APPLICATION FOR PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA

“A good man leaves an inheritance to his children's children: and the wealth of the sinner is laid up for the just.”

The Book of  Proverbs 13:22

1. Administration of the Estate of a Deceased Person

The law which regulates the Estates of deceased persons is the Administration of Estates Laws of the states of the federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by High Court (Civil Procedure) Rules of each state of the federation. The Administration of Estates Law of Lagos State was a result of adoption of a similar Administration of Estates Law of former Western State of Nigeria.

The Administration of Estates Laws and the Probate Rules of Procedure are made with the intent to forestall the properties left behind by deceased persons from falling into the hands of unscrupulous persons and particularly those the deceased would not ordinarily wished to inherit his or her properties.

The Administration of Estates Laws do not apply to the distribution, inheritance or succession of the Estate of a deceased person whose affairs were regulated by customary law during his or her lifetime.

The Administration of Estate Laws in Nigeria provide for a legal system of administration of the estate of deceased persons which entails the verification of the claims of persons claiming to be entitled to the estate of deceased persons and subsequently grant the authority or power to administer the estate to the persons who have pass through the verification process at the Probate Registry.

2. Types of Grant of Authority to Administer the Estate of Deceased Persons

There are three (3) categories of grant of authority to administer the estate of deceased persons, these are:

a) Grant of Probate – This is where the deceased dies testate, leaving a valid Will with the executors appointed in the Will to carry out the wishes of the testator.

b) Grant of Letter of Administration with Will – This is where the deceased person dies testate but without appointing executors; or the appointed executors are late; or the executors are infant; or the executors have renounced probate.

c) Grant of Letter of Administration without Will – This is where the deceased person died intestate (without a Will) and so could not appoint executors.

3. Scope of Grant of Authority to Administer the Estate of Deceased Persons

An application for a grant of Letters of Administration may be made either for a limited grant or a full grant and the limited grant may be in respect only of the real estate or of the personal estate of the deceased person. A full or general grant is granted to cover real and personal estate and all assets in the estate and for all purposes without time limit. Whilst, a limited grant is one that is limited as to time; limited to part of the estate only; and limited as to a purpose. Ademola, Ejiwumi and Williams v. Probate Registrar (1971) 1 All NLR 155 at 162

A grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate. See Madam Christiana Ugu v. Andrew Ebinni Tabi (1997) LPELR-3324(SC)

4. Applications for Grant of Authority to Administer the Estate of Deceased Persons

All applications for the granting of any Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the State High Courts.

Before any person can legally exercise any authority on the real and personal estate of a deceased person in law, he or she must have been granted the Probate or Letter of Administration of the deceased estate.

5. What is Probate ?

Probate is the legal authority granted to an executor or executrix of a Will to administer the estate of the testator after the Will has been proved and certified by the Probate Court as the authentic Will of the testator. The judicial due process, which leads to the grant of probate, is called “proving the will”. A probate merely confirms the authority of an executor, it does not confer authority. The authority of the executor is derived from the Will.

6. What is Letter of Administration ?

Letter of Administration is the legal authority granted by the Probate Court to a person called the administrator or administratrix to administer the estate or property of a person who died intestate. A person is said to have died intestate when he dies without leaving behind a valid will. The administrator derives his or her authority to act from the terms of the letters of administration, and where the letters of administration is not granted, an administrator lacks the authority to act. It is instructive to note that while a probate merely confirms the authority of an executor, a letter of administration confers authority on an administrator. Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.

7. Executors and Administrators

Customarily, the person granted the Probate is called an executor or executrix if female, while the person granted the Letter of Administration is called an administrator or administratrix if female.

Executors and administrators are also referred to as personal representatives, whether acting with regard to personal or real property of the deceased. Per Ogwuegbu, J.S.C. in Madam Christiana Ugu v. Andrew Ebinni Tabi (supra) at page 23, Paras.E-F.

8. Assent

An assent (also described as vesting assent) is the instrument by which a personal representative of a deceased person conveys land to the beneficiary entitled to it. The beneficiary may be a devisee under a will or the next-of kin of a deceased intestate, that is a person who died without making a will.

9. Time for Grant

In Lagos State, no grant of administration with the Will annexed shall issue within fourteen (14) days of the death of the deceased, and no grant of administration, without the Will annexed, shall issue within twenty one (21) days of such death.

10. Liability of Executor Neglecting to Apply for Probate

If any named Executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for Probate within three (3) months after the death, or after the termination of any suit for or dispute in respect of Probate or administration, he may, independent of any other liability be deemed to be in contempt of Court, and shall be liable to such fine of not less than Fifty Thousand Naira, (N50,000.00) as the Judge deems fit to impose.

11. Procedures for the Grant of Probate of a Will

There are two procedures for the grant of probate of a Will, namely:

a. Common form; or

b. Solemn form

See Chief Eyo Edem Nsefik (Since Dead) & Ors v. Rosemary Muna & Ors. (2013) LPELR-21862(SC)

a. Common Form

Common form is the procedure employed where it is not anticipated that, there would be any challenge to the grant. It involves establishing that it was in fact the testator (the maker of the Will) who died; that the Will was properly signed and attested and that the executors have been appointed.

Once those requirements have been fulfilled and there is no caveat entered against the grant, the propounders of the will would have made out a prima facie case of entitlement to the grant.

The procedure for applying for grant of Probate in common form is commenced by an application to the Probate Registrar for probate by an interested person either personally or through his legal practitioner and the filling and completing the relevant forms and accompanied with required documents.

