GRANT OF RIGHT OF OCCUPANCY UNDER THE LAND USE ACT

Grant of right of occupancy
A land grant is a gift of land by government to individuals. In Nigeria, it is called right of occupancy and signifies a document transferring land from State to persons before the issuance of certificate of occupancy. A right of occupancy may be directly granted by the Governor under section 5 of the Act or the Local Government under section 6 of the Act.
Land is also granted by the Governor and Local Government under sections 34 and 36 of the Act, called deem granted. It is so referred to because it was an existing right at the commencement of the Act which is converted by operation of the law into a right of occupancy.
The Act was meant to systematize land allocation and enhance its availability for industries and national development. It was not to deprive people of their ownership interests in land but rather to streamline its management and control through one single tenure- right of occupancy, S. O. Adole v Boniface B. Gwar (2008) 11 NWLR (PT 1099) 562.
By the tenor of section 34 of the Act, existing ownership right in urban area is deemed converted into right of occupancy issued by the Governor. Where the land is more than half hector, the person will only be entitled to half hector and the excess land will vest in the Governor. If the land is in non-urban area, the owner is deemed granted customary right of occupancy as long as the land is developed or used for agricultural purpose.
The power of the Governor to grant a right of occupancy under section 5 of the Act is reemphasized by the Supreme Court in Dabo v Abdullahi (2005) 29 WRN 1. Moreover, the Governor’s power to grant a right of occupancy is to any person for all purposes both in urban and non-urban areas. Local Government, on the other hand, can only grant a customary right of occupancy in respect of land within its territory. Its grant is also restricted to agricultural and residential use or purposes ancillary thereto.
Note that statutory right of occupancy extinguishes all prior existing rights on the land over which it is granted, as held in Olagunju v Adeyeye (2009) 9 NWLR PT (1146) 225. The holder of such a right has exclusive right to the land against all persons other than the Governor, see section 14 of the Act. This right is alienable subject to Governor’s consent under section 22 of the Act and heritable under section 24 of the Act.
A certificate of occupancy is a prima facie evidence of possession and the onus of proof lies on the person who alleges the contrary, see Oguleye v Oni [1990] 2 NWLR (PT 135) 745.  However, a certificate of occupancy is not a conclusive proof ownership of land, see Mrs Mojisola Edebiri v Prince Omotayo Daniel & Another [2009] 8 NWLR (PT 1142) 15. Thus a vested right in land under section 34 cannot be defeated by the application of sections 1 and 5 of the Act.
In Oniyale v Macauley (2009) 7 NWLR (PT 1141) 597, the Supreme Court held that where evidence is led to show that another person other than the holder of a certificate of occupancy had a better right, the court is bound to discountenance such a certificate of occupancy as invalid. For instance, in Saidu Chiroma v Madeus Yean Suwa [1986] NWLR 751 the evidence revealed that the appellant had sold the land to the respondent before the issuance of the certificate.
Similarly, where a right of occupancy is issued without a deemed grant land having been properly revoked, such right of occupancy is worthless. Title to land is not acquired by mere possession of a certificate of occupancy, see Nigerian Engineering Work Ltd v Denap Ltd (2001) 18 NWLR (PT 746) 726.  
A right of occupancy is granted for a definite term, usually 99 years and subject to renewal upon expiration. The grant may be subject to certain terms placed by the Governor under sections 8 and 9 of the Act. These are, fees, unexhausted improvements and revisable rents.
Noncompliance with these terms may lead to cancellation and revocation of the right of occupancy granted. By section 27 of the Act a holder of a statutory right of occupancy may suo motu yield up or surrender the land and the Governor may accept it on such terms s/he deems proper. Note also that the Governor also reserves the right to inspect the land at a reasonable time during the day under section 11 of the Act.