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UNDERSTANDING THE LAND USE DECREE by cwv18084

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									UNDERSTANDING
 THE LAND USE
   DECREE
   (DECREE NO. 6 OF 1978)
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CONTENTS

Part                                                             Page
I      General………………………………………………………….                            3

II     Principles of Land Tenure, powers of Military
       Governor and Local Government and Rights of Occupiers……   4

III    Rents……………………………………………………………                              7

IV     Alienation and Surrender of Rights of Occupancy…………….     9

V      Revocation of Rights of Occupancy and Compensation………     10

VI     Transitional and other related Provisions………………………        12

VII    Jurisdiction of High Courts and other Courts………………….      14




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                               PART I – GENERAL

      The Land Use Decree No. 6 of 1978 came into operation on the 29th day of
March 1978. The Decree applies to every State in Nigeria.

2.     The Land Use Decree says that all lands in each State shall be held in trust and
administered by the Military Governor of the State, for the use and benefit of all
Nigerians.

3.     In urban areas all lands shall be controlled and managed by the Military
Governor, while local governments have to control and manage all lands in their areas
of authority, which are not designated as urban matters.

4.     A Land Use and Allocation Committee will be established in each State and
this committee will advice the Military Governor on land matters.

5.      The committee also has the duty of advising the Military Governor, on the
issue of the resettlement of people, who lose their rights of occupancy as a result of
land required for public purposes and the amount of compensation due to them.

6.      The members of this committee will be appointed by the Military Governor,
but must include not less than two persons who qualify to serve in the public service
either as estate surveyors, or land officers. These men must have been qualified for a
period of five years. A legal practitioner shall also be a member, while the Governor
shall appoint a member of the committee to serve as the chairman.

7.     In the case of the non-urban areas, there will be established in each local
government a Land Allocation Advisory Committee. The membership of this
committee shall be approved by the Military Governor, after consultation with the
local government. This committee will advise the local government on the
management of land in the area of the local government.

8.      The Military Governor is empowered, by the Land Use Decree, to mark out
the area of the territory of the State which is designated as urban. This power, is
subject to the general conditions which may be stipulated by the National Council of
States.

9.      The Land Tenure Law, or the State Land Law, whichever applies to the State,
shall continue to have effect subject to the provisions of this Decree.




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PART II – PRINCIPLES OF LAND TENURE, POWERS OF MILITARY
GOVERNOR AND LOCAL GOVERNMENT AND RIGHTS OF OCCUPIERS

        The Decree empowers the Military Governor to grant statutory rights of
occupancy to any person for any purpose. This means that the Military Governor has
power to give to any person the right to use a given piece of land for any purpose. He
also has power to handle matters concerning grievances in matters of statutory right of
occupancy such as right of way through other land.

2.      The Military Governor also has the powers, under the Decree, to demand rent,
revise rent, at such intervals as stated in the certificate of occupancy.

3.      If no intervals are stated in the certificate of occupancy, the Military Governor
has the power to revise rent during the term of the statutory right of occupancy.

4.      The Decree also provides for penal rent if any of the conditions of the
certificate of occupancy were not compiled with. Such conditions include failure to
develop or effect improvements on the land allocated; and the Military Governor has
the power to revise such penal rent.

5.      Apart from failure to develop or effect improvements, which will attract penal
rent, any holder of a statutory right of occupancy, who sells, mortgages, transfers,
subleases, bequeaths or alienates the right of occupancy, will be subjected to penal
rent, unless he obtained the prior consent of the Military Governor.

6.      However, if the Military Governor feels that the holder of a statutory right of
occupancy (that is, the right to occupy the land given by the Military Governor)
cannot comply with the conditions of the certificate of occupancy due to special
circumstances, or if compliance will impose great hardship on the holder, the Military
Governor has the power to waive any or all the conditions of a right of occupancy.
On the other hand, the Military Governor may extend the time given to a holder or a
statutory right of occupancy for fulfilling any of the conditions of the right of
occupancy on the terms he may consider fit.

7.      When a statutory right of occupancy is granted in respect of a piece of land, all
existing rights to the use and occupation of such land will end.

8.      It is within the powers of the local governments, under the Decree, to grant
customary rights of occupancy to any person or organisation, for the use of land,
within their areas of authority, for agricultural, residential or other purposes. By
customary rights of occupancy is meant the rights of a person or community lawfully
using or occupying land in accordance with the custom of the community. The local
governments also have the power to grant customary rights of occupancy to any
person, or organisation, for the use of land for grazing or such other agricultural uses,
as is usually practised in the local government area concerned.

