LAND USE ACT

Prof. Kunle Aina

CHAPTER ONE

INTRODUCTION

The land use Act of 1978 (hereinafter called the Act) was promulgated by the Federal Government of
Nigeria with a declared motive that:

"It is in the public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural
fruits thereof in sufficient quantity to enable them to provide the sustenance of themselves and their
families should be assured, protected and preserved.”

Though the existing land tenure system in Nigeria seems to be yielding some results, it has been opined
that the rules relating to alienation and conferment of valid title to purchasers were cumbersome,
erratic and incapable of precise definition.

Under the preexisting indigenous system, the problem is even much more serious. The purchaser of
landed property must contend with the problem of investigating the real titles and owners, as well as
the right person entitled to the property. Where this is not done, many found out that they have bought
nothing.

There was no land available for industrial and agricultural development and investment in agriculture
has reduced due to unavailability of land to use. The use of land by government is also a problem as
government must pay adequate compensation before it could ever embark on any project.

The real object of the law on registration was to make land owning ascertainable; and it is clear that it
does not evidence title and does not cure it.
It follows that a land registered may be defeated by an adverse claimant who can prove his claim before
the court and thereby render the registration useless. The law therefore as it existed seems to perfectly
preserve the status quo helping to protect the land owning families and making land acquisition a
difficult task for those families who are not who are not so privileged.

The Government in 1977 set up the Land Use Panel to look into all these problems and come up with a
solution. And the product was the promulgation of the Land Use Act of March 1978. About one year
after the Act came into effect, country transited into Civilian Government and the first problem was
whether the Civilian Governors can continue to exercise the powers conferred on the Military Governors
under the Act. Many Nigerian courts gave judgement having the effect of nullifying the Act. However,
the Supreme Court in the case of Nkwocha v. Governor of Anambra State & Ors finally laid the issue to
rest when it held as follows:

1. That the Act remains under the exclusive authority of the state Governors by virtue of section
276 of the Constitution.
2. That by virtue of section 276, all land vested in the state Military Governors is now vested in the
state Executive Governors.
3. That section 1 of the Act must necessarily be read to mean the State Governor who now has a
power of control and management of land in the state.
4. That the state Governor being the successor to the Military Governor has no need of any power
of assurance to transfer the land to the State Governor.

VESTING OF TITLE ON THE GOVERNOR

Section 1 of the Act provides as follows:
"subject to the provisions of this Act, all land comprised in the territory of each state in the
federation 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 Nigerians in accordance with the provisions of
this Act"

The word "subject to" in the section has been interpreted to mean that where there are other provisions
in the Act, contrary to the section 1, that other provision prevails. It is instructive to determine which
aspects of the Act derogate from the general provisions.
In the first instance, the Act clearly declared in Section 34 and 36 that all lands previously held by
individuals or families under customary law or otherwise shall continue to be held by such persons as if a
right of occupancy had been granted by the Governor.

The elaborate provisions as to what governs the relationship between the State Governor and the
Federal Government can never be found in the Land Tenure Laws. Though section 28(4) dealing with the
revocation of land by the Governor on behalf of the Federal Government if required for public purposes,
section 49(1) provides expressly that land which is vested in the Federal Government or its agencies
shall continue to be so vested. It follows that such land are not subject of any right of occupancy
whatsoever. Section 50(2) also vests land in the Federal Capital Territory under the management of the
Head of State of Minister designated on that behalf.

The title vested in the Governor of a state over all land in the state is that of a trustee of the land for the
purposes of administration and for the use and common benefit of all Nigerians. Since it is for the
benefit of Nigerians only, non-Nigerians may not benefit therefrom. It could be argued that granting
land to non-Nigerians for industrial or other economically beneficial purposes may in the long run be for
the benefit of Nigerians. It may therefore be argued that the Act did not specifically bar the Governor
from granting Certificate of Occupancy (C of O) to non-Nigerians so far as such grant will benefit
Nigerians.

