What to be Considered Where there Are two Registered Competing Land Instruments

This is an appeal against the judgment of the High Court of Delta State delivered in Suit No. A/I87/2010 on 26/9/2013.

CASE TITLE:     UZOMAR v. OKEKE (2023) LPELR-60326(CA)

JUDGMENT DATE:      16TH MARCH, 2023

JUSTICES:                  UCHECHUKWU ONYEMENAM, JCA

MISITURA OMODERE BOLAJI-YUSUFF, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

DIVISION: ASABA

PRACTICE AREA:       LAND LAW

FACTS:

​The appellant’s case at the trial Court was that he applied for a grant of land from the Ministry of Lands, Survey and Urban Development of Delta State in July, 1997. By a letter dated 31/1/2003, Plot 10, Block 1 Phase 11, Core Area, Asaba was allocated to him. By a letter dated 3/3/2003, he was directed to pay the necessary fees which he paid on 19/3/2003. While he was waiting for the issuance of the certificate of occupancy, he constructed a bungalow up to lintel level on the land. In December, 2009 he visited the land and found that the respondent had almost completed a building on the land. A certificate of occupancy no. DTSR 14788 dated 16/6/2010 was issued to him and registered as number 40/40/CO186 on 26/7/2010 in respect of the land.

The respondent’s case was that he acquired the land by a deed of assignment dated 28/5/2009 in respect of the land. The land is covered by a certificate of occupancy no. DTSR 9111 issued in favour of Mrs. Gladys Ngozi Dibashi on 8/4/2004 and registered in her name in 25/32005. The deed of assignment was registered as no. 9/9/79 on 24/3/2010. He developed the land and moved into the building on 17/9/2010. He averred that there was no foundation or any kind on structure whatsoever on the land when the land was granted to him and the original grantee took possession in August, 2004. The respondent therefore counter-claimed for the same land.

After hearing both parties, the trial Court in his judgment dismissed the appellant’s claim and granted the respondent’s counterclaim. The appellant being dissatisfied with the judgment filed the instant appeal.

ISSUES:

The appeal was determined on the following issues:

1. Whether there was a valid statement of defence and counterclaim before the trial Court?

2. Whether the trial Court was right to dismiss the appellant’s claim and grant the respondent’s counterclaim?

COUNSEL SUBMISSIONS:

​The appellant’s counsel referred to the entire evidence led including documentary evidence. He submitted that the trial Court did not appreciate the importance of the documents exhibits B, B1, C-C3 which showed that he fulfilled the terms of the grant of the land in dispute to him and that he had acquired both equitable interest and legal right to the land. He further submitted that the appellant having discharged the burden on him, the burden shifted on the respondent who was a counterclaimant to show that his own grant was earlier in time but the respondent admitted that he did not have the letter of grant from the governor to show that his grant was earlier in time. He finally submitted that the respondent having failed to discharge the burden on him, the trial Court ought to have entered judgment in favour of the appellant.

​In response, the respondent’s counsel referred to the doctrine of priority as expressed in the Latin maxim “qui prioest tempore portiorest jure” which means the first in time takes priority. He submitted that the respondent’s certificate of occupancy having been granted on 8/4/2004 and registered on 23/3/2005 is the first in time and it takes priority over the appellant’s certificate of occupancy granted on 16/6/2010 and registered on 26/7/2010. He relied on OWIE V. IGHIWI (2005) ALL FWLR (PT.248) 1762 AT 1780 (G-H). ADESHINA BAC ELECTRICAL COY. LTD (2007) ALL FWLR (PT.369) 1279 1315 (A-B). AUTA V. IBE (2003) ALL FWLR (PT.369) 87.

It was finally submitted that a letter of grant without the actual grant of a certificate of occupancy held no value as a registerable instrument, as stated in clause 3 of the letter. The clause indicated that the date of commencement of the right of occupancy would be the date of the grant and would continue for the specified term, subject to renewal conditions imposed by the governor.

DECISION/HELD:

The Court dismissed the appeal. The award of N500,000.00 (Five Hundred Thousand Naira) damages awarded by the trial Court was also dismissed.

RATIO:

LAND LAW – REGISTRATION OF TITLE: Priority of registration of title

“It has long been settled that priority of registered instruments is determined not by the date the instrument is made but by the date of registration. Where there are two competing land instruments which have been registered, each takes effect as against the other from the date of registration. The one executed earlier loses its priority if it was registered later. See REBCCA AMANKRA V. LATEY ZANKLEY (1963) 1 ALL NLR 304. ODUSOGA & ANOR. V. RICKETTS (1997) LPELR-2256(SC) AT 25-26(G-A), (1997) 7 NWLR (PT.511)1. INSPECTOR KAYODE V. ODUTOLA (2001) LPELR- 1682(SC) AT 34-35 (E-A), (2001) 11 NWLR (PT.725) 659. In ORIANZI V. AG RIVERS STATE & ORS (2017) LPELR-41737(SC) AT 56-57(C-F) the Supreme Court held that:

”It is settled that priority, as regards registrable instruments, is determined not by the date the instrument is made but by date of registration. In Amankra v. Zankley (1963) 1 All NLR 304; (1963) NSCC (Vol. 3) 243, the same vendor gave conveyances of the disputed land to both parties. The plaintiff claimed the land was conveyed to him on 29/8/1957 by deed, which was delivered for registration on 16/9/57. The defendant claimed that the vendor conveyed the land to him by a deed dated 16/5/1957, duly registered on 17/3/1960. The plaintiff contended that the defendant had lost priority, while the defendant argued that since the vendor conveyed the legal estate to him in May 1957, he had divested himself of the legal estate and the purported conveyance of the legal estate to the plaintiff in August, 1957 was of no effect. On appeal, this Court per Bairamian, JSC, explained as follows:

”Although the …. Act does not relate to the registration of title, of instruments, it is plainly intended to give some measure of security and some protection against fraud. When two persons claim the transfer of a legal estate he who did not register his conveyance cannot plead it or give it in evidence; if they both registered their deeds, each takes effect as against the other from the date of registration; which means that the one executed earlier loses its priority if it was registered later. What counts is the date and hour of registration. The argument for the Defendant, if correct, would open the door to fraud.”

The priority of interests under the Land Instrument Registration Statutes is based on the times the relevant Deeds were registered, therefore, where the equities are equal, the first in time prevails – see Olumide V, Ajayi (1997) NWLR (Pt. 517) 433.” Per BOLAJI-YUSUFF, J.C.A. (Pp. 21-23, Paras. A-A)