THE LAND USE ACT

1.0          INTRODUCTION.

2.0          OBJECTIVE

STATE CONTROL OF LAND

PRIVATE INTERESTS IN LAND

CATEGORISATION OF RIGHTS OF OCCUPANCY

DISTINCTION BETWEEN GRANT OF STATUTORY AND CUSTOMARY RIGHTS OF OCCUPANCY UNDER THE LAND USE ACT.

RIGHTS CONFERRED BY RIGHTS OF OCCUPANCY.

CONDITIONS FOR VALID GRANT OF CERTIFICATE OF OCCUPANCY.

4.0          CONDITIONS IMPOSED ON GRANTEES OF CERTIFICATE OF OCCUPANCY.

5.0          CONCLUSION

6.0          SUMMARY

7.0          TUTOR MARKED ASSIGNMENT

8.0          SUGGESTED FURTHER READING /REFERENCES STATUTES

 THE LAND USE ACT

  INTRODUCTION.

The Land Use Act which was enacted in 1978 is one of the most far reaching and controversial legislations in Nigeria. The Act vests in the Governor of a state, the ownership of the land in the state. It was enacted primarily to contribute to the stabilization of government projects mostly in urban areas and control the difficulties confronted by government when acquiring land for development purposes. The Land Use Act 1978 was also meant to address the uncoordinated and informal tenurial arrangement in the Southern States which was prone to litigation. Such tenurial arrangements also imposed impediments on modernization of the agricultural sector and was anachronistic.

OBJECTIVE

The objective of this unit is to expose students to the fundamentals of the Land use Act and to acquaint them with the status of private interest in land under the Act.

STATE CONTROL OF LAND

The Land Use Act conferred Government with mandatory powers over land acquisition in Nigeria. Section 1 provides that from the commencement of the Land Use Act, all land comprised in the territory of each state in the Federation are vested in the Governor of the State and such Governor of that State and such land should be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act. The previous owners, communities families or individuals by virtue of section 1 of the Land use Act are divested of the ownership of their land whether occupied or unoccupied. Section 49 however expressly provides that such ownership does not affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of the Land Use Act and such land shall continue to be so vested in them. Section 50 (2) also vests the power to manage and control such land in the President or Minister designated by him to exercise such powers.

All land in urban areas were designated to be under the control and management of the Governor of each state, all other land were delegated to the management of the Local Government within the area of designation of which the land is located. Each state was however mandated to establish the Land Use Allocation Committee which was foisted with the responsibility of advising the Governor  on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest under the Act. It was also to determine disputes as  to the amount of compensation payable under the Act for improvements on land. See section 2 of the Land Use Act.

Each local Government was also mandated to establish a body to be known as the Land Allocation Advising Committee to be vested with the responsibility of advising the Local Government on any matter connected with the management of land in the territory.

It was expected that by systematizing land allocation through the Land Use Allocation Committee, the Act would enhance the possibility of Nigerians with the requisite capital can entrepreneurial skill having access to agricultural land inspite of their ethnic or geographical origin. It would remove the pre-existing obstacle to land use premised on the notion of inalienability of land.

PRIVATE INTERESTS IN LAND

The Land Use Act did not abrogate private interest in land  by vesting all lands in the state in the Governor rather citizens are allowed to hold an interest called a right of occupancy.

In Adole v Gwar (2008) 11. NWLR (PT 1099)562, the supreme  Court while explaining the aim and purport of the Land Use Act  1978 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. Rather the Act is meant to strengthen ownership that derives existence through traditional history. It is for that reason that the Act recognize the existence of the title of a customary Land owner over his parcel of land as a deemed holder where such land existed before the commencement of the Land Use Act. This is however subject to the Governments right of revocation of the holder’s right for public interest as specified under the Act.

Section 34 provides that where the land in an urban area was vested in a person before the commencement of the Act, the land should continue to be held by him as if he was a holder of a statutory right of occupancy issued by the Governor under the Act. In the case of land that is undeveloped, where a person in whom it was vested before the Act held more than half hectare, the holder is only entitled to the grant of a statutory right of occupancy over one plot or portion of the land not exceeding half hectare in area. His rights over the excess land were extinguished and vested in the Governor to be administered in accordance with the provisions of the Act.