The real effect of section 1 therefore is to transfer title to all lands in the state to the Governor of that
state subject to the Act itself which preserves the rights and interest of previous owners of the land and
the powers of the Governors is only for the use and common benefit of Nigerians.

CONTROL AND MANAGEMENT OF LAND

The schematic theme of the Land Use Act is to divide the land in each state into Urban and Non-Urban
Land. The land in Urban Areas shall be under the management and control of the Governor while all
other lands shall be under the control and management of the Local Government, within the jurisdiction
in which the land is situated.

The Governor has the responsibility to designate, by publishing in the official Gazette, the parts of the
state constituting land in the Urban Area. And until this is done, the Governor may not be able to
exercise any power of management and control. Some states like Lagos simply declared the whole state
as urban areas. This brings all the land in the state within the direct control of the Governor.

To help the Governor in his duty of management, the law mandatorily established in each state a body
to be known as "Land Use and Allocation Committee” who shall have the responsibility for:

a. Advising the Governor on any matter connected with the management of land to which
paragraph (a) of sub-section 1 relates;
b. Advising the Governor on any matter connected with the resettlement of persons affected by
the revocation rights of occupancy on the ground of overriding public interest under the Act;
and,
c. Determining disputes as to the amount of compensation payable under the Act for
improvements on land.

The Local Governments must also establish a “Land Allocation Advisory Committee” for the same
purpose within their jurisdiction.

The two laws that were in force in Nigeria, the Land Tenure Law in the North and the State land Law in
the South were not repealed but will continue to be in operation and shall have effect with such
modification as to bring it in conformity with the Act. In case of conflict with the provisions of the Act,
the Act prevails. Existing Laws were also preserved under section 48 of the Act.

POWERS OF THE GOVERNOR IN RELATION TO LAND

The only Individual rights on land in Nigeria today is the Right of Occupancy, which may be Statutory or
Customary right of occupancy

STATUTORY RIGHT OF OCCUPANCY:

Section 5 of the Act provides as follows:

“It shall be lawful for the governor in respect of land whether or not in an urban area,

(a) To grant statutory right of occupancy to any person for all purposes;

(b) To grant easements, appurtenant to statutory rights of occupancy"

The Act also empowers the governor to impose and demand rent from the holders of the statutory right
of occupancy. Subsection 2 of section 5 declares further:

"Upon the grant of a statutory right of occupancy under the provisions of the sub-section (1) of this
section, all existing rights to the use and occupation of the land which is the subject of the statutory
right of occupancy shall be extinguished".

The Governors power to grant a statutory right of occupancy is absolutely discretionary and he cannot
be compelled to make a grant. While section 5(2) above clearly shows that upon the grant of C of O to
an individual, all existing rights to the use and occupation of the land will stand extinguished. Section 47
of the Act however provides that the power of the Governor to make a grant of statutory right of
occupancy cannot be challenged in any court of Law notwithstanding anything contrary to any rule of
low including the constitution of Nigeria. Obviously, the provision of the section is contrary to and
inconsistent with section 236(1) of the 1979 constitution which confers unlimited jurisdiction on the
High court to hear and determine civil matters.

Section 47 is therefore void and of no effect to the extent of its consistency. The Court of Appeal
emphatically declared the doubt when it said: “Section…47 of the Land Use Act 1978 do not... have the
same legislative force as section 236 of the Constitution mainly because the Act is an existing law and
therefore to the extent that those sections are inconsistent with sections 1, 4(2) and (8) and 6 of the
Constitution they are void or incapable of overriding the said section 236.

Where land previously held by an individual is subsequently expropriated by a state grant of C of O to

another, the previous owner is entitled to maintain an action. And the High Court may exercise
jurisdiction over the matter notwithstanding Section 47 of the Act.

An actual grant under Section 5 shall be for a definite term of years and the governor shall also charge
rents on such land, he may also impose conditions and terms on the grant though such terms and
conditions must not be contrary to the provisions of the Act.

