My take on status of right of occupancy under Land Use Act
By: Hameed Ajibola Jimoh Esq.
ENTITLEMENT TO COMPENSATION FOR COMPULSORY ACQUISITION OF LANDS UNDER SECTION 29(1) OF THE LAND USE ACT: MY THOUGHTS AND CONCERNS ON THE STATUS OF A HOLDER OF RIGHT OF OCCUPANCY
Every holder of right of occupancy over land is entitled to compensation as of right in the event of revocation by the Governor of the appropriate State as conferred on him by section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and such provisions in section 29 of the Land Use Act, 1978 (2004 as amended)-herein after referred to as LUA. Nevertheless, there are some challenges or circumstances that might deny a holder or occupier of such right to compensation if necessary care is not taken. This paper is aimed at sensitizing every holder of land title either a statutory or customary right and or the certificate of occupancy thereof, on the necessary precaution that aids their acquisition and or enjoyment of such right to compensation whenever the Governor decides to compulsorily revoke the holder’s title on such land in accordance with the law.
First and foremost, it is important to state here that by virtue of section 51 of the LUA, only a person validly granted a right of occupancy over land either by the Governor of a State ( or Minister of the Federal Capital Territory, Abuja, as the case might be) or a Local Government (much more that no Area Council of the Federal Capital Territory, Abuja, has the power to grant any person any of the lands in the area as such power only resides in the Minister of the Federal Capital Territory, Abuja, to whom the power has been delegated, more so that all lands’ ownership in the Federal Capital Territory, Abuja, belong solely (to the exclusion of any other person), to the Government of the Federal Republic of Nigeria. see: Section: Section: 297 of the Constitution), can lay claim to compensation as a holder and or occupier of any land, except someone having a deemed grant under sections: 34 and 36 of the LUA (and an occupier under an irrevocable power of attorney for consideration).
This submission is necessary because such a person without any interest recognised by the LUA cannot be considered for the purpose of compensation. Also, it is important to also state here that in the event of revocation of such title by the Governor (or on behalf of the Local Government) in case of alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary to the provisions of the LUA or of any regulations made thereunder without the requisite consent or approval, such unauthorized act of the holder or occupier is likely to be deny him any such claim of compensation. See: section 28(2)(a) and (3)(d) of the LUA.
Also, the President of the Federation is empowered by section 28(4) of the LUA to use the Governor of the State to revoke the right of occupancy of any holder and or occupier in the event of requirement by the (Federal) Government for public purposes. Furthermore, such non-holder or non-occupier is in my humble submission, denied any compensation or consideration thereof by virtue of section 29(1) and (2) of the LUA, by implications of not considering them to be mentioned in its considerations for compensation.
It must also be noted by every holder and or occupier of right of occupancy in Nigeria that he does not own such land but he is a tenant or holder (or occupier so to say) so that he is only expected to be paid only for an amount equal to the rent, if any, paid by him during the year in which the right of occupancy was revoked. See: Section: 29(4)(a) of the LUA.
This, in my humble view, means that such person will still not get any compensation for such land where he is in default of rent over the said land and such person shall rather than being paid any compensation whatsoever (as he is entitled to nothing) be held liable to pay the arrears of rents over such land or the Government has the right to sue him to recover the debt owed for the years of his default calculating since when he was granted the right of occupancy or when the certificate thereof was issued to him to the period of the revocation. See: section 32 of the LUA which provides thus ‘32.
The revocation of a statutory right of occupancy shall not operate to extinguish any debt due to the Government under or in respect of such right of occupancy’, (in my humble view, except to such extent and or exemption or waver as provided in section 17 of the LUA which provides thus ‘17. (1) The Governor may grant a statutory right of occupancy free of rent or at a reduced rent in any case in which he is satisfied that it would be in the public interest to do so.’).
