4.2 Rights of Occupancy, Certificates of Occupancy and Deemed Grants

4.2 Rights of Occupancy, Certificates of Occupancy and Deemed Grants

Statutory reference: Land Use Act 1978 (Cap L5 LFN 2004), sections 5, 6, 8, 9, 34 and 36.

Section 1 vests all land in each State in the Governor, to be held in trust and administered for the use and common benefit of all Nigerians. What is left for the citizen is a right of occupancy. Everything in Nigerian conveyancing follows from that substitution.

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1. Statutory rights of occupancy (section 5)

Section 5(1)(a) empowers the Governor, in respect of land whether or not in an urban area, to grant statutory rights of occupancy to any person for all purposes. The Governor's power under section 5 is not confined to urban land; the urban / non-urban division in section 2 allocates administration, and it is the Local Government's power under section 6 that is confined to non-urban land.

Section 5(2) supplies the sharp edge: upon the grant of a statutory right of occupancy under section 5(1)(a), all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished. A new statutory grant does not sit alongside prior rights - it displaces them. That is the mechanism behind most double-allocation disputes, and it is why an approved survey plan defining exactly what land is being granted matters so much.

Section 5(1) also permits the Governor to demand rent, to grant licences, to impose penal rent for breaches, and to waive covenants.

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2. Customary rights of occupancy (section 6)

Section 6(1) empowers a Local Government, in respect of land not in an urban area, to grant customary rights of occupancy to any person or organisation for agricultural, residential and other purposes, and for grazing purposes and other ancillary undertakings in accordance with customary law.

Section 6(2) imposes the area limits:

A Local Government shall not grant a customary right of occupancy in respect of an area of land in excess of 500 hectares if granted for agricultural purposes or 5,000 hectares if granted for grazing purposes, except with the consent of the Governor.

Note what the limit is not. It is not a cap on the size of a holding - it is a cap on the Local Government's authority to grant without going to the Governor. Above the threshold the grant is still possible; it simply requires the Governor's consent.

Section 6 also permits the Local Government to enter upon and use land for public purposes and to revoke customary rights for overriding public interest, subject to compensation.

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3. Terms, certificates and evidence (sections 8 and 9)

Section 8 requires that statutory rights of occupancy granted under section 5(1)(a) shall be for a definite term, and may be granted subject to the terms of any contract made between the Governor and the holder, not inconsistent with the Act. There is no statutory 99-year term. Ninety-nine years is the term commonly adopted in State practice, and you may say so - but say it as State practice, not as a provision of the Act.

Section 9 empowers the Governor to issue a certificate of occupancy under his hand in evidence of a right of occupancy, where a statutory right has been granted, where a person is entitled to one by virtue of a deemed grant, or where a person is in occupation under a customary right and has applied.

The evidential character of a certificate of occupancy is a standing examination point. The certificate is evidence of a right of occupancy; it is not itself an unimpeachable root of title. Where a certificate is issued over land in which the grantor State had already extinguished nothing - because a subsisting right was already vested in someone else - the certificate does not defeat the earlier right merely by existing. This is why land registries and courts alike depend on the survey plan attached: it is the only document that says, unambiguously, which land is meant.

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4. Deemed grants: the pre-1978 holdings (sections 34 and 36)

The Act could not simply abolish existing holdings, so Part V converts them.

Section 34 - land in urban areas. Where, immediately before the commencement of the Act, land in an urban area was vested in any person, that land continues to be held by that person, and:

• where the land was developed, it is treated as if the holder were the holder of a statutory right of occupancy issued by the Governor - the "deemed statutory right of occupancy";
• where the land was undeveloped, the Act limits the holding, permitting the holder to retain one plot or parcel not exceeding half a hectare with the excess subject to the Act's provisions.

Section 36 - land in non-urban areas. Where land in a non-urban area was, immediately before commencement, occupied and being used for agricultural purposes by a person, that person is entitled to continue and is treated as the holder of a customary right of occupancy granted by the appropriate Local Government - the "deemed customary right of occupancy".

Deemed rights are real rights, and they are the reason so much Nigerian land is lawfully held without any paper title at all. A holder of a deemed right may apply under section 9 for a certificate of occupancy - which requires a survey plan, which is where the surveyor enters.

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5. Which court hears what (sections 39 and 41)

The Act allocates jurisdiction by the type of right, and the distinction is examinable.

So a boundary dispute over a plot held under a certificate of occupancy goes to the State High Court; a dispute over farmland held under a customary right granted by the Local Government goes to the area or customary court. A surveyor giving evidence should know which forum he is in, because the practice and procedure - and the standard to which a plan will be tested - differ.

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6. Where the surveyor sits

Put the pieces together and the surveyor's structural position is clear:

1. Definition. A right of occupancy is a right over a defined parcel. The parcel is defined by the survey plan, and by nothing else.
2. Extinguishment. Section 5(2) extinguishes existing rights over land the subject of a new statutory grant. If the plan is wrong, the wrong rights are extinguished.
3. Registration. Section 3 of the State Survey Law bars a plan from registration with a registrable instrument unless prepared and signed by a surveyor.
4. Evidence. The same section bars it, save for good cause shown, from admission in evidence.
5. Public record. Section 4 requires deposit with the Surveyor-General within one month, building the archive the next surveyor searches under regulation 39.

A Paper VI answer that traces that chain - grant, extinguishment, plan, registration, evidence, deposit - is answering the question behind most Land Use Act problems.