Right of Occupancy in Nigeria
A right of occupancy, according to Justice I. A. Umezululike “is the right to use and occupy land in accordance with the terms and tenure set by the state within the provisions of the Act. A Right of Occupancy is a legal right to possess or use land under the terms of the Land Use Act”.
More so, the Land Use Act conferred the government with powers and control over land acquisition in Nigeria. Thus, Section 1 of the Act provides that:
all land comprising the territory of each state in the federation are hereby vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
From the foregoing provisions of the Act, it can be established that right of occupancy is subject to the control and management of the government be it local or state government.
Types of Right of Occupancy
Right of occupancy introduced by the Act are:
- Customary Right of Occupancy.
- Statutory Right of Occupancy
However, the above two types are classified into four, namely:
Statutory Right of Occupancy Expressly Granted by the Governor
The Governor’s Statutory Right of Occupancy is a right of occupancy granted by the Act. Again, Section 5(1) (a) states that “it shall be lawful for the state Governor to grant statutory rights of occupancy to any person for all purposes in respect of land, whether or not in an urban area.” This right, however, is not absolute, as it is subject to some restrictions and conditions.
Statutory Right of Occupancy Deemed Granted by the Governor.
Land in an urban area that was developed prior to the Act’s enactment remains vested in the developer as if the Governor had granted that person a statutory right of occupancy. Consequently, Section 34(1) and (2) of the Act provides:
(1) ‟the following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act”
(2) ‟ where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.”
Customary Right of Occupancy Expressly Granted by Local Government
Customary Right of Occupancy as defined in Section 51 of the Act is “the right of a person or community lawfully using or occupying land in accordance with customary law and includes a Customary Right of Occupancy granted by a Local Government under this Act”.
Regardless of the above decision, the Act empowers the Local Government to grant Customary Right of Occupancy in respect of non-urban land to any person or organization for agricultural or other ancillary purposes such as grazing, residential, and other purposes.
Similarly, if a land was not in an urban area but was held and occupied for agricultural purposes, the holder acquired the right to continue holding the land after 1978 as if the Local Government had granted him the customary right of occupancy.
Customary Right of Occupancy Deemed Granted
If a holder of a Customary Right of Occupancy holds such land prior to the commencement of the Land Use Act, he is said to be a holder rightfully granted by the Local Government. As a result, Section 36(2) provides:
“Any occupier of such land, whether under customary right or otherwise however, shall if that land was on the commencement of this Act being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the custom of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil”
Devolution of Right of Occupier Upon Death
When an occupier dies, the determining factors are whether the right of occupancy is statutory or customary. In this case, the personal law or customary law of the locality where the land is located is generally applied. Thus, Section 24 of the Act provides that:
“The devolution of rights of an occupier upon death shall; (a) in case of a Customary Right of Occupancy (unless non-customary law or any other customary law applies) be regulated by the customary law existing in the locality in which the land is situated.
(b) in the case of a Statutory Right of Occupancy (unless any non-customary law or other customary law applies) be regulated by the customary law of the deceased occupier at the time of his death relating to the distribution of the property of like nature to the right of occupancy.
For a Customary Right of Occupancy, the applicable law is Lex Situs- law regulating land in the place where the deceased died. While in Statutory Right of Occupancy, the applicable law is, the personal law of the deceased.
Alienation of Rights of Occupancy
Both statutory and customary rights of occupancy are transferable, subject to the consent requirement. It should be noted that the rule requiring the governor’s or local government’s consent before any transfer of land rights is the most powerful provision of the Act that improves title security. It will be possible to control and regulate such transfers, as well as keep accurate records of all transfers, by requiring the governor’s approval for such transfers.
Alienation of Statutory Right of Occupancy
Section 22 of the Land Use Act provides:
“It shall not be lawful for a holder of a statutory right of occupancy granted by the governor to alienate his right of occupancy or any point thereof by assignment, mortgage, transfer of possession, sublease alienation or otherwise howsoever without the consent of the governor first had and obtained…”
Omotola asserts that the word “granted” in the preceding provision is “intended to distinguish between statutory rights of occupancy actually granted and those deemed to be granted, and to limit the provision’s consent requirement to the former; that is, statutory rights of occupancy actually granted by the governor under section 5”.
The scope of the provision of Section 22 of the Land Use Act was determined in Savannah Bank Ltd v Ajilo, Chief F.R.A Williams, SAN argued in that case that “section 22 of the Act does not include a holder of a deemed issued or deemed granted right of occupancy under section 34.
The argument was based on the premise that a distinction is made between actual and deemed grants of right of occupancy throughout the Act, particularly section 39, which deals with court jurisdiction”.
The court rejected this contention and held that the preservation of the object of the Act is to make “the land in Nigeria available for the use and enjoyment of all Nigerians and the best approach to achieve this objective was to vest all land comprised in the territory of each state in the governor of that state” and consequently, “all land in urban area came under the control and management of the governor of each state” and that the governor’s consent requirement in section 22 applies equally to holders of rights of occupancy actually granted as well as those deemed granted under the transitional provisions. The court noted that the history of the Act does not admit of “two categories of right of occupancy, one subject to the provisions of the Act and the other outside its regulatory force.
However, section 22 of the Act provides for some exceptions namely:
(a) the creation of legal mortgage over a statutory right of occupancy in favor of a person in whose favor an equitable mortgage over the right of occupancy has already been created with the consent of the governor; and
(b) the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the governor.
In the two instances mentioned above, consent of the governor is not necessary. It is important to note also that improvement made on land comprised in a statutory right of occupancy cannot be alienated by a holder without prior consent of the governor.
Requirements for Alienation of Rights of Occupancy
According to the provisions of Section 22 of the Land Use Act, alienation of statutory right of occupancy without the requisite consent of the governor is illegal. Consent is, however, not required where; a prior equitable mortgage of the land has been created with the consent of the governor in a reconveyance or release of the mortgage which was created with the consent of the governor.