se ene aS . 508 — a 15(a) of the Act, precl Ides payme; nder secuon ! I son unde - them by the grantee. Actual g ee | grantees ay? "mm, compensation fc ae a msinabita on which in unmistakable ter ™s, bj We caught by a provis! x pay to the Governor the amount found to be payable : Bhs any unexhausted improvements existing on the lang - Teg its entering into possession eta Whilst a deemed grantee issued a Certificate of Occup prejudiced by the provision of section 10(a), the st section 10(b) may constitute a great disadvantage to th Sion of antee, The effect of that provision is to make any hal ie Certificate of Occupancy liable to payment of rent der 9 - touched by the seeming injustice of the application of the Cthaps to adeemed grantee who, before the Act, was the owner iin title to his land, learned commentators'*? held the view that «; ical clearly be ultra vires @ Governor... to include such covenant Twit) the right arose out of section 34 or 36”" for the simple ‘ that the holder of a deemed right of occupancy is not boung new terms and conditions, even if he accepts the Cetttica b Occupancy. This view cannot be correct in the light tic equation of both actual and deemed grants by judig} : pron councements"’, and it may not matter afterall the source c A statutory right of occupancy for purposes of the application of relevant provisions of the Act. It may also be argued that when section 34(3) and (9) and section 36 are read with the provisions of section 9(1)(b) and (c) and (4) of the Act, the issue becomesa simple case of volenti non fit injuria. While section 9(1)(b) and (c), and the relevant provisions of sections 34 and 36 read together do not make it mandatory for the deemed grantee to apply fora Certificate of occupancy, once the Certificate is issued and accepted, section 9(4) makes the terms and conditions of the Certificate of Occupancy enforceable against the holder and his sucessors in title. Thus, a deemed grantee who is not desirous 0! paying rent to the Governor is advised not to apply fora Certificate 142. 1A Omotola, Essays on Land Use Act, 1978 (Lagos University Press. Williams, Secon *w'onal Workshop on the Land Use Act, Sth Tindal 143. J.A Omotola, « 144. Williams, 07 145, See e.g. Sar Iv Ajilo de anor (1989) 1 96 908108 7 Y isys gmme is between competi eiai »jssue of priority arises as between two adverse claimants only the Certificates were validly issued as evidence of respective 4 s of occupancy. There is no issue of priority to be resolved for bs Ss Je, where one of the claims to the tight of occupancy is a es or the Certificate fraudulently obtained". A Certificate 5 pccuipancy issued as evidence of any such claim is null and e ;dand of no effect and since it is non-existent in law, the other Certificate of Occupancy if validly issued, is taken as authentic whether issued prior to or after the issuance of the invalid Certificate of Occupancy. The issue of, priority of claims as between two existing Certificates of Occupancy was resolved by the Supreme Court in the two cases: Dantsoho v, Mohammed" and Ibrahim y, Mohammed'*® through the application of the rule of Nemo dat quod non habet. Asthe Supreme Court explained in Dantsoho v. Mohammed: where two contesting parties trace their title in respect of the same piece of land to the same grantor, the later in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of title in respect of the piece of land in question by the first grant, would have nothing left to convey toa subsequent grantee under the principle of nemo dat quod non habet, as no one may convey what no longer belongs to him. The Governor in the instant case is the common Srantor. The respondent's Certificate of 146. See Dantumbu v, Adene (supra). 47. (2003) 6 NWLR (Pt.817) 457. 8. (2003) 6 NWLR (PL817) 615.$10 Occupancy was issued on 1] August, yo the time the appellants Certificate of On was issued in 7 October 1982 oy, plot of land, the Governor no |,,, anything at Plot 79, Sharada, Kano havi revoked the earlier grant made to the respo The appellant got nothing from the Goy, (Emphasis supplied). ’ernorisy The above judicial pronouncement not only coin mae equitable rule of “first in time'*”, it butresses the jn les ® With » : : Page : del the of a proprietary interest; in this case, a right of occupan” Matin y. Procedure for the issuance of a Certificate of Oceupg A holder of a statutory right of occupancy the subject mma actual grant by the Governor is issued with a Cetificate 0,8"! as a matter of course, but a deemed grantees! must 4 apply for Certificate of Occupancy following the procedure below: a 1. Filing of Application Form (See Appendix F No Lor specimen) a Attaching the following documents: (a) Copy of purchase receipt duly stamped. (b) 6 copies of Survey Plan of the parcel of land and where land is fully within Government acquisition, a copy of holder’s ratification must accompany the Plan. Three (3) copies of the Plan must be cloth made. (c) 2 copies of Building Plan if the land is fully built. (d) Receipts of Levies requested by the state tobe paid if any (e.g. Development and Education Levy in Lagos State). 