The Governor is also not restricted in granting the statutory right of occupancy under section 5 in terms
of location, i.e. whether the land is in urban or non- urban area does not matter; clearly however, when
the land is in non-urban area then the right granted will be a statutory right of occupancy and such grant
has the effect of converting a customary right of occupancy to a statutory right of occupancy. Another
issue that ought to be cleared is that which land, and how the power to grant statutory right of
occupancy may be exercised. The Governor may only grant statutory right of occupancy on land
designated as state land or private land holdings already acquired or revoked for overriding public
purpose. The Governor may not grant any right of occupancy over land where there are existing rights.
In the words of the Supreme Court of Nigeria, "No one shall be deprived of his land unless the land is
acquired compulsorily in accordance with the provisions of the Land Use Act e.g. for overriding public
interest or for public purpose by Local Government or State Government in accordance with the Act and
in such a case, compensation must be paid".

The obvious implication is that there cannot an implied revocation of right or interest in land under
section 5. The Governor may not therefore make an inconsistent grant and there, by necessary
implication revoke an earlier grant. The court of Appeal had the opportunity to determine the issue of
inconsistent grant made under section 5.

In the case of Dantumbu v Adene, the court held that where the Governor pursuant to section 5 (1)
grants a statutory right of occupancy on land already subject of an existing actual grant (though
customary) the latter grant is ineffectual and any certificate of occupancy issued in respect of the same
parcel of land is null and void.

Smith has criticized this decision and argued that this decision was an infraction of the power of the
Governor and that the court had done a violence to the clear provisions of section 5(2). He relied on the
principle of law that when the provision of a statute is clear and unambiguous, the court is obliged to
apply notwithstanding any negative effect.

I however differ from the position taken by the learned Writer. The Act made explicit provision for
revocation of existing right on the land by the Governor and the reason for revocation must be for public
purpose in case of State or Federal Government and overriding public purpose in case of local
government.

Section 29 goes further to preserve the right of any holder of a right of occupancy to compensation
where the right is revoked section 28. It follows therefore that there can never be accidental revocation
or revocation by implication of statutory right of occupancy. Under section 5, there is no provision for
compensation whatsoever; therefore, the section 5 provision of revocation of existing right is
inconsistent with the clear provisions of sections 28 and 29, and the basic rule of interpretation is that
where there are two inconsistent provisions in a statute, the later provisions will be preferred to the
earlier.
The Supreme Court seems to have explained the matter without trying to upset anyone by saying that
there is no inconsistency in abiding by the internal rule by acknowledging the statutory revocation of all
existing rights on the grant of the statutory right of occupancy and at the same time preserve the right
of the holder of a previously granted statutory right of occupancy to apply to the court to set aside the
latter grant.

The Supreme Court held further that save on earlier grant of statutory right of occupancy, the latter
right must be expressly set aside and the Governor is not expected to have recourse to his power of
revocation under Section 28(1) of the Act to correct an error. The Supreme Court need not bend
backwards in order to save an obviously bad legislation. Where the Governor mistakenly grants
inconsistent right of occupancy, he need not be estopped from correcting the error. He should be able
to withdraw the latter grant without recourse to the court. It is only in cases where the Governor
refuses to withdraw the latter grant that the previous grant holder may go to court to nullify the
inconsistent certificate of occupancy. The applicable principle of Law here is that nemo dat quod non
habet.

So far as the Governor has granted a statutory right of occupancy on the land, he has nothing to give in
respect of that same land again and therefore he gives nothing. Further, the Governor not being a
judicial officer but his role is executive in nature, he has a right to correct himself and is never "funtus
officio” in respect of land in the state.

POWER OF LOCAL GOVERNMENT IN RELATION TO LAND IN HUN-URBAN AREAS

The Local Government in respect of land in non-urban areas is empowered under section 6 (1) to grant
customary right of occupancy to any person or organization for the use of land in the local government
area for agricultural, residential and other purposes. The Local Government may also grant customary
right of occupancy for agricultural and grazing purposes. In respect of agricultural purposes, the area of
land must not exceed 50 hectares or 5000 hectares if granted for grazing purposes, except with the
consent of the Governor.