The basic documents required to process probate in Lagos State for instance are as follows –

i. An application letter to the Probate Registrar, which shall indicate –

· Identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children;

· The date and place of the death of the testator;

· That the testator was resident within the jurisdiction of the court shortly before his death;

· That the testator was found to have made a Will; and

· Name of executors, if any, in the Will.

ii. A death certificate of the testator issued by the National Population Commission.

iii. A declaration on Oath by executors to the effect that they will faithfully administer the estate of the testator and render accounts according to the Will of the testator.

iv. An Oath or justification by sureties on behalf of the applicant in a specific penal sum to guarantee his administration of the estate.

v. A duly completed bond by the applicants to pay the debts and liabilities of the testator’s estate, to distribute the estate and also make inventory.

vi. A Bank certificate issued by the Probate Registrar to a personal representative or applicant to inquire into the details of the testator’s bank account, if any.

vii. A duly completed inventory specifically listing the properties of the testator.

viii. A sworn affidavit of attesting witnesses of the Will stating that they are witnesses to the executed Will, and if the testator was blind or an illiterate, that they were present during the interpretation of the contents of the Will to the testator.

ix. Passport photographs of the applicants and witnesses to the Will.

Upon compliance with the conditions precedent for the grant of probate, the Probate Registrar shall grant probate to the applicant.

b. Solemn Form.

On the other hand, where the Will is being contested, it would involve a trial at the High Court; thus, the executors must apply in solemn form, which means a statement of claim is filed under the standard procedure for civil proceedings in the High Court.

The party who is contesting the Will would be named as a defendant. He would then have the opportunity of filing a statement of defence and/or a counter claim if he so desires. Pending the decision of the action in court, the court has the discretion to grant a temporary administration pendete lite to preserve the estate.

i. Will Being Propounded by the Executors

In the action following a dispute when a Will is being propounded, it is the duty of and the burden lies on the propounders of the Will to start the calling of witnesses to prove that all required legal conditions of making a valid testamentary document were met including the mental and physical capacities of the deceased.

In a situation where the executors are applying for the grant of probate in solemn form it is not in doubt that they are propounding the will and must begin by leading evidence to show, prima facie, that the testator had the necessary testamentary capacity to make the will and that there was due execution. Thereafter the onus would shift to the challenger to disprove the assertion. Chief Eyo Edem Nsefik (Since Dead) & Ors v. Rosemary Muna & Ors. (supra) Per kekere-Ekun, J.S.C.

ii. Where the Validity of the Will is Being Challenged

A person challenging the validity of a Will is required to file a caveat at the Probate Registry. A caveat is a notice in writing or a form lodged in the probate registry that no grant is to be sealed in the estate of the deceased named therein without notice to the person who entered the caveat. No grant can be sealed if the registrar has knowledge of an effective caveat. See Dan-Jumbo v. Dan-Jumbo (1999) 7 KLR (Pt.88) 2341 at 2355, para. G, per Wali JSC.

After the entry of caveat a warning or notice to appear is issued against the caveator (a person who files a caveat) by the party whose application for grant has been stopped and the appearance to such warning by the caveator will disclose the names and addresses of the parties and their respective interests in the estate of the deceased, and with this information it is open to either of them if the interest conflict, to commence an action against the other for the purpose of establishing his own claim.See Dan-Jumbo v. Dan-Jumbo (supra) at 2356, para. A, per Wali JSC.

The caveator is entitled to the revocation of the grant of the probate in respect of which he was not put on notice by the applicant for probate. See Dan-Jumbo v. Dan-Jumbo (supra) at page 2347, paras. B-C

A party who intends to apply for probate can counter a caveat by filing a writ of summons for declaration or pronouncement on the validity of the Will. See Dan-Jumbo v. Dan-Jumbo (supra) at page 2347, paras. B-C

In the case of Dan-Jumbo v. Dan-Jumbo (supra) at page 2354, para. B, it was held by the Supreme Court per Wali JSC that, the Probate Registrar was not entitled to grant probate to the claimants who filed an action for the declaration that a will is valid and got judgment in their favour. Upon which the defendant filed an appeal notwithstanding the fact that the defendant did not filed a motion for stay of execution. There was no necessity to apply for a stay of execution as the lis was still pending and the will was still in litigation.

The procedure for filing a caveat is provided in Probate Rules, in the High Court Civil Procedure Rules of the states of the Federation. Under the Lagos State Probate Rules:

· The caveat is in Probate Form 3 or Form 4 of Lagos High Court Civil Procedure Rules.

· The Probate Registrar shall bring to the notice of an applicant for probate the existence of any caveat, and shall not seal any probate if he has knowledge of any effective caveat to the application for probate.

· The Caveat shall be effective for three (3) months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further Caveat or Caveats and except with the leave of the Judge, no further Caveat may be entered by or on behalf of any Caveator whose Caveat has ceased to have effect.

· The applicant for grant of probate may serve a warning to the person who entered the caveat to give particulars of any contrary interest which he; the caveator has in the estate of the testator.

· Where a caveator wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and the reason he desires that the applicant should not be granted probate.

· Where an appearance is not entered, the caveator who has not entered appearance to the warning may withdraw his caveat by giving notice of withdrawal to the Probate Registrar.

· Where the caveator fails to enter appearance to a warning or citation within the specified period of three (3) months the citor (the person warning) may file affidavit showing that the caveator has been cited and warned, but no summons or response has been received. Thereafter, the caveat shall cease to be effective and probate may be granted. Unless a further caveat is entered.

