STATUTORY AND CUSTOMARY RIGHTS OF OCCUPANCY

Outline By Dr. Agbana

Non Customary Land Law

The Land Use Act promulgated 31st March 1978 under which we consider the State Control of
land, the grant of right of occupancy which could either be a customary land of occupancy in
land in non urban area and statutory right of occupancy in land in urban area which is contained
in section 5&6 of Land Use Act.

Revocation of Right of Occupancy

This is contained under section 28 of the Land Use Act and section 29. Note you will only be
compensated for your right of occupancy be it customary or statutory as contained in section 51
of Land Use Act.

Relationship Between Land Use Act and Other State Land Law
An outline of control of natural resources which include mineral resources, water and forest,
leasehold, easement, covenant and mortgages.

Registration of instrument (document) and registration of title and also the effect of registration
of document of title or non registration

Section 1 of the Land Use Act vested absolute ownership of land in each state in the governor
of that state and any person other than the governor of that State can only have a possessory
right or occupational right which could either be statutory or customary right of occupancy in
accordance with section 5&6 of Land Use Act. See the case of J.A Makanjuola & others V
Chief Oyelakin Balogun reported in 1989 3 NWLR part108 at pg 193. Note that the provision
of the Land Use Act does not abrogate the existing right of a land owner particularly where the
land is developed. Section 34(2) and section 36(2) where a landowner has a developed
property, section 34(2) preserves his right of occupancy as a deemed right of occupancy
in respect of land in Urban Area. Section 36(2) preserved the existing right of customary
right of occupancy as deemed customary right of occupancy.

However, the grant of a right of occupancy by the Governor as regards section 5 & 6 entitles the
governor to issue a certificate of occupancy as a document that confers title on the receiver of
the certificate. A certificate of occupancy granted by the governor is a prima facie evidence and
a presumption which is rebuttable that the holder of such certificate of occupancy is in exclusive
possession and has a right of occupancy over the land. However, the presumption raised by an
holder of certificate of occupancy is a rebuttable presumption. In other words, a person with a
better title can rebut such presumption. In other words, the possession of a certificate of
occupancy by a land holder does not absolutely confer title on you where the certificate is
erroneously granted to you by the governor. Note, where your certificate of occupancy is issued
to you by the Governor by the use of a false document, such issued certificate does not confer
on you absolute or genuine ownership.

Section 5 of the Land Use Act empowers the governor to grant a statutory right of occupancy to
a land holder where the land is located in urban area while section 6 equally empowers a
governor to grant to an applicant a customary right of occupancy as regards land not in urban
area.

Categories of Right of Occupancy

1. Statutory Right of Occupancy expressly granted by the Governor as regard land in urban
areas.
2. Statutory Right of Occupancy deemed to be granted by the Governor as regard developed
areas in urban areas see provision of section 34(2).
3. Customary Right of occupancy expressly granted by the chairman of local government as
regard land in non urban areas.
4. Customary Right of Occupancy deemed to be granted by Local Government as regard land in
non urban areas. See provision of section 36(2).

Note that the distinction between an expressly granted right of occupancy and a deemed
right of occupancy is that the deemed grant is presumed by Land Use Act to have been
granted to you by virtue of being in possession or occupation of a developed land prior
to the promulgation of Land Use Act.
Note that, the provision of section 8 imposed on a holder of statutory right of occupancy certain
obligatory duties. In other words, the non compliance of provision of section 8 can make
that person forfeit such certificate of occupancy. In other words, the land can be revoked by
the Governor and such revocation by the Governor or Local Government Chairman will not
entitle you to compensation but you may be entitled to compensation if the Governor revoked
the land based on the provision of section 51 (General Interest).

A right of occupancy be it statutory or customary granted by the governor as regards lands in

urban areas or customary right of occupancy granted by local government chairman and woman
as regards lands in rural areas extinguishes an existing right over such land. In other words,
where a right of occupancy is granted over a piece of parcel of land, all other existing rights over
such parcel of land is stopped. See the case of Olagunju V Adeseye (2009).

Section 14, LUA confers on the owner of a statutory right of occupancy with exclusive
possession of the land against all persons except the governor of the state and such
right is inheritable. In other words, a owner of statutory right of occupancy is in exclusive
possession of the land subject to the right of revocation by the governor offending public interest
or for a breach in the provision of the Act. (S. 8,9,10).

Note, however, that a right of occupancy can also be revoked if such right is alienated,
mortgaged or transferred to a third party without the consent of the Governor (See section 34).
Note also, the maximum period of the tenure of a right of occupancy is 99 years. At the
expiration of 99 years. If the right of occupancy is not renewed , then such right could be
reverted back to the Governor.

Furthermore, where there is a subsisting grant of a right of occupancy over a piece or parcel of
land, any other deed grant in respect of the same parcel of land would be invalid. See the case
of Eleran V Aderoupe (2008).

