AN APPRAISAL OF ALIENATION OF RIGHT OF OCCUPANCY UNDER THE NIGERIAN LAW; ISSUES & CHALLENGES
The results of population pressure, urbanization and socio-economic growth have great social and economic impact on land issues in Nigeria. This therefore makes people to move from rural to urban areas and therefore, congested urban areas are in need for expansion but land is too scarce. Hence, to acquire land became even impossible because of the cost of compensation. These difficulties faced by both the people and governments make it necessary for the government to do something about land distribution in Nigeria, which eventually led to the enactment of the Land Use Act of 1978.
RIGHT OF OCCUPANCY
The land use Act provides for “Right of Occupancy” which gives the holder a mere right of possession and not ownership. A Right of Occupancy however was not defined under the Act, but some authors and judicial decisions have linked it to a lease. The Land Use Act conferred government with powers and control over land acquisition in Nigeria. See Section 1 of the Act
However, Sections 22 & 26 of the Act stipulates that those rights granted to holders can only be alienated when governor’s consent is first had and obtained; and failure to secure that consent may render any transaction or alienation null and void. See Savannah Bank Ltd. v. Ajilo (1989)1 NWLR (pt. 97) p. 305 and Awojugbagbe Light Industry v. Chinukwe (1995)4 NWLR (pt. 390) 379 S.C
TYPES OF RIGHT OF OCCUPANCY
From the foregoing provisions of the Act it can be established that right of occupancy is subject to the control and management of the government, be it local or state government.
Right of occupancy introduced by the Act are:
1. Statutory Right of Occupancy and
2. Customary Right of Occupancy
However, the above two types are classified into four, namely:
i. Statutory Right of Occupancy expressly granted by the Governor
ii. Statutory Right of Occupancy deemed granted by the Governor.
iii. Customary Right of Occupancy expressly granted by Local Government.
iv. Customary Right of Occupancy deemed granted by the Local Government.
Statutory Right of Occupancy Expressly Granted by the Governor
Section 51 of the Act defines Statutory Right of Occupancy as a right of occupancy granted by the Governor under the Act. Again Section 5(1)(a) provides that “it shall be lawful for the state Governor in respect of land, whether or not in an urban area to grant statutory right of occupancy to any person for all purposes”. However, this right is not absolute in that it is subject to some stipulations and conditions. See Section 8 of the Act
Statutory Right of Occupancy Deemed Granted by the Governor
Where land in an urban area was developed before the commencement of the Act, it remains vested in that person as if the Governor had granted to that person a statutory right of occupancy. See Sections 34(1) and (2) of the Act
Finally, whether it is express or deemed grant, the Governor can issue a certificate as evidence of right of a holder. And once that certificate is issued, a holder has a right to possession of the land granted. See Savannah Bank of Nigeria Ltd v Ajilo (Supra)
Customary Right of Occupancy Expressly Granted
Section 51 of the Act defines Customary Right of Occupancy as “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 this Act”. This definition is vague in that it makes it as if it is only customary law that governs it and it excludes the Act from its operation. However, by Section 5(1) (a) the Governor can grant a Statutory Right of Occupancy whether or not the land is in urban area.
Customary Right of Occupancy Deemed Granted
A holder of a Customary Right of Occupancy is deemed granted if he holds such land prior to the commencement of the Land Use Act and he will be said to be as a holder rightly granted by the Local Government. See Section 36(2) of the Act and Adole v. Boniface B. Gwar (2008) 11 NWLR (Pt. 1099) 562 (a) 588 & 606
CERTIFICATE OF OCCUPANCY
A Certificate of Occupancy is a document which contains agreement under which a holder takes grant from the grantor, usually a State Governor. It is, therefore, a contractual document imposing some obligation on the grantor to refrain from doing certain acts to the parcel of land covered by his Certificate of Occupancy. See Section 10 of the Act
DUTIES AND OBLIGATIONS OF A HOLDER OF A CERTIFICATE OF OCCUPANCY
Once a right of occupancy is granted, the holder would be issued a certificate of occupancy which contains some duties and obligations upon him. The following are few of the obligations of a holder of certificate of occupancy:
a) The holder binds himself to pay rent as prescribed under the Act from time to time. This provision is more of a theory as practically you hardly can see a holder that strictly complies with this provision, (Section 10 (b) of the Act)
b) Payment of incidental expenses if the Certificate of Occupancy is revoked due to non- payment of rent or refusal to accept a certificate after it was issued, (Section 9 (3) of the Act).
c) Payment in respect of unexhausted improvements, (Section 10 (a) of the Act).
d) The holder shall allow the Governor or his agent to enter into his land for inspection whenever that is necessary but the entry should be in the day time only, (Section 11 of the Act). In my opinion, this provision violates the provision of Section 37 of the Constitution of the Federal Republic of Nigeria that provides for the right to privacy.
RIGHTS OF A HOLDER OF A CERTIFICATE OF OCCUPANCY
The following are few of the rights of a holder of certificate of occupancy rights as provided under the Act;
a) He has exclusive rights to the land, the subject matter of a Right of Occupancy against all persons except the Governor or the State where the land is situated. (Sections 14 of the Act).
b) He has the right to transfer, assign and mortgage any improvement on the land in accordance with the Act, (Sections 15 (b) of the Act).
c) An occupier has the sole right to the absolute possession of all improvements on the land, (Sections 15 (a) of the Act).
d) He is entitled to compensation if his certificate of occupancy is revoked for public interest, (Sections 29 (1) of the Act)
ALIENATION OF LAND UNDER THE NIGERIAN LAW
Alienation has been defined by the Black’s Law Dictionary to mean “the transfer of property and possession of lands, tenements, or other things, from one person to another. The term is particularly applied to absolute conveyance of real property. In Ofodile v. Anambra State (2001)
1 NWLR (pt.699) p.164, alienation was defined as the transfer of the right by the holder to another person or creation of interest in an estate for the benefit of another person. In other words, alienation of land can be defined as the power of an owner of property (e.g. land) to voluntarily transfer or dispose of his interest in the property to another which can either be temporary or permanent.