· The warning is in Form 5 and Form 6 is used by the caveator to disclose the nature of his contrary interest in the estate of the testator.

· Where a probate action is commenced (whether or not any caveat is entered), the action will operate to prevent the sealing of a grant until application for grant is made by the person shown to be entitled by the decision of the court in such action.

· A Caveat filed by a person who had knowledge of probate action and still files a caveat is invalid. Any Caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action.

· A caveator not having interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person, may within eight (8) days of service of the warning upon him inclusive of the day of such service, or at any time if no affidavit has been filed by the person warning that the caveator has been served with the warning and has not responded, issue and serve a notice to be served on the caveator.

iii. Challenging the Will Without Filing Caveat

When there was no caveat entered after receiving notice from the Probate Registrar, in the action by an aggrieved party subsequently challenging the grant of probate, the Will is no longer being propounded. It has passed the stage of proving. The attackers of the validity of the Will who are seeking an order revoking the probate have the burden at this stage to prove, inter-alia, that the testamentary document was not validly executed and therefore probate was granted in error. They are to start the hearing before the trial court but not the executors whom the law presume to be entitled to administer the estate referred to in the Will on probate.

iv. Notice to Executor to Prove or Renounce Will

The Probate Court may on the application of any person claiming an interest under a Will, give notice to the Executors therein named, to come in and prove the Will, or to renounce Probate, and they, or some or one of them, shall within twenty one (21) days after notice, come in and prove or renounce accordingly.

v. Liability of Executor Neglecting to Apply for Probate

If any named Executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for Probate within three (3) months after the death, or after the termination of any suit for or dispute in respect of Probate or administration, he may, independent of any other liability be deemed to be in contempt of Court, and shall be liable to such fine of not less than Fifty Thousand Naira, (N50,000.00) as the Judge deems fit to impose.

vi. Application for Subsequent Probate

There are special circumstances that may warrant the application for a subsequent probate, such as:

1. Where one of the executors was underage at the period the original grant was made to the other adult executors has attained maturity. He can apply for a subsequent grant.

2. In the case of death of one of the four (4) executors, where the maximum number of four executors has been made or for any reason, one of the executors is unavailable, or does not wish to take grant immediately, he may apply for subsequent grant or double probate subsequently.

vii. Persons Entitled to Grant of Probate

The person or persons entitled to a grant of Probate or Administration with the Will annexed shall be determined in accordance with the following order of priority:-

a. The Executor;

b. Any residuary legatee or devisee holding in trust for any other person;

c. Any residuary legatee or devisee for life;

d. The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person.

e. Any specific legatee or devisee or any creditor or, the personal representative of any such person or where the estate is not wholly disposed of by Will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion to it;

f. Any specific legatee or devisee entitled on the happening of any contingency, or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.

12. LETTERS OF ADMINISTRATION (WILL ATTACHED)

Where a testator fails to nominate a person to be his executor of his will or where an executor is expressly named in a will but the named executor is not available or competent to apply for probate then letters of administration (Will attached) will be applied for.

Where a testator fails to nominate a person to be his executor, any person who, upon the terms of the will, has been appointed to perform the essential duties of an executor according to the tenor of the will is entitled to a grant of probate. In the case of Mudasiru v. Abdullahi (2011) 7 NWLR (Pt. 1247) 591 at 619-620, F-A, D-G, it was held that though the 1st -5th Respondents were not expressly appointed as executors in the will, however , by reason of their job description in the will, they were executors according to the tenor of the will.

There are circumstances where an executor is expressly named in a will but is not available or competent to apply for probate, these circumstances include where:

a. The sole executor is an infant, a person of unsound mind or is incompetent due to other disabilities.

b. The sole executor renounces the Will or he refused  or neglect in responding to a citation to accept or refuse to take grant.

c. The executor or all the executors are abroad and they jointly appoint an attorney to take out the grant.

d. The testator appointed a sole executor who predeceased the testator or died before proving the Will.

13. LETTER OF ADMINISTRATION (WITHOUT WILL)

Where a person dies intestate, his relatives or beneficiaries are required to apply for the Letter of Administration (without Will) in order to be conferred with the authority administer or deal with the estate of the deceased property or initiate or defend legal proceedings pertaining to the estate.

Such property can be administered under customary or English law depending on the circumstances of the estate. See Olowu v Olowu (1985) 3 NWLR (Pt. 13) 372 (SC); Olowu v Olowu (1994) 4 NWLR (Pt. 336)90; Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.

a. Applications for Letters of Administration, without a Will Attached

The Applicant is required to provide under Oath, Affidavits, Bonds or Guarantees with Sureties before such applications can be considered. The value of the administrative Bond(s) can be twice the value of the Estate. The latter attracts additional costs and expense especially as the higher the value of the Estate, the higher the expense and the Estate Fee.

Every application for the grant of Letters of Administration, without a Will annexed, must file:

i. A true declaration of all the personal property of the deceased person with a true value of these properties also stated.

ii. Upon making the application, the Applicant is issued a Bank Certificate, together with other statutory forms, where the bank account balance and the value of shares of the deceased person is stated by the Banks and the Registrars of companies where the deceased person operated or owned shares.

b. How to Challenge the Grant of Letter of Administration

The procedure for challenging the grant of letter of administration is similar with that of challenging the grant of probate discussed above. In the case of Otun v. Otun (2004) 12 MJSC 53 at 75,paras C-D, per Tobi,JSC it was held that, it is the law that upon a notice that Letters of Administration will be issued to a person, a party is free to raise objection by way of caveat.