Conditions For A Valid Grant of Occupancy:

Note that a valid grant of a certificate of occupancy requires that you must have observed some
conditions or prerequisite before a Governor can issue to you a certificate of occupancy and a C
of O. This is prima-facie evidence that the holder of such a certificate has been granted a Right
of Occupancy by the Governor or local Government.
For a valid issuance or grant of a certificate of occupancy, you must be able to prove that at
the issuance or grant of such certificate, there must not be in existence a valid title of
another person with legal interest over the same parcel of land. In other words, there must
not be a subsisting title owner over the same parcel of land. Where that exists, the first in time
will prevail.

Note also, by virtue of the provision of Section 5 & 6 that entitles you to right of occupancy.
Statutory or customary as the case may be cannot defeat or invalidate the provision of section
34(2) & 36(2). See the case of Omiyale V Macaulay (2009), where the Supreme Court held
that where it is shown by evidence that another person other than the granted of a
certain of occupancy had a better right to the land upon which the grant of C of O
relates, the court will have no option but to set aside the said grant of C of O: or
otherwise discountenance such grant as invalid or defective.

Note also, once a Statutory Right of Occupancy is issued, where a deed grant exists and has
been revoked, the statutory right becomes a worthless document because there cannot
be or exist concurrently the title holder over the same piece/parcel of land.
Where there exist at the same time two rights of occupancy to different persons in respect of the
same land, one must be necessarily invalid. In other words, there cannot exist two rights of
occupancy to two different people over the same piece/parcel of land because one must
have been obtained by fraudulent means.
The law presumes, where such exists that the invalid one must be the latter right granted
without revoking the former S 28 LUA. Note that, your C of O is subject to the provision of S.28
which grants the Governor to revoke such granted right for overriding public interest as well as
S.51.
Note also, for a revocation to be valid , it must be for overriding public interest . Where the
revocation of a right of Occupancy is not according to Section 51 then the holder of such
certificate will be compensated after declaring such revocation invalid. But your right can be
revoked under the provision of section 8. 9.10 & 24 LUA for non compliance with the provision
of these sections. Also, where the revocation is in breach of any of the provisions of the LUA
specifically section 8, 9, & 10 the holder of the revoked right might not be entitled to
compensation under section 29, LUA.

However, section of LUA which vested Lands of territory of each state on the Governor for the
benefit of citizen of that State does not include Lands comprise in the Federal Capital territory.
Lands comprise in the Federal Capital territory is vested in the Federal Government of Nigeria
and as such, the minister of the Federal Capital territory is empowered to administer such land
on behalf of Federal Government of Nigeria. In other words, unlike lands comprises in the
territory of each state which is vested in the Governor of a State for and on behalf of citizen of
that state. In other words, a statutory right of occupancy over land in the Federal Capital territory
could only be granted by the minister of the Federal Capital territory. Section 18 of the Federal
Capital Territory Act Cap 503 Laws of the Federation provides that the power to grant statutory
right of occupancy is vested in the minister for Federal Capital territory. In other words, Land
comprise in the Federal territory could only be granted by the Minister of FCT, see section 18
FCT Act Cap 505, see the case of Madu V Madu ALL WLR part 414 pg 604 reported in 2008
where the court held that by the virtue of provision of section 18 Laws of Federal Capital
Territory, ownership of Land within the Federal Capital territory Act is vested in the federal
Government of Nigeria who through the minister of federal capital territory vested same to every
citizen individually upon application. Unlike the provision of section 1(1) which vested land in
states upon the Governor.
Finally, by virtue of section 22 and 26 of Land Use Act, for a valid alienation of statutory
Right of Occupancy either by way of sales, assignment or mortgage, you must have the consent
of the Governor of a state obtained, where you fail to obtain the consent of a governor, such
transaction will be invalid and unenforceable.
Note that failure to obtain consent of a Governor to any transaction relating to Land render
such transaction void. See the provision of section 5, 34, & 36 of LUA. Every holder of a right of
occupancy be it customary or statutory is obliged under the land Use Act to obtain prior to the
transaction the consent of the governor and any transaction or any instrument which intend to
transfer or confer interest on land in any person must be with the consent of the Governor. The
non compliance with this provision of LUA render such transaction null and void, see Olalomi
Industry Limited V Nigeria Industrial Development ltd reported in 2009 9 Supreme Court Monthly
LR at pg142, see also the case of Awojugbade V Chinukwe reported in 1995 (4),..... Note that
the provision of section 22 & 26 dealing with the consent of the governor did not prohibit the
preparation of any document or agreement for the purpose of alienation. In other words, prior to
consent, the document transferring title to land can be prepared prior to consent.
The effect of not obtaining prior consent of the governor it is that such transaction will be void
and of no effect. The only remedy that is available to the buyer is equitable remedy for his
money. See Savannah Bank ltd V Ajilo (1989) NWLR

