On the inception of the Land Use
Act, court action can only be commenced in the High Courts in respect of land
for which a statutory right of occupancy has been granted by the Governor or in
– respect of questions as to who is entitled to compensation for improvements
on lands under the Act or for a declaration of title to a statutory right of
occupancy.
obvious effect of this provision is that it is only in respect of ownership of
statutory right of occupancy overland that declarations and other related
pronouncements can be made by superior court of record. Declaration can root be
made to the effect that fee simple estate, fee tail or indeed any other form of
allodia or radical ownership over land vests in any individual. This is a reiteration
that the highest interest enjoyable over land under Land Use Act is a right of
occupancy. It was on this legal platform that the court of Appeal, nullified a
declaration of title to land in dispute in the case of Usman V Garke 9.
The court held inter –
alia, that by virtue of S.1 of the Land Use Act, 1978 all lands comprised in
the territory of each state in the federation are vested in the Governor of
that state and by SS.5 & 6 of the Act, the only right that any individual
or community may be entitled to in respect of land is a right of occupancy,
statutory or customary. In the instant case, having regard to the change in the
Land Tenure System brought about by the Land Use Act, the trial court was in
error to have awarded the respondent a declaration of title to land in dispute,
instead of a right of occupancy.
S.40 of the Act provides for
pending proceedings before the Act and declares that where, on the commencement
of the Act, proceedings had been commenced or where pending in any court or
tribunal in respect of any question concerning to title to any land or interest
therein, such proceedings may be continued and be finally disposed off by the
relevant court, provided that any order or decision of the court shall only be
as regards the entitlement of either of the parties to a right of occupancy,
whether statutory or customary in respect of such land.
This is another reiteration of right
of occupancy as having replaced former interest in land. The implication seems
to be that those who had predicated their pending cases on claim of allodial
ownership had to effect necessary amendments to their pleadings so as to now
ask for right of occupancy and nothing more than just that.