Although, it is the law that upon a notice that letters of administration will be issued to a person, a party is free to raise objection by way of caveat, the failure to enter a caveat cannot be Justification for obtaining letters of administration by fraud.

14. Application Fees

There are various fees to be paid before a Probate or Letters of Administration application can be evaluated and approved. Once a Probate or Letters of Administration is approved by the Probate Registry, an Estate fee of between five to ten percent of the value of the Estate depending on the State, must be paid to the State Government where the Probate application is made and approved.

15. Conclusion

Applying for Probates or Letters of Administration in Nigeria can be very frustrating to the uninitiated, particularly persons who are not legal practitioners sound in the law and practice of Administration of Estates of the relevant jurisdiction. Save yourself this evitable frustration contact a legal practitioner in your jurisdiction or contact Akintunde Esan for further illuminations on the application for your Probate or Letters of Administration in Nigeria.

Akintunde Esan, Managing Partner, Ase Olodumare Chambers

GOOD NEWS !

If you lack the necessary funds to pay for the 10 percent (10%) of the value of the money in the Bank Account of  the deceased required to be paid to the Probate Registry in order to obtain Letter of Administration.

That is not a problem.

Contact Ase Olodumare Chambers or Akintunde Esan for  further information.

ILLUMINATIONS ON CERTIFICATE OF OCCUPANCY AND THE RIGHT OF OCCUPANCY IN NIGERIA

A. Background:

Prior to March 29, 1978, title to land in Nigeria could be derived under the received English law and under the customary law. This dual land tenure system introduced many complexities and uncertainties in the Nigerian land tenure. Virtually, all public agencies mentioned the difficulties in land acquisition as the most crucial factor frustrating the implementation of a number of their projects.

The Federal Military Government in its desire to make the acquisition of land for public use easier for its Third National Development Plan of 1975-1980 and to replace the dual land tenure system with a national and simplify the Land Use system, promulgated theLand Use Decree No.6 of 1978 on the 29th March 1978 now referred to as the Land Use Act (LUA).

Though, there are many legislations dealing with land in Nigeria, the most crucial legislation is the Land Use Act. The Land Use Act nationalised all the land in each state in Nigeria by vesting all the land in a state in the Governor of a state and created a new interest in the land tenural system called right of occupancy which is the right of the land owners to the occupation and use of the land. Kayode Eso, JSC in Nkwocha v. Governor Anambra State & Ors (1984) 1 SCNLR 634 at 652 held that:

"The tenor of the Act as single piece of legislation is the nationalisation of all lands in the country by vesting of its ownership in the State leaving the individual with an interest in land which is a mere right of occupancy, and which is the only right protected in his favour by law, after the promulgation of the Act."

The LUA also introduced the certification of the right of occupancy with the radical introduction of the issuance of Certificate of Occupancy. by the relevant State Governors to holders of the right of occupancy. Therefore, the focus of this legal illumination is the provisions of the LUA and the principles of law expounded by the courts on the right of land occupancy and the legal status of Certificate of Occupancy in land transactions in Nigeria.

B. RIGHT OF OCCUPANCY

1. Holder of Right of Occupancy:

The Holder of Right of Occupancy is defined bySection 51 of the LUA as: 

"A person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub lessee or sub-under lessee"

Any person to whom a right of occupancy has been sold or transferred without a valid assignment, means without the consent of the Governor.

2. Classifications of Right of Occupancy

Right of occupancy by virtue of Sections 5(1)(a) and6(1)(a) of the Act is classified into statutory and customary rights of occupancy.

a. Statutory Rights of Occupancy

The Governor of a State has the exclusive power to grant the right of occupancy in respect any land in the territory of each state to any person for all purposes ,whether the land is located in an area designated as an urban area or not. This right of occupancy so granted by the Governor is defined as “statutory right of occupancy” under the LUA.See Sections 5 (1) (a) and 51 of the LUA.

i. Delegation of the Power to grant Statutory Right of Occupancy: The Governor may delegate to a State Commissioner power to grant Statutory Right of Occupancy to any person for all purposes, subject to such restrictions, conditions and qualifications, not being inconsistent with the provisions, or general intendment, of the Act as the Governor may specify. Where the power to grant certificates has been delegated to a State Commissioner such certificates shall be expressed to be granted on behalf of the Governor. See: Section 45 of the LUA: Land Use Act (Delegation of Powers) Notice L.S.LN 6 of 1992.

ii. Land Vested in the Federal Government: in In respect of land comprised in the Federal Capital Territory or any land held or vested in the Federal Government in any State, the powers to grant rights of occupancy is vested in the President or any minister so designated by him. The right of occupancy so granted is also defined as statutory right of occupancy See Section 51(2) of the Act.

b. Customary Right of Occupancy:

There are two types of customary right of occupancy, these are:

i. Right of occupancy expressly granted by a Local Government authority - Local Government authorities are vested with the power to grant right of occupancy in respect of land in their localities which are not designated as an urban area by the State Government. The right of occupancy so grant by a Local Government authority is defined as a customary right of occupancy. See Section 6 of the Act.

ii. Right of occupancy enjoyed by people who hold their title under customary law - It should be noted that, under the Land

Use Act, a customary right of occupancy includes the right of a person or community lawfully using or occupying land in accordance with customary law. See Section 50 (1); Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 161, per Karibi-Whyte,JSC.