9.     Except with the permission of the Military Governor, no person will be
granted customary right of occupancy for the use of land exceeding 500 hectares,
meant for agriculture, or 5,000 hectares for grazing animals.



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10.     Local governments have the power to occupy and use, for public benefit, any
land, within their areas of authority, provided that such land is not within the area
defined as urban. Also they may not use and occupy any land which is the subject of
statutory right of occupancy; nor may they enter any area compulsorily acquired by
the Government of the Federation or the State concerned; nor may they occupy any
land that is the subject of any laws relating to minerals or mineral oils.

11.     Local governments have power to revoke any customary right of occupancy
on any land which they wish to enter and occupy for public benefit. However, both
the holder and the occupier, according to their respective interests, of any customary
right of occupancy, will be entitled to compensation when their rights are revoked.
The Decree says that such compensation shall be for the existing improvements on
such land. If the revocation is on land used for agriculture, the local government will
provide the holder of the customary right of occupancy another land for the same
purpose. The local government has exclusive rights to land it so requires, against all
persons except the Military Governor.

12.    The Decree says that in the event of refusal or neglect by the local
government, within a reasonable time, to pay compensation to a holder and occupier,
whose right of occupancy has been revoked, the Military Governor will step in and
assess the compensation and direct the local government to pay the amount so
assessed to the affected persons.

13.     The Governor, according to the provisions of the Decree, has no power to
grant a statutory right of occupancy or approve the assignment or subletting of a
statutory right of occupancy to a person under the age of twenty-one years.

        However, the Governor has the power to grant such rights, where a guardian
or trustee has been duly appointed for a person under the age of twenty-one years.

       Also, if a person under the age of twenty-one years, inherits a statutory right of
occupancy, he will have the same liabilities and obligations in respect of his right of
occupancy, as if he were an adult, even if no guardian or trustee has been appointed
for him.

14.     Statutory right of occupancy, granted by the Military Governor, must be for a
definite period of time, and may contain terms of contract between the Military
Governor and the holder, provided that such terms conform with the provisions of the
Decree.

15.     The Decree of Land Use provides that when any person is granted a statutory
right of occupancy, or is in occupation of land, under a customary right of occupancy,
and applies for a certificate in the prescribed manner, the Military Governor will issue
such a person with a certificate signed by him. This applies also to any person who is
entitled to a statutory right of occupancy. Any person given such certificate will have
to pay the prescribed fee, if any.

16.    If any person, in whose name a certificate of occupancy is issued, without
lawful excuse refuses or neglects to accept and pay for it, the Military Governor has
the power to cancel the certificate. He will also recover from the person any


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incidental expenses incurred, and in the case of a statutory right of occupancy, he may
revoke the right of occupancy.

17.     The Decree further states that the terms and conditions of a certificate of
occupancy, which under this Decree have been accepted by the holder, will be
enforced against the holder, and his successor, even if he has not signed to indicate his
acceptance. Also this applies to a corporation where only one person signs on its
behalf.

18.     According to the Decree, every certificate of occupancy will be understood to
contain a clause binding the holder to pay to the Military Governor an amount
calculated on the basis of the improvements existing on the land at the time the holder
enters the land. It will also contain a clause binding the holder to pay to the Military
Governor the agreed rent, or the rent fixed on revision, as provided by the Decree.

19.    The Military Governor, or any public officer authorized by him, is empowered
by the Decree to enter and inspect any land which enjoys any statutory right of
occupancy, at any reasonable time, and the occupier is bound by the Decree to permit
such an inspection.

20.     Licence could be granted by the Military Governor to any person to remove or
extract stone, gravel, clay, sand, or any other material, which may be needed for
building or the manufacture of building materials as long as such land is not under a
statutory right of occupancy by any person, and that such land has not been given out
under the Minerals Act.

21.    If such a licence is granted, by the Military Governor, it will be for an
approved period and the area will not exceed 400 hectares. Also the holder of a
licence has no right to transfer the licence without the approval of the Military
Governor and any purported transfer without Military Governor’s approval will not be
valid. The Military Governor may cancel any such licence if the holder fails to
comply with any of the conditions of the licence.

22.    The Decree compels the holder of a statutory right of occupancy to maintain,
to the satisfaction of the Military Governor or his approved agent, the defined
boundaries or other boundaries of the land he is holding. If he fails to do so, the
Military Governor or his approved agent will write him to define his boundaries
within a specified time, failing which he will be made to pay the expenses incurred by
the Military Governor or his authorized agent, for defining such boundaries.