Revocation of Right of Occupancy

Revocation of Right of Occupancy granted by the Governor by virtue of the provision of section
28, the Governor is empower to revoke your right of occupancy granted under the Land Use
Act. Where a right of occupancy is revoked it must be for overriding public interest.
 Note also, in a revoked right of occupancy granted under section 51 must be for overriding
public interest . See the provision of section 28 (2a) ,(2c).
A public purpose on which a statutory right of occupancy can be revoked is specified under
section 51 of Land Use Act. E.g the establishment of Oduduwa University, OUI is for public
purpose not for public interest. Public purpose is defined under section 51 of LUA, (copy the
provision in your note).
Note that for a valid revocation of Right of Occupancy under the LUA, there must be a notice of
such revocation . In other words, a holder of a right of Occupancy to be revoked is entitled to
notice. Notice to the effect that his right is to be revoked and such notice must be served on him
either personally if is an individual and he or she can be found but where the holder of such right
of occupancy is a body corporate, such notice must be served at the registered office of the
corporate body but where the person to be served cannot be found or located, it can be pasted
in his last known address.
Note also, the notice must contain what the revocation is meant for. See the provision of
section 44 LUA (substituted service), see the case of Ononuju V A.G Anambra State reported in
2009 (10) NWLR pt 1148 at pg 182 where the Supreme Court held that revocation of a right of
occupancy can only be valid if notice of the sale have been issued and served on the owner or
occupier of the property concerned see also the case of Administrator or Executor of the Estate
of General Sanni Abacha V Samuel David & others reported in 2009 7 NWLR pt 1939 at pg 37
see also the case of Nigeria Engineering Works ltd V Bernaderd Ltd reported in 2001 18 NWLR
pt 746 at pg 726. Note that where notice is not easily served on the holder of right of occupancy
to be revoke, it will be contrary to constitutional provision of fair hearing as contained in section
36 of the 1999 constitution dealing with fair hearing.

Compensation
Where your right of occupancy is revoked, you will be entitled to compensation, specifically
section 29 of LUA which provides for compensation to a owner of a revoked right of occupancy
and only if the revocation is valid will you be entitled for compensation. Compensation is only
valid if an only if is for public interest and a public purpose. Similar provision was provided for
under section 44 of 1999 constitution of Federal Republic of Nigeria.

...The issue of sufficiency or adequacy of compensation was provided for under section 44 of
1999 constitution of Nigeria. The sufficiency and adequacy of compensation paid is a different
question entirely.

Compensation may be in terms of monetary value of revoked land or a resettlement of the

occupier or holder of statutory right of occupancy. See the provision of section 2 of LUA as
regard the power of Governor to set up Land Advisory Allocation Committee to advise the
Governor among other things on adequacy or otherwise of compensation payable for a revoked
right of occupancy.
Know the distinction between overriding public interest and public purpose.

By Mr Fayomi
Covenant:
In real property law, the Juristic term called real covenant means conditions tied to the
ownership or use of land. A covenant is a provision or promise contained in a deed to land in a
different way. A covenant is a promise or an agreement under seal relating to a particular
obligation, such a promise is enforceable according to the ordinary law of contract between
persons who are parties to it or their personal representatives. Certain kind of covenant are so
much part of the system of transaction in land that are enforceable in cases which the law of
contract does not cover and this is in connection with the nature of the estate they are made, so
that in that regard they may benefit and bind third parties (as against the privity of contract in
ordinary contract).
Example of this types of covenant are; covenant in a lease to repair and restrictive covenant
taking on a sale e.g binding the purchaser and future occupiers, not to carry on a business on
the property sold.
For instance on the transfer at an interest in land, the vendor may get an undertaking
from the purchaser to observe certain obligations e.g that the land: it could or could not to be
used in a particular manner, with a view to achieving this, the vendor may exert a promise in the
conveyance from the purchaser that he would use the land in a particular manner prescribed,
such covenant so exerted are contractual promise use which create obligation.

Creating A Covenant:
Typically, covenant will be imposed by the developer when a property is built or by a seller who
is selling part of his land and retaining the remainder. However, a covenant can be created by a
separate deed (a seed of covenant). A covenant is a promise made in a deed by a covenantor
for the benefit of covenantee. Invariably, covenant give many owner of the land control over
what is done on the land that surround his own land.
A covenant may be positive or negative, a positive covenant is a covenant to take some
positive action such as maintaining a force or a private road or to expend money. This does not
run with the land.
A negative or restrictive covenant specify something that a property owner must refrain
from doing. A restrictive covenant is both a covenant or an interest in property, the purpose of
which is to prevent the covenantor from doing something on or concerning his land for the
benefit of covenantee land.