Nature of Right of Occupancy
There have been differing views on the precise nature of the interest created by Right of Occupancy. Some writers, however, believe it is not a fee simple. They base their case on Section 1 of the Land Use Act, “which grants the government power and control over all land in the federation, which contradicts the concept of fee simple estate under common law. The highest interest an owner of land can have is a radical title”.
Again, some sections of the Act seem to imply that the interest created by the Right of Occupancy is treated as a lease. Thus, Section 51 of the act defines “sublease” to include “a sub under lease”, implying that Right of Occupancy is similar to leasing. However, this matter has been put to rest by the Supreme Court’s decision in the case of Ezeanah v. Attah, where Niki Tobi JSC (as then he was) said:
“A holder of Certificate of Occupancy holds the title to the property and is subject only to the conditions stipulated in the Land Use Act. A Certificate of Occupancy creates a term of years absolute or a lease for a number of years stated therein. The greatest legal estate that can now subsist under the Land Use Act is a term of years. The grant of term of years under a Certificate of Occupancy is in substance a lease”.
As a result, a Certificate of Occupancy is merely evidence that a grantee has a customary or statutory Right of Occupancy. Thus, the Supreme Court ruled in Orlu v. Gogo Abite, that “a Certificate of Occupancy is never associated with a title. A Certificate of Statutory or Customary Right of Occupancy issued under the Land Use Act 1978 is not conclusive evidence of the grantee’s right, interest, or valid title to land”.
Right of Occupancy and Other Proprietary Interests
A proprietary interest is a type of property right; it is the legally enforceable right to possess or use property in accordance with an official recognition of that right. Having said that, the Land Use Act “did not abolish private property rights in land by vesting all lands in the state in the Governor; rather, citizens are permitted to hold an interest known as a right of occupancy”.
In the case of Adole v Gwar, while explaining the aim and purpose of the Land Use Act 1978, the Supreme Court stated that “it was not the intention of the lawmaker for the Land Use Act to be used to deprive citizens of their traditional titles to land. Rather, the Act is intended to strengthen
ownership that has its origins in traditional history”.
As a result, the Act recognized the existence of a customary land owner’s title over his parcel of land as a deemed holder where such land existed prior to the commencement of the Land Use Act. This is subject to the Government’s right, as specified in the Act, to revoke the holder’s right in the public interest.
A statutory right of occupancy automatically cancels all existing rights to the parcel of land over which it is granted as was held in Olagunju v Adeyeye. The holder of a statutory right of occupancy is the sole owner of the land during the term of the right.
Section 14 of the Land Use Act grants the holder of a statutory right of occupancy over all persons other than the Governor exclusive possession of the land. Such rights can be passed down to his heirs.
Similarly, section 24 of the Land Use Act confirms that “the holder of a statutory right of occupancy has an alienable proprietary right, subject to the consent of the Governor being first sought and obtained.
However, it has been argued that right is less than ownership and thus cannot be equated with a proprietary right over land”. “The holder of such a right has exclusive right to the land against all persons other than the Governor”. This right is alienable subject to Governor’s consent under section 22 of the Act and heritable under section 24 of the Act.
A certificate of occupancy is a prima facie evidence of possession and the onus of proof lies on the person who alleges the contrary. However, a certificate of occupancy is not a conclusive proof ownership of land, this was held in Mrs Mojisola Edebiri v Prince Omotayo Daniel & Another. Thus a vested right in land under section 34 cannot be defeated by the application of sections 1 and 5 of the Act.
The power to grant a right of occupancy vested in the Governor under section 5 of the Act is reemphasized by the Supreme Court in Dabo v Abdullahi63. Moreover, the Governor’s power to grant a right of occupancy is to any person for all purposes both in urban and non-urban areas. Local Government, on the other hand, can only grant a customary right of occupancy in respect of land within its territory. Its grant is also restricted to agricultural and residential use or purposes ancillary thereto.
In Oniyale v Macauley, the Supreme Court held that where evidence is led to show that another person other than the holder of a certificate of occupancy had a better right, the court is bound to discountenance such a certificate of occupancy as invalid. For instance, in Saidu Chiroma v Madeus Yean Suwa. The evidence revealed that the appellant had sold the land to the respondent before the issuance of the certificate.
Similarly, where a right of occupancy is issued without a deemed grant land having been properly revoked, such right of occupancy is worthless. Title to land is not acquired by mere possession of a certificate of occupancy.
A right of occupancy is granted for a definite term, usually 99 years and subject to renewal upon expiration. The grant may be subject to certain terms placed by the Governor under sections 8 and 9 of the Act. These are, fees, unexhausted improvements and revisable rents.
Noncompliance with these terms may lead to cancellation and revocation of the right of occupancy granted. By section 27 of the Act a holder of a statutory right of occupancy may suo motu yield up or surrender the land and the Governor may accept it on such terms he deems proper. The Governor also has the right to inspect land at a reasonable time during the day.