Right of Occupancy

It is also the law that it is the holder of a statutory right of occupancy that has the duty to apply for the Governor's (or Ministers) consent in respect of the land he wishes to transfer, assign, mortgage, etc. See: Mbanefo V. Agbu (2014) 6 NWLR (Pt.1403) 238; Owoniboys Technical Services Ltd. V. Union Bank of Nig. Ltd. (supra).

Sections 22 (1) and 26 of the Land Use Act provide:
"22. (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.
26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void."
From the above provisions, no alienation of the interest of the holder of a statutory right of occupancy in respect of a piece or parcel of land will be valid unless the consent of the Governor (or in the case of the FCT, the Honourable Minister) has been sought and obtained. See: Ugochukwu Vs Cooperative and Commerce Bank Ltd. (1996) 6 NWLR (Pt.456) 524; Owoniboys Technical Services Ltd. vs Union Bank of Nig. Plc. (2003) 15 NWLR (Pt.844) 545.

Apart from standing by, the Appellant traced his root of title to Borno State Government while the Respondent bought the disputed piece of land from Mustapha Amatami who in turn inherited the parcel of land from his father. From the evidence available, Mustapha Amatami was in possession of the disputed land before the coming into force of the Land Use Act, 1978. Under the Land Use Act 1978, two types of rights of occupancy were created. These comprise of statutory right of occupancy and customary right of occupancy. Both statutory right of occupancy and customary right of occupancy are of two classifications. The first is the statutory right of occupancy granted by the State government pursuant to Section 5(1)(a) of the Land Use Act and the customary right of occupancy granted by the local government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by the State Governor pursuant to Section 36(2) of the Land Use Actand the customary right of occupancy deemed to have been granted by the Local Government under Section 36(2) of the Act. In both cases of statutory and customary rights of occupancy therefore, there exist an actual grant as well as deemed grant.
An actual grant is naturally a grant made by the Governor of a State or a Local Government whilst a deemed grant comes into existence automatically by the operation of law. See Savanah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (pt. 97) 305; Alhaji Adisa vs. Emmanuel Oyinwola & Ors (2000) 10 NWLR (pt. 674) 116.