COURSE:

LAND LAW

ASSIGNMENT QUESTION:
i. The Land Use Act 1978/CAP L5 Laws of the
Federation 2004 Confers a certain legal interest
pertaining Land on a Private individual or Entity,
Critically discuss what type of interest a private
individual or entity gets in relation to Land in Nigeria
STUDENTS NAME:
BILKISU IBRAHIM UMAR
ID NUMBER: 2319
COURSE CODE: LAW _____

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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.

The land system of a given society is the manner in which land is owned and

possessed. It is an institutional framework within which decisions are taken about the

use of land, embodying that legal or customary arrangement whereby individuals or

groups or organizations gain access to economic and social opportunities through land

(Udo, 2003). The land system is also constituted by the rules and procedures which

govern the right and responsibilities of both individuals and groups in the acquisition,

use and control of land. Denman (1978) argued that all societies of whatever culture

and political creed have land systems woven of property rights. These property rights

lend form to the proprietary land units. The proprietary land unit is the decision-

making unit which is fundamental to all positive decisions about land use and

comprises two elements, the run of property rights and the area of physical land to

which they pertain (Denman and Prodano, 1972). Any land system may portray

categories of estates or rights in land. These rights are absolute or non-derivative

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interests and derivative interests. The absolute interests are those rights in land that

confer upon their holders unconditional interests in perpetuity and in terms of quality,

it is regarded as the most superior form of ownership. The absolute interests confer

absolute ownership rights and as such allow for the highest scope of proprietary

decisions as to the use and management of land. The derivative interests on the other

hand are interests that have been derived or carved out from the larger estates or

superior estates (Udo, 2003).They are inferior in quality and include leaseholds, life

interests, kola tenancy,mortgage,borrowed interests, pledges, among others

(Nwabueze,1972). The land ownership structure in Nigeria is based on the absolute

and derivative interests. The structure of ownership of these interests in the country

has evolved through three major periods. These are the pre-colonial, colonial and post

–colonial periods.

Land Ownership in Nigeria since Independence

Nigeria gained independence from colonial rule in 1960 and became a republic

in [Link] independence, private ownership of land by individuals, families and

communities was the predominant land tenure system in the Southern States of

Nigeria while all lands in the territory comprising the Northern States of Nigeria were

regarded as owned by the state, based on the provisions of the Land Tenure Law of

1962. Two principal legislations have been enacted to regulate land ownership in

Nigeria since independence. These are:- (i) The Land Tenure Law of Northern Nigeria

of 1962.

The Land Use Act of 1978

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Land Use Act No. 6 of 1978 was promulgated into law with effect from 29 th March,

1978 as the nation’s land policy document. Since then, it has remained so in the

country till date. To all intents and purposes, the Act regulates the ownership,

alienation, acquisition, administration and management of land within the Federal

Republic of Nigeria. Section 1 of the Land Use Act vests all land comprised in the

territory of each state in the Federation of Nigeria 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 the Act. Section 5(1) of the Act

empowers the Governor of a state to grant statutory right of occupancy to any person

for all purposes in respect of land, whether or not in an urban area and issue a

certificate of occupancy in evidence of such right of occupancy in accordance with the

provisions of Section 9(1) of the Act. Also, Section 5(2) of the Act provides that

“Upon the grant of a statutory right of occupancy under the provisions of 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.” Thus,

the statutory right of occupancy granted by a Governor is presently the highest right to

land in Nigeria. This right of occupancy is a right which allows the holder to use or

occupy land to the exclusion of all other persons except the Governor and is granted

for a maximum holding period of 99 years, subject to the payment of ground rent

fixed by the Governor throughout the holding period. Sections 21 and 22 of the Act

prohibit alienation, assignment, mortgage, transfer of possession, sub – lease or

otherwise howsoever customary or statutory rights of occupancy in Nigeria without

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the consent and approval of the Governor of the state where such right of occupancy

was granted. The provisions of Sections 21 and 22 of the Act are as follows:

21. It shall not be lawful for any customary right of occupancy or any part thereof to

be alienated by assignment, mortgage, transfer of possession, sub-lease or otherwise

howsoever

(a) without the consent of the Governor in cases where the property is to be sold

by or under the order of any court under the provisions of the applicable

Sheriffs and Civil Process Law; or

(b) in other cases without the approval of the Local Government

22. (1) It shall not be lawful 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, sub-lease or otherwise howsoever without the

consent of the Governor first had and obtained; Provided that the consent of the

Governor;

