Alienation Of Customary Rights To Land, Sub-Underleases and The Surrender Of Statutory Rights Of Occupancy In Nigeria

The subject of alienation of customary rights is an interesting topic that does not seem to have gotten much attention as most learned opinions on the subject matter tend to gloss over it in favour of more  detailed provisions regarding statutory rights of land.

This article will be dealing with the topics of :-

– Circumstances allowing for the prohibition of alienation of customary rights of land.

– Sub-Underleases

– Devolution of occupancy rights upon death

– Effects of deeds or wills where non-customary law applies

– The surrender of statutory rights of occupancy

When is alienation of customary rights of occupancy prohibited under law?

– It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer or possession,or sublease :- 

a). Without the consent of the governor where the property is to be sold by or under the order of any court under the provisions of the applicable Sheriff & Civil Process law or

b). In other cases , without the appropriate local government approval.

What is the provision of the Land Use Act concerning the prohibition of alienation of a customary right occupancy without a governor’s consent?

– A statutory right of occupancy cannot be sold without a governor’s consent provided that:-

a). It shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the same right of occupancy has already been created with the consent of the governor.

b). It shall not be required for the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the governor’s consent.

c). Regarding the renewal of a sublease presumed by reason only of his having consented to the grant of a sublease containing an option to renew the same .

What does the Land Use Act say about Sub-Underleases?

– A sub-lessee of a statutory right can, with the governor’s consent and approval of the holder of the statutory right, demise by way of a sub-underlease to another person the sub-leased land.

– This will require submitting the deed of sublease for endorsement by the governor.

What is the provision of law regarding the devolution of occupancy rights on the death of the occupier?

– The devolution of the rights of an occupier upon death shall :-

a). In the case of a customary right, unless non-customary law applies, be regulated by the customary law of the locality where the land is situated.

b). In the case of a statutory right (unless any non-customary law or other customary law applies) be regulated by the customary law of the deceased occupier at the time of his death relating to the distribution of property of like nature to a right of occupancy provided that  no customary law prohibiting, restricting or regulating the devolution on death to any particular class of persons or the right to occupy any land shall operate to deprive any person of any beneficial interest in such land other than the right to occupy same. 

– A statutory right of occupancy shall not be divided into 2 or more parts on devolution by the death of the occupier, except with the consent of the governor. 

What is the effect of a deed or will where non-customary law applies?

– In the case of the devolution or transfer of rights to which any non-customary law applies, no deed or will shall operate to create any proprietary rights over land except that of a plain transfer of the whole of the rights of occupation over the whole of the land.

What is the provision of law  regarding the surrender of statutory rights of occupancy?

– The governor may accept on such terms wm conditions as he may think proper the surrender of any statutory right of occupancy granted under the Land Use Act.