This is the second primary form
of land title, which exists under the land use Act. The Land Use Act does not
make any positive provision as to the ownership of right of occupancy. But, it
does not inferentially or in a negative way by wholly and exclusively vesting
the maximal title to land in the Governor under S.1 and then going on in SS.5
and 6, and in SS.34 and 36 respectively, to limit a “right of occupancy”, the
right which the Governor or local
government can grant in land to any person or
organization or which any person or organization – whether individual, family,
community, corporation or otherwise can own land; all that they can have is a
right of occupancy which, if granted by the Governor anywhere in the state in
called a statutory right of occupancy, and if granted by the local government
or raised by reason of customary user or occupation under S.36 is called a
customary right of occupancy.
NATURE
OF RIGHT OCCUPANCY
After a critical examination of
the Land Use Act, it appears that the only interest created under the Act in
favour of a man who has interest in land is the right of occupancy.
However, SS.5 and 6 of the Act
empowered the Governor and the Local Government to grant statutory and
customary rights of occupancy respectively. Also S.8 provides that the
statutory right of occupancy granted under S.5 (1) (a) shall be for a definite
time and may be granted subject to the terms of any conduct which may be made
by the Governor and the holder not being inconsistent with the provisions of
the Act, but there is no such requirement for a customary right of occupancy.
S.10 provides for certain condition and provisions in the certificate of
occupancy upon grant of statutory right of occupancy as evidence of such grant
to the holder of the right of occupancy.
Again, SS.34 and 36 of the Act
provide for deemed right of occupancy by recognizing the existence of right of
ownership before the land use act, 2978. It follows that a customary right of
occupancy, whether granted or already being used or occupied, must be used or
must have been used in accordance with customary law, either by the individual,
group or family. Thus, S.24 of the Act deals specifically with devolution of
right of occupancy upon one’s death. Also, S.29 (1) deals with compensation
payable on revocation of right of occupancy by the governor in certain cases.
And S.35 (1) deals on compensation for improvement in certain cases and recognizes
various units of ownership before the Act. Hence, it implies that a customary right
of occupancy as defined “in the real sense” predates the Act, as it is not the
subject of a grant, because of the use of the phrase “and includes a customary
right of occupancy granted.”
Based on the above discussion,
the following forms of right of occupancy are discernable under the present
legal regime viz:-
I. Formal statutory right of occupancy granted under S.5
II. Formal customary right of occupancy granted under S.6
III. Deemed statutory right of occupancy granted under S.34
IV. Deemed customary right of occupancy granted under S.36