By the provision of Section 1 of Land Use Act, all land in the state is vested in the Executive Governor of the state which is to be held in trust and administered for the use and common benefit of the citizens. Certificate of occupancy is the document issued under the hand of the State Governor granting the right of occupancy to the recipients. What constitutes right of occupancy was not defined under the act, however, some learned scholars have defined right of occupancy as a right to possess or use a land subject to the stipulations of the Land Use Act.
Types of Right of Occupancy. Right of occupancy introduced by the Act are:
- Statutory Right of Occupancy and
- Customary Right of Occupancy.
The above two types are classified into four:
- Statutory Right of Occupancy expressly granted by the Governor.
- Statutory Right of Occupancy deemed granted by the Governor.
- Customary Right of Occupancy expressly granted by Local Government.
- Customary Right of Occupancy deemed granted by the Local Government.
Statutory right of occupancy expressly granted by the Governor:
The statutory right of occupancy expressly granted was established under sections 5, 8 and 51 of Land Use Act. Section 51(1) provides that the Governor shall have right to grant statutory right of occupancy in respect of a land in urban area to any person for any purpose. However, community reading of this section with that of Section 5 reveals that this right is not limited to urban area alone, the governor has concurrent right with the Local Government Chairman to grant the right in rural area. However, it must be noted that the power to grant right of occupancy in rural area is exclusively that of the governor.
Supreme Court in Olagunju v. Adesoye held that the Governor has right to grant statutory right of occupancy whether or not the land is in urban or rural. Further, Section 8 provides that the power under section 51 shall be for a definite term of 99 years and once the holder does anything inconsistence with provision of land use act, the governor retains the right to revoke the same.
LAGOS ESTABLISHES LASRERA TO REGULATE REAL ESTATE SECTOR.
Statutory right of occupancy deemed granted by governor
The land use act was enacted in 1978 and the law provides that anyone that has been in ownership of a piece of land before the enactment of the act shall be deemed to have been granted right of occupancy. However, Supreme Court in Savannah Bank of Nigeria Ltd v. Ajilo held either the owner of the land is expressly granted or deemed granted, Governor’s consent will still be required before such a land can be validly alienated. It is our submission that for the purpose of alienation, there is no difference between express and deemed right of occupancy.
In a situation where two people lay claim to a piece of land by express and deemed right of occupancy, which one will prevail? This question was answered in Ogunleye v. Oni, according to the fact of the case;
The Plaintiff claimed land based on document of grant made early 1978 and Certificate of Occupancy granted to him in 1983 by the Commissioner for Land. He asked for damages for trespass. The defendant on his part said he inherited the land from his father in 1936 for a valuable consideration. The court applied Section 34 of the Act and held that the plaintiff was not the holder of the land in dispute before 1978. The Certificate of Occupancy could therefore make him a holder of a Statutory Right from 1983. Again, since the defendant held the land before the Land Use Act came into force, the defendant was deemed to be the holder of Statutory Right of Occupancy granted by the Governor. Since the holder did not revoke the defendant, the defendant therefore has better title.
Deemed Right before making a grant to the plaintiff, the Plaintiff‟s right was invalid and against the letter and spirit of the Act.
Customary Right of Occupancy expressly granted by Local Government.
By the provision of section 6 of Land Use Act, empowers the Local Government to grant Customary Right of Occupancy in respect of land not in an urban area to any person or organization, for agricultural purpose or for other purposes ancillary to agricultural purpose such as grazing, residential and other purposes.
Customary Right of Occupancy deemed granted by the Local Government
Where a land was not in an urban area but such land was held and occupied for agricultural purposes, the holder after 1978 became entitled to continue to hold the land as if the customary right of occupancy had been granted to him by the Local Government.
Finally, the right of occupancy can also be gotten by acquisition by acts of parties like assignment, mortgage, sale, gift and lease from existing holder of the right of occupancy. It can also be gotten by devolution like will and Letter of administration of a deceased title holder. A party can also obtained right of occupancy by attaching of immovable properties combine reading of Order V Rules 3 – 10 of the Sheriffs and Civil Process Act and Judgment (Enforcement) Rules and section 21(a) of Land Use Act recognize that immovable property of a statutory right of occupancy holder can be attached and alienated in satisfaction of judgment debt.
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