(a) shall not be required to the creation of a legal mortgage, over a statutory

right of occupancy in

favour of a person in whose favour an equitable mortgage over the right of occupancy

has already been created with the consent of the Governor;

(b) shall not be required to the reconveyance or release by a mortgage to a

holder or occupier of a statutory right of occupancy which that holder or occupier

has mortgaged to that mortgagee with the consent of the Governor;

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 (c) to the renewal of a sub-lease shall not be presumed by reason only of his

having consented to the grant of a sub-lease containing an option to renew the

same.

(2) The Governor when giving his consent to an assignment, mortgage or sub-lease

may require the holder of a statutory right of occupancy to submit an instrument

executed in evidence of the assignment, mortgage or sub-lease and the holder shall

when so required deliver the said instrument to the Governor in order that the consent

given by the Governor under sub-section (1) of this section may be signified by

endorsement thereon.

Statutory right of occupancy as interpreted in Section 50 of the Act is a right of

occupancy granted by the Governor under the Act for a maximum holding period of

99 years. Customary right of occupancy as also interpreted in that section of the Act is

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 the Act. Also, Section 28(1) empowers the Governor of a state to

revoke a right of occupancy for overriding public interest, subject to the payment of

compensation for the unexhausted improvements based on the provisions of Section

29 (4) of 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

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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.

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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

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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).

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 CATEGORISATION OF RIGHTS OF OCCUPANCY

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

a) Statutory right of occupancy expressly granted by the Governor

b) Statutory right of occupancy deemed to be granted by the Governor

c) Customary right of occupancy expressly granted by the Local

d) Government Customary Right of Occupancy deemed to be granted by a Local

Government.

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

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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.

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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

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Land Use Act. See section 8, section 9 of the Land Use Act provides that 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; or (c) 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.

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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

The Land Use Act of 1978 was enacted to redirect the general philosophies of pre-

existing land tenure systems in Nigeria through the application of a uniform statutory

regulation of ownership and control of land rights and to stimulate easier access to

land for greater economic development as well as promote national and social

cohesion. In an attempt to harmonize the different land tenure systems previously

existing in the country, the Act has created multiple forms of tenure resulting in

insecurity of right of occupancy granted under the Act, excessive bureaucracy in

obtaining Governor’s consent and approval for land transactions and certificate of

occupancy, among other shortcomings. The multiple forms of tenure created by the

Act have also generated confusion concerning legal estates which can be owned in the

Federal Republic of Nigeria.

Inspite 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

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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.

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Anene, J.C. (1966). Essays in African History. Ibadan: Onibonoje Publishers.

Aniyom, D. A. (1983).

An Appraisal of the Land Use Decree and its Effects in its FirstFive Years (29th

March, 1978 to29th March, 1983). The Map Maker. 9(1): 17-26

The Land Use Act – Report of a National Workshop edited by J.A Omotola (Lagos:

Lagos University press, 1982)

Bardi, M. C. (1998). Geographic Information System as a Tool for Successful

Implementation of the Land Use Decree. The Quantity Surveyor. 29 (1): 17-

22.

Denman, D. R. and Prodano, S. (1972). Land Use: An Introduction to Proprietary

Land Use Analysis. London: Allen and Unwin.

Dike, K.O. (1960). Hundred Years of British Rule in Nigeria. Lagos: Federal

Ministry of Information.

Dosumu, O. A. (1977).Land Tenure System in Nigeria and its Effects on Land

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Niki Tobi Cases and Materials on Nigerian Land Law (Lagos: Mabrochi books,

1997) Itse Sagay, Nigerian Bulletin of Contemporary Law, March 1987

Nwabueze, B.O. (1972). Nigerian Land Law. Enugu: Nwamife Publishers Ltd.

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 Omuojine, E.O. (1999). The Land Use Act and the English Doctrine of Estate.

Journal of the Nigerian Institution of Estate Surveyors and Valuers. 22(3): 54-

56.

World Bank (2014). Registering Property. Retrieved from www.

[Link]/data/explore topics/registering property on Monday 14th

July, 2014

STATUTE

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

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