By Qudus Alalafia Esq
Introduction
Over time, remedies to disputes between two parties laying claims to ownership of title to land owing to the act of a rogue or even an individual who has sold the said plot of land to the said parties, lie in the various ways of proving ownership of title to land[1] which has received a statutory and judicial blessing. A fact which when established identifies the purchasers’ rights and liabilities over the same land. However, little attention is paid to the liability accrued to that rogue or individual who is the genesis of the conflict in the said title to land between the purchasers of the said Land.
Perhaps, the little attention paid under civil proceedings to these rogues or individuals is due to the evasive nature of the said rogues or individuals who are in the habit of disappearing into the air after committing this act thereby making it difficult for the parties to fetch them and demand for their money or owing to the fact that these rogues or individuals may be dead at the time issue on the said ownership of title to land escalated or got to the knowledge of respective parties who had bought the said Land. However, it is hereunder established that the act of selling one piece of Land or property is also committed by the government or its agencies which form the basis of a plethora of cases where our courts have to decide whom among parties’ title comes first before the other. Most often, the one whose title comes first has the legal right to the said land while the other whose right comes second holds an equitable right that only entitles him or her to a refund of the purchase price of the said Land which such a party may never be able to claim from the rogue or individual this paper had earlier described as evasive party.
It is in the light of the above that this paper through a doctrinal research methodology and comparison in jurisdictional laws discusses the doctrine of feeding the grant by estoppel as a way of bringing anyone or even governmental bodies in charge of the sale of land having sold a plot of land or property to different parties, to justice by making such a party bear his respective liability under the Nigeria civil jurisdiction.
Concept and Applicability of the Doctrine under Other Jurisdictions and the Nigerian Land Law:
The rule of feeding grant by estoppel has its roots in English common law and is believed to have originated from the doctrine of estoppel by deed. Estoppel by deed is a principle that prevents a party from denying the truth of a statement made in a deed when such statement has been relied upon by another party. This doctrine was based on the idea that a solemnly executed deed should be treated as conclusive evidence of the parties’ intentions and should not be easily overridden by subsequent contradictory actions or representations.[2]
The doctrine is a legal doctrine that prevents a party from denying the existence or validity of a grant or conveyance of an interest in land when that party has previously made representations or assurances to another party, inducing reliance on the grant. This doctrine is usually invoked to protect the interests of a transferee who has relied on representations made by another party (transferor) regarding the grant or conveyance of land.[3]
For example, if a person presents himself as the owner of a piece of land and induces another person to act in reliance on that representation, such as by making improvements on the land, the doctrine of feeding the grant by estoppel prevents the person making the representation from denying the validity of the grant in the future. For the said doctrine to be invoked, the need for a clear and unequivocal representation or assurance, reasonable reliance on the representation, and detriment suffered by the party who relied on the representation are essential elements that a party needs to prove on the balance of probability. Essential elements of the doctrine are:[4]
- Fraudulent or erroneous representation of ownership.
- Availability of the property with the transferee.
- Consideration has been furnished for the transfer.
- A subsisting contract of transfer.
However, in the event that the transferee is aware of the misrepresentation, the transfer is otherwise prohibited by law when the third party acquires rights, the doctrine abates. Meanwhile, the availability and extent of remedies under this doctrine may vary depending on the specific circumstances of each case. Remedies can include, the enforcement of rights arising from the representation, compensation for any detriment suffered, or declaration of title.[5]
In essence, the doctrine is based on the equitable concept that if a person promises more than he can do, he must keep the commitment when he gains the ability to do so because the equitable law of estoppel requires a man to make his representation good, thus, the transferor cannot deny his earlier grant if he professes to transfer.[6] This doctrine has been recognized through judicial decisions and statutory provisions in various jurisdictions, including the United States, Australia, the United Kingdom, Canada, Zambia, and India.[7]
Of utmost importance to this paper is the applicability of the doctrine under the India Land Transfer Law and same shall be recommended to the Nigerian Land Law by this paper. The doctrine of feeding the grant by estoppel has been enacted under relevant Law affecting the transfer of Land in India. For example, section 115 Indian Evidence Act of 1872 provides that when a grantor has acted or declared in a way that leads the grantee to believe that the grantor has given the grantee a valid title to the property, then the grantor cannot later dispute the grantee’s title. In other words, the grantor is estopped from denying the grantee’s title to the property.