Where the land is located in a non – urban area, only existing rights over land which was at the commencement of the Act developed or which was being used for agricultural purpose were recognized. Such land should continue to be held as if the holder was the grantee of a customary right of occupancy issued by the local Government.

Section 3 of the Land Use Act empowers the Governor to:

Subject to such general conditions as may be specified by the National Council of States, the Governor may for the purposes of this Act by order published in the gazette designate the parts of the area of the state constituting land in urban area.

The power of the Governor of a state to grant statutory right of occupancy or customary right of occupancy by the appropriate body must not be exercised whimsically such as to deprive someone who had lawful right or title to a parcel of land prior to the enactment of the Land Use Act. Section 34 (1), (5) and (6) are transitional provisions made for the preservation of interests in land held by persons prior to the commencement of the Land Use Act. The provisions are generally protective of the interest of persons in the land held prior to the commencement of the land Use Act.

See Adole v Gwar (supra).

CATEGORISATION OF RIGHTS OF OCCUPANCY

Rights of occupancy under the Land Use Act are categorized as follows:

• Statutory right of occupancy expressly granted by the Governor
• Statutory right of occupancy deemed to be granted by the Governor
• Customary right of occupancy expressly granted by the Local Government
• Customary Right of Occupancy deemed to be granted by a Local

A deemed grant comes into existence automatically by  the operation of law and the grantee acquires a vested right just as an actual grantee of a right of occupancy.

DISTINCTION BETWEEN GRANT OF STATUTORY AND CUSTOMARY RIGHTS OF OCCUPANCY UNDER THE LAND USE ACT.

The principal distinguishing factor is whether the deemed right of occupancy was granted by the Governor or the Local Government. The location of the land in an urban or non urban area is also a factor for consideration in the grant of a right of occupancy

RIGHTS CONFERRED BY RIGHTS OF OCCUPANCY.

The Land Use Act has not been destroyed but redefined the concept of land ownership. Section 5 (1)(a) of the Land Use Act empowers the Governor of a state in respect of land whether or not in an  urban Area to grant of occupancy to any person for all purposes. A statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. See Olagunju v Adeseye (2009) 9 NWLR (PT 1146) 225. The holder of a statutory right of occupancy is in all respect the proprietor of the land during the subsistence of the right. Section 14 of the land use Act confers the holder of a statutory right of occupancy with exclusive possession of the land against all persons other than the Governor. Such rights are transferable to his heirs. Similarly section 24 of the land Use Act subject to the consent of the Governor been first had and obtained, confirms that the holder of a statutory right of occupancy has an alienable proprietary right.

The tenor of the Land Use Act was to “nationalize” all lands in Nigeria by vesting its ownership in the state. The maximum interest preserved in the hands of individuals is a right of occupancy.

Where there is a subsisting grant of right of occupancy of a land, any other deemed grant in respect of the land would be invalid see Eleeran v Aderoupe (2008) 11 NWLR (PT 1097) p. 50

The holding of certificate of occupancy is evidence that a right of occupancy has been conferred on the holder. It is Prima fascie evidence of title of the land covered by it. Its exclusive possession is however rebuttable

CONDITIONS FOR VALID GRANT OF CERTIFICATE OF OCCUPANCY.

The prerequisite for a valid grant of a certificate of occupancy is that there must not be in existence the valid title of another person with legal interest in the same land at the time the certificate  was issued. In otherwords there must not be in existence at the time the certificate was issued a statutory or customary owner of the land in issue or dispute who was not divested of his legal interest in the land prior to the grant. Where a certificate of occupancy is granted to a person with a defective title, the certificate of occupancy is invalid and the holder has no valid claim legally cognizable.

Section 34 of the Land Use Act relates to titles of persons with title to land before the coming into force of the land Use Act. Vested rights cannot be defeated by the application of section 1 and 5 of the Act.

In Oniyale v Macaulay (2009) 7 NWLR (PT 1141) 597 the Supreme Court held that where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the land upon which the grant relates, a court would have no option but to set aside the said grant or otherwise discountenance it as invalid, defective and / or spurious.

