Okay, before we get to the many lessons that you will learn in this post that could potentially save you millions of Naira, let’s carry out a small exercise. I promise it’s a simple one.

But to begin you need to close your eyes. Oops! I almost forgot you will need your eyes open to read this post. Okay, leave them open and let’s continue with the exercise.

Now here it is – imagine yourself in Court. Yes, you are in Court. No, you haven’t committed any crime. Also, I know you have no plans to sue anyone yet. You don’t even want to sue your-not-so-nice landlord. But still, just imagine yourself in Court.

So, why are you in court in this imaginative exercise? The reason is simple – you bought a piece of land. And someone from the blues has sued you.

Now in Court, you’ve come to know the type of land you ended up buying. The seller never expressly said; “I get land for sale. Na shikini money you go pay but e get small Court case”, but as you stand before the Judge this morning, the message is very clear that that is exactly what you bought. A small piece of land with big avoidable legal palava. In hindsight, you ask – “how come I never suspected anything could go wrong?”

Exercise over. Let’s not get to the horrible part where the land case (or suit) drags on for years and you have to spend a lot in litigation fees.

Now rewind to this moment before that likely court case in your future and let’s work towards averting it. To do that I will in this post give you some very simple steps to take when buying your next land (or property). Mind you, this post does not replace legal advice when necessary.

---

That said, let’s get to it.

First off, you should know that the law doesn’t require the seller to tell you everything that is wrong with his ‘supposed’ ownership of the land. If I were to say that differently; I’d say the seller is only required by law to disclose latent defects in title. He has no duty to disclose obvious defects to his title (or ownership of the land). This therefore puts you as the buyer in a ‘shine your eye’ position.

And that is why the Latin Phrase – ‘caveat emptor’ which simply means ‘buyer beware’ comes in handy at this point. Also, we have another handy Latin maxim which is translated to mean ‘no one can give what he does not have’ (nemo dat quod non habet) – that sentence definitely applies to sellers or vendors of landed properties. That would loosely mean; if the seller no get am, he no fit sell am give you. So, you need to be sure that the ‘seller get am’. So that ‘he go fit sell am give you’ – without hitches.

POLO v. OJOR (2002) LPELR-6086(CA) 

“It is well settled that a person who purports to dispose of a parcel of land which does not belong to him or in which he has no interest or which is encumbered to another person, the principle of nemo dat quod non habet applies, thereby making the purported sale void ab inito: See Akerele v. Atunrase & Ors. (1969) All NLR 195 at 202, Adelaja v. Fanoiki (1990) 2NWLR (Pt. 131) 137 at 151 and Olosunde v. Oladele (1991) 4 NWLR (Pt. 188) 713 at 726. In effect, a grantor or vendor can only convey to another what he has.

What should you look out for?

With the first point I’ve just made; your first stream of considerations should be –

1. In what capacity is the seller selling the land (aka does he really have powers to sell what he is marketing or offering to you? Or Does he have good title to the land?)
2. What are the legal effects of the seller’s capacity?
3. What is the nature of the property being sold?

All these questions sound a lot like asking – am I buying a poisoned apple?  

There are other considerations, but I’d try to walk you through the ones I have listed above very briefly.

Sellers can come in different shapes and sizes (if you may) i.e., they could be selling in different capacities. Also, the nature of the property being offered for sale would likely not always be the same. Is the seller a Bank? And is the property a mortgaged property? Is the seller a community or family?  And is the property a community or family property? Is the seller the administratrix or administrator of a deceased’s estate? And is the property part of the estate? Is the seller an agent? Is the seller selling on the basis of a C of O or a power of attorney? Is the land the subject of litigation (that is a Court case)? Is the seller a company that claims to own the land?

These questions are important. This is because ‘how the seller take get am’ will determine if he can validly transfer his ownership (if any at all) to you. It will equally affect what you should investigate before determining whether to buy the land or not.  It will also determine how the seller is to ‘sell’ it (or convey his interest to you).

The Court of Appeal in – EJIGINI v. EZENWA & ORS (2003) LPELR-10329(CA) said:

…a purchaser must be careful to know full details about the land he is buying so as to acquire a good title by ensuring that the vendor has the necessary title to what he offers to sell. The rule is “caveat emptor” – let the buyer beware. It is a very old and useful rule. To quote Richard, C. B. in Purvis v. Rayer (1821) 9 Price 488 at 518: ‘It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person generally speaking, offers anything for sale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualification and in the way in which he, the vendee understood that he bought it; that is, so as to offer him an assurance of having bought what he wanted, and meant to buy, or at least what was offered or professed to be sold, or he may reject the contract”

Let me give some examples to show why these considerations are important.