The pertinent question here is “which land may be granted by the local government as section 36 clearly
and expressly preserve all the existing rights on land subject to customary right of occupancy. The only
land that may be available are those already acquired or revoked in this respect under section 6(3) or
section 28. The problem with revocation under section 6 (3) may not be as difficult as that under section
5. Here, the law made specific provisions as to compensation to persons whose property is compulsorily
acquired under the section. It must be land not within an area already declared to be an urban area,
pursuant to section 3 of the Act or subject of a statutory right of occupancy or within an area
compulsorily acquired by the government of the federation or state concerned. Section 8 provides that
the statutory right of occupancy granted under the provisions of section 59(1)(a) shall be for a definite
term of years. There is no such provision in respect of a customary right of occupancy granted by the
local government. There is no power to charge rent or stipulate terms and conditions in the grant by the
local government. It may be argued that the customary right of occupancy may be granted in perpetuity
and in the absence of power to charge rent or impose conditions, it will be wrong for the Local
Government to do so.

NATURE OF A RIGHT OF OCCUPANCY

A statutory right of occupancy is defined as a right of occupancy granted by the governor. A customary
right of occupancy is defined as the right of a person or a community lawfully using or occupying land in
accordance with customary law and Includes a customary right of occupancy granted by a local
government under the Act.

The basic issue is to determine the nature of the right created under the Act. The right has all the
substance of a lease. It has a term of years and the holder is expected to pay the ground rents and also
comply with the terms and conditions imposed by the Governor. Like every ordinary lease, the Governor
has the power to enter into and inspect developments on the land. However, unlike a lease, the
statutory right of occupancy is greater and superior to a mere lease, as we discussed above. The
Governor cannot transfer the reversionary interest to another person.

In the case of Savannah Bank (Nig) Ltd. v. Ajilo, the Supreme court likened the interest created under
the Act to a lease when the court pronounced thus:

"To the extent that it can only be granted for a specific term, it has the semblance of a lease. Also, to the
extent that a holder has the sole right and absolute ownership of all Improvements on the land during
the term of a statutory right of occupancy, he does not enjoy more rights than a lease at common law”.

Cleary, statutory right of occupancy is not a lease neither is it a freehold. It is a new interest in land
created unknown to English law and so stands sui generis, Ina class of its own.
The intention as explained in the case of Penichand Ltd v. Land Officer, where the Privy Council said,

"the Intention of the land ordinance was to establish an entirely new interest on land, similar to leases in
some respects but different in others. The ordinance was intended to be a complete code regulating the
respective rights of the crowns and the occupier..."

The Supreme Court of Nigeria in the case of Osho v. Foreign Finance Corporation also distinguished
between a lease and interest created under the Act when it said:

"the interest of a lease in land will not attract the same as that of holder of a right of occupancy. A
holder of a right of occupancy enjoys a larger interest than a holder of a lease although the two interests
enjoy a common denominator which is a term of years.”

It may therefore be difficult to point to any English Law equivalent to the interest created under the Act.
And the attempts by the Supreme Court had been not to lay down any hard and fast rule or conclusion
on the matter. Thus giving the indication that the right under the Act is sui generis, and the investigation
into the nature of the interest may not yield any result as it is unknown to the determining legal
concepts basically English Law. It may therefore be much more at the incidents of the interests created
rather than the nature.

CERTIFICATE OF OCCUPANCY

The Certificate of Occupancy (C of O) may be issued by the Governor of a state to three categories of
persons as evidence of grant of statutory right of occupancy.

Section 9(1) of the Land Use Act declares as follows:

1. It shall be lawful for the Governor

a. When granting a statutory right of occupancy to any person; or
b. When any person is in occupation of land under a customary right of occupancy and
applies in the prescribed manner;
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.

