REVOCATION OF CERTIFICATE OF OCCUPANCY

1.0          INTRODUCTION.

2.0          OBJECTIVE

MAIN CONTENT

GROUNDS FOR REVOCATION OF STATUTORY RIGHT OF OCCUPANCY.

OVERRIDING PUBLIC INTEREST

PUBLIC PURPOSE

BREACHES OF THE TERMS OF THE GRANT OF THE CERTIFICATE OF OCCUPANCY.

PROCEDURE FOR REVOCATION OF CERTIFICATE OF OCCUPANCY

CONDITION PRECEDENT

MODE OF SERVICE OF NOTICE

CONTENT OF A VALID NOTICE OF REVOCATION

4.0          CONCLUSION

5.0          SUMMARY

6.0          TUTOR MARKED ASSIGNMENT/ SUGGESTED ANSWER

7.0          SUGGESTED FURTHER BEADING / REFERENCE STATUTE

REVOCATION OF CERTIFICATE OF OCCUPANCY

  INTRODUCTION.

From the provisions of the consent provisions of the Land Use Act discussed in the previous Unit. It is apparent that sections 21, 22 and 23 of the Land Use Act 1978 makes the prior consent of the Governor of a state mandatory for the validity of every subsequent transaction relating to a right of occupancy granted in the territory. The penalty of non compliance includes rendering the transaction void pursuant to section 34(8) and 36 (6) of the Land Use Act and revocation of the Right of Occupancy granted in exercise of the power conferred on the Governor by section 28 of the Land Use Act.

OBJECTIVE

The objective of this unit is to analyse the power of revocation conferred on the Governor of a state for non compliance with the provisions of the Land Use Act. The students are expected to be acquainted with the procedural requirement for a valid exercise of the power of revocation of Statutory Right of Occupancy by a Governor

MAIN CONTENT

A proper and valid acquisition of land can only be done when the provisions of the Land Use Act are strictly complied with.

section 28 of the Land Use Act empowers the Governor to revoke a right of occupancy earlier granted. The Land Use Act is not as stated by the supreme court in Adole & Gwar (2008) 11NWLR (PT1099) 562, a magic wand it is being portrayed to be or a destructive monster that at once swallowed all rights on land and the Governor or Local Government by the more issuance of a piece of paper cannot divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bulldozers and cranes unless land is acquired compulsorily in accordance with the provisions of the Act.

GROUNDS FOR REVOCATION OF STATUTORY RIGHT OF OCCUPANCY.

Section 28 ( 1) of the Land Use Act 1978 empowers the Governor of a State to revoke a right of Occupancy.

The grounds upon which a certificate of occupancy can be revoked include:

OVERRIDING PUBLIC INTEREST

Overriding public interest in the case of the a statutory right of occupancy means:

• the alienation by the occupier, by assignment, mortgage, transfer of possession, sublease or otherwise of any right of occupancy or part thereof contrary to the provisions of the Land Use Act or of any regulations made there under 28(2)(a)
• the requirement of the land by the Government of the state or by a Local Government in the state in either case for public purposes within the state or the requirement of the land by the Government of the Federation for public purpose of the Federation section 28 (2) (b)
• the requirement of the land for mining purpose or oil pipelines or for ay purpose connected with it section 28(2) (c)

In the case of a customary right of occupancy, overriding public interest means

• the requirement of the land by the Government of the state or by a Local Government in the State in either case for public purpose within the state or the requirement of the land by the Government of the Federation for public purposes of the federation .
• the requirement of the land for mining purposes or oil pipelines or for any purpose connected with it.
• the requirement of the land for the extraction of building materials
• the alienation by the occupier by sale, assignment, mortgage, transfer of possession sublease, bequest or otherwise of the right of occupancy without the requisite consent or approval

PUBLIC PURPOSE

Public purpose on the basis of which a certificate of occupancy could be revoked by the Government of a state is expressed in section 51 of the Land Use Act 1978 to include:

• For exclusive Government Use or for general public use
• For use by any body corporate direct established by law or by any body corporate registered under the companies and Allied Matters Act in respect of the Government own shares, stocks or debentures.
• For or in connection with sanitary improvements of any kind
• For obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government
• For obtaining control over land required for or in connection with development of telecommunications or provision of electricity
• For obtaining control over land required for or in connection with mining purposes
• For obtaining control over land required for or in connection with economic, industrial or agricultural development
• For obtaining control over land required for or in connection with economic, industrial or agricultural development
• For educational and other social service

BREACHES OF THE TERMS OF THE GRANT OF THE CERTIFICATE OF OCCUPANCY.

The Government may revoke a statutory right of occupancy on grounds provided for in section 28(5) :

• a breach of any of the provisions which a certificate of occupancy is by section 10 of the Land Use Act deemed to contain
• a breach of any term contained in the certificate of occupancy or in any special contract made under section 8
• a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under section 10(3)

PROCEDURE  FOR  REVOCATION    OF     CERTIFICATE     OF OCCUPANCY:

The Land Use Act 1978 vests in the Governor administrative or management powers over land in Urban area and constitutes him only a trustee. Unless land is revoked in accordance with the provision of the Land Use Act such revocation is invalid

CONDITION PRECEDENT

Section 28 of the Land Use Act provides that where title of the holder of a right of occupancy is revoked, it is mandatory to put him on notice about the revocation of title and proof of service of such notice to the holder is fundamental to a valid revocation.

