By Runsewe Solomon

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Aside from overriding public interest, the Governor may revoke a right of occupancy on the ground of a breach of any of the provisions contained in a Certificate of Occupancy, or in any special contract made. The Hope Classics spoke with some legal practitioners on the matter. Excerpts:

A Critical Appraisal of the Method of Revocation in the Nigerian Land Use Act and Government’s Compliance The paper inquires whether there is government’s compliance with the method of revocation of right of occupancy stipulated in the Land Use Act (LUA) (1978). The LUA has prescribed the procedure for the revocation of right of occupancy. It is expected that government complies with the procedure.

There have been cases where government did follow laid down procedure for the revocation of right occupancy. Therefore, when government flouts laws regulating the procedure for the acquisition of private property, it is the obligation of the Nigerian courts to intervene in favour of the private citizen. Though the courts are obliged to intervene, the question is: what happens, when government disobeys court orders? Or what happens when private citizens for lack of means did not challenge in court any wrong procedure adopted by government? Apart from calling for more judicial activism in this area, the paper argued that government should follow laid down procedure for the acquisition of private property; for even God who has laid down the procedure for man to be holy has also subjected himself to holiness.

The LUA expressly laid down the procedure for a valid revocation and they include:

1) The revocation is to be signed by an officer authorized for the purpose by the governor (section 28(6) LUA).

2) Notice shall be issued stating the purpose of revocation that is either for public purpose or for breach of conditions of grant Obikoya & Sons Ltd. v Governor of Lagos State [1997]. A revocation for any purpose outside those pre-scribed can be declared void Ereku v Military Governor of Mid-Western State [1974].

2) Notice is required to be served on the holder (section 28(6) LUA). As regards mode of serving the notice, section 44 of the LUA stipulates that:

1. a) By giving it to the person to be served or;
2. b) By leaving it at the usual or last residence of that person;
3. c) By sending a letter to the person’s residence;
4. d) If it is a company by delivering it to clerk or secretary;
5. e) If not feasible after inquiry about the address of a possessor or holder to be served if no identifiable person in the premises the notice can be affixed in some visible place of the property.

4) Notice must be proved to have come to the knowledge of the person concerned i.e. there must be proof of receipt of such Notice (Attorney General Lagos State v Sowande, 1992).

5) The holder’s title only becomes extinguished on the receipt of the Notice or on other date in the Notice (section 28(6) and (7) LUA).

6) Where the revocation is for public purpose (as against penal revocation under section 28(5) of the LUA, the holder or possessor or the occupier would be compensated for the value at the land for unexhausted improvements or under any relevant legislation (section 29(1) and (2) LUA).

The Land Use Act of 1978 in section 1 vested in Governor of each state, the power to hold in trust and administer for the use and common benefit of all Nigerians in accordance with the provisions and this was further entrenched in Section 315(5)(d) of the 1999 constitution of the Federal Republic of Nigeria as amended.

According to Section 9 of the Land Use Act, the granting of the Certificate of Occupancy lies solely within the power of the Governor, to issue a Certificate of Occupancy under his hand in evidence of a right of occupancy in three instances namely: When granting a statutory right of occupancy to any person when any person in occupation of land under a customary right of occupancy; when any person is entitled to a statutory right of occupancy.

In Nigeria, the Certificate of Occupancy, or C of O, is the most important document to property buyers and landowners. The document is issued by the state governments in Nigeria and verifies that you own the land or property in question. Property purchased without a Certificate of Occupancy is the equivalent of purchasing a vehicle without a logbook. As a Nigerian landowner or property owner, this is not the kind of situation you want to find yourself.

Since he is vested with the power to grant the certificate of occupancy, it is wise to say that he must also has the constitutional power to revocate – section 28 of the Land Use Act. Although he can authorize a public officer to act on his behalf – see Majiyagbe v. AG Northern Nigeria. Right from the enactment of the Land Use Act in 1978 it becomes mandatory that all lands belong to the Governor of each of the states in the federation and no longer to the traditional fathers of each community.

A Certificate of Occupancy is a legal document issued by the government that proves that a person owns land in Nigeria. The Government reserves the right to seize any plot of land or property without a C of O at any time without any compensation paid.The purpose of obtaining a Certificate of Occupancy is to establish that the house or building is in a livable condition according to the law. Such a certificate is usually required to occupy the facility on a daily basis, to sign a contract to sell it and to close a mortgage on the property.

There is one feature that makes a Certificate of Occupancy different from all other title documents in Nigeria: no land can bear two Certificates of Occupancy because it is the first title document issued on land, whether bare or developed, that has never been registered at the Land Registry.

