WHAT ARE THE BASICS OF STATUTORY RIGHT OF OCCUPANCY

All you should know about rights of occupancy.

REAL ESTATE AND PROPERTY LAW PRACTICE IN NIGERIA

CHAMAN LAW FIRM

2/14/20227 min read

WHAT ARE THE BASICS OF STATUTORY RIGHT OF OCCUPANCY

A right of occupancy is the maximum interest which a private individual can enjoy over land in Nigeria. A person entitled to it is called a holder. A holder may be a sole or a group.

TYPES OF RIGHT OF OCCUPANCY

It may be statutory or customary, actual (express) or implied (deemed).

Statutory right of occupancy: This is a right which could be expressly granted by the Governor or deemed issued by operation of the Act over land in an urban area.

Express/Actual Grant: This is when the Governor grants a statutory right of occupancy to any person for any purpose for land in an urban area or elsewhere. Such right of occupancy must be granted for a definite term.

Deemed/Implied Issue: A statutory right of occupancy is deemed to be issued to a person in who land in an urban area was vested at the commencement of the Act in respect of developed or undeveloped land.

Developed land: Land in which there is any physical improvement such as electricity, drainage, building, etc.

Undeveloped land: bare land, without any improvements.

Customary right of occupancy: right granted by the Local Government over land not in urban area. It may be expressly or impliedly acquired.

Express Grant: This is where a Local Government grants a customary right of occupancy to any person or organization over land not in an urban area for agricultural or other purposes ancillary to agriculture. Deemed Issue could be for Developed land or Agricultural land. In any case, the holder of the deemed grant could choose to register such interest with the Local Government to further protect his interest.

"By the provisions of Section 36(1) of the Land Use Act, 1978, a Customary title holder of land, is deemed to have been granted right of occupancy over such land, and another person cannot be granted title over same parcel of land." Per BDLIYA, J.C.A. (P. 26, Paras. B-C).

INCIDENTS OF A RIGHT OF OCCUPANCY

It invests the holder with exclusive possession, imposes on the holder the liability to pay rent, and is transmissible and alienable.

√ Exclusive possession: DENTON WEST, JCA, stated the effect of grant of Statutory right of Occupancy, thus:

"Once a person is granted a Statutory right of occupancy in and over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the certificate of occupancy is set aside. However, Section 5 (2) of the Land Use Act does not preclude the Court from setting aside the grant of the statutory right of occupancy in the appropriate circumstances, such as, for instance, when it was issued in error or obtained by fraud.”

√ Liability to pay rent:

The Governor may demand rental for land subject to a statutory right of occupancy. The Governor may also grant a statutory right of occupancy free of rent or at a reduced rent where he is satisfied that doing so is in the interest of the public.

Penal rent authorize the Governor to impose a penal rent for breach of any covenant/condition in a certificate of occupancy.

√Alienability:

Statutory right of occupancy: Alienation through assignment, mortgage, transfer of possession, sublease, or otherwise must be with the consent of the Governor first had and obtained.

Customary right of occupancy: There are two limbs where the alienation is pursuant to a court order, Governor’s consent is needed in other cases, the Local Government must give its approval.

√ Transmissibility.

EFFECT OF LACK OF CONSENT.

·         Revocation of the right of occupancy.

·         Nullity of the transaction.

·         Illegality of the transaction.

·         An offence.

CERTIFICATE OF OCCUPANCY

This is merely evidence that a grantee has a right of occupancy, customary or statutory. It does not confer on a grantee any interest or right which he did not have before. A certificate of occupancy is never associated with title. A certificate of statutory or customary right of occupancy issued under the Land Use Act 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favor of the grantee.

INCIDENTS OF A CERTIFICATE OF OCCUPANCY

It is a prima facie evidence and raises a rebuttable presumption that the holder is in exclusive possession and has a right of occupancy. Issuance does not invalidate defects. A person cannot improve his title to land by obtaining a certificate of occupancy. Acceptance of a certificate binds the holder to all the terms and conditions in the certificate.

His Lordship BAGE JCA at pages 41-42, paras. E-B stated thus: "Let me add here for the records that throughout the Land Use Act, there is no provision associating the certificate with title. A Certificate of Occupancy only gives the right to use and occupy the Land. It neither confers nor is it necessarily an evidence of title. It is only a prima facie evidence which raises a presumption that the holder is in exclusive possession and has a right of occupancy over the land in dispute. However, like all other presumption, it is always rebuttable and the onus of disproving this right is on the person who asserts the contrary.”

Determination of a right of occupancy could be by

·         Surrender.

·         Forfeiture.

·         Revocation (for overriding public interest).

·         Effluxion of time.

