What Happens After 99 Years? By Mayowa Ogunsan – TheNigerialawyer

INTRODUCTION

The Land Use Act seems to have begotten more questions than the
answers it was enacted to proffer. What therefore seemed to be the
beginning of the end to a controversy surrounding land matters in
Nigeria has only proven to be an end to the beginning it proposed
to introduce.

One controversial question the Act has introduced is; what
happens to the right of occupancy conferred on Nigerians after the
expiration of 99 years. This question is necessitated by the
literal import of the wordings of the clause embodied in the
certificate of occupancy. For the purpose of clarity, the clause
reads thus:

“This is to certify that ….. (hereinafter called the holder
which term shall include any person defined as such in section 50
of the Land Use Decree) is entitled to a right of occupancy in and
over the land described in the schedule and more particularly
delineated in the plan annexed hereto, for a term of 99 years
commencing from the – according to the true intent and meaning of
the Land Use Decree and subject to the provisions thereof and to
the following special terms and conditions”

As clear as this clause is, it in itself has raised so many
questions and reactions from scholars of law and lawyers. The
following questions have therefore been the subject of debate;

• Does the above clause contemplate renewal of a right of
  occupancy? If yes, to who? Is it the original grantee i.e. the
  former owner of the right of occupancy or the Assignee?
• If no, will the governor be entitled to the improvements on the
  land
• Assuming renewal is contemplated, will such be discretionary on
  the part of the governor, and what yardstick will be used in
  exercising the discretion

This and many more questions will be crux of this article as an
attempt will be made at taking a carousal look at the intent of the
drafters of the Act in the light to resolving this puzzling
questions of law.

WHAT HAPPENS AFTER 99 YEARS

It is a general presumption that for every beginning there must
be an ending. This general presumption will however work injustice,
hardship and inequality if followed stricto sensu without
giving room for exceptions. Will a right of occupancy issued to a
holder therefore come under the exceptions permissible by this
principle? If so, will it be right to state that the Land Use Act
contemplates an end to the grant of a certificate of occupancy at
the expiration of 99 years?

In order to deal with this issue, four (4) questions shall be
succinctly analysed in a bid to finding an answer to this
controversial issue. These are:

• Does the Land Use Act contemplate renewal of the certificate of
  occupancy?
• If yes, to who? Is it the original grantee i.e. the former
  owner of the certificate of occupancy or the Assignee?
• If no, will the governor be entitled to the improvements on the
  land
• Assuming renewal is contemplated, will such be discretionary on
  the part of the governor, and what yardstick will be used in
  exercising the discretion

DOES THE LAND USE ACT CONTEMPLATE RENEWAL?

To answer this question, the need to look at the clause embodied
in the Certificate of Occupancy becomes expedient. It states
thus:

“This is to certify that ….. (hereinafter called the holder
which term shall include any person defined as such in section 50
of the Land Use Decree) is entitled to a right of occupancy in and
over the land described in the schedule and more particularly
delineated in the plan annexed hereto, for a term of 99 years
commencing from the – according to the true intent and meaning of
the Land Use Decree and subject to the provisions thereof and to
the following special terms and conditions”

A cursory look at this clause shows clearly that the clause do
not contemplate renewal. A further look at other clauses in the
Land Use Act does not suggest any renewal right on holders of a
certificate of occupancy.

The question therefore is, could this be a yardstick in which
the government could use in depriving individuals of their land
irrespective of the improvement such holder of the right of
occupancy have made therein? The answer is definitely in the
negative. Recourse must therefore be made to section 1 of the Land
Use Act which vest land in the governor of the state for the
purpose of holding it in trust for its citizenry. If this is the
position of the law, one cannot but suggest that although the Land
Use Act didn’t provide expressly for renewal, a combined reading of
the provision of Section 1 and 34 of the Land Use Act shows that
the right over such land can be renewed since the governor is only
a trustee for the holder of the right of occupancy.

To further articulate this argument, it must be stated that the
whole embodiment of the concept of “trust”, is holding an interest
or acting in a manner as to benefit the beneficiaries. It will
therefore be against the whole embodying principle relating to
trust, if the governor of the state decides without justifiable
ground to revert the right of occupancy granted to a holder on the
premise that the Land Use Act does not provide for renewal.