Section 9(1)(a) empowers the Governor to issue a C of O when actually granting a statutory right of
occupancy under Section 5(1).
In practice the grant of statutory right of occupancy is only done through a letter of allocation. The
letters of allocation will contain the names and address of the allottee, the location of the land, the size
of the land including the survey or dimensions for easy location and identification, as well as an explicit
explanation of the ground rent to be paid thereof. The certificate is never issued until the ground rent
and other expenses are paid by the allottee to the Government. Upon the fulfillment of all the
conditions precedent, a certificate of occupancy is issued, which in itself will contain all the above, and
other conditions, to the grant and signed by the Government of the State. The C of O is registered in the
Land Registry and the registration number volume and year of registration is also stated on the C of O .

The Certificate is thus the evidence of the grant of statutory right of occupancy and not a document of
title simpliciter. It is also possible for a person in occupation of land under customary right of occupancy
to apply for C of O this situation. There are two ways for a person to be in occupation of land under
customary right of occupancy. The first one is the customary right of occupancy granted under Section 6
of the Act, in this wise, the Local Government issues certificate in evidence of such grant. Where the
holder of a grant of allottee applies finally to the Governor of the state where the land is situated, the
law empowers the Government to issue a certificate under his hand in evidence of such right of
occupancy.

Though in all the sections, they did not specify the type of right of occupancy to be issued to such
person, but since there is only one type of occupancy that may be issued by the Governor, it is assumed
therefore that the Governor is issuing a certificate of occupancy evidencing a statutory right of
occupancy, where therefore, the holder of a customary right of occupancy granted by the Local
Government under Section 6 of the Act, the Government is empowered to issue a certificate of
occupancy where such person applies in the prescribed manner; thus converting the customary right of
occupancy to a statutory right of occupancy.

The question is that, does the issuance and acceptance of a statutory right of occupancy by the holder of
a customary right of occupancy automatically cancel the customary right of occupancy previously held.
In effect it is not necessary to first revoke the customary right of occupancy before issuing the statutory
right of occupancy.

The provision of Section 5(2) may be the plausible way as there is proviso in the Act for accidental or
automatic revocation of a right. So that, upon a grant of a statutory right of occupancy, all existing rights
on that land are automatically extinguished.
The second aspect of the sub-section deals with person entitled to apply for the customary right of
occupancy under section 36 of the Act. Section 36(1) (2) states:

Section 36

(1)The following provisions of this section shall have effect in respect of land not in an urban area which
was immediately before the commencement of this Act held or occupied by any person.

(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall
if that land was on the commencement of this Act being used for agricultural purposes continues to be
entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy
had been granted to the occupier or holder thereof by the appropriate Local Government. And the
reference in this sub-section to land being used for agricultural purposes includes land which is in
accordance with the custom of the locality concerned, allowed to fallow for purposes of recuperation of
the soil”.

From the foregoing, the holder of a deemed grant of customary right of occupancy under Section 36(1)
(2) is also entitled to apply for a statutory right of occupancy, even if he does not have actual certificate
evidencing his right from the relevant Local Government.

Where the holder of a deemed grant under Section 34, this may include all categories of rights and
interests held before the commencement of the and Use Act and which was preserved by the Act itself,
all landed properties registered under the Registration of Titles Law etc. or all deemed grants and are
entitled apply for statutory right of occupancy.

In practice, it is not advisable for any reason or purpose for the certificate of occupancy because nothing
stops the Governor from imposing terms and conditions in the grant including payment of rents and
other charges and where he refuse to accept he will be made to pay all the necessary fees.

It may be further argued whether the Governor has the power to impose any rent or other term on
holders of deemed grant applying for the certificate of occupancy. Professor Omotola has argued that
he does not have such power and that the position of such rent is legal.

I begged to defer from the position of the learned author. Section 10 of the Act state as follows:

Every certificate of occupancy shall be deemed to contain provision to the following effect:
(a) That the holder binds himself to pay to the Governor the amount found in respect of any
unexhausted improvements existing on the land at the date of his entering into occupation;

(b) That 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 provision of section 15.

Clearly therefore any holder of a deemed grunt under Section 4 and 36 of the Act who applies for the
certificate of occupancy must pay the rent fixed and charged for the issuance of the C of O and it is not
unlawful or illegal for the Governor to do so.

