By Bamidele kolawole
Right of Occupancy is the right of a person to use land. Section 1 of Land Use Act, provides that all land comprised in 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.
It is legal right bestow by the government on a deemed owner
The holder of a statutory right of occupancy in Land Law is in all respect the proprietor or owner of the land during the subsistence of the right.
It also confers exclusive possession of the land against all other persons except the Governor who can still override it for public interest.
Right of occupancy is a title right provided for under the Land Use Act 1978.
There is a deemed right of occupancy which is the right of original customary owner of a land before 1978.
Statutory/Customary right of occupancy which is a title consented to by the Governor/Chairman of a Local Government as the case.
Right of occupancy is a title to the use and occupation of a land. The Land Use Act has made provisions to two right of occupancy; the statutory right of occupancy and the customary right of occupancy.
The difference between the two is that, while the former is granted by the governor, the latter is granted at the instance of the local government council.
The Statutory right of occupancy is granted or deemed granted (as in the urban areas) by the governor. This means that the right can be acquired expressly or by the operation of the Act.
Section 5 of the Land Use Act makes it lawful for the Governor to grant a Statutory Right of Occupancy to any person for all purposes in respect of any land whether in urban or rural area while section 9 of the Act empowers the Governor to issue a Certificate of Occupancy as Evidence of such grant.
This means that the governor can exercise this right to issue the Certificate of Occupancy in respect to land in the rural and urban areas respectively. Where this grant is made in respect to land in the rural areas, it is still regarded as statutory right of occupancy as stated in the case of Dieli v Ewuno (1996) 36 LRCN 394 @ 429.
On the other hand, a customary right of occupancy is defined under section 51(1) of the Land Use Act as the right of a person or Community, lawfully using or occupying land in accordance with the customary law and includes a Customary Right of Occupancy issued by the Local Government.
According to section 6(1) , the local government is empowered to grant such a right in respect of land in a non urban land to any person or organization or Community for residential, grazing or any other purpose.
It must however be noted that, “any person” captured under these provisions is limited to Nigerian citizens and the purpose for which the right is granted must be lawful.
The Land Use Act 1978 unified all land tenure system in Nigeria and empowers the State Governors in Nigeria and Minister of the Federal Capital Territory (FCT) to issue Certificate under their hands as evidence of a right of occupancy.
A right of occupancy is the highest interest which a person can enjoy over land in Nigeria.
It may be statutory or customary.
Although Local Governments are not vested with land by the Act, they are empowered by Section 6(1) to grant customary rights of occupancy in respect of land not in urban areas.
The Local Governments are also empowered to revoke any customary right of occupancy in the manner provided under Section 6(3) of the Act.
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 Certificate of Occupancy is set aside. See GANKON V. UGOCHUKWU CHEM. IND. LTD (1993) 6 NWLR (pt.297) 55.
By the provision of section 5(1) of the Land Use Act, Statutory Right of Occupancy is granted by the Governor and customary rights of occupancy by the Local Government in whose area the land situates (see Section 6(1)Land Use Act.
These rights of occupancy bear resemblance to leasehold interests. They can be assigned. They can be mortgaged and they can be under-let or sublet. These transactions, however, can only be engaged in by the holder of the right of occupancy with the consent of the Governor as provided by the Act.
A person with a customary right of occupancy is entitled to use the land in accordance with customary law. A customary right of occupancy pre-dates the Land Use Act and is intimately linked with the custom of the people of the area. It is a creation of customary law and the fact that it can now be granted by the local government has not taken it out of the realm of customary law. The total quantum of interest contained in the right of occupancy has to be determined by the customary law of the area.
A Certificate of Occupancy is merely evidence that a grantee has a right of occupancy, customary or statutory. It does not confer on a grantee any interest or right which he did not have before.
It is a prima facie evidence and raises a rebuttable presumption that the holder is in exclusive possession and has a right of occupancy. Issuance does not invalidate defects. A person cannot
improve his title to land by obtaining a certificate of occupancy. Acceptance of a certificate binds
the holder to all the terms and conditions in the certificate.
His Lordship BAGE JCA at pages 41-42, paras. E-B stated thus:
“Let me add here for the records that throughout the Land Use Act, there is no provision associating the certificate with title.
A Certificate of Occupancy only gives the right to use and occupy the Land. It neither confers nor is it necessarily an evidence of title.
It is only a prima facie evidence which raises a presumption that the holder is in exclusive possession and has a right of occupancy over the land in dispute.