3. Classifications of Statutory and Customary Rights of Occupancy.

Both statutory right of occupancy and customary right of occupancy are further classified into Statutory right of occupancy deemed to have been granted by the state Governor pursuant to Section 34(2) of the Act and 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 a deemed grant.

a. An Actual Grant is naturally a grant made by the Governor of a State or a Local Government

b. A Deemed Grant comes into existence automatically by the operation of law.

See: Alhaji Goni Kyari A v. Alhaji Ciroma Alkali & 2 Ors (2006) 6 NSCQLR 819 A. I. Iguh JSC at page 847. 

Thus, the plaintiff who failed to establish that he had any interest whatsoever, whether legal or equitable to the land in dispute cannot by any means be rightly said to have had the land in dispute vested in him immediately before the commencement of the Land Use Act on the 29th March, 1978. He cannot, therefore, rightly be deemed a holder of a statutory right of occupancy under Section 34 of the Land Use Act immediately before the commencement of the Act. See: Sunmonu Olohunde & Anor. v. Professor S. K. Adeyoju (2000) VOLUME 2 NSCQLR 1472 per A. I. Iguh JSC at page 1495.

In the case of Kyari v. Alkali & 2 Ors (supra) the Supreme Court in answering the question, whether the land in dispute having been deemed granted to the appellant could still be validly and lawfully granted a second time, held per Iguh JSC at pages 849 – 850 thus:

“It is my view that the one grant is in all respects as good as the other and that the appellant and members of his family from the 29th day of March, 1978 became the lawful beneficiaries and/or grantees of the aforesaid customary right of occupancy over the land in dispute with the Konduga Local Government as their grantors. It is my further view that the land in dispute having been deemed granted to the appellant by the operation of law by the Konduga Local Government as from the 29th March, 1978 could not thereafter be lawfully or validly granted a second time by the same Local Government during the subsistence of the first grant as the land would then not be free for allocation under the well known maxim, nemo dat quod non habet. The purported grant under exhibit A is therefore patently unjustifiable, unlawful and clearly invalid and of no effect.”

4. Size of Land an Holder of a Right of Occupancy is Entitled To

No single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Governor. The size of a statutory right of occupancy is however limited to not more than half of a hectare for undeveloped land and a forfeiture of the residue to the governor. Section 6 (2)

5. The Rights of a Holder of a Statutory Right of Occupancy

The rights of a holder of a statutory right of occupancy are codified in Sections 14 and 15 of the Land Use Act. The following are the rights of the holder of a statutory right of occupancy:

a. Exclusive Right to the Land: The holder shall have exclusive right to the land the subject of the right of occupancy against all persons other than the Governor. Section 14 of the Act. In the case of Major Sheu Ibrahim v. Dr. Junaid Salik Mohammed (2003) 13 NSCQLR 647, the eminent jurist E, O. Ayoola. JSC, at page 685 made the following illuminations on the exclusive right of a holder of a statutory right of occupancy:

• It is evident that the holder of a Statutory Right of Occupancy has: (a) a title which by virtue of sections 14 and 15 confers on him ""exclusive rights to the land" and sole right to and absolute possession of ' all the improvements thereon and. (b) a title which is only liable to be extinguished upon revocation of the right pursuant to the Act.

• The exclusive right of the holder of a Statutory Right of Occupancy to the land which is subject of a Statutory Right of Occupancy, no doubt includes the right to the use and occupation of the land and the right to deal with it, howsoever he would, subject to the provisions of the Act any condition of the grant and as always to the rights of others.

• Whereas the title of the holder of a right of occupancy can only be extinguished as provided for in section 28, subsection (2) of section 5 does not mention anything about the extinguishing of 'existing' rights to the use and occupation of the land.

• Notwithstanding that sometimes. 'title and right' can be used interchangeably, in the context in which phrase 'rights' to the use and occupation is used in the Act and in the overall context of the Scheme of the Act. It is expedient to acknowledge a distinction. The title of the holder of a Statutory Right of Occupancy embraces several rights of which right to the use and occupation of land is just one.

• The title holder or to be more exact the rights holder has apart from the right to the use and occupation of the land, the right to exclusive possession and disposition. The title holder has this proprietary interest which the mere user and occupier of the land does not have.

b. Ownership of all Improvements: The holder of a right of occupancy has sole right to and absolute possession of all the improvements on the land. Section 15 of the Act

c. Right to Alienate: The holder has a right to alienate the land or the improvements on the land or both provided he obtains the consent of the Governor.

d. Right to Personal Service of Notice of Revocation:The holder of a right of occupancy is entitled to be served personally with the notice of the revocation of his right of occupancy.

e. Right to Compensation: The holder of a right of occupancy is entitled to compensation if the right of occupancy is validly revoked. Section 29 of the Act.

f. Right to be Notified of payment of Penal Rent: The holder has a right to be informed of the rent payable from time to time. If the Governor fixes or revises a penal rent he shall cause a notice in writing to be sent to the holder informing him of the amount thereof and the rent so fixed or revised shall commence to be payable one calendar moth from the date of the receipt of such notice. Section 19(3)