23.     The holder of the statutory right of occupancy has exclusive rights to the land
he holds provided such rights conform with the Decree, and any laws relating to way-
leaves (lawful passage), prospecting for minerals oils, mining or oil pipelines.

24.    The Decree provides that during the tenure of a statutory right of occupancy,
the holder has sole right and absolute possession of all improvements on the land, and
may, subject t the approval of the Military Governor, transfer, assign, or mortgage any
improvements on the land for which he has a certificate of occupancy.




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                                 PART III – RENTS

        The Decree explains how the original rent or the revised rent on any piece of
land shall be determined by the Military Governor. In fixing a rent for the first time
or in revising it later, the Military Governor shall take into account the current rent
charged in the area in which the land is located. But such rent should not be
influenced by the value acquired by the land as a result of a large amount of money
spent on its development by the previous occupier.

2.     The Decree gives the Military Governor the power to grant rent-free right of
occupancy to anyone or to charge reduced rent where he considers it necessary in the
public interest. But it says that where such rent-free right is granted, the Military
Governor may if he later thinks it proper, charge rent on the land.

3.      Acceptance of rent by the Military Governor or his representative in
connection with any piece of land does not restore the right of occupancy on the land,
if the conditions stated in the certificate of occupancy have been violated by the
occupier.

4.      When land is allocated for the purpose of development and the holder of the
certificate of occupancy accepts it for that purpose, but later acts contrary to this
agreement, the Military Governor has the right to fix a penal rent with effect from the
time of such breach of the agreement or any time after the breach. Such a penal rent
shall be payable for twelve months, starting from the date the breach is committed.

       The Military Governor may also revise the penal rent to be paid at the end of
the twelve months and at the end of every subsequent twelve months if the breach of
agreement still continues. The penal rent or any revision of it shall be paid by the
occupier in addition to the normal rent on the land contained in the certificate of
occupancy.

        The Decree stipulates that the first penal rent to be fixed shall not be more than
the rent originally charged in the certificate of occupancy. Where any revision is
made on the penal rent, the revised penal rent shall not exceed double the imposed
rent already fixed in respect of the past twelve months before the date of such
revision.

        The Military Governor shall notify the holder of a certificate of occupancy in
writing when he fixes or revises a penal rent, informing him about the amount of rent
due and about the period covered by the penal rent. But if the breach has been put
right before the end of the period for which the imposed rent has been paid, the
Military Governor may refund part of the penal rent paid for such period. However,
payment of penal rent or revised penal rent, cannot stop the Military Governor from
revoking the right of occupancy, if he does not want to continue to fix subsequent
penal rents. But the Decree does not permit the Military Governor to revoke the
statutory right of occupancy within the period for which a penal rent has been paid.




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5.      Where the holder of a statutory right of occupancy purports to transfer his
interest or any part of it to another person without the consent of the Military
Governor, the Military Governor may, in place of revoking the right of occupancy,
demand from the holder an additional (penal) rent for each day the land, or parts of
the land and any buildings or other structures erected on the land are occupied or
sublet to any person other than the holder of the certificate of occupancy. The holder
shall pay such additional penal rent on demand by the Military Governor. But such
payment, the Decree states, shall not stop the Military Governor from using the
powers given to him by the Decree.




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PART IV – ALIENATION AND SURRENDER OF RIGHTS OF OCCUPANCY

       The transfer of a customary right of occupancy or part of it to another person
by assignment, mortgage or sublease is against the law and therefore not permissible
except with approval. Where transfer is by order of court, consent of the Military
Governor must be obtained.

2.      The Decree prohibits the transfer or sale of a statutory right of occupancy
granted by the Military Governor by the holder to another person without first of all
obtaining the consent and approval of the Military Governor. In giving his consent to
an assignment, mortgage or sublease, he may require the holder of the statutory right
of occupancy to submit an agreement in respect of such an assignment or mortgage to
him for endorsement.

3.       With the prior consent of the Military Governor and the approval of the holder
of a statutory right of occupancy, a sublessee may transfer to another person his right
in the land in the form of a sub-underlease.

4.      The Decree says that the passing of a customary right of occupancy (that is in
respect of land in rural areas) from one person to another as a result of death, shall be
determined by the customary law prevailing in the place where the land exists. In the
case of a statutory right of occupancy, the passing of such right shall be determined by
the customary law of the deceased occupier at the time of his death.

