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11 Jan

LAND LAW 1.7 THE CERTIFICATE OF OCCUPANCY

THE CERTIFICATE OF OCCUPANCY.

You should note that the certificate of occupancy is different from the Right of Occupancy. The Certificate merely evidences the right of occupancy. The Certificate of Occupancy does not confer title- Adetokunbo Ademola V Amao. It is only evidence which raises the presumption of title. It cannot cure a defective title-Ogunleye V Oni.

By virtue of Section 9(1), the governor can issue a certificate of occupancy in the following circumstances:

  • When granting a statutory right of occupancy to any person in pursuance to Section 5(1a).
  • Where a person in occupation of land under a customary right of occupancy applies to him.
  • When any person is entitled to a statutory right of occupancy (for example deemed grantee).

Therefore, the following points should be extracted:

  • The governor is the one that issues the certificate of occupancy (both customary and statutory). As no Local Government can validly issue a certificate of occupancy.
  • His jurisdiction cannot extend to Federal land or land situate in the FCT. For Federal Lands, the president steps into the shoes of the governor.
  • The Certificate of Occupancy does not confer title. It is only evidence which raises the presumption of title. It cannot cure a defective title-Adetokunbo Ademola V Amao, Ogunleye V Oni.
  • Where certificate is issued to a person already in occupation of land under customary right of occupancy, it shall operate as a grant of statutory right of occupancy.
  • A right of occupancy is “granted” while a certificate of occupancy is “issued”. Please do not confuse the terminologies.

VALIDITY OF CERTIFICATE OF OCCUPANCY.

Formal validity:

  • It must be issued by the governor or a properly delegated person-Section 45(1): The governor can delegate this to another person. From the interpretation of Section 18 of the Interpretation Act, we would discover that the law requires that the delegatee must be a minister in charge of land related matters[1]. Such delegatee must also express that the certificate is being issued on behalf of the governor. The rule Delegatus non potest delegare applies[2].

Essential validity:

  • The Certificate of occupancy cannot be granted to an infant under the age of 21-section 7. Except where acting through a guardian.
  • The certificate must not be procured by fraud.
  • Cannot be granted in respect of land improperly revoked-Ereku V Governor of Midwestern Nigeria the right of occupancy was revoked and granted to another for private business. The certificate of occupancy granted to the private party was held to be invalid since the revocation of the former right on the land was not valid.
  • An actual grant of statutory or customary right of occupancy cannot be made in respect of land already having statutory or customary right of occupancy existing in it. A certificate of occupancy evidencing such grant is thus invalid.

 

ISSUES ARISING

Should a Deemed Grantee Apply for the Certificate of Occupancy?

A (deemed grantee) holder of an existing interest in land need not apply for certificate of occupancy as he can rely on other instruments as evidence of title. However, Section 9(1)(c) appears to suggest that the governor can issue a certificate of occupancy to such holder of an existing interest (deemed grantee) whether he applies or not. Where the holder accepts the certificate of occupancy from the governor, his tenure (and that of his successors) becomes subject to the terms and conditions (expressed and implied) in the certificate-section 10. Where the deemed grantee refuses to collect the certificate, he should reimburse the governor for expenses incurred in producing the certificate. Where it is an “actual grantee” that rejects the certificate, he may be liable to forfeiture in addition to reimbursing the governor for expenses incurred in producing the certificate-See Section 9(2). (please understand the distinction between an actual and deemed grantee).

 

What conditions are implied in a Certificate of Occupancy?

The following conditions are implied into the certificate of occupancy-(See Section 10).

  • In the case of actual grantee; to pay the governor the amount for unexhausted improvement existing on the land.
  • In the case of both actual and deemed grantee, to pay any rent fixed by the governor. (A deemed grantee who does not want to pay rent should not apply for[3] a Certificate of Occupancy).

The Issue of Priority.

Priority becomes an issue where a certificate of occupancy is validly issued to more than one person(s) in respect of the same plot of land. The question is: who has a better title?

The courts in Dantosho V Mohammed and Ibrahim V Mohammed, Utilising the nemo dat principle noted that after the first issuance, the governor has nothing to give the subsequent encumberancer. The courts in this case maintained that the first in time prevails. In Dantosho’s case, the court held that the subsequent issue on 7th October was void in light of the prior issue of 11th August of the same year.

In essence, the first in time prevails. The first to be issued the certificate of occupancy has better title.

PROCEDURE FOR APPLICATION AND ISSUANCE OF CERTIFICATE OF OCCUPANCY.

  • A deemed grantee fills the application form and attaches prescribed copies of documents[4] and requisite fees.
  • The said land shall be inspected by the lands officer or his duly authorised representative.
  • A notice is then published in the newspaper for 21 days to entertain any objections to the issuance.
  • After this, the certificate is issued by the governor or his duly authorised representative to the applicant.
  • The issued certificate is then registered in the Certificate of occupancy Register.

A certificate of occupancy issued in error can be revoked and any person making a false claim can be punished (One year imprisonment or #5,000)-section 37.

[1] E.g. the governor should not delegate the responsibility to issue certificate of occupancy to the minister of “women affairs” or “sports and entertainment”. Such delegation should be to someone like the minister of “lands and housing”.

[2] Meaning that the delegatee minister cannot futher delegate the duty to another person- Union Bank Plc and another v Ayodare and sons Ltd.

[3] And should also reject where the governor purports to give him under Section 9.

[4] These documents include; purchase receipt, building and survey plan, 3years current tax clearance, passport photographs and copy of land survey information from the land ministry of lands.

Isochukwu

Quite eccentric really

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