Learning Objectives

Upon completion of this lesson, candidates shall be able to:

Explain the co-existence of customary land tenure and statutory tenure under the Land Use Act 1978.

Distinguish between a Statutory Right of Occupancy (SRO) and a Customary Right of Occupancy (CRO).

Analyse the legal effect of the Certificate of Occupancy as prima facie evidence of title, applying Ogunleye v. Oni (1990) and Oniyale v. Macaulay (2009).

Evaluate the doctrine of deemed grants under sections 34 and 36 of the Land Use Act, with reference to Abioye v. Yakubu (1991).

Identify overriding interests, family holdings, and communal land claims.

Describe Islamic land tenure concepts (mulk, waqf, iqta).

Assess regional variations in tenure administration.

Articulate the constitutional protections for women’s property rights as established in Ukeje v. Ukeje (2014) and Anekwe v. Nweke (2014).

Explain the requirement of Governor’s consent under section 22 and the consequences of non-compliance (Savannah Bank v. Ajilo).

Conduct comprehensive title verification accounting for the multi-layered tenure environment.

Nigerian land tenure is widely regarded as one of the most complex in the common-law world. A 2019 World Bank study estimated that fewer than 3% of all land parcels in Nigeria are formally registered. For mortgage professionals, property offered as collateral may be subject to competing claims arising from different legal traditions.

Before the colonial period, land was governed exclusively by customary rules varying among 250+ ethnic groups. Colonial rule introduced English freehold and leasehold interests. At independence in 1960, the Federation inherited this duality. The LUA in 1978 was intended to resolve the confusion by vesting all land in the state, but introduced a third layer without extinguishing the first two.

Communal ownership: Land belongs to community, family, or clan, not individuals. Individual members hold usufructuary rights.

Inalienability without collective consent: A member cannot unilaterally alienate family or communal land. Any sale, mortgage, or lease without consent of the family head and principal members is voidable (Idundun v. Okumagba, 1976).

Largely oral and undocumented: Transactions validated by witnesses (elders, family heads, community chiefs) rather than written instruments. Boundaries demarcated by natural features.

Yoruba Tenure (South-West): Allodial title vested in the Oba or Baale as custodian. Family head (Olori-ebi) manages and must consent to alienation. In Lagos, over 60% of land disputes before the High Court involve competing customary and statutory claims.

Igbo Tenure (South-East): Land owned by the extended family (umunna). No paramount chief holds allodial title.

Hausa-Fulani Tenure (North): Land historically held under the Emir’s authority. The Land and Native Rights Ordinance 1910 formalised aspects of this arrangement.

Niger Delta Tenure: Complicated by community ownership, state acquisition, and federal petroleum interests.

Section 1 of the LUA vests all land in the Governor of each State, to be held in trust for all Nigerians. Freehold tenure was abolished. The Governor grants rights of occupancy for terms typically not exceeding 99 years.

By section 315(5)(d) of the 1999 Constitution, the LUA is deemed an existing law and protected from amendment except through constitutional procedure.

Section 5(1)(a): Governor grants SROs for urban areas.

Section 6(1): Local government grants CROs for non-urban (rural) areas.

SRO is evidenced by a Certificate of Occupancy issued by the Governor. It is the most secure form and preferred by lenders. Approximately 85% of mortgage facilities approved 2015-2024 were secured by properties held under SRO with valid C of O.

CRO is evidenced by a Right of Occupancy document from local government. Less formal, less documented, more vulnerable to challenge.

Key Differences:

Granting authority: Governor (SRO) vs local government (CRO).

Geographical scope: Urban (SRO) vs rural (CRO).

Evidentiary document: C of O vs RoO.

Mortgageability: SRO readily accepted; CRO generally insufficient.

Revocation: Both may be revoked under section 28, but SRO holders entitled to compensation.

The C of O is prima facie evidence of the holder’s right but is not conclusive.

Case Study: Ogunleye v. Oni (1990) 3 NWLR (Pt. 136) 1 — The Supreme Court held that a C of O is rebuttable. Another party may demonstrate a superior right through proof of ancestral occupation and continuous use prior to issuance. The decision fundamentally shaped mortgage due diligence practice.