5.     Where the transfer of the right of occupancy, following the death of the
occupier, is based on non-customary law, no Deed or Will shall be used to establish
any right over land unless the Deed or Will makes for a plain transfer of the whole of
the holder’s right of occupation over the whole of the land.

6       The Decree warns that any other form of transfer apart from those stipulated
by this Decree shall be null and void.

7      The surrender of any right of occupancy granted by this Decree shall be
received by the Military Governor where the conditions and terms of such surrender
are acceptable to the Military Governor.




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         PART V – REVOCATION OF RIGHTS OF OCCUPANCY AND
                                 COMPENSATION
        The Military Governor has power to cancel the right, which any person has to
live on or make use of any piece of land if the land is required for use in the interest of
the public.

2.      In the case of a person who has a statutory right of occupancy over a piece of
land, the land will be taken away from him by the Military Governor if he sells,
leases, or transfers or hands-over his right of occupancy to any other person. The
Governor has also right to take away the land if the Federal Government, State
Government, or Local government wants to make use of the land in the interest of the
public or if the land is to be used for mining or the laying of oil pipelines.

3.      In the case of a person who has a customary right of occupancy (that is in rural
areas), the land may be taken away from him for public use if the State Government
wants to use the land for public benefit or for use by the Federal Government or if the
land is required for mining purposes or for laying of oil pipelines. The land can also
be taken away from the person if the land is to be used to extract building materials or
if the owner sells, leases, or hands-over any part of the land to any person without
permission or approval.

4.     The way to revoke a right of occupancy over any piece of land is by a notice
issued by the Governor on behalf of the State Government or on behalf of the Head of
the Military Government.

5.      The Military Governor can revoke the statutory right of occupancy of a piece
of land allocated by the Military Governor if the owner fails to pay either the rent or
fees stipulated to be paid by the Military Governor or breaks any of the terms of
agreement under which the land was given to him or if the owner refuses to accept
any portion of land given to him.

6.     A public officer appointed by the Military Governor may sign the revocation
order of any piece of land.

7.     The right of any person to any piece of land shall cease immediately the
person receives a notice revoking his right of occupancy of the land.

8.      Where a piece of land is to be used in the public interest, compensation will be
paid to both the people who have the right of occupancy and those who are in actual
occupation of the land, if these are different. They will be paid compensation for
buildings, crops and any other improvements on the land. They will also be paid back
any ground rent they may have paid for the year.

9.     Where a piece of land is to be used for mining purposes or laying of oil
pipelines, compensation will be paid under the law governing mineral oils.

10.    If the people entitled to compensation are a community, the Military Governor
has the right to say who shall be paid, either the community or the chief or leader of
the community who will make use of the money according to the customary laws of


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the community. The Military Governor shall also decide whether the money shall be
paid into a community fund set up for the interest of the entire community.

11.     If land is to be used for public purposes, compensation shall be paid for the
amount equal to the rent paid by the occupier in the year this right of occupancy was
revoked and also for buildings, mechanical installations and improvements on the
land as will be assessed by a government officer appointed for that purpose.
Compensation will however take account of the rate of depreciation and bank interests
and costs of reclamation work supported by receipts and other documentary evidence.
The crops on the land apart from the buildings and any other mechanical installations
will also attract compensation.

12.     Where the right of occupancy for a piece of land has been revoked but that
particular piece of land is part of a larger area of land, compensation will be
calculated for only the section whose certificate of occupancy has been revoked.

13.    Where compensation is paid for a piece of land containing buildings,
mechanical installations or crops, but not for the entire area of land, payment will be
made for only that piece of land so affected including the buildings, installations and
crops on it. Depending on the particular situation, compensation will either be for the
rent on the land or for buildings, installations, or crops of any combinations of the
above items.

14.     In the payment of compensations, “installation” means any mechanical
apparatus set up in the land but does not include installations inside a building such as
electrical equipment; cooking gadget, etc.

15.    Where there is a dispute over the amount of compensation to be paid, the
dispute will be referred to the Land Use and Allocation Committee. The Land Use
Decree of 1978 has cancelled the provisions of the Public Lands Acquisition
(Miscellaneous Provisions) Decree of 1976 except for the land already acquired
compulsorily before the 29th day of March, 1978.

16.     The revocation of the right of occupancy to the land allocated by the Military
Governor does not cancel any debt owed to the government by the holder of the
statutory right of occupancy.

17.     If the right of occupancy is revoked over a developed land, the Military
Governor or the Local Government, as the case may be, may use its discretion to
resettle the affected person in an alternative accommodation instead of paying him
compensation.