Do you know that if the seller is a member of a family and the property belongs to the family and you buy that property without the consent of the family head, the transaction is void? (‘void’ simply means you practically bought thin air because, in the eyes of the law, there was no valid sale of the land to you).

Another example is this – do you know that a Certificate of Occupancy (C of O) is not conclusive proof that someone owns a piece of land? Should this get you scared? No, not yet. But that is what the law is for now. That someone shows you a C of O does not mean that he is the unchallengeable owner of the land; he merely has a right of occupancy over the land. And you should know that in proper circumstances, C of Os can be revoked (or set aside) and, in most cases, they have been revoked. So, a C of O is in most cases not enough to establish that a person exclusively owns a piece of land. For example where the root of title is defective, a certificate of occupancy will not cure it: ALALADE v. PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS (2021) LPELR-55656(CA)

One last example please – do you know that if you bought a piece of land when there is a case in court over the ownership of the land, you have actually bought a special species of ‘uncertainty’. What do I mean by that? Your ownership of that land basically hangs in the air (or better put – it hangs in the balance). This means that your ownership of the land will depend on who wins the Court case. This is part of what the Supreme Court said in ENEKWE v. INT’L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR-1140(SC). Sounds like a situation of – you buy anyhow, you see anyhow – right?

Have you now seen how and why you are in the shine your eyes position? Please, don’t forget it. So, the stream of considerations I have listed above are all part of ensuring you know what you are really buying (aka shining your eyes). In a more formal writing, we’d call that; carrying out due diligence.

So the key lesson is – before buying any piece of land, carry out your due diligence. In other words, don’t buy a poisoned apple simply because it still looks red. Don’t forget, the law expects you to take all necessary precautions in order to avoid a bad or absolutely useless bargain. 

Your due diligence should help you answer questions such as – Does the seller have a good root of title to the land or property in question? Has the land ever been part of any government acquisition? Is the land (or the use of the land) affected by any town planning laws or regulations? Is it suitable for the intended purpose of the purchase?

View this post on Instagram

A post shared by LAWgically Speaking-NG (@lawgically_speakingng)

Simple ways to protect yourself as the buyer;

Apart from the considerations I have listed above, there are other ways to shine your eyes or carry out due diligence.

1. Visit the Land (or property) –

One major way is to visit the property. I can’t stress this enough – visit the land and see things for yourself. Ask the owners of the neighboring lands questions if you must. The first hint of trouble may be physically sitting on the land and waiting for you to visit. An example is if the land has a building on it on which a caveat emptor notice is written but you never visited. You never saw the building and you bought the land, with the building and the clear words boldly written in black or red paint – THIS LAND IS NOT FOR SALE.

2. Carry out Searches as necessary;

Also, there are some technical steps you can take in the course of the transaction that would protect you as the buyer. I will leave this in my lawyer’s hat. Or maybe not. Apart from carrying out the physical inspection of the land, it is very wise to carry out searches on the land. Where you should conduct searches will depend on the nature of the property being sold. You might need to conduct searches at the land registry, the probate registry or the Corporate Affairs Commission.

Now I’d let the rabbit out of that lawyer’s hat already. It is necessary to note that depending on the circumstances, it is usually wise to enter into a contract of sale with the seller of the land before the main land document (Deed of assignment or conveyance) is signed. There are many advantages to doing this, especially for you as the buyer.  I should give you premium gist about one advantage that comes from doing what I have just mentioned in a subsequent post.

3. Seek professional aid when necessary

On a final note, I’d say, get a lawyer involved – not just at the point of preparing the land documents but through the entire deal. Why is this important? The Lawyer would know what questions to ask and what investigations to carry out. This is to ensure that you are acquiring good title to the land. When we say good title, we mean ownership of the land that has no legal impediment or problems. What I have briefly stated above has its technicalities, the lawyer knows these and can protect your interest in the entire deal.

---

Just like you need your eyes open to read this post, you need to shine your eyes during your next land purchase. With this, I drop my pen but I hope this sincerely helps.  

Written by Frederick Nkobowo LLB, B.L.

For further Reading:

OWOADE v. ASUBIOJO & ANOR (2013) LPELR-21447(CA)

IGWEBE v. SAIDASHS INTL. LTD & ANOR (2016) LPELR-41188(CA) 

YARO v. MANU & ANOR (2014) LPELR-24181(CA)

Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203 at p.228