or power over registered land may deal with it in any manner and with the same mode of
assurance as if the land had not been registered but subject to a subsequent registered disposition
for value. A registered purchaser is not affected by any notice express or constructive of any
unregistered estate, interest or claim affecting the estate of any previous registered owner, nor is
he concerned to inquire whether the terms of any caution or restriction existing before he was
registered as owner of such land have been complied with.

Although the estate of a first registered owner for value is free from unregistered estate, interest
or claim affecting the land, it is limited by any estate adverse to or in derogation of his title
subsisting or capable of arising at the time of first registration. It is also subject to such
overriding interests like easements, rights of entry, any permit to survey oil pipelines, leases or
agreements for lease for any term less than five years, public highways, any tax or rate declared
affecting land, possessory title acquired or to be acquired, and rights of every person in
possession or actual occupation of the land to which he may be entitled in right of such
possession or occupation except where the rights are not disclosed upon inquiry? A registered
estate can be extinguished under the Limitation Law.

Extent of State Guarantee of Registered Title

The title guaranteed the first registered owner under the Registration of Title Act is not absolute.

If the title of the first registered owner is in issue in any proceedings between him and an adverse
claimant, the register cannot be evidence of his title. The validity of the transaction leading to
registration must be proved in the same way as if the title had not been registered. This
proposition was borne out of the observation of Butler Lloyd, Ag. C.J. in Animashaun

v. Mumuni that:

registration of a title under Ordinance No.13 of 1935 affords no protection

whatever to the first registered owner, not even against an unsuccessful
objector to the registration, even apparently if that objector had appealed
unsuccessfully to the Supreme Court.

Also, Section 53(1) of the Act provides that registration which is obtained in consequence of a
forged disposition which if unregistered would be void is ineffectual to confer on the registered
owner any estate in the land, although he may be entitled to compensation from the Government
where the register is rectified to his prejudice. The registered owner however remains the legal
owner notwithstanding proof of an adverse title until the register is rectified. As Verity C.J.
observed in Rihawi v. Aromashodun.

it is in my view clear that the plaintiff would not secure in the present action the relief he
sought for before he could secure a declaration of his title,..it would be essential that he
should secure a rectification of the register, establish his adverse estate and remove from
the register the title of the first defendant. This was neither sought nor obtained and for
this reason also I think the appeal must be allowed.

The ratio in that decision simply put, is that a party seeking a declaration of title in such
circumstances must first claim an order of rectification before declaration is sought.

It would however appear from the provision of Section 53(2) off the Act that the title of the
subsequent registered owner being a purchaser for value who derived his title from the first
registered owner cannot be defeated by absence of title on the part of such predecessor in title.

The protection also appears to extend to any person deriving title under such subsequent owner.
Section 53(2) provides that:
 Nothing in this section shall be deemed to invalidate any estate acquired by any
registered owner being a purchaser for value or by any person deriving title under such
subsequent owner.

The foregoing provision appears to be a limitation to the maxim ‘Nemo dat quod non habet' to
give such subsequent registered owners indefeasible registered title. In Yesufu v. Ojo", the
Federal Supreme Court gave same interpretation to the provision of section 53(2) when it held
that the Act was to validate the registered title of a purchaser for value from a prior registered
owner even though his predecessor-in-title had a defective title.

The protection which section 53(2) appears to afford subsequent registered owners has been
rendered illusory by subsequent Supreme Court decisions. In Phillips v. Ogundipe, for example,
the court held obita that section 53(2) of the Act does not validate spurious transfers but merely
qualifies the provision of section 5 s(1). That obiter was cited with approval by the Supreme
Court in Lababedi v. Lagos Metal Industries Ltd. where Elias C.J.N. as he then was) relying on
the orthodox principle at common law that 'nemo dat quod non habet (albeit tacitly) held that
fraud or forgery invalidated not only the title of the first registered owner but subsequent titles
derived therefrom even though transferees gave value and acted innocently. That decision was
subsequently endorsed by two other Supreme Court cases.