The Governor may revoke a right of occupancy under section 28 of the Land Use Act on different grounds: Grounds (conditions) for revocation:

Overriding public interest – it must be for the interest of the public and not for the selfish use of the Governor. Section 28 (2) defines overriding public interest in the case of a statutory right of occupancy to mean unlawful alienation, requirement of land by the Local, State or Federal Government for public purpose, or the requirement of the land for mining purpose or oil pipelines, or any purpose connected therewith.

Where the purpose of revocation is required by the Local, State or Federal Government for public purpose, any of the purposes stated in section 51 is implied. The overriding public interest may be for statutory right of occupancy; a customary right of occupancy.

2. Public purpose by the Federal Government – where the Federal Government issues a notice declaring such land to be required by the Government for public purposes, the Governor of the state is obliged to revoke any right of occupancy in respect thereof by virtue of section 28(4) of the Act.
3. Breach of terms and conditions – the Governor may revoke a statutory right of occupancy on the ground of a breach of any of the implied provisions which a Certificate of Occupancy is by section 10, deemed to contain; or for breach of terms contained in the Certificate of Occupancy or in any special contract made under section 8; or for a refusal to accept and pay for a Certificate issued in evidence of a right of occupancy, but cancelled by the Governor under section 10(3) 0f the Act – section28(4).

A Certificate of Occupancy, also known as the C of O is a document issued by state governments in Nigeria to landowners and property buyers as a legitimate proof of ownership. This document also spells out what the land can be used for; residential, commercial or mixed development.
The Constitution of Nigeria provides that every citizen of Nigeria has a right to acquire and own immovable property in Nigeria(See section 43)
The Governor of every state in Nigeria is empowered by Section 9(1) of the Land Use Act, 1 to issue a Certificate of Occupancy under his hand in evidence of a right of occupancy in three instances namely: –
(I)When granting a statutory right of occupancy to any person;
(ii) When any person is in occupation of land under a customary right of occupancy;
(iii) When any person is entitled to a statutory right of occupancy(see section 5 of Land Use Act)
Section 9 provides that
It shall be lawful for the Governor–
(a) When granting a statutory right of occupancy to any personal or (b) When any person is in occupation of land under a customary right of occupancy and applies in the
prescribed manner; or
(c)When any person is entitled to a statutory right of occupancy, to issue a certificate under his hand in
evidence of such right of occupancy.
This document is prima facie proof of title to the land over which it was issued. Once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title; Ilona v Idakwo (2003) LPELR-1496(SC); Madu v Madu (2008) 2-3 S.C. (PT 11) 109, (2008) LPELR-1806(SC).
In other words, a Certificate of Occupancy is not conclusive proof of title to land. In Adole v Gwar (2008) LPELR-189(SC) at page 17 of the E- Report, the Supreme Court, per Onu, JSC said:
A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void.
The Certificate of Occupancy, properly issued, raises the presumption that at the time it was issued, there was not in existence a customary owner whose title had not been revoked.
This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked. See the cases of Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (2012) LPELR-20619(SC); Orianzi v AG., Rivers State (2017) LPELR-41737(SC).
In addition, Section 28(5)(a) and (b) of the Land Use Act provides: –
“28(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) A breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) A breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act.
Service of notice of revocation is very crucial. It can be served by delivering it to the person or who it is to be served, by leaving it at the usual or last known place of abode or by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode.(see section 44(a)(b)(c) LUA).
In conclusion, where there is a subsisting grant of occupancy on a land, any other deemed grant in respect of that land would be invalid.

The Governor of a State is not entitled to issue a Certificate of Occupancy arbitrarily. This is because the Land Use Act is not designed to be a predator that prowls the land to grab any and every parcel of land from its original owner.
Where it is shown that another person had a deemed right of occupancy which has not been revoked or properly revoked, the presumption raised by the certificate of occupancy is rebutted…a certificate of occupancy does not stop the Court from inquiring into the validity of the title of the holder…a certificate of occupancy does not confer title in respect of a parcel of land it purports to cover where no such title either existed or was available to be transferred.”
JIBO vs. INYOM & ORS.(2018)LPELR- 1806

Put in simple terms and for the avoidance of doubt, there are Four (4) steps to revocation of a right of Occupancy:

1. Government comes to a decision to revoke a right of Occupancy for a specific public purpose, which must be clearly stated. The purpose cannot be nebulous. If Government intends to erect a public park, such use must be so stated. If it is to build a dam, Goverment must say so. This is elementary enough.
2. Government must then notify the Holder of the right of Occupancy of the Government’s intention to revoke his right of Occupancy. This is legally expected to be done by letter either delivered personally or pasted on the premises, with evidence of the same available for scrutiny, if necessary. In the light of the Judicial authorities on the subject, mere publication in a Newspaper or Government Gazette will be insufficient to establish this mandatory Notice. In this regard, post revocation notice cannot satisfy the requirements of the law. Government cannot put the Cart before the Horse and expect it to move. Nay, it will not move.
3. There must be a person or Panel to whom the Holder of the right of Occupancy, which is being threatened, can present his objections, if any, or request for compensation. This person or authority must be communicated to the Holder of the right of Occupancy which is being sought to be revoked in the same correspondences notifying him of the intention to revoke his right of Occupancy or so soon thereafter.
4. Compensation must be assessed and paid promptly. Revocation of a right of Occupancy takes a person’s land from him. In that circumstance, the law expects that such a person should be compensated for his loss. Failure to pay compensation will nullify the revocation for failure to fulfill a pre condition. Note that payment of inadequate compensation will not affect the revocation.

The above are simple steps. Anyone or Government can comply with them. This is why I wonder why none of the Edo State Governor’s legal advisers told him the above. Are they afraid of losing their prized closeness to their Excellencies? Well, I can tell such a person that being candid as a lawyer never caused a lawyer worth his salt to loose income or friends, job or even patronage.

Besides, I do not perceive of Governor Godwin Obaseki or Comrade Philip Shaibu as such persons who will sack an aide for giving candid, but humble, advice. How do I know?

Well, I have handled and I am still involved in handling some public cases against the Government of Edo State. Yet, till date, I can go to Edo Government House freely without being disadvantaged because of my legal adventures. The Governor does not hate me. The Deputy Governor remains my treasured friend.

Unfortunately, it is the aides, yes, the legal advisers to the Governor and his Deputy, who always look at me with surly expressions when we meet in Court. They perceive of me as some kind of enemy, despite my innate harmlessness. They forget that I am just doing my job. Ironically, their bosses see me as their friend and we remain so till date.

Section 28 of the Land USE Act allows the Governor to revoke a Certificate of Occupancy issued on land for reasons of overriding public interest, whereas a Deed of Assignment cannot be revoked; only the Governor’s consent granted upon the perfection of the Deed can be revoked.

A Certificate of Occupancy is not a good root of title, especially if there are other existing interests on the property, whereas a Deed of Assignment serves as a proper root of title.

Both the Certificate of Occupancy and the Deed of Assignment are legal ways to obtain title and ownership to land in Nigeria. As a result, a buyer of the land who relies on these documents as his root of title must thoroughly investigate both documents.

Therefore, Section 28 of the Act allows the Governor to revoke a Certificate of Occupancy issued on land for reasons of overriding public interest, whereas a Deed of Assignment cannot be revoked; only the Governor’s consent granted upon the perfection of the Deed can be revoked.

Every citizen of Nigeria is empowered to acquire and own immovable property anywhere in Nigeria. However, this right to own immovable property like every other right is not absolute but subject to certain qualifications. All land comprised in the territory of each state in Nigeria are 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.

The right of every Nigerian to own land in any part of the country is therefore subject to the interests of the Governor and it shall be unlawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. For every transaction creating an interest in land, the consent of the Governor must be first had and obtained.

The major difference between a statutory right of occupancy and a customary right of occupancy is that the former relates to lands in urban areas while the latter relates to lands in rural areas. Other grounds for compulsory acquisition include the requirement of the land for the extraction of building materials and the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval. The acquiring authority is required to state one or a combination of the public purposes for which the Land was being acquired in his notice to the holder of a right of occupancy to enable the holder or occupier to challenge the acquisition.

Aside from overriding public interest, the Governor may revoke a right of occupancy on the ground of a breach of any of the provisions which is contained in a certificate of occupancy; a breach of any term contained in the certificate of occupancy or in any special contract made and a refusal or neglect to accept payment for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor. For an acquisition to be valid certain preliminary steps must be taken.

A notice must be issued by the Governor. The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder. Where such notice whether by or on behalf of the president declares a land to be required by the Government for public purposes the Governor shall revoke the right of occupancy. Upon receipt of the notice, the title of the holder of the right of occupancy shall be extinguished immediately, or on such later date as may be stated in the notice.

Failure to serve notice in the manner prescribed by the Land Use Act would be tantamount to a substantial non-compliance which renders the acquisition bad and the acquiring authority cannot be vested with any interest in the land until the subsisting interest is revoked. The reason for this outcome is that there can be no concurrent possession by two parties claiming adversely. Personal Service is also sine qua non of revocation of interest in land and cannot be dispensed with because it is after the service in the manner prescribed in the legislation that the right of holder of the right of occupancy is revoked. The requirement of publication of notice of revocation in the gazette constitutes