ANALYSIS OF THE NATURE AND SCOPE OF RIGHT OF OCCUPANCY
The Land Use Act introduced a new and uniform system called a Right of Occupancy for the entire country which gives a holder a right to possession of a land. A Right of Occupancy however was not defined under the Act, but some authors and judicial decisions have linked it to a lease. Omotola4 opined that a Right of Occupancy was a hybrid form of right, something between a personal and proprietary right. He however viewed that there was nothing wrong in the right being a new form of right as the categories of rights over land and need not be closed.
A right of Occupancy was defined by Justice I. A. Umezululike as the right to use and occupy land in accordance with the terms and tenure set forth by the state within the provisions of the Act. The researcher sees a Right of Occupancy as a right to possess or use a land subject to the stipulations of the Land Use Act.
More so, the Land Use Act conferred government with powers and control over land acquisition in Nigeria. Thus, Section 1 of the Act provides that:
Subject to the provisions of this Act, all land comprised in the territory of each state in the federation are hereby vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
From the foregoing provisions of the Act it can be established that right of occupancy is subject to the control and management of the government be it local or state government. This chapter analyzes the nature and scope of Right of Occupancy. It also discusses the problems the courts normally face when two grants are issued to two different grantees on same land. It again clearly states out the position of the law in that respect and offer some recommendations that the writer thinks will serve as solution to the problems.
2.2 Types of Right of Occupancy
Right of occupancy introduced by the Act are:
(a) Statutory Right of Occupancy and
(b) Customary Right of Occupancy.
However, the above two types are classified into four, namely:
(i) Statutory Right of Occupancy expressly granted by the Governor
(ii) Statutory Right of Occupancy deemed granted by the Governor.
(iii) Customary Right of Occupancy expressly granted by Local Government.
(iv) Customary Right of Occupancy deemed granted by the Local Government.
2.3 Statutory Right of Occupancy Expressly Granted
Section 51 of the Act defines Statutory Right of Occupancy as a right of occupancy granted by the Governor under the Act. Again Section 5(1) (a) provides that “it shall be lawful for the state Governor in respect of land, whether or not in an urban area to grant statutory rights of occupancy to any person for all purposes”. However, this right is not absolute in that it is subject to some stipulations and conditions. Thus, Section 8 of the Act provides that:
Statutory Right of Occupancy granted under the provisions of Section 5(1) (a) of this Act shall be for a definite term and may be granted subject to terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of the Act.
The implication of the above section is that right occupancy has a life spam (99 years) and that once a holder does anything which is inconsistent with the provisions of the Land Use Act, his right may be revoked
However, by the provisions of Section 5, it can be deduced that the power of the Governor to grant Statutory Rights of Occupancy is not limited to land in an urban area; he may also grant land in non-urban area. It is submitted that the determining factor in this case is not the location of the land (urban and non-urban), but the status of the person who grants the right of occupancy i.e. either the Governor or the Local Government as the case may be.
2.4 Statutory Right of Occupancy Deemed Granted
Where land in an urban area was developed before the commencement of the Act, it remains vested in that person as if the Governor had granted to that person a statutory right of occupancy. Consequently Section 34(1) and (2) of the Act provides: (1) „‟the following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act „‟
(2)‟‟ 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.‟‟
 However, the Land Tenure Law of 1962 first introduced the right of occupancy system, though applicable only to northern Nigeria then.
 Elias, T. O. Nigerian Land Law and Custom Sweet& Maxwell London, (1971) p. 284, Onwuamaegbu,
M. O. Nigerian Sweet& Maxwell, London,(1966)p. 216
 Director of Lands v. Sohan (1952)1 TLR 631, Henvinchsorft v. Dodd (1960) EAR 631 4 Omotola, J. A. Press p.24
 Umezululike, I. A. The Land use Act, More Than Two Decades After, And Problems of Adaptive
Strategies of Implementation,Snapp Press Ltd Enugu (2004) 45
 See generally Section 1 of the Land use Act cap L5 L.F.N 2004.
 Sections 1(2), 5 and 6 ibid
 Section 5(a) (a) Ibid, see also Dabo v. Abdullahi (2005) 2 S.C (Pt. II) 75.
 Section 34, Ibid
 Section 6, Ibid
 Section 36, Ibid
 Section 8, Ibid
 See also Olong, A. M. D. Land Law in Nigeria 2nd Edition, Malt house Press Ltd, Lagos (2011) p. 215
 Taiwo, A. Nigerian Land Law, Ababa Press Ltd, Ibadan, Nigeria (2011) p. 209
 Ibid see also the cases of Olagunju v. Adesoye (2009) 9 NWLR (pt 1146) 225 (a) 265 (SC) Teniola v.
Oluhankan (1999) 5 NWLR (PT 602) 280
 Olong, A. M. Op.cit