The chain of Supreme Court cases against the principle of indefeasibility of title of subsequent
registered owners as suggested by section 53(2) have done violence to the clear provisions of the
section. The rule at common law that nemo dat quod non habet (which appears to have formed
the basis of those decisions) cannot be justified for two reasons. First, since the main objective of

registration of title is the security of title by the state, any provision of the Act which is in
harmony with that laudable objective must be upheld by the courts. Secondly, the common law
rule of 'nemo dat quod non habet' has been modified in other areas of the law by statutory
provisions to protect purchasers for value without notice of the defect in the source of title, There
is nothing strange or novel therefore in a statutory provision whittling down the effect of the
common law rule to achieve statutory objectives.

To the extent that the Supreme Court decisions defeated the intention of the Act, it has
compounded the problem for which the statute was set out to find solutions (i.e. the problem of
insecurity of title to land) and to that extent, the decisions have been seriously criticised. The
correct approach ought to be one that gives ordinary grammatical meaning to the wordings of
section 53(2) i.e. that the estate of a subsequent registered owner acquired for value without
notice of defect in the source of title is indefeasible. That was the approach of the Court of
Appeal in Banire & Ors. v Balogunš, where the court held that section 53(2) offers protection to
a purchaser for value with a defective title. The court added that the protection is only accorded
to a purchaser for value because a volunteer must take the title of his predecessor good or bad. It
is hoped that the Supreme Court will, in due course, revisit its decisions on the subject with a
view to adopting the correct approach.

Rectification of the Register

The Act makes provisions for rectification of the register either upon a court order or consequent
upon the decision of the Registrar of Titles in any of the following circumstances:

a. where the court has decided that a person other than the registered owner is entitled to the
estate or interest registered and as a consequence of such decision the court is of the opinion that
a rectification of it is necessary.

b. where the court, on the application of any person who is aggrieved by any entry made in, or by
the omission of any entry from the register, makes an order for a rectification of the register.

c. where all the persons interested consent to the register being rectified.

d. where two or more persons are by mistake registered as owners of the same registered estate
or of the same charge.

e. in any other case where by reason of any error or omission in the register it may be deemed
just to rectify to the register.

In any of the cases above, the register cannot be rectified to the prejudice of an owner in
possession except for the purpose of giving effect to an over-riding interest, or where such owner
is a party or privy or has substantially contributed by his act, neglect or default to the fraud or
mistake in consequence of which such rectification is sought, or where the immediate disposition
to him or any other person through whom he claims otherwise than for value or was void or
where it is considered to be unjust not to rectify the register against him.
Upon such rectification, any person who has suffered loss is entitled to compensation by the state
provided that the person has not substantially contributed to the mistake, fraud or omission
necessitating the rectification.

The Land Use Act and Registration

The Land Use Act 1978 has preserved all existing laws including the laws relating to registration
by virtue of section 48, subject to such modifications as may be necessary to bring them into
conformity with the provisions of the Act or their general intendment.

To bring the registration laws into conformity with the Act or its general intendment, a document
of title to be acceptable for registration under the Land Instrument Registration Law, must not
only qualify as a registrable instrument under that law, it must, where it relates to alienation of
rights on land, whether by way of assignment, sublease, mortgage or in any other way
howsoever, comply with the requisite provision of the Act relating to Governor's Consent.

There may be the need to harmonise the laws relating to registration with the Land Use Act. For
example, definition of a registrable instrument under the Land Instrument Registration Law does
not include a Certificate of Occupancy issued pursuant to the Act. Not only is a Certificate of
Occupancy incapable of transfering an interest in land, it cannot confer deemed title or interest in
land. Also, since a right of occupancy is the highest land right existing on land under the Act, the
expression "fee simple" where ever it appears in the Registration of Titles Law shall be read as
"right of occupancy", and since the title of the holder of such right of occupancy is not absolute,
subleases shall replace leases in the Act.

It is important to note that the evolvement of the Certificate of Occupancy under the Act has
rendered first registration under the Registration of Titles Act unnecessary and, in the areas
where the Act applies, registration of new title ceased from the commencement of the Land Use
Act, but all transactions relating to pre-Land Use Act registered titles are still governed by the
Registration of Titles Law.