149. Ibid, at 484. ‘ 150. Qui prior est tempora portior est jure meaning: “the first in time is. law”. : 2 151. See ss.34 and 36 of the Act. ssronger®of re essing of Applicat Land Inspection: - re there is no objection \ { to the ti 2 tion of thi i i aie tive aie cunts by the ele eee ia Des ascertain the land in questi aaa nt of any physical davai aia ae :o year or toa fine of N5,000'5 CATION OF REN xING AND APPLI FL d rent for any land granted to ay, ‘The Governor may CEN ich intervals as May Pe specific Pe ‘i said ren! cy Oh where no intervals are speci nt ‘ancy, at anytime during the term, on te of Occup: wih In determining the amouny of . ed, the Governor shall tak. the fixed in respect of land jn - d shall have regard toall the circumstance. . But any value due to capital expended on the lang : any increase in the value of the land solbeare of which hon consideration, due to the employment 0} such capital shall no, ' taken into consideration’. A penal rent may be imposed for a breach of any covenant in g Certificate of Occu requiring the holder to develop or effect the land the subject of the Certificate of improvements on ect Occupancy’, or for a breach of condition, express or implied which precludes the holder of a statutory right of occupancy from alienating the right without Governor’s consent. h neighbourhood, am Penal rent for failure of the holder of a Certificate of Occupancy to develop or effect improvement on the land may be imposed at the time of such breach or anytime thereafter so long as the breach remains unremedied.for twelve months from the date of the breach’, Upon the expiration of the first twelve months, such penal rent may be revised for every subsequent twelve months so long as the breach continues'*'. The penal rent shall be payable in 154, See s.37 of the Act. Jo ee UNS) Sd (Gt ce The Governor may grant a statutory right of occupancy rent free: See s.17 of the Act. 156. See Cap LS LFN 2004; s.16(1)(a). 157. Ibid, s. 16(1)(b) . 158. Ibid, 6. 5(1Xe) . 159. Ibid, s. 5(1\(f). 160. Ibid, s. 19(1\{a) . 161, Ibid, s. 19(1)(b).°, of Ocen of Right of Occup patio” « auien? 513 to the rent fixed'™, and any revision n of the penal re: 7 jouble the penal rent or fhe penal rent shall adi seed d payable i 7 ere preceding the date of revision'® respect of the twelve mo! where the tes fixes or revises a penal rent, he shall cause a vie Notice to oe to the holder informing him of the amount wayable and the penal rent so fixed or revised shall be payable one Fajen month from the date of receipt of such Notice, If the der remedied the breach for which rent has been imposed before expiration of the period for which the penal rent has been paid, Governor may refund such portion of the penal rent paid for . period as he may think fit'®, such Notwithstanding that a penal rent or a revised penal rent has been i imposed, the Governor is not precluded from revoking the statutory right of occupancy in lieu of fixing a subsequent penal rent!®, vided that the statutory right of occupancy shall not be revoked during the period for which a penal rent has been paid'*”. ALIENATION OF RIGHT OF OCCUPANCY Section 21 of the Act prohibits alienation of a customary right of occupancy without the consent of the Governor in cases where the property is to be sold by or under the order of any court under the provisions of the applicable Sheriffs and Civil Process Law, or in other cases, without the approval of the appropriate Local Government. Section 22 also prohibits alienation of a statutory right of occupancy without the consent of the Governor first had and obtained. But no such consent is required where an equitable mortgage of the right had earlier been created with the consent of the Governor'®® and there is no need to obtain consent to convert 162. Ibid, s. 19(2). 163. Ibid, Proviso to s.19(2) . 1, Ibid, 8. 19(3).2 into al mortgage Al anette ec or release med sreated with the consent of wich ot wiyof subleases consent shall n yauecast seine coverms having consented to t) py ese y jon to renew the same"” Saeco of consent jn the case of an alienation . eemed grants: In Savanneh pa pie ig the supreme ‘ourt held that both aa effect under the general tener and that the 4 jsite conse is required for an effecting 7 nation 0! path peso! grant. In that case, the ly mortgal is land 4 before the Land Use Actto — Joan which ranted toacompany in which he had majo ta gages mortgagee sought to exe a the respondent defaulted The 8 their statutory power of sale whe! ings to restrain the mortgagee from on the ground that having not obtai Governor's conse to the mortgages the transaction was _ Counsel tothe mortgaBe? that since the mo! “ rtgagor acquired the property before the Land Use ‘Act, he acquired a deemed 34 of the Act and being @ developed . age transaction came within the provisions of subsec - 0) and (4) and that no consent was required with ak alienation of land under these provisions. The court held rr 0 ce ca ve s consent rendered the mortgage Since it i sigan ns one of ight of orcuane) we yvernor’’ transfer of the right undei ‘ keen electing - that he cannot rely on his the Land Use Act, it stands to reasot ee own omission (deliberate oF ise) Oates Tsao judicial authority exclu me iad acy ot 170. fbi, proviso ( rst Bank (Nig) Ple (1996) 6 NWLR oe i iso (¢) to 8.22(1), ) (pt. 475) 789. |, (1989) I NWLR (1.97) 705 Ky gid