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STATUS OF A RIGHT OF OCCUPANCY ACQUIRED OVER A PARCEL OF LAND WHEN THERE IS IN EXISTENCE ANOTHER CERTIFICATE OF OCCUPANCY, WHICH HAS NOT BEEN REVOKED

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“Where two or more persons claim title to land by virtue a certificate of occupancy, the first in time takes precedence over and above the former. Furthermore, the law is trite, any title or right of occupancy acquired over a parcel of land when there is in existence another certificate of occupancy, which has not been revoked in accordance with the law, the latter title cannot be valid in law. See Adole v. Gwar (2008) 11 NWLR (Pt. 1099) P. 562; Salami v. Oke (1987) 4 NWLR (Pt. 63 P. 1; Ajilo v. SBN Ltd (1989) 1 NWLR (Pt. 97) P. 555 and Ogunleye v. Oni (1995) 2 NWLR (Pt. 135) P. 745.” — I.S. Bdliya, JCA. Umar Ibrahim v Nasiru Danladi Mu’azu & 2 Ors. (2022) – CA/G/317/2019

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CERTIFICATE OF OCCUPANCY GRANTED TO ONE WHO HAS NO BETTER TITLE CONTRADICTS THE LAND USE ACT

As the position was explained by this court in Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745 at 752,774 – 786: “This is the weakness of a certificate of occupancy issued in such a case. It is never associated with title. Thus, where as in this case, a certificate of occupancy has been granted to one of the claimants who has not proved a better title then it has been granted against the letters and spirit of the Land Use Act.”

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CERTIFICATE OF OCCUPANCY IS IN SUBSTANCE A TERM OF YEARS MAKING IT A LEASE

What is the legal basis of a certificate of occupancy? A holder of a certificate of occupancy holds the title to the property and subject only to the conditions stipulated in the Land Use Act. A certificate of occupancy creates a term of years absolute or a lease for a number of years stated therein. See Chiroma vs. Suwa (1986) 1 NWLR (pt. 19) 751. The greatest legal estate that can now subsist under the Land Use Act is a term of years. The grant of a term of years under a certificate of occupancy is in substance a lease. See Dr Otti vs. Attorney-General of Plateau State (1985) HCNLR 787.

— N. Tobi, JSC. Ezennah v Atta (2004) – SC.226/2000

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CERTIFICATE OF OCCUPANCY ONLY GIVES RIGHT TO USE & OCCUPY

On the other hand, a certificate of occupancy only gives the right to use and occupy land. It neither confers nor is it necessarily an evidence of title. — Nnaemeka-Agu, JSC. Ogunleye v Oni (1990) – S.C. 193/1987

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R OF O HOLDS LARGER INTEREST THAN HOLDER OF LEASE

The Interest of a lessee in land is not exactly the same as that of a holder of a right of occupancy. A holder of a right of occupancy enjoys a larger interest than a holder of a lease (i.e. lease) although the two interests enjoy a common denominator which is a term of years.

— Obaseki, JSC. Foreign Finance Corp. v Lagos State Devt. & Pty. Corp. & Ors. (1991) – SC. 9/1988

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CIRCUMSTANCE WHERE A CERTIFICATE OF OCCUPANCY IS LIABLE TO BE DECLARED INVALID

“A certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. A person in whose name a certificate of occupancy has been issued can only validly hold on to it if he can show that he legitimately acquired the land. He should be able to show that the certificate was issued in his favour after he had properly acquired the land. Thus, where it is proved that another right of occupancy resides in another person, and such right has not been extinguished, the certificate of occupancy is liable to be declared invalid. See also the following cases: Ilona Vs Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso Vs Adeyemi; Azi Vs Reg. Trustees Of The Evan. Church Of West Africa (1991) NWLR (Pt. 155) P. 113; and Reg. Trustees, Apostolic Church Vs Olowoleni (1995) 6 NWLR (Pt. 158) P. 514.”

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

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REQUIREMENT FOR THE VALIDITY OF A CERTIFICATE OF OCCUPANCY

“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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