Case Study: Oniyale v. Macaulay (2009) All FWLR (Pt. 455) 1841 — The Supreme Court nullified a C of O granted over land to which the claimant’s family possessed established customary rights predating the statutory grant.

Section 34(2): Any person entitled to a customary right of occupancy in respect of land in an urban area immediately before commencement of the Act shall be deemed to have been granted a statutory right of occupancy by the Governor.

Section 36(2): Holders of freehold or leasehold interests are deemed to hold statutory rights for the residue of the term.

Case Study: Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 — The Supreme Court held that sections 34 and 36 operate to convert pre-existing customary and freehold interests into statutory rights by operation of law, without need for any formal grant or C of O.

For mortgage professionals: a borrower may hold a valid statutory right by virtue of pre-1978 occupation, even without a C of O.

Rights or encumbrances that bind a purchaser or mortgagee even though not recorded:

Rights of persons in actual occupation who have not registered.

Easements and profits acquired by long use.

Local land charges, ground rent arrears, government acquisition notices.

Rights arising under customary law not formally documented.

Family land accounts for approximately 40% of all urban land in Lagos and over 70% of rural land nationwide.

Incidents of family land ownership:

No single member may alienate without consent of family head and principal members.

Partition requires agreement of all members or court order.

Possession by one member is deemed possession on behalf of the entire family.

Statute of Limitations does not run against the family in respect of family land (Amakor v. Obiefuna, 1974).

A mortgage over family land executed by one member without family consent is voidable.

The Supreme Court declared unconstitutional the Igbo customary law that excluded female children from inheriting their father’s estate. The court held that section 42 of the 1999 Constitution prohibits discrimination on grounds of sex.

Female heirs have equal standing to inherit and deal in property. Titles derived through customary succession that excluded women may be vulnerable to constitutional challenge.

The Supreme Court held that any custom that disinherits a widow of her husband’s property is unconstitutional.

Section 22 provides that it shall not be lawful for the holder of a statutory right of occupancy to alienate the right by assignment, mortgage, transfer of possession, sublease, or otherwise without the Governor’s consent first had and obtained.

Case Study: Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 — The Supreme Court held that a mortgage created over land held under SRO without Governor’s consent is null and void ab initio. The mortgage is not merely voidable. The mortgagee acquires no enforceable interest.

Mortgage professionals must verify Governor’s consent has been duly obtained and is evidenced by a consent certificate. Consent fees typically range from 3% to 6% of the assessed value.

13-step checklist:

Obtain a certified true copy of the C of O directly from the state Ministry of Lands.

Trace the complete chain of title.

Conduct a search at the Lands Registry for caveats, lis pendens, prior mortgages.

Verify Governor’s consent for current and all prior transactions.

Confirm ground rents are current.

Conduct physical inspection.

Interview neighbours, traditional authorities, community leaders.

Obtain current survey plan and verify property description matches physical boundaries.

Investigate petroleum rights status (in oil-producing states).

Review remaining lease term (banks require minimum 40-50 years remaining).

Each step is directed at uncovering hidden risks not apparent from the title document.

KEY TAKEAWAYS

Nigeria’s land tenure is multi-layered: customary, colonial-era, and statutory interests coexist.

The Land Use Act 1978 abolished freehold and vested all land in the state through SROs (urban) and CROs (rural).

A C of O is prima facie evidence of title but is rebuttable by proof of superior customary rights (Ogunleye v. Oni; Oniyale v. Macaulay).

Deemed grants under sections 34 and 36 converted pre-1978 interests into statutory rights by operation of law (Abioye v. Yakubu).

Overriding interests, family holdings, and communal claims may encumber registered titles.

Islamic tenure concepts (mulk, waqf, iqta) govern substantial land in northern Nigeria; waqf land is permanently inalienable.

Women’s property rights are constitutionally protected: discriminatory customary rules are void (Ukeje v. Ukeje; Anekwe v. Nweke).

Governor’s consent under section 22 is a substantive condition of validity; a mortgage without consent is void ab initio (Savannah Bank v. Ajilo).

Rigorous due diligence is essential before accepting any property as mortgage security.