See: Obasohan v. Omorodion (2001) 13 NWLR (Pt. 729) 206 at 226 , paras. B-D

6. Statutory Right of Occupancy is a Contractual:

Statutory right of occupancy granted under the provisions of Section 5 (1) (a) of the LUA shall be for a definite term and may be granted subject to the terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of this Act. See: Section 8 of the Act. The express conditions, terms or covenants may vary from state to state. However, the relevant clauses include the following :

a. Purpose Clause- The purpose for which the right of occupancy was granted. It may be for residential commercial, industrial or agricultural.

b. Alienation Clause - That the holder will not alienate without the consent of the Governor.

c. Payment of Rent Clause

d. Development Clause - It usually requires the grantee to develop the land the subject matter of right of occupancy within a specified period and sometimes the development should be to a specified value.

e. Right of Entry Clause - That the Governor or his agent shall have a right to enter and inspect the land.

f. Quantum of Interest Clause - This clause usually shows that the grant is for specified years.

g. Payment for Unexhausted Improvement Clause

7. Age of the Holder of Statutory Right of Occupancy

It shall not be lawful for the Governor to grant a statutory right of occupancy or consent to the assignment or subletting of a statutory right of occupancy to a person under the age of twenty-one years; Provided that -

(a) Where a guardian or trustee for a person under the age of 21 has been duly appointed for such purpose the Governor may grant or consent to the assignment or subletting of a statutory right of occupancy to such guardian or trustee on behalf of such person under age;

(b) A person under the age of twenty-one years upon whom a statutory right of occupancy devolves on the death of the holder shall have the same liabilities and obligations under and in respect of his right of occupancy as if he were of full age notwithstanding the fact that no guardian or trustee has been appointed for him.

8. Granting Statutory Right of Occupancy Pertaining to a Building on a Land:

Several provisions of the Act, some of which have been highlighted, and the general intendment of the Act make it clear that the Act relates to land. The building on the land merely makes it a ‘developed land’ in terms of Section 51(1). There cannot be a statutory right of occupancy in relation to rooms in a building. See: Obasohan v. Omorodion (2001) 13 NWLR (Pt. 729) 206 at Paras. H-A.

9. The Right of the Owner of a Developed Land at the Commencement of the Land Use Act

In the case of Olohunde v. Adeyoju (Supra) Uwaifo JSC at page 1505 held that, the land in dispute being developed land before the Land Use Act came into force, whoever had it vested in him then was deemed to have continued to hold the land after the commencement of the Act as if he was the holder of a statutory right of occupancy issued by the Governor under section 5 of the Act. It then follows that no other person can be granted a right of occupancy unless section 28 of the Act is complied with. Any right of occupancy otherwise purportedly granted is contrary to the provisions of the Act and will be of no validity. It will be set aside by the court. See Teniola v. Olohunkun (1999) 5 N.W.L.R (Pt.602) 280.

10. Duration of the Statutory Right of Occupancy

Statutory right of occupancy granted under the provisions of section 5 (1) (a) of the LUA shall be for a definite term and may be granted subject to the terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of this Act. Section 8 of the Act. Usually it is for a term of 99 years or less.

11. Alienation of Statutory Right of Occupancy

Sections 22 and 26 of the Land Use Act provide that:

“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:”

“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.”

Thus, Section, 22(1) quoted above is clear and unambiguous. The section clearly prohibits the holder of a statutory right of occupancy from alienating his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. Owoniboys Technical Services Limited v Union Bank of Nigeria (2003) 9 MJSC 38 AT 53-54, per Ejiwunmi, JSC.

Any alienation done without the Governor’s consent first had and obtained is by virtue of Section 26 null and void. Awojugbade Light Industries Limited v. Chinukwe (1995) 4 NWLR (Pt.390) 379; Savannah Bank of Nig. ltd. v. Ajilo (1987) 2 NWLR 421; Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Limited &3 Ors. (2007) 30 NSCQLR 1137

12. Obtaining the Consent of the Governor for Alienation of a Right of Occupancy.

Section 22(2) of the Act is clear as to what the holder of a statutory right of occupancy must do to obtain the consent of the Governor. He must submit an instrument executed in evidence of the alienation by way of assignment, mortgage or sublease. Section 22 (2) of the Act provides that:

“The Governor when giving his consent to an assignment mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) may be signified by endorsement thereon.”

13. Substantial Compliance with Provisions of Section 22 of the Land Use Act.

In the case of Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Limited &3 Ors. (2007) 30 NSCQLR 1137, an agreement (Exhibit 3), was prepared in anticipation of obtaining Governor’s consent. In his evidence the Plaintiff said: “the document was not dated because we had not yet obtained the approval of the Governor.” It was held by the Supreme Court that, the agreement though; inchoate was in substantial compliance with Section 22 of the Land Use Act. In the lead judgment,Katsina-Alu, JSC at pages 1163-1164 held as follows:

“The legal consequence of this is that the agreement was inchoate or at best a mere escrow till the consent of the Governor was obtained. What this means is this. That agreement did not and could not transfer title in land. See; Anambra State Housing Development Corporation v. Emekwue (1996) 1 SCNJ 98 at 132- 133 where this court held as follows: “Being a mere escrow, therefore the Deed of Lease passed no interest in the property to the Defendant. It follows therefore that whatever view one takes of Exhibit 3 they did not pass any interest in the property here concerned to the Defendant and he consequently acquired no legal title to the property.” The Court of Appeal in the course of its judgment held as follows: “Section 22 of the Land Use Act Cap. 202 of the Laws of Federation of Nigeria, 1990 does not render null and void or illegal a purported sublease, such an agreement would only be dormant, or inchoate and creates no legal relationship until the requisite consent is sought and obtained from the appropriate authority. That this was the intention of the appellant was quite manifest from his testimony before the learned trial Judge. Section 22 (2) of the Land Use Act envisages a situation whereby some form of agreement would be presented to the Governor to which he would consent or withhold his consent. It is not likely to be the intention of the maker of the enactment for the Governor to accede to a mere intention of the parties. I think some concrete terms should be agreed to by the parties for presentation to the Governor. In my respectful opinion what the appellant and fourth respondent did in Exhibit 3 was in substantial compliance with provisions of Section 22 of the Land Use Act.”

