The enactment of the Land Use Act 1978 (the Act) birthed a new system wherein by virtue of Section 1 of same, all lands within the territory of a State are vested in the Governor of that State who shall hold same in trust for the benefit of the people. Thus, a person in Nigeria cannot “own” land but rather is conferred the right to occupy the same for a certain time. This article will assess the means by which the right of occupancy is evidenced, the obligations and rights conferred on the holder as well as judicial decisions on the status of the Certificate of Occupancy.

Giving credence to the fact that the Governor only holds the lands within a State’s territory for the benefit of the people, Section 9 of the Act provides that a Certificate which shall be termed “Certificate of Occupancy” can be issued upon payment to any person under the hand of the Governor as evidence of the right of occupancy over the said land.

The holder of a certificate of occupancy is deemed to have accepted the terms and conditions attached to it, which are enforceable against himself and his successors in title. These include:

  1. Payment of penal rent for breaching any covenant or condition such as failing to effect improvements on the land or alienating the land or any part thereof without the consent of the Governor. (s. 5(1e and f))
  2. Payment to the Governor for any unexhausted improvements of the land existing on the land at the date of entering the occupation. (s. 10(a).
  3. Payment of rent as prescribed under the Act from time to time. (s. 10(b))
  4. Allowing the Governor or his agent access to the land for purposes of inspection during the daytime. (s. 11)
  5. To maintain in good and substantial repairs all beacons or other landmarks defining the boundary granted under the Certificate of Occupancy and in default shall be liable to bear the expenses of doing same. (s. 13)
  6. The land covered by the Certificate of Occupancy cannot be alienated without the prior consent of the Governor, otherwise, such alienation shall have no effect. (s. 22).

The rights conferred on a holder of a statutory right of occupancy include:

  • Exclusive rights to the land, which is enforceable against all persons except the Governor of the State where the land is situated. (s. 14)
  • Sole right to absolute possession of all improvements on the land. (s. 15a).
  • Right to transfer, assign and mortgage any improvement on the land subject to the provisions of the Act. (s. 15b)
  • Right to be compensated in the event the land is acquired by the Governor for public purposes. (s. 29(1))

The issuance of this certificate confers on the holder a Statutory Right of Occupancy. This Right could either be express or deemed grant. It is express where the certificate is issued under the hand of the Governor to a named person. However, to cater for lands owned by people before the commencement of the Act, Section 34 states that such persons upon the commencement of the Act are deemed to have been granted a Right of Occupancy over said land.

With regards to the status of a Certificate of Occupancy, it has been held by the Supreme Court in a number of cases such as Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Otukpo v. John & Anor (2012) LPELR-25053(SC); Madu v. Madu (2008) LPELR-22732(SC) that it only serves as prima facie evidence of title or possession to land but not conclusive proof of same. Therefore, a holder of a certificate of occupancy is presumed to have an exclusive right of occupancy over the land to which it relates until proven otherwise.

A person who can establish with evidence a better title over the land can render void the right of occupancy conferred on the holder of A Certificate of Occupancy. Thus, in the case of Ogunleye v. Oni where the plaintiff had a certificate of occupancy granted in 1983 and the defendant proved ownership over the same land before the commencement of the Act, the Defendant was held to have a better title and by the application of Section 34 had a deemed grant of a statutory right of occupancy.

Therefore, although the Certificate of Occupancy is recognized as a means of evidencing the right of occupancy over land, it merely raises a presumption that is rebuttable.

In conclusion, a Certificate of Occupancy in recent times is a useful piece of document, while it is not conclusive proof of the right of occupancy over land, it is one that is recognized by the law unless a better title is proved, which is unlikely in most cases.

 

By Halima Salman and Olusola Jegede, MCIArb

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