WHEN EQUITABLE INTEREST IN LAND UNDER NATIVE LAW AND CUSTOM WILL DEFEAT LEGAL ESTATE: A COMMENTARY ON THE SUPREME COURT DECISION IN ETAJATA v. OLOGBO (2007) 11 MJSC 176-214

Abstract

Interest is a comprehensive term to describe any right, claim or privilege that an individual has towards real or personal property. Generally, interest in land can be either equitable or legal interest depending on the circumstances of their creation. A legal right or interest in land can be defined as the right or title in land conferred on an individual by law. It is always derivable from a legal instrument, which must have been created according to laid down formalities. Equitable interest in land on the other hand, is simply a right or interest in land conferred by equity. They are specie of rights over land not conferred through legal instrumentalities. Equitable interests operate to protect a party damned by a strict application of legal rules, particularly when there is a failure to comply with legal formalities. While it is the general belief that legal interests in land are generally superior to equitable interest on the same land, there are however, circumstances when equitable interest in land will defeat a legal estate on the same land. This paper therefore, examines the circumstances when equitable interest in land under Native Law and Custom will defeat a legal estate. In analyzing those circumstances, the paper did a commentary on the Supreme Court decision in the case of Etajata v. Ologbo (2007). The paper found among other things, that once an equitable interest has been created in land coupled with possession, it cannot be overridden by a legal estate. The paper recommends that equitable interest under Native Law and Custom coupled with possession should be accorded same legal status as a legal estate in land.