Also, a person to whom an Irrevocable Power of Attorney was issued (for consideration) in respect of such right of occupancy becomes an occupier thereby and is also liable to the Government for any default of his donor (just as his donor would be liable). More so, non-payment or refusal to pay rent upon the said land constitutes a breach of the provisions which a certificate of occupancy is by section 10 of the LUA deemed to contain. See: Section 10(b) of the LUA which provides thus ‘10.
Every certificate of occupancy shall be deemed to contain provisions to the following effect:- (b) that the holder binds himself to pay to the Governor the rent fixed by the Governor and any rent which may be agreed or fixed on revision in accordance with the provisions of section 16 of this Act.’
Also to be noted that the fact that a Certificate of Occupancy is yet to be issued to any holder or occupier of a right of occupancy shall not prevent the Governor or the Local Government (through the Governor) from revoking same. More so, what is revoked is the Right of Occupancy over the land which causes the Certificate of Occupancy to become a mere paper with no efficacy of title. See: Section 28(1) of the LUA.
Pitiably, in my humble view, a look at the manner with which several holders and occupiers of right of occupancy build their buildings and or structures might likely prevent them from compensation for such buildings and or structures erected on the land by the government.
This is so because, having said that the holder or the occupier of the said right of occupancy who is indebted to the government either of the State or the Local Government gets no compensation and could even be sued to pay the outstanding arrears of rents on the land (except exempted in the circumstances stated above), in the event of revocation for public purposes, his next consideration for entitlement is the compensation over his buildings, installation or improvements thereon, for the amount of replacement. The pitiable huddles or difficulties that this holder or occupier is likely to face, in my humble view, is proving the value or costs of such buildings, installation or improvements.
These challenges are compounded by the conducts of some of these holders or occupiers who engage the services of auxiliaries or unprofessional builders or engineers to build their buildings and or installations and or improvements (apart from the likely weakness or dangers of such structures).
It is part of the Evidence Act, 2011, by section 131(1), that he who asserts some facts shall prove that those facts exist. Meaning that the burden of proof lies on him (i.e. the holder or occupier) to prove those costs being claimed by virtue of section 131(2) of the Evidence Act, 2011. This is more importantly because, section 29(4)(b) of the LUA requires such person to substantiate (i.e. prove) such cost by documentary evidence and proof to the satisfaction of the appropriate officer.
For the purpose of clarity, it provides thus ‘(4) Compensation under subsection (1) of this section shall be, as respects – (b) building, installation or improvements thereon, for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation, together with interest at the bank rate for delayed payment of compensation and in respect of any improvement in the nature of reclamation works, being such cost thereof as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer;’ though, the link here is the provision of section 29(1) of the LUA.
The question is how would such holder or occupier satisfy such officer?! Though, such holder or occupier by section 44(2) of the Constitution and section 30 of the LUA has the right to review of such compensation matter before the appropriate Land Use and Allocation Committee. This indeed, is a great concern to me! See: section: 2 of the LUA.
It is then advisable that every holder or occupier should always use the professionals in the buildings and or engineering works on the land and to always require proper documentary evidence of costs from such builder and or engineer as the expenses spent in such regards in the event of revocation of his right of occupancy over the said land by the Governor (or the Minister of the Federal Capital Territory, Abuja, as the case might be).
In conclusion, it is my humble advice for every holder or occupier to always ensure due compliance with the law in relation to his right of occupancy over the allocated or purchased land. He should also ensure that he does not breach any of the terms or covenant of his right or certificate of occupancy including the payment of rent as at when notified when fixed by the government (it is his duty to the government (as his landlord)).
Also, such holder or occupier is not a landlord in relation to his right of occupancy under the LUA even if he is so referred to or recognised under the tenancy laws, rather, he is a tenant.
Finally, he should ensure that he always engages the professionals in the building and or engineering works on the land and to always require proper documentary evidence of costs from those professionals so engaged as the expenses spent in such regards, so that he can stand the benefit of being duly compensated in the event of any revocation of his right of occupancy by the Governor.