Paragraph C of section 9(1) is applicable to section 34 and 36 holders as well as anybody acquiring land
through such person.

As we have noted above it is lawful for the Governor to charge such fees as he may determine.

In practice, the Governor charges not only fees for the C of O but all other fees as may be determined by
the Government as pre-condition for the issuance; these include development levies, utility levies, tax
certificates, property tax etc. which are not prescribed under the Act and therefore unlawful and illegal.

Where a C of O is issued and without lawful excuse, the person in whose name it was issued refuse or
neglects to accept and pay for the certificate, the Governor may cancel the certificate and recover from
such person any expenses incidental thereto. The effect may be that the grant or allotment of the land is
also cancelled. The allotment letter is in fact the grant of the statutory right of occupancy under Section
5, while the certificate issued is a mere document evidencing the grant. In the event that the person
refuse and neglect to accept the certificate is cancelled, we submit that it may not necessarily affect the
grant.

In practice, immediately the allotment is done, the allottee is required to pay immediately for the
allocation including the survey and ground rent. Upon payment he has the right to take possession of
the land. While in fact the certificate is only a mere document evidencing the title not more. In cases
where the holder has deemed grant under Section 34 and 36 and applies for a certificate and refuse or
neglects to accept same, the Governor may revoke the statutory right to occupancy.

This is a strange provision; the holders of deemed grants need not apply for the C of O. They have a
statutory right of occupancy deemed by the Act. And the Governor cannot revoke their title merely
because they refuse to collect a certificate. He may cancel as in the case of section 5 and grants.
"Revoke” is a technical term in the Act and revocation may only be done under section 28 and no more.
Section 9 (4) states,

"the terms and conditions of a certificate of occupancy granted under this Act and which has been
accepted by the holder shall be enforceable against the holder and his successors in title
notwithstanding that the acceptance of such terms and conditions is not evidenced by the signature of
the holder or is evidenced by the signature only of some person purporting to accept on behalf of the
corporation"

The basic problem this sub-section tries to surmount is that the certificate of occupancy is only signed by
the Governor and not by the person whose name appears on the certificate. The person though did not
sign acknowledging the contract, the low here assumes his consent to the terms and conditions that
may be imposed by the governor and so whether he signed or not is binding on him and he must abide
by the conditions stated therein. But, does this allow the governor to change terms mid-way into the
term created by the certificate of occupancy?

The law allows revision of rent periodically but review is only prospective and not retroactive and should
not be based on the value of the improvements on land or increase in the value of the land or the rent
being demanded in the neighborhood.

RENT

The Governor is empowered to fix rent on any statutory right of occupancy granted by him and it should
be noted clearly that he cannot charge any rent from holders of statutory right of occupancy deemed
under Section 34. The Governor is also empowered to review the rent under section 16, and the
subsequent revision must not take into consideration the improvements on the land or the
neighborhood and other such extraneous matters. He may also grant the statutory right of occupancy
free of rent as he may think fit, and while he may do so, the acceptance of the waiver do not operate as
estoppel on the Governor of any forfeiture accruing by reason of the breach of any covenant or
condition, express or implied in any certificate of occupancy granted.

That a Governor has granted a waiver may not necessarily lead to conclusion that he may not turn
around later to impose other conditions or even re-impose rents and other charges on the land.

The Governor may also impose penal rent on any holder for the breach of any term or condition in the
grant. Such penal rent must be paid within 12 months of levying it, and this is notwithstanding the
original rent payable, and the imposition of a penal rent does not preclude the Governor from revoking
the statutory right of occupancy provided that he may not revoke the statutory right of occupancy
during the period for which a penal rent has been paid.

ALIENATION AND SURRENDER OF RIGHTS OF OCCUPANCY

Section 21 prohibits alienation of customary right of occupancy or any part thereof by way of
assignment, mortgage, transfer of possession, sublease or otherwise however except with the consent
of the Governor where the property is to be sold by or under the order of any court or under the
provisions of the applicable Sheriff and Civil Process Law or in other cases with the approval of the
appropriate Local Government.

