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REQUIREMENT FOR THE VALIDITY OF A CERTIFICATE OF OCCUPANCY

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“For a certificate of occupancy to be valid it must be issued after the grant of a right of occupancy under Section 5 (1) (a) or Section 6 (l)(a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land. In Madu Vs Madu (2008) 6 NWLR (Pt. 1083) P. 286 @ 325, the Supreme Court held that for a certificate of occupancy, under the Land Use Act, to be valid, there must not be in existence, at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. However, this principle of law is only relevant in cases where a claimant has proved that he has a prior and un-extinguished title to the land so that the new right of occupancy cannot over-ride, extinguish or have priority over that existing right. In Apostolic Church Vs Olawolemi (1990) 10 SCNJ P. 69 @ 25, the Supreme Court also held that if the issuance of a certificate of occupancy was not in accordance with the Land Use Act, the certificate is defective and the holder has no basis for a valid claim title over the land. See also Azi Vs Reg. Trustees Of Evan. Church (1990) 5 NWLR (Pt. 195) P. 111 @ 121”.

— I.S. Bdliya, JCA. Umar Ibrahim v Nasiru Danladi Mu’azu & 2 Ors. (2022) – CA/G/317/2019

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NO ROOT OF TITLE MAKES C of O MERE PAPER

Daniel Igwu Uche v. Jonah Eke and 2 Ors., the Supreme Court per Belgore JSC (as he then was and now CJN) had this to say at pages 6 to 7: “Any grant of land whether private or by statutory right of occupancy evidenced by a certificate of occupancy will be mere piece of paper not worth anything if the root of title to make the conveyance is not vested in the vendor. If this is not so, all a person has to do is to go to the land office of the government and obtain a right of occupancy in respect of land of a family who may not know that their land has been given to a complete stranger.”

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ILLEGAL REVOCATION OF A STATUTORY RIGHT OF OCCUPANCY

See Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 645 where Kalgo, JSC put the position of the law thus – “It is not in dispute that in the instant appeal, the respondent was not notified by the Governor of the intended revocation of his earlier grant exhibit 1 before granting exhibit A8 (AI3) to the appellant. This is in clear contravention of section 28(6) of the Act, it was also not shown by evidence that the respondent’s land was required for public purposes or interest. The respondent was not heard before the grant of his land was made to the appellant and no compensation was offered or given to the respondent as required by the Act. It is my respective view therefore, that under these circumstances the grant of the statutory right of occupancy over the same piece or parcel of land to which the respondent had earlier been granted certificate of occupancy, was invalid, null and void.”

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CUSTOMARY RIGHT OF OCCUPANCY PREDATES THE LAND USE ACT AND LINKED WITH THE CUSTOM

A person with a customary right of occupancy is entitled to use the land in accordance with customary law. A customary right of occupancy pre-dates the Land Use Act and is intimately linked with the custom of the people of the area. It is a creation of customary law and the fact that it can now be granted by the local government has not taken it out of the realm of customary law. The total quantum of interest contained in the right of occupancy has to be determined by the customary law of the area. Its creation does not extinguish the rights of other persons in the land.

– Obaseki, JSC. Abioye v. Yakubu (1991) – SC.169/1987

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CERTIFICATE OF OCCUPANCY IS PRIMA FACIE EVIDENCE OF R of O

Wakama v. Kalio (supra), Musdapher JCA (as he then was) had this to say on pages 130/131: “The mere fact that a certificate of occupancy is issued by the Governor does not automatically vest the leasehold thereby created in favour of the person named. A certificate is only a prima facie evidence of the right of occupancy in favour of the person named as allottee. Thus any person without title to a parcel of land in respect of which a certificate of occupancy is issued acquired no right or interest.”

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AFTER LAND USE ACT, SHALL CONTINUE TO HOLD AS IF HE HAS CUSTOMARY RIGHT OF OCCUPANCY

Where developed land is not in urban area, the law is that the person in whom such land was vested before the Act came into commencement shall continue to have it vested in him as if he was a holder of a customary right of occupancy granted by a local government. It could therefore be seen that the Land use Act is not a magic wand it is being portrayed to be or a destructive monster that at once swallowed all rights on land and that the Governor or local government with mere issuance of a piece of paper, could divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bulldozers and cranes. The law as it is that in areas not declared urban by a state government everybody remains where he has always been as if the new Act has vested in him a customary right of occupancy.

— Belgore, JSC. Ogunleye v Oni (1990) – S.C. 193/1987

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CERTIFICATE OF OCCUPANCY IS PRIMA FACIE EVIDENCE OF RIGHT OF OCCUPANCY

Exhibit D5 i.e the certificate issued by the Governor is simply a prima facie evidence of right of occupancy in his favour. However, such evidence is rebuttable. Title to land can only be vested by a holder of it if the latter has genuine or proper title to the property.

– Sanusi JCA. Enejo v. Nasir (2006)

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