Underline supplied

14. Revocation of Right of Occupancy and Compensation

The Governor of a state is vested with the statutory power to revoke rights of occupancy by Section 28 of the Act and by virtue of subsection (2) and (3) of Sections 28, the power of the Governor to revoke rights of occupancy is not limited to statutory rights of occupancy, it includes customary rights of occupancy.

A person granted a right of occupancy under Sections 5 and 6 of the Act acquires a vested right. So also is a person deemed to have been granted a right of occupancy under the relevant provisions of Sections 34 and 36 of the Act. It is an accepted legal principle that vested rights are not lightly taken away. Under the Land Use Act it must be in accordance with Section 28 and in addition compensation is payable by virtue of Section 29.

Sections 5(1) (a) and (2) of the Land Use Act are certainly not to be applied to defeat vested rights recognised under the Act itself. They may, admittedly, defeat "existing rights to the use and occupation of the land" but not vested rights unless such vested rights are first revoked under Section 28 of the Act as appropriate. This may be:

(a) For overriding public interest

(b) By notice on behalf of the President for public purposes,

(c) For breach of the provisions imposed by Section 10 of the Act,

(d) For breach of any term envisaged by Section 8 of the Act,

(e) For refusal or neglect to comply with the requirement specified as per Section 9 (3) of the Act.

Olohunde v. Adeyoju (supra) at per Uwaifo, JSC at page 1504.

Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by Section 28 of the Act or not carried out in compliance with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid, null and void by a competent court in exercise of its jurisdiction on a complaint by an aggrieved party. See C.S.S. Bookshops Ltd v. The Registered Trustees’ of Muslim Community in Rivers State & Anor. 3 Ors. (2006) 26 NSCQLR 477, per M.Mohammed, JSC at page 504 ; Dantsoho v. Alhaji Mohammed (2003) 14 NSCQLR 1, per Katsina-Alu, JSC at page 15.

Thus, for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with the conditions precedent to the exercise of the power of revocation of the right of occupancy by the Governor as provided in Section 28 (1), (2), (3), (4), (5) (6) and (7 ) and Section 44 of the Land Use Act and Sections 43 and 44(1) of the 1999 Constitution of the Federal Republic of Nigeria.

15. Dispute Resolution and Jurisdiction of Courts

The High Court of a state has an exclusive jurisdiction to determine any dispute over land which is the subject a statutory rights of occupancy, while an Area Court or Customary Court or other courts of equivalent jurisdiction has concurrent jurisdiction with High Court on disputes and matters pertaining to customary right of occupancy. See Section 39.

C. CERTIFICATE OF OCCUPANCY

Section 9(1) and (2) of the LUA provides that, any person that is entitled to a statutory right of occupancy shall be issued a certificate under the hand of the Governor as evidence of such right of occupancy. Such certificate shall be termed a “Certificate of Occupancy” and there shall be paid therefore by the person in whose name it is issued, See: Section 9(1) and (2) of the LUA.

Thus, a certificate of occupancy by virtue of Section 9(1) and (2) of the LUA is ordinarily the evidence of the title of the holder of a Statutory Right of Occupancy. A certificate of occupancy also raises the presumption that, the holder is the owner in exclusive possession of the land to which the certificate relates.See: Auta v. Ibe (2003) 13 NWLR (Pt. 837) 247 (SC).

1. Certificate of Occupancy is Prima Facie Evidence of Valid Title.

However, the existence of a certificate of occupancy is merely a prima facie evidence of title to the land it covers and no more. Nor does mere registration validate spurious or fraudulent instrument of title or a transfer or grant which in law is patently invalid or ineffective.Alhaji Goni Kyari A v. Alhaji Ciroma Alkali & 2 Ors. (2006) VOLUME 6 NSCQLR 819 at page 846, per A. I. Iguh JSC.

It is beyond dispute that one of the recognised methods of establishing title to land is by the production of valid documents of title evidencing the title claimed. It must however be stressed that this does not and cannot mean that once instrument of title to land, such as a Deed of Conveyance or a certificate of statutory or customary right of occupancy is tendered in court, this automatically proves that the land therein purportedly conveyed, granted or transferred by that instrument becomes the property of the grantee. Kyari A v. Alhaji Ciroma Alkali (supra)

A Certificate of Statutory or customary right of occupancy issued under the Land Use Act. 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is at best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Labadebi v. Lagos Metal Industries (Nig) Limited (1973) N.S.C.C. 1.

2. Pre-requisite for a valid Grant of Certificate of Occupancy

For a Certificate of Occupancy under the Land Use Act, 1978 to be therefore valid, there must not be in existence at the time the certificate was issued a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. See: Olohunde v. Adeyoju (supra) per A. I. Iguh JSC at page 1496 – 1497; Ibrahim v. Mohammed (2003) 13 NSCQLR 647 per, Kalgo, JSC at page 664.