Once a statutory right of occupancy is issued when a deemed right exists and has been revoked, the statutory right of occupancy becomes a worthless document because there cannot exist concurrently two title holders over one and the same piece of land. Where there exists at the same time, two rights of occupancy to different persons in respect of the same land, one must of necessity be valid. The invalid one must be the latter right granted without first revoking the former pursuant to section 28. A person does not acquire a title by mere possession of a certificate of occupancy

See Nigerian Engineering Work Ltd v Denap Ltd (2001) 18 NWLR (PT 746) 726.

CONDITIONS IMPOSED ON GRANTEES OF CERTIFICATE OF OCCUPANCY.

Statutory right of occupancy granted pursuant to section 5(1)  should be for a definite term and might be granted subject to the terms of any contract which may be made by the Governor and the holder not being in consistent with the provision of the Land Use Act. See section 8, section 9 of the Land Use Act provides that it shall be lawful for the Governor

• when granting a statutory right of occupancy to any person or
• when any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner; or
• when any person is entitled to a statutory right of occupancy to issue a certificate under his hand in evidence such right of occupancy.

Section 9 (2) provides that such certificate shall be termed a certificate of occupancy and there shall be paid such fee as may be prescribed.

It is provided further by section 10 that every certificate of occupancy shall be deemed to contain provisions to the effect that the holder of a right of occupancy shall bind himself to pay to the Governor the amount found to be payable in respect of any unexhausted improvements existing on the land at the date of his entering into occupation. The holder binds himself to pay to the Governor, the rent fixed by the Governor and any rent which may  be agreed or fixed on revision in accordance with the Governor’s powers of rent revision pursuant to section 16 of the Land Use Act.

Non compliance with the requirement of rent payment renders the certificate of occupancy issued by the Governor susceptible to cancellation and the recovery from such person any expenses incidental to such cancellation and revocation of the statutory right of occupancy granted.

The holder of a statutory right of occupancy also has a duty to aloud the Governor or any public officer duly authorized by the Governor to enter upon and inspect the land comprised in any statutory right of occupancy or any improvements effected on it at any reasonable tome during the day see section 11 of the Land Use Act.

The occupier of a statutory right of occupancy is also mandated at all times to maintain in good and substantial repair to the satisfaction of the Governor or his appointee beacons or other landmarks by which the boundaries of the land are defined. Failure to comply with a notices of compliance served on him would render such occupier liable to pay the expenses incurred by the Governor in defining the boundaries which the occupier neglected to define. See section 13

CONCLUSION

In spite of the expectations generated by the enactment of the Land Use Act, considerable gaps exist between expectations and achievement. The concept of inalienability of land remains prevalent and endemic in rural areas. Speculation in land is rife and Government acquisition of land for public purposes is often resisted by individuals and corporations.

Due to the inherent controversy in the Act and its failure to provide the touted panacea for land related issues, there have been consistent request for its to be reviewed.

SUMMARY

• The land Use Act “nationalized” all lands in Nigeria by vesting it ownership in the state
• Citizens are allowed to hold an interest in land called a right of occupancy
• Rights of occupancy are categorized as statutory Right of occupancy and deemed statutory rights of occupancy for lands located in urban area and customary rights of  occupancy and deemed customary rights of occupancy for land in non urban area
• The occupier of land pursuant to a right of occupancy is issued a certificate of occupancy
• The holder of a certificate of occupancy is obligated to pay rents which is subject to revision to the Governor
• The validity of a certificate of occupancy is rooted in a grantee having a legally cognizable interest in the land in respect of which it is granted
• The right conferred by a certificate of occupancy is transferable to heirs and capable of been alienated subject to the Governor’s consent been first had and obtained

TUTOR MARKED ASSIGNMENT

• Distinguish between a deemed grant and a grant of statutory and customary right of occupancy
• Discuss proprietary interest in land conferred on private individual under the land Use Act

SUGGESTED FURTHER READING /REFERENCES

• The Land Use Act – Report of a National Workshop edited by J.A Omotola (Lagos: Lagos University press, 1982)
• Niki Tobi Cases and Materials on Nigerian Land Law (Lagos: Mabrochi books, 1997)
• Itse Sagay, Nigerian Bulletin of Contemporary Law, March 1987

STATUTE

Land Use Act Cap L5 Laws of the Federation of Nigeria 2004.