However, like all other presumption, it is always rebuttable and the onus of disproving this right is on the person who asserts the contrary”.
It must be emphasized that the Land Use Act, 1978 did not forbid the Governor of a State from revoking any customary or statutory right of occupancy.
The only check is that the revocation must be for public purpose and the public purpose must be duly specified and the appropriate notice must be issued to the holder of the Right of Occupancy.
The right of Occupancy in Land Law simply means, the authority exercisable by a person over a Land, and it is a subject cum product of Law, contractual agreement and natural arrangement.
It is pertinent to note, that Occupancy in Land Law, is not limited to Physical Possession alone, it extend to Statutory Rights enabled by a issued Certificate, under the hand of the Governor a License to stay in the Land for a certain while and for a specific purpose, tenancy agreement, which empowered the tenant to exercise full and undisturbed possession on the Land over a period of time.
Right of Occupancy, whichever way it is derived do expires, and could be renewed according to the source from which it was derived.
For instance, the statutory right of Occupancy Period grant able by Law under the hand of a Governor is 99years,this confers both title and physical possession on the Beneficiary, which must however be renewed on expiration so as to be able to continue being in physical possession on the Land. Whereas, a Tenant, only needs to keep paying the agreed yearly rent to continue in physical Occupancy.
Right of Occupancy can be inherited as the case may be, particularly where the Occupancy could be found in or is premised on ownership, since not all right of Occupancy is situate or embellish in ownership.
A right of Occupancy does not necessarily mean that the occupant is the owner, depending on the nature of the Occupancy, for instance a Lawful Tenant with the right of Occupancy over a 3 bedroom flat, is certainly not the owner of the building containing the flat, however a person with Certificate of Occupancy, which Statutorily confers title of Ownership on the holder, even though he does not physically live in the flat, is still the Owner.
Right of Occupancy is the right of a person to use land. Section 1 Land Use Act, provides that all land comprised in 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.
Similar powers with respect to non-urban areas are conferred on Local Government. A local government may grant a customary right of occupancy to any person or organisation over non-urban land. Citizens are thereby allowed to hold an interest called a right of occupancy.
Section 51 (1) Land Use Act defines customary right of occupancy as 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.
Where in respect of land in an urban area, 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 the Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor (statutory right of occupancy deemed granted by the governor).
This means that the person is entitled to a Statutory Right of Occupancy. Where the land is undeveloped, he will be limited to claim one plot or portion of the land not exceeding half hectare in area. This might be so that land will be properly utilised by the government. In respect of lands in non-urban areas, where such land was before the commencement of the Act used for agricultural purposes, such holder will continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted (customary right of occupancy deemed granted by the local government).
Section 28 LUA provides It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest. This is an overriding ground of revocation either for revocation of statutory right of occupancy or customary right of occupancy.
Overriding public interest and it meaning equally exist as ground for revocation of customary right of occupancy.
Just as stated above as grounds of revocation under statutory right of occupancy, the Act includes that under customary revocation that revocation occur where there is the requirement of the land for the extraction of building materials.
Revocation will be invalid where right of occupancy was revoked and granted to another for private business except where the private company is using the land for public purpose.
In Adole V Gwar (2008) 11. NWLR (pt 1099)562, the Supreme Court held that it was not the intention of the law maker that the Land Use Act be used to divest citizens of their traditional titles to land but rather meant to strengthen ownership that derives its existence through traditional history.
In land law, rights of occupancy generally means the right of a person or an organization or the occupier of a land to own, use, occupy and enjoy a land. It can also be described as the right to have exclusive right to a portion of a land to the exclusion of any other person. It is the right to possess a portion of land as well as the improvements thereon.
Consequently, right of occupancy is the yardstick for ascertaining the person who has possessionary right over a particular land and the appurtenances. It is the right of occupancy that determines the person who has the right to use and enjoy a portion of land.
There are two types of rights of occupancy in land law: statutory rights of occupancy and customary rights of occupancy.
*Statutory right of occupancy, is the right of occupancy granted by the Governor of a state under the Land Use Act. Sections 5, 8 and 51 of the Land Use Act give the Governor the power to grant right of occupancy over land in the urban areas. It doesn’t, however, mean that the Governor can’t give rights over land in the rural areas. But where such power is exercise over land in the urban center, the occupancy will be statutory.