Section 36 (5) states as follows:

"No land to which this section applies shall be sub- divided or laid out in plots and no such land shall be
transferred to any person by the person in whom the land was vested aforesaid".

Thus, the sub-section imposed a total prohibition to alienation of customary right of occupancy under
the section because it specifically relates to Section 36 title only, which is deemed grants of customary
rights of occupancy and no more. Section 21 however do not specify or limit the type of interest, it is a
generalized provision. The conflict in the two sections is clear enough and is an example of bad drafting
that is evident in the whole Act. Section 36 (4) may constitute an exception to section 21 based on the
rule of interpretation that Generalice Specilabus non derogat.

Where the holder of a customary right of occupancy under section 36 decides to transfer his interest,
the law clearly forbids such transfer and one may advance the possible way out of the problem. The
possible way out is for such holder of deemed customary right of occupancy to apply for the certificate
from the appropriate local government and thereafter transfer with the approval of the Local
government; alternatively, he may apply for a statutory right of occupancy and then alienate. This is not
only rigorous process, but also payment of fees and rents which the holder’s deemed grant is not
previously subjected to. This is why much land transactions in the non-urban areas had been without
the approval or consent from whatever source and since the Act does not prohibit agreement to sell,
much of these transactions had been equitable; though majority sell their properties and back date the
agreement.

In case of land in urban areas, the act prohibits the holder of a statutory right of occupancy granted by
the governor from alienating his right of occupancy or any part thereof by assignment, mortgage,
transfer of possession, sub-lease or otherwise howsoever without the consent of the governor had and
obtained.

The exceptions are:

(1) Where there has been an equitable mortgage created with the consent of the Governor then the
further creation of a legal mortgage does not require further consent.

(2) For re-conveyance or release of mortgage created with the consent of the Governor.

The holder of a deemed grant under section 34 may argue that so far as the section 22 was specific and
refers only to those statutory rights of occupancy granted by the Governor, it follows that the consent
provisions does not apply to it.

This was the argument in the case of Savannah Bank v. Ajilo the supreme court however held that both
actual and deemed grants have the same effect under the general tenor of the Act and that the requisite
consent is required for an effective and valid alienation of both types of grants. The Supreme Court also
clearly explained in the case that all transactions on land purporting to transfer title or by way of
mortgage without the requisite consent are void ab initio.

The parties are however entitled to enter into an agreement before consent could be obtained from the
Governor; this statement is supported by section 22(2) which states that the holder of the statutory
right of occupancy may submit an instrument executed in evidence of the transaction and the Governor
may endorse his consent on such instrument. It follows that it is not illegal to enter into an agreement
evidenced in writing in fact the agreement must have been executed by the parties before seeking for
the consent of the Governor to the transaction. It therefore operates as an equitable transfer until the
consent is given.

It is the duty of either of the parties to seek the Governor’s consent to the transaction, and in mortgage
transactions, it is in the interest of the mortgagee to ensure that the consent was first obtained before
the transaction is concluded, as the law is very clear. The transaction or any instrument which purports
to confer on or vest in any person any interest or right over land other than in accordance with the
provisions of the Act is null and void. The point being made in the case of National Bank of Nig Ltd. v.
Adedeji by the court of appeal that where the party who ought to attain the consent and did not, he
cannot rely on the failure to obtain the consent to invalidate the entire transaction and so in the case.
The court’s refusal to invalidate may not entirely be correct in view of Section 26 of the Act.

REVOCATION OF RIGHTS OF OCCUPANCY

A right of occupancy may be revoked whether statutory or customary. Section 6 allows the Local
Government to revoke a customary right of occupancy for public purposes, while section 28 also
empowered the Governor to revoke a statutory right of occupancy for overriding public interest.

Overriding public interest means:

(a) The alienation of the statutory right of occupancy contrary to the provisions of the Act.