ALIENATION UNDER CUSTOMARY LAW
The history of alienation of land can be traced back to customary land tenure system. This is because it was not the practice in the past to alienate land. For land was considered to be held by its present owners in trust for future generations within the same family or community.
However, for alienation of family land to be valid, all members of the family must approve otherwise it is void. However, alienation by head of a family without the consent of principal members is voidable.
ALIENATION UNDER STATUTORY LAWS
Prior to the advent of colonialism, the area that later became known as Nigeria was held absolutely under the indigenous tenure system of people. Land was vested in either individuals, or on the family or community with the family head or chiefs, obas and emirs as trustees for the benefit of the people. Thus, transfer or sale of land was seen as a taboo. Apart from farming and grazing purpose, land was of higher sentimental value than economical, representing the permanent abode of the ancestors and providing comfortable residence for shrines.
Different legislations were enacted at different times but despite all these legislations, still the South and the North faced many problems of land law and administration in Nigeria. Thus, there were problems of land speculations, exorbitant demand for compensation, alienation etc. In every part of Nigeria, acquisition of land was becoming impossible.
It is however worth noting that the Land Use Act 1978 is an offshoot of the Northern Nigeria Land Tenure Law of 1962 that faced serious problems and called for the enactment of the Land Use Act of 1978.
ALIENATION UNDER OTHER LAWS
Some legislation also aid in regulating alienation of land in Nigeria. Examples of these legislations are Nigerian Coal Mining Act, Town Planning Laws, etc. The Nigerian Coal Mining Act prescribes for seeking of the consent of minister in charge of a department when dealing with an authority that is alienating its property. It is important to examine the legislation setting it up to see whether consent is a requirement and to apply for it and obtain consent. See Section 12(4) of the Act
CONSEQUENCES OF ALIENATION WITHOUT REQUISITE CONSENT
By the provision of Section 22 of the Land Use Act, the holder of a statutory right of occupancy granted by the Governor cannot alienate his right of occupancy or part thereof without the consent of the Governor first hand and obtained. Thus, failure of securing consent where one is required, may lead to the following consequences.
a) Nullity of Transaction
By virtue of Section 26 of the Land Use Act, any alienation of any interest in land without Governors consent is null and void ab initio.
b) Prohibition of Registration
The Land Registration Laws of various States of the Federation prohibits registration of any instrument transferring any right or interest in land without the requisite consent to that effect.
c) Prohibition of Pleadings
Additionally, Land Instrument Registration Laws of various States of the Federation also provide that any registrable instrument which is not registered cannot be pleaded or given in evidence in any court of law as affecting any instrument in Land.
d) Forfeiture or Revocation
In addition to nullity of transaction entered into without consent, the Land Use Act goes further to stipulate that the Governor of a State can revoke right of occupancy of its holder, who alienates by way of sale, assignment, mortgage, transfer of possession, sublease bequest etc. without the requisite consent or approval. See Section 28 (3) (d) of Land Use Act
e) Imprisonment or Payment of Fine
The Act further provides that a holder who alienates or transfers his right of occupancy without requisite consent will be liable to imprisonment or payment of fine. See Section 28(7) of the Land Use Act
LEGAL RESTRICTIONS ON ALIENATION OF LAND
The Land Use Act and some other legislation have provided for certain restrictions on alienation or transfer of land. They are briefly explained as follows:
i. Exceptions to the consent provision: Section 22 of the Act provides that any alienation of Right of Occupancy without the Consent of the Governor first had and obtained is null and void. This is however, the general rule, in that the exceptions to that are provided under paragraph (a)-(c) of the same section as follows:
– Governor’s consent 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. This section is problematic in where it exempts equitable mortgage from the series of transactions that require governor’s consent, while section 51 of the same Act comprehensively defines mortgage to include equitable mortgage.
– It shall not be required to the re-conveyance or release by a mortgagee 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.
ii. The Governor of a State cannot grant a statutory right of occupancy to a person under the age of twenty one (21) years. See Section 7 Land Use Act This provision also has an exception that where a guardian or trustee for a person under the aforementioned age has been duly appointed for such purpose, the Governor may grant or consent to the alienation of a statutory right of occupancy to such guardian or trustee on behalf of such person under age.
Moreover, the proviso goes further to stipulate that a person under the age of 21 years upon whom a statutory right of occupancy devolves on the death of the holder shall have the liabilities and obligations under and in respect of his right of occupancy as if he were of full age notwithstanding the fact that no guardian or trustee has been appointed for him. However, I am of the opinion that this restriction maintains an old Common Law position, in that our legal system has since provided legal capacity to be 18 years. Thus, contractual capacity, capacity to vote, etc is 18 years.
iii. A person who is not a Nigerian citizen cannot be granted right of occupancy, nor can a right of occupancy be transferred to him, except with the approval of the National Council of States. See Section 46(1) of the Land Use Act.
In my view, alienation in Nigeria creates so many problems ranging from problem with governor’s consent or local government as the case may, consent of principal members of a family in case of family or communal land and consent of the minister for mining purpose. However, these problems can be minimized if consent provision on the instances is either deleted or amended; this will make land transaction simple and interesting.