Self-Assessment Knowledge Check

1. Section 1 of the Land Use Act 1978 vests all land in:

   1. The President of the Federal Republic of Nigeria
   2. The Governor of each State, to be held in trust for all Nigerians
   3. The traditional rulers of each community
   4. Individual citizens who held freehold before 1978

2. Under customary land tenure, alienation of family land requires:

   1. The consent of the Governor only
   2. The consent of the family head and principal members of the family
   3. Approval by the local government planning authority
   4. Registration at the Federal Lands Registry

3. In Ogunleye v. Oni (1990), the Supreme Court held that a Certificate of Occupancy is:

   1. Conclusive and indefeasible evidence of title
   2. Prima facie evidence that is rebuttable by proof of superior rights
   3. Invalid unless accompanied by a survey plan
   4. Enforceable only in urban areas

4. Deemed grants under sections 34 and 36 of the LUA apply to:

   1. Persons who acquired land after 1978 only
   2. Persons in occupation of land before the commencement of the Act on 29 March 1978
   3. Foreign nationals holding diplomatic immunity
   4. Government agencies only

5. Waqf land under Islamic law is:

   1. Freely mortgageable with the Emir’s consent
   2. Permanently inalienable and unmortgageable
   3. Subject to the same rules as mulk (private ownership)
   4. Available for government acquisition without compensation

6. In Savannah Bank v. Ajilo (1989), the Supreme Court held that a mortgage without Governor’s consent is:

   1. Voidable at the option of the Governor
   2. Valid but unregistrable
   3. Null and void ab initio
   4. Enforceable if the mortgage debt exceeds NGN 10 million

7. The decision in Ukeje v. Ukeje (2014) established that:

   1. Islamic inheritance law applies nationwide
   2. Customary laws excluding female children from inheritance are unconstitutional
   3. Male heirs receive priority in all succession disputes
   4. Wills override constitutional protections

8. The principal difference between SRO and CRO is:

   1. SRO is for urban land granted by the Governor; CRO is for rural land granted by local government
   2. SRO has no expiry date; CRO expires after 50 years
   3. SRO applies only in Lagos; CRO applies in all other states
   4. SRO and CRO are identical in law and practice

9. An overriding interest is best described as:

   1. A right that appears on the face of the Certificate of Occupancy
   2. A right that binds a purchaser or mortgagee despite not being recorded on the register
   3. A right held exclusively by the federal government
   4. A right that ceases to exist upon registration of a C of O

10. Before accepting property as mortgage collateral, a lender must:

    1. Accept the borrower’s C of O without further investigation
    2. Verify the C of O, trace the title chain, conduct physical inspection, confirm Governor’s consent, and investigate customary claims
    3. Rely exclusively on the Lands Registry search certificate
    4. Require title insurance as a substitute for due diligence

Answer Key

Answers: 1. (b) | 2. (b) | 3. (b) | 4. (b) | 5. (b) | 6. (c) | 7. (b) | 8. (a) | 9. (b) | 10. (b)

References and Further Reading

Land Use Act 1978 (Cap. L5, LFN 2004)

Constitution of the Federal Republic of Nigeria 1999, ss. 42, 44, 297, 315

Petroleum Act 1969 (Cap. P10, LFN 2004)

Lagos State Land Registration Law 2015

Ogunleye v. Oni (1990) 3 NWLR (Pt. 136) 1 (SC)

Oniyale v. Macaulay (2009) All FWLR (Pt. 455) 1841 (SC)

Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 (SC)

Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 (SC)

Ukeje v. Ukeje (2014) LPELR-22724(SC)

Anekwe v. Nweke (2014) LPELR-22697(SC)

Idundun v. Okumagba (1976) 9-10 SC 227

Elias, T. O. (1971), Nigerian Land Law (Sweet & Maxwell)

Agbosu, L. K. (2000), Land Law in Nigeria (Malthouse Press)

Oluyede, P. A. O. (1998), Nigerian Land Law and Conveyancing (Evans Brothers)

Nwogugu, E. I. (2020), Law of Real Property in Nigeria (2nd edn, University of Lagos Press)

World Bank (2019), Land Governance Assessment Framework: Nigeria Country Report

Federal Mortgage Bank of Nigeria (2024), Annual Report 2023

IMBL Nigeria Certification