(b) Requirement of the land by the Government of the state or by the Local government in the state,
in either case, for public purpose within the state, or requirement by the federal government for
public purposes of the federation

(c) The requirement of the land for mining purposes or oil pipelines or for any purpose connected
therewith.

In this regard, a comparison should be made between this provision and Land Tenure Law which
specifies that a right of occupancy can be revoked for “good for cause”, what is good cause appears to
be generally within the definition of the Land Use Act. The provision of section 28 may also be compared
with the earlier provision in the Public Act Acquisition Law. Under that law, the Governor of a state was
empowered to acquire land for public purposes. The grounds for revocation are wider under the Public
Act Acquisition Law. Section 50 defines public papose to include:

(a) For exclusive Government use or for general public use.

(b) For use by any body corporate directly established by law or by any body corporate registered
under the Companies and Allied Matters Act 1990 as respects which the Government own
shares, stocks or debentures,
(c) For or in connection with sanitary improvements of any kind.
 (d) For obtaining control over land contiguous to any part or over land the value of which will be
enhanced by the construction of only railway, road or other public work or convenience about
to be undertaken or provided by the government.
(e) For obtaining control over land required for or in connection with development of
telecommunications or provision of electricity.
(f) For obtaining control over land required for or in connection with mining purposes.
(g) For obtaining control over land required for or in connection with planned urban or rural
development or settlement.
(h) For obtaining control over land required for of in connection with economic, Industrial or
agricultural development.
(i) For educational and other social services.

It is therefore not permitted for the Governor to take land from A with a view to giving it to B. It will not
be overriding public interest and public purposes. Since the permitted reasons for revocation are clearly
spelt out in the Act, it will be ultra vires the Governor to purport to revoke a statutory right of occupancy
except for the specified reasons.

One may argue further that Section 28 revocation should not be made applicable to grants made under
section 5 of the Act, where public interest relied on is actually public purposes. It is not only inequitable
to grant land to a person and after expending resources on the land, to turn around and revoke such
grant; it is totally contrary to natural justice.

Further, a Government must be taken to have considered all aspects of development and planning
before making the grant. They should not be allowed to approbate and reprobate.

Section 28 (6) stipulates that the Governor may by himself or through a delegated officer in this respect
on behalf of the Governor serve a notice on the holder of such statutory right of occupancy to be
revoked and upon service, the title is extinguished. The holder may, if not satisfied institute an action in
court to declare such revocation void and of no effect.

In the case of Osho v. Foreign Finance Corporation where a statutory right of occupancy was revoked
and same was allocated to another person, the court declared such revocation void and of no effect.
Bello JSC said with the exception of revocation on ground of alienation under Section 28(2) (c), the
Governor has no right to revoke the statutory right of an occupier and grant the same to a private
person for any purpose than those specified by section 28(2) of the Act
The attitude of the court in cases of revocation of title to land was emphatically stated when the court
said, to revoke a statutory right of occupancy for public purposes, the letter and spirit of the laws must
be adhered to. Since revocation of a grant deprives the holder of his proprietary right, the terms must
be strictly complied with and strict constructions of the provisions.

Where statutory right of occupancy is revoked, if it was not under the penal section, the holder is
entitled to compensation for the value at the date of revocation of their unexhausted improvements.
The Act is silent on whether the revocation is effective until compensation is paid or not neither was it
specified at what point the compensation should be paid.

JURISDICTION OF COURT UNDER THE ACT.

The High Court has exclusive jurisdiction over disputes on land subject to statutory right of occupancy,
while the Area or Customary Courts as the case may be may exercise jurisdiction over deputes arising on
land subject of customary right of occupancy. However, this is contrary to the provisions of the
constitution which give unlimited jurisdiction to the High Courts.

In effect, the High Courts will share and have concurrent jurisdiction over land subject to customary
right of occupancy with the Area and Customary Courts.

CONCLUSION

The Land Use Act in spite of the assaults and calls for its repeal has remained with us, and our courts
have done creditably well in terms of interpretation of the Act. There is need for a comprehensive
review of the Act especially in line with the discussion above.