WHO IS ENTITLED TO THE RENEWAL?

As much as the provision relating to alienation[1] seems clear,
fundamental questions relating to who should be entitled to the
right to renew where alienation has occurred have been subject to
argument overtime. The question been asked is; is it the original
holder of the right of occupancy or the subsequent holder of the
right (i.e. assignee) that should be entitled to renew the right of
occupancy?[2]

To answer this question, it is essential to attempt the
definition of an Assignment. An assignment is the transfer of the
unexpired residue of a term or estate for life or for a specific
term of years. It could also be defined as the transfer of the
right over a property by one existing party to another existing
party.

With the definition put thus, one cannot but agree with the fact
that in as much as the right of occupancy has been assigned by the
original holder to the assignee, he has transferred all the
unexpired residue and right he could excise over such land to the
assignee. This postulation is predicated on the implication of
governor’s consent under section 22 & 26 of the Land Use Act.
The implication is that once the governor has given his consent to
the alienation, the governor is deemed to have recognised the
existence of this right.

It is therefore submitted that if the governor have recognised
the existence of the right conferred on the assignee, the right
should be treated as if it was originally granted to the assignee.
The assignee should therefore enjoy the renewal right over such
land.

WHO WILL BE ENTITLED TO THE IMPROVEMENT?

The effect of the non-inclusion of the right to renew a
certificate of occupancy is that if the land reverts back to the
governor, the governor will be entitled to the improvements
therein. This is due to the effect of the maxim quic quid
plantatur solo solo cedit, meaning, “whatever is on the land
is part of the land”. Could this therefore be the intent of the
drafters of the Act? The answer is definitely in the negative.

To be able to argue this postulation well, recourse will be made
by way of “an aside” to section 34(2) of the Land Use Act which
provides thus:

Where the land is developed the land shall continue to be
held by the person in whom it was vested immediately
before the commencement of this Act as if the holder of the land
was the holder of a statutory right of occupancy issued by the
governor under this Act.

The import of this section therefore is that, the drafters of
the Act did not intend to subject owners of an improved land to the
discretion of the governor to either grant or refuse to grant a
right of occupancy over such land. The Act therefore provides that
if the land is improved they shall be deemed to have been granted a
right of occupancy.

Flowing from this argument, the Act recognized the fact that a
person should be made to enjoy the benefit of his labour. The
governor cannot therefore be heard to aver that with the lacunae in
the Land Use Act with respect to the provision for renewal, it can
revert the improvement on the land to its use.

IS RENEWAL DISCRESIONARY ON THE PART OF THE
GOVERNOR?

If the right of occupancy is renewable, the next question is, is
such renewal subject to the discretion of the governor?

Every certificate of occupancy has certain terms and conditions
occasioning its grant. Therefore, once the holder of the right of
occupancy fulfils the specified terms therein, the governor is
bound to renew the right subject to the same or a varied term and
condition. The rationale predicating this postulation is that since
he is acting as a trustee on behalf of the holder of the right of
occupancy, his act must benefit the holder. He should therefore
exercise his discretion to renew in such a way as to benefit the
holder of the right of occupancy.

CONCLUSION

Nothing strikes the imagination and affects the affections of
mankind, as the right of property.[3] Land is an unquantifiable
asset that has not only the economic value occasioning it, but also
the emotional and sentimental value. Therefore the omission in
respect to renewal under the Land Use Act should not be used as a
cloak for perpetuating fraud on the citizenry. Individuals who were
initially granted the right of occupancy and have developed and
improved their land should have such right renewed.

Mayowa Ogunsan is a consultant and an
Associate in the law firm of Wiseview Legal Consultancy, Lekki.
Tel: 08165219729 Email: [email protected]^[1]

[1] Section 22 & 26 of the Land Use Act

[2] Ayuli Jemide, Certificate of Occupancy: What
happens after 99 years? The Guardian newspaper, Tuesday, August 2,
2003

[3] W. Blackstone, 2 Commentaries on the Laws of
England (Chicago 1979).