Section 28 (6) of the Land Use Act 1978 provides that 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 of it shall be given to the holder.

In Ononuju v A G Anambra State (2009) 10 NWLR (PT 1148) 182

the supreme court held that revocation of a right of occupancy can only be valid if notice of same has been issued and served on the owner or occupier of the property concerned

MODE OF SERVICE OF NOTICE

Section 44 of the Land Use Act requires such notice to be effectively served on the holder of the right occupancy by:

• delivering it to the person on whom it is to be served or
• leaving it at the usual or last known place of abode of that person or
• sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode or
• in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at the office
• if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served by addressing it to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates and by delivering it to some person on the premises or if there is no person on the premises to whom it can be delivered by effecting it or a copy of it to some conspicuous part of the premises.

In Administrators / executors of the Estate of General Sani Abacha (deceased) v Samuel David Eke – Spiff & Ors (2009) 7 NWLR (PT 1139) 97 the supreme court held that it is not only unconscionable to take away a piece of land already allocated and relocate same to someone else without serving a notice of revocation on the earlier allottee. It is also unlawful and unconstitutional to do so in Nigerian Engineering Works Ltd v Denap Ltd (2001) 18 NWLR (PT 746) 726 the supreme court similarly held that the powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice must state the reason or reasons for the revocation and will give the holderopportunity to make any representation he or she wishes to make. Where the notice is not given or it is inadequate or not in compliance with the provisions of section 28 of the Act, the revocation will be null and void.

CONTENT OF A VALID NOTICE OF REVOCATION

Section 44(e) requires any notice required by the Land Use Act  1978 to be served on any person to be addressed to “holder” or “occupier” of the premises to which it relates. In Ononuju v. A. G. Anambra State (2009) 10 NWLR (PT 1148) 182, the supreme Court emphasized that where a notice of revocation does not bear the word “holder” or “occupier”, it is non compliant with section 44 of the Land Use Act and it invalidates the notice of revocation of the Appellant’s land and renders it null and void.

The revocation notice should be signified under the hand of a public officer duly authorized in that behalf by the Governor and the notice of it shall be given to the holder – section 28 (6)

see also Adole v Gwar (supra)

CONCLUSION

In conclusion, inspite of the power vested in the Governor to revoke a holder or occupier’s right of occupancy, the scope and extent of the exercise of his powers is regulated by the necessity to notify such holder or occupier of the revocation. Non compliance renders the revocation invalid, null and void.

SUMMARY

1. Section 28 of the Land Use Act empowers the Governor of a state to revoke a right of occupancy granted to a holder or occupier for overriding public interest
2. A Right of occupancy can also be revoked for public purpose – section 51
3. Breaches of the terms of the grant of the certificate of occupancy is one of the grounds pursuant to which a Governor can revoke a right of occupancy – section 8 and 10 of the Land Use
4. Notification of the holder or occupier of the land of the Governments revocation of the right of occupancy in mandatory
5. Non Compliance with the issuance of notice of revocation to the occupier invalidates the revocation and renders it null and void.
6. For a notification to be valid the notice must be served on the occupier personally or conspicuously displayed on the premises to bring it to the attention of the
7. Such notice is required to be signified under the hand of a public officer duly authorized in that behalf of the Governor and holder should be served with the

TUTOR MARKED ASSIGNMENT

Lola claims ownership of an expanse of land at Umara in Benin City alledgedly compulsorily acquired by government on the revocation of the deemed grant of a right of occupancy in her favour to establish a community hospital. The government is relying on section 28 of the Land Use Act 1978 while Lola contends that no notice of revocation was served on her. Advise the parties.

SUGGESTED ANSWER

• The scope and extent of power of revocation conferred on the Governor by section 28 is regulated by the Land Use
• Section 51 (1) (i) stipulates the establishment of a hospital which constitutes a social service as one of the public purposes for which the government can validly revoke a right of occupancy granted a holder or occupier of
• section 44(a) , (b) and (c) of the Land Use Act 1978 however mandates the Government to issue and serve the holder or occupier a notice of revocation. Failure to serve Lola with a notice of revocation constitutes non compliance with section 44 and renders the revocation of Lola’s right of occupancy by the government invalid, null and void
• cite the cases of Ononuju v A.G. Anambra (supra) and Nigerian Engineering Works Ltd v Denap Ltd Advice the Government to issue Lola a revocation notice as a pre- requisite for a valid exercise of its power to revoke her right of occupancy on grounds of public purpose
• Advice Lola that the Government is anpowered by the Land Use Act to revoke a right of occupance on the issuance and service of a notice of revocation on the holder. Her only course of action is to insist on been the issuance of a notice of revocation on her. She can subsequently request for compensation from the government for the revocation of her right of occupancy

SUGGESTED FURTHER BEADING / REFERENCE

• The Land Use Act – Report of a National Workshop edited by J.A Omotola (Lagos: Lagos University Press, 1982)

STATUTE

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