3. Terms and Conditions in Certificate of occupancy:

The terms and conditions of a certificate of occupancy granted under this Act and which has been accepted by the holder shall be enforceable against the holder and his successors in title, notwithstanding that the acceptance of such terms and condition is not evidenced by the signature of the holder or is evidenced by the signature only of some person purporting to accept on behalf of the corporation. See: Section 9(4) of the LUA.

Section 10 of the Act provides that,every certificate of occupancy shall be deemed to contain provisions to the following effect:-

(a) that the holder binds himself to pay to the Governor the amount found to be payable in respect of any unexhausted improvements existing on the land at the date of his entering into occupation;

(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 this Act.

4. Grant of Certificate of Occupancy to a Person without Better Title

Where a Certificate of Occupancy has been granted to one of two claimants who have not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a Certificate would have no legal basis for a valid claim over the land in issue. So too, where it is shown by evidence that another person other than the grantee of a Certificate of Occupancy had a better right to the grant, the court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be.Sunmonu Olohunde & Anor. v. Professor S. K. Adeyoju (2000) Volume 2 NSCQLR 1472 at page 1496 per A. I. Iguh JSC.

5. How to Obtain a Certificate of Occupancy

The procedures for application of certificate of occupancy and the documents required really depend on the particular State of the federation, where the land is located. There are basically two ways of applying for a right of occupancy/ certificate of occupancy.

a. By Grant of State Land- This is actual grant by a Governor or Local Government under Section 5 (1)(a) and 6(1)(a) of the Act; or

b. By Ratification of Deemed Grant- This is the application for Certificate of occupancy for existing rights over Land before the enactment of the Land Use Act 1978.

6. Documentation Required to Obtain a Certificate of Occupancy

a. State Land:

The documentation required for obtaining state land certificate of occupancy in Lagos State includes:

i. Formal Letter addressed to the Executive Secretary – Land Use and Allocation Committee, Block 13, Room 4, Lands Bureau, The Secretariat, Alausa, Ikeja.

ii. Standard Allocation Form with Receipt. Lekki Pennisula Schemes, Abijo Commercial and Industrial (Form for Prime Land); other areas (Form for General).

iii. Four Passport Photographs with white background.

iv. Evidence of payment of Income Tax.

v. Current Development Levy (In case of company, Evidence of payment of Income Tax of Two Directors and Development Levy).

vi. Survey Plan

vii. All payment receipts of Land Charges

viii. Vital Information Form

b. Non-State Land

The documentation required for obtaining non-state land certificate of occupancy in Lagos State includes:

i. Formal Letter addressed to the Executive Secretary – Land Use and Allocation Committee, Block 13, Room 4, Lands Bureau, The Secretariat, Alausa, Ikeja.

ii. Completed Certificate of Occupancy Form with receipt.

iii. Land Information Certificate with receipt.

iv. Four original Survey Plan (2 cloth and 2 paper).

v. Four Passport Photograph with white background.

vi. Sketch Map of the Site Location

vii. Purchase Receipt Duly Stamped.

viii. Evidence of payment of Income Tax

ix. Current Development Levy. (In case of Company, Two Directors Tax Clearance and Development Levy).

x. Publication Fee - N10,000.00

xi. Capital Contribution Fee subject to a minimum of N30,000.00

xii. Building Plan Approval if developed.

xiii. Copy of Tenement Rate Receipt (if occupied).

D. CONCLUSION

In life vigilance is the sentinel of fortune and in law equity aids the vigilant. It is instructive to note that, by virtue of the Limitation Law or Act, a right of action over land is extinguished twelve years after the date on which the cause of action accrued. See Section 16 (2) (A), 17 & 21 of the Limitation Law CAP. L67 Laws of Lagos State.

If you are having challenges with any of the eight (8) land documentations and regulatory processesmentioned below contact Akintunde Esan for further illuminations.

i. Preparation of Deed of Assignment : Contract of sale of land/property must be in writing

ii. Stamping of Deed of Assignment with Stamp Duties Authorities : An unstamped title document cannot be tendered in court as evidence.

iii. Application and processing of Certificate of Occupancy: Certificate of occupancy is superior to any other land title document and it validity can only be challenged in court.

iv. Application and processing of Governor’s Consent : The consent of the Governor to your Deed of Assignment, Leases or Mortgage must be obtained for the transaction to be valid in law.

v. Registration of title document with the Registrar of Title: Any document affecting land except a Will must be registered. An registered title document cannot be tendered as evidence in court.

vi. Approval of your building plan.

vii. Conduct searches in the Land Registry: To know whether the land is encumbered.

viii. Charting of Survey Plan at the Office of the Surveyor-General: To verify whether the land has been acquired by Government or the right of occupancy has been revoked or has the right setback.

Akintunde Esan
Managing Partner
Ase Olodumare Chambers

PROPERTY AND LAND DOCUMENTATION SERVICES 

Property and land documentation services provided by Ase Olodumare Chambers to domestic and international clients includes:

Preparation of Deed of AssignmentStamping of Deed of Assignment with Stamp Duties AuthoritiesApplication and processing of Certificate of OccupancyApplication and processing of Governor’s ConsentRegistration of title document with the Registrar of TitleApplication for approval of your building planDue Diligence : Conduct searches on status of land in the Land RegistryCharting of Survey Plans at the Office of the Surveyor-General Click to view

WHY IS GOVERNOR’S CONSENT NECESSARY FOR ALIENATION OF LAND IN NIGERIA