Similarly, section 43, part 5 of the Transfer and Property Act of 1882 (TPA) provides that where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Hence, nothing shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.[8]
The rule incorporated in this section governs transfers where the transferor has no capacity to transfer the property, yet has entered into the transaction with a misrepresentation with respect to his title to the property having made the other party act on this representation and then acquires a good title to the same property in the future. In such cases, if the contract is subsisting and the property is available, then it gives the transferee the option to either go ahead with the transfer or rescind the same.[9]
If the transferee still wants the transferor to perform his part of the contract, he can exercise his option to validate this transfer that was imperfect to begin with and the transfer shall become valid on the exercise of such option by the transferee. Here the willingness of the transferor to go ahead with the transfer is immaterial and it is solely on the wishes of the transferee, which he has to show by exercising the option that the transfer shall become valid, or in other words, where a person having a limited interest in the property transfers a larger interest to the transferee on a representation and subsequently acquires the larger interest, the larger interest transfers to the transferee at the option of the latter.[10] It is herein submitted further that this doctrine makes a transferor liable in the future when he subsequently acquires title to a property that he had purportedly transferred to a transferee when he had no title, thus, such subsequent ownership of title activates the yesteryear purported sale and transfer of title to land to the transferee.
Concept and Applicability of the Doctrine under the Nigerian Land Law:
In Nigeria, The Land Use Act of 1978 is the principal legislation that governs any land transactions in Nigeria, there are other statutes that govern land transactions such as; Land Instrument Registration Laws of States, Land Instrument Registration Act, Conveyancing and Law of Property Act, to mention but a few. However, it is important to note that the application of the doctrine of feeding the grant by estoppel is not formally written in any legislation in Nigeria. The doctrine of feeding the grant by estoppel is not expressly provided for in the Land Use Act or any other specific legislation in Nigeria but could be derived from the general principle of equity and the common law doctrine of estoppel.
Meanwhile, it is herein found that by the practice of the partakers in the Nigerian Land Law sector, situations have necessitated the vendor/transferor to relocate the purchaser/transferee to another plot of land arising from the vendor’s inability to physically deliver the initially agreed plot of Land to the purchaser. This could best be termed a gentleman’s agreement between parties and a means by which parties to land disputes resolve the said disputes out of court. However, it is pointed out that this usually occurs within parties that have resolved not to resolve to court settlement but rather resolve to an alternative dispute resolution. Yet, the said gentleman’s agreement does not settle the issue of transferring land to another when the transferor acquires no title to such land, the issue still abounds as the transferee may have cause to have further issues on the relocated land against other parties as there is no privity of contract linking the transaction to the said parties.
It is, therefore, on the strength of the foregoing that this paper submits that there is a need for the domestication or inclusion of the proviso of section 43, part 5 of the Transfer and Property Act of 1882 (TPA) applicable in India under the Nigerian Land Law most especially the Conveyancing Act and Laws applicable in each state of the Federation. This writer isn’t unaware of the fact that parties who have fallen victim to land fraud usually activate remedies available under Nigerian criminal law by reporting to security agencies for necessary actions. It is on that note that this paper also observes the inadequacies of the said criminal law procedure remedies as the end result only benefits the state by virtue of the Nigerian criminal proceedings. It is further observed or found that oftentimes and in the event the transferor could be traced, victims of Land fraud may apply to the court for an order of specific performance available under the court’s civil jurisdiction, yet the lacuna created by this isn’t farfetched as the said specific performance could only be possible when such a transferor still retains or acquires title to the said land at the time the res is before the court as against when he has no title at all.
The said inclusion of section 43, part 5 of the Transfer and Property Act of 1882 (TPA) applicable
in India under the Nigerian Land Law will settle the following:
a) Makes the liability of the transferor futuristic, in that, in the event he couldn’t validly transfer such an agreed plot of land to a transferee immediately, the said transfer shall be held in abeyance by the transferor until he acquires ownership of title to either that same land or another land in the future.
b) The said transfer which is held futuristic and which is at the instance of the transferee to initiate could be held accountable against the personal representatives, proxies, and heirs even in the event the original transferor cannot be found.
c) It makes governmental land registries accountable to the people who have approached it for the sale of land by making a transferee who had lost under proof of ownership of title to land based on priorities to revert to the government for re-allocation and such a land registry will be under the legal duty and obligation to do; as against the equitable title holder the law usually regard them without remedies.