PROCEDURE FOR REVOCATION

Governor issues a notice to the holder:

Notice must be personally served on the holder; This could be in any of the following ways:

√ personal delivery

√ delivery on the last known address

√ delivery through a registered courier

√ delivery to the secretary or clerk of an incorporated body or company at its registered office.

√ where personal service is impossible, by affixing or pasting on a conspicuous part of the premises.

√ where the holder receives such notice, his title becomes extinguished on that same date or any other date stated in the notice.

“It must be emphasized clearly here that the Land Use Act, 1978 did not forbid the Governor of a State from revoking any customary or statutory right of occupancy. The only check is that the revocation must be for public purpose and the public purpose must be duly specified and the appropriate notice must be issued to the holder of the Right of Occupancy.”

COMPENSATION

Where the right of occupancy is revoked for public purpose of the federal, state or local government, the holder and occupier shall be entitled to compensation for the value of their unexhausted improvements at the date of the revocation where the right of occupancy is revoked for mining, oil pipelines or other related purposes, the holder or occupier is entitled to compensation under the Minerals Act or Mineral Oils Act or any Act replacing same "No one, including the government can deprive a holder or occupier of his land, unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act. By virtue of Section 28(4) of the Land Use Act, payment of compensation is also a condition precedent to the validity of such acquisition. See again Section 44(1) of the Land use Act which had been reproduced supra." Per SANUSI, J.C.A. (Pp. 47-48, paras. G-C).

JURISDICTION OF COURT

Exclusive original jurisdiction in respect of any land subject of a statutory right of occupancy and other matters connected therewith to the High Court.

An Area court or Customary court or other court of equivalent jurisdiction in a state shall have jurisdiction in respect of a customary right of occupancy. Proceedings for the recovery of rent payable in respect of a customary right of occupancy may be taken before a Magistrate court of competent jurisdiction “The Courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are clearly specified therein. The relevant Sections in this respect are Sections 39, 41 and 42 respectively, which state - "JURISDICTION OF HIGH COURTS AND OTHER COURTS.

It is quite clear from the provisions of the above Sections of the Land Use Act that specific powers and jurisdiction in respect of land matters specified therein are conferred on the State High Court, Area Court, Customary Court and Magistrate Court, and that the Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters. As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters, I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land."

REFERENCE:

1. Section 51(1) The Land Use Act, 1978.

2. Section 5(1)(a) The Land Use Act, 1978.

3. Section 8 The Land Use Act, 1978.

4. Section 34(2); 51(1) The Land Use Act, 1978.

5. Section 34(5) The Land Use Act, 1978.

6. Section 51(1) The Land Use Act, 1978.

7. Section 6(1) The Land Use Act, 1978.

8. Section 36(4) The Land Use Act, 1978.

9. Section 36(1) and (2) The Land Use Act, 1978.

10. ABBA & ANOR v. GAIYA (2016) LPELR-41164(CA).

11. Section 15(a) The Land Use Act, 1978.

12. OLALEYE V. TRUSTEES OF ECWA (2011) 2 NWLR (Pt.1230) 139.

13. Section 5(1)(c) The Land Use Act, 1978.

14. Section 17(1) The Land Use Act, 1978.

15. Sections 5(1)(e) and 19 The Land Use Act, 1978.

16. Sections 15 and 22 The Land Use Act, 1978.

17. Section 21 The Land Use Act, 1978.

18. Section 24 The Land Use Act, 1978.

19. Section 28(1),(2)(a) and (3)(a) The Land Use Act, 1978.

20. Section 26 The Land Use Act, 1978.

21. Sections 21 and 22 The Land Use Act, 1978.

22. Sections 34(8) The Land Use Act, 1978.

23. Section 9 The Land Use Act, 1978.

24. ORLU V. GOGO-ABITE (2010) (Pt 1196) 307.

25. Sections 9(4), 10(a) and (b) The Land Use Act, 1978.

26. TRIMSKAY NIGERIA LTD v. BANKOLE-OKI (2015) LPELR-24518(CA).

27. Section 27 The Land Use Act, 1978.

28. Section 18 The Land Use Act, 1978.

29. Section 28 The Land Use Act, 1978.

30. Section 28(4) The Land Use Act, 1978

31. Section 44 The Land Use Act, 1978.

32. Section 28(7) The Land Use Act, 1978.

33. BALLANTYNE v. A.G CROSS RIVER STATE & ORS (2017) LPELR-43527(CA).

34. section 29(1),(2) The Land Use Act, 1978.

35. FCDA & ANOR v. KUDA ENGINEERING AND CONSTRUCTION COMPANY LTD & ORS, (2014) LPELR-22985(CA).

36. section 39(1) The Land Use Act, 1978.

37. section 41 The Land Use Act, 1978.

38. section 42 The Land Use Act, 1978.

39. ADETAYO & ORS VS. ADEMOLA & ORS (2010) LPELR- 155 (SC) pages 2024.

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