Customary rights of occupancy according to S 6 of the Land Use Act is the right to possess a land in the rural areas granted by the local government for agricultural purposes or ancillary purposes like grazing, to mention just a few.
It must be noted that right of occupancy is different from the mode of acquisition of land such as purchase, inheritance, gift and so on.
The Rights of Occupancy in land law is a germane concept in the jurisprudence of land law wherein the Government recognizes the Rights of individuals over their land.
Right of Occupancy under the Land Use Act of 1978 can either be; A Statutory Right of Occupancy and/or A Customary Right of Occupancy.
Under the Statutory Right of Occupancy, the Governor issues a certificate of occupancy to the holder of the land particularly when the land is situate at an urban area for all purposes in line with Section 5 (1) of the Land Use Act, 1978.
According to Section 5 (1) (I) of the Act the certificate of occupancy will however state the duration for which the land may be used and where such period is not stated in the certificate, the period will be determined by the term and/or duration of the Statutory Right of Occupancy.
Unlike the Statutory Right of Occupancy, the Customary Right of Occupancy is usually granted by the local government of that particularly area strictly for agriculture and other related purposes as well as for residential purposes.
Furthermore, the law by virtue of Section 6(2) of the Act stipulates that total measurement of the land to be granted for the purpose of agriculture shall not exceed 500 hectares, while the same Section provides that a total of 5,000 hectares should be created for grazing purposes. However, in the event the applicant intends to apply for a more massive area of land, he must first seek and obtain the consent of the Governor.
Prior to the promulgation of Land Use Decree, 1978 (now Land Use Act, 1978), various land tenure systems were in vogue in Nigeria. We have communal land tenure system where lands were collectively owned by members of a community; we also have family land tenure system where lands were jointly owned by members of a family and we also have individual land tenure system.
With the coming into force of the Land Use Act, there was a radical change in land tenure systems in Nigeria as all lands in any State were vested in the governor of the State who holds same in trust for the people of the State pursuant to Section 1 of the Land Use Act. This implies that all hitherto holders of interests in lands in Nigeria invariably turned to tenants on their own lands upon the promulgation of the Land Use Decree in 1978.
The major effect of the provisions of the Land Use Act is that lands are now being occupied by members of the community at the pleasure of the governor who has the power to grant Rights of Occupancy to holders of lands in the State.
Right of Occupancy comes in two forms to wit: Statutory Right of Occupancy and Customary Right of Occupancy with the former being granted in respect of lands in urban areas while the latter is granted in respect of lands in non urban areas (rural areas).
It should be noted that the governor has the power to grant Statutory Right of Occupancy while the Local Government is empowered to grant Customary Right of Occupancy in non urban areas.
The effect of the grant of a Statutory Right of Occupancy which is for a period of 99 years is that the grantee has a mere leasehold interest in the land which could be revoked by the Governor at any time especially in the overall interest of the public. It should also be noted that haven been granted a leasehold interest in the land, a holder of Statutory Right of Occupancy can only alienate his unexpired residual interest in the land to a third party who will become a sublessee.
On the other hand, Customary Right of Occupancy is granted in respect of lands in non urban areas. It should be noted that lands hitherto held under various customary tenures are deemed granted to the holders and they are to continue to enjoy the land as if they have applied for a Customary Right of Occupancy and same granted by the Local Government. What this means is that their customary tenures are not disturbed in spite of the provisions of Section 1 of the Act but subject to the revocation powers of the governor particularly in the overall interest of the public.
In summary, with the advent of the Land Use Act, 1978 (formerly known as Land Use Decree, 1978), hitherto land owners under various land tenure systems in Nigeria have been turned to tenants since their interest have been turned to leasehold interest pursuant to the provisions of Section 1 of the Land Use Act, 1978.
The question appears to be vague, because will need to know the capacity in which the occupant occupy the land, is it a sublessee , licencee, tenant etc
But which ever way, the occupant has the right of peaceful occupation, the law protect the occupier even more than owner, occupier can be sue for trespass if the owner make an incursion into the property without the consent of the occupier provided the occupier as not breach any of the terms of the agreement, their is a different between occupation and possession , occupancy simply means the person physically present on the property while possession means the person who have. legal right of ownership on the property, the person who have the reversionary right over the property, the owner of the property can as well occupied the property. In short, the occupier have the right to enjoy the property within stipulated time, also, the property must be suitable for the purpose he / she want to use it for, more also, he or she has the right of ingress, egress and regress to the property
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