This question becomes pertinent because of the controversy created by the Act during interpretation by jurists and legal writers. Thus, it is often asked, what is the nature, the quantum and the incidence of occupancy and use inherent in a right of occupancy?. How, for example, do they compare with the common law leasehold, mortgage of tenancy? Is the right of occupancy the same as, substantially similar to, or totally different from a lease?
Over the years starting even well before the Land Use Act, these questions have agitated judges and text writers. In Majiyagbe vs. Attorney General of Northern Nigeria 30, the court dealing with a statutory right of occupancy under the land tenure law 1962 of the Northern Nigeria, stated that is was “in substance a lease”. But the privy council in Preinchand Nathy Co. Ltd vs. Land officer 31, which considered the nature of a right of occupancy under the Tanganyika Land ordinance, concluded that it was sui generis – “an entirely new interest in land, similar to lease in some respects but different in other”.
 Professor Omotala agrees with this view and emphasizes that a right of occupancy is “a new form of right not coming within any form of right known to property law”32. Also in Lagos State Development and Property & ors v Foreign Finance Corporation 33, Ademola JCA stated “The right of occupancy is in nature a hybrid between a license and a lease for a fixed term and conditions which upon breach by the holder is subject to revocation by the Governor” while the Supreme Court held contrary view on the matter in savanna bank (Nig) Ltd v Ajilo 34 and Osho v Foreign Finance Corporation 35 which express right of occupancy as a form of mortgage.
It is submitted with due respect that right of occupancy is not a mortgage or lease as opined by the supreme court in savanna bank and osho cases (supra). This is why smith 36 placed his support correctly with the Preinchad’s case and Omotal’s view. He stated,, 37 “trying to find the equivalent of a land tenure system operating in Nigeria or Tanzania in English Law is an exercise in futility for every society designs for itself the system of landholding.
The truth perhaps is that in conceptualizing the right of occupancy in the Land Use Act and in earlier statutes of similar nature in Northern Nigeria and elsewhere in Africa, the legislature did not have in mind to create a juristically new and self sufficient interest in land with a life and spirit of its own. The whole contraption seems to be utility driven, with the focus of intension being to secure to citizens familiar right of user and occupation sufficient to enable them enjoy the greatest possible benefit from the land. This being the case, the right of occupancy contraption admits into its fold only principles and rules of leasehold law appropriate and sufficient for its purpose while at the same time embody other fancied principles and rules entirely inconsistent with those of leasehold.
Thus, for example, while a statutory right of occupancy interest admits such leasehold. Principles as certainly of term, 38­­, express term, implied term 40, alienability with consent 41; it only partially accommodates such a fundamental leasehold principles as exclusive possession even against the land lord, for S.14 of the Act only accords to the holder of an exclusive possession of the land against all persons except the Governor and although S.15 also accords the holder sole (i.e. exclusive) right and absolute possession, this is restricted to his improvements on the land and does not extend to the land itself. Again, while a lease is normally determined in accordance with the terms of the lease, a right of occupancy, whether statutory or customary, is determined mainly on the ground of overriding public interest 42.
Furthermore, some of the rules and principles, which govern the landlord and tenant relationship clearly conflict with some express provisions of the Act regulating the right of occupancy interest. One example is S.18 which provides that the acceptance of rent shall not operate as a waiver of any forfeiture accruing by reason of the breach of any covenant conditions in certificate of occupancy. This is in sharp contrast with the rule in leasehold law that acceptance of rent by the landlord, even “without prejudice” for a period subsequent to breach, constitutes a waiver of the right to forfeit the lease 43.
An example is the rule, which the court have consistently applied that the decision of the Governor or Local Government to give or without consent or approval to alienate a right of occupancy is discretionary and cannot be enforced by Mandamus  or specific performance 44 . This again, is in sharp contrast with the rule in leasehold law that the landlord will not be allowed to unreasonably without his consent to renew or sublet the tenancy. 45
All these differences point strongly that right of occupancy is not a lease, mortgage or tenancy.
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