In summary, the doctrine of feeding the grant by estoppel is not explicitly codified in the Nigerian Land Law, but while it is recognized and can be applied based on the general principles of equity and the doctrine of estoppel, same is herein recommended to be codified as law under the relevant land law enactment as it shall serves as a means to protect the rights and interests of individuals who have relied on assurances or representations regarding land ownership made by the legal or non-legal owner of the land.
Mr. Alalafia [alalafiaqudus@gmail.com] is the Head of Chambers, Chinedu G. Udora & Co., House A., Plot 345, MB Aliyu Mustapha Boulevard, Wuye, Abuja.
Footnotes
[1] On Five WAYS of PROVING TITLE to LAND: A plaintiff can prove TITLE to LAND by any of the five WAYS, listed hereunder: (a) traditional evidence; (b) production of document of TITLE; (c) PROVING acts of ownership numerous and positive enough to warrant an inference that the person is the true owner; (d) PROVING acts of long possession and enjoyment of the LAND under section 146 of the Evidence Act (e) proof of possession of connected or adjacent LAND. Idundun v. Okumagba (1976) 10 SC 227 referred to P. 146, paras. A-B.
[2] Estoppel, C. (2017). The Rule of Feeding Grant by Estoppel: A Case Study. International Law Review, 49(2), pp.1-15.
[3] J. Mehta, “Rule of feeding grant by estoppel and its relation with specs successions” (Lawsikho, October 10, 2021) https://blog.ipleaders.in/rule-of-feeding-grant-by-estoppel-and-its-relation-with-specs-successions/ accessed on 15th November 2023.
[4] ibid
[5] M. Kumar, “Doctrine of Feeding the Grant by Estoppel” (Tutorials Point India Private Limited, 4th Floor, Incor9 Building, Plot No: 283/A, Kavuri Hills, Madhapur, Hyderabad, Telangana) https://www.tutorialspoint.com/doctrine-of-feeding-the-grant-by-estoppel accessed on 15th November 2023.
[6] ibid
[7] L. Nanyangwe, “The Rule of Feeding Grant by Estoppel: Understanding the Legal Doctrine and its Application in Modern Jurisprudence” (published by University of Zambia, 17th April 2023) https://legalvidhiya.com/the-rule-of-feeding-grant-by-estoppel-understanding-the-legal-doctrine-and-its-application-in-modern-jurisprudence/ acessed on the 15th November 2023.
[8] J. Mehta, “Rule of feeding grant by estoppel and its relation with specs successions” (Lawsikho, October 10, 2021) https://blog.ipleaders.in/rule-of-feeding-grant-by-estoppel-and-its-relation-with-specs-successions/ accessed on 15th November 2023.
[9] ibid
[10] ibid
REFERENCES:
- Idundun v. Okumagba (1976) 10 SC 227 referred to P. 146, paras. A-B.
- Estoppel, C. (2017). The Rule of Feeding Grant by Estoppel: A Case Study. International Law Review, 49(2), pp.1-15.
- J. Mehta, “Rule of feeding grant by estoppel and its relation with specs successions” (Lawsikho, October 10, 2021) https://blog.ipleaders.in/rule-of-feeding-grant-by-estoppel-and-its-relation-with-specs-successions/ accessed on 15th November 2023.
- M. Kumar, “Doctrine of Feeding the Grant by Estoppel” (Tutorials Point India Private Limited, 4th Floor, Incor9 Building, Plot No: 283/A, Kavuri Hills, Madhapur, Hyderabad, Telangana) https://www.tutorialspoint.com/doctrine-of-feeding-the-grant-by-estoppel accessed on 15th November 2023.
- L. Nanyangwe, “The Rule of Feeding Grant by Estoppel: Understanding the Legal Doctrine and its Application in Modern Jurisprudence” (published by University of Zambia, 17th April 2023) https://legalvidhiya.com/the-rule-of-feeding-grant-by-estoppel-understanding-the-legal-doctrine-and-its-application-in-modern-jurisprudence/ acessed on the 15th November 2023.
- Transfer and Property Act of 1882 (TPA)
- Indian Evidence Act of 1872
- Land Use Act.