18.    If the value of an alternative accommodation is higher than any monetary
compensation which should have been paid to a displaced person, the Allocation
Committee can treat the difference as a loan to be repaid to the government by the
person concerned in a prescribed manner.

19.     Where a person prefers alternative resettlement to compensation, and has been
so settled, he shall not be entitled to any further compensation.



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      PART VI - TRANSITIONAL AND OTHER RELATED PROVISIONS

        The provisions in paragraphs 1 – 5 of this Part are in respect of land in urban
areas belonging to any person before the date of the Land Use Decree. If the land has
been developed it continues to be held by the person to whom it belonged before the
Decree. If he applies in the prescribed form, a certificate of occupancy will be issued
to him by the Military Governor. And if the land was a subject of mortgage or other
legal interest, the certificate of occupancy should indicate so. See foot note.∗

2.      If land in an urban area is undeveloped one plot or a portion of the land not
exceeding half a hectare shall continue to be held by the holder as if the holder has a
statutory right of occupancy. All the rights formerly vested in the holder shall cease
and the excess of the land shall be taken over by the Military Governor as provided in
the Decree.

3.      In the case of any person who is the holder of undeveloped lands elsewhere in
any urban area in the State, all his holdings of undeveloped lands in any urban area in
the State shall be considered together, and out of these, one plot or a portion of land
not exceeding half (½) hectare in area shall continue to be held by such a person as if
a statutory right of occupancy has been granted to him by the Military Governor in
respect of that plot or portion. The remainder of the undeveloped lands (so considered
together) in excess of half (½) hectare shall be taken over by the Military Governor
and administered as provided in the Decree.

4.      No undeveloped land shall be further subdivided or laid out in plots except
with the approval of the Military Governor. Again there will be no transfer of such
undeveloped land unless the written consent of the Military Governor is first obtained.
Any document, which purports to transfer undeveloped land, is void and parties to it
will be guilty of an offence punishable by imprisonment for one year or N5, 000 fine.

5.     What is said in paragraph 4 above will apply even where the land is held on
leasehold (customary or non-customary) and forms part of an estate laid out by any
individual, group or family. If there have been any improvements on the land, the
Military Governor shall pay compensation for them.

6.       Land that is not in an urban area, which was occupied lawfully by any person,
group or family at the commencement of the Decree, and used for agricultural
purposes, will continue to be held by such person, group or family. In this case, lands
left to lie fallow are also covered. Again, if the local government is satisfied that a
person, group or family occupies a piece of land for agricultural purposes, it shall
register him or them as the person or persons to whom a customary right of occupancy
had been granted in respect of such land. In the case of land that was developed
before the commencement of this Decree, the local government shall register the
holder or occupier as one to whom a customary right of occupancy had been granted
by the local government.
7.       No land of this type (that is rural land) shall now be sub-divided or laid out in
plots nor transferred to any person by the holder. Any such transfer shall be void and

*“Developed land” means land where there exists any physical improvement in the nature of road
development services, water, electricity, drainage, building, structure or such improvement that may
enhance the value of the land for industrial, or residential purposes.


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of no effect whatsoever and the parties to the transfer shall be guilty of an offence and
shall, on conviction, each pay a find of N5,000 or go to prison for one year.

8.     Any person except the true owner, who claims to a holder of a piece of land
and makes such false claim to the Military Governor or a local government or enters
another’s land falsely claiming it to be his is guilty of an offence and is liable on
conviction to a fine of N5,000 or will go to jail for one year.

9.     The Military Governor or the local government has the power to revoke or
cancel all rights of occupancy, whether statutory or customary.




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  PART VII – JURISDICTION OF HIGH COURTS AND OTHER COURTS

        Court action can only be started in the High Court in respect of land for which
a statutory right of occupancy has been granted by the Military Governor or in respect
of questions as to who is entitled to compensation for improvements on land under the
Decree.

2.      If any land case has already begun in any court before the beginning of the
Land Use Decree, such a case can still go on but the court can now only decide who
has the right of occupancy according to the provisions of the Decree.

3.     An area court or customary court or any other court of that rank is empowered
to hear cases arising from claims to a customary right of occupancy, that is, a right
given by a local government and by which an individual is allowed to use a piece of
land under the Decree.

4.      Proceedings for the recovery of ground rents in respects of a certificate of
occupancy may be started in a Magistrate Court by and in the name of the Chief Land
Officer or by and in the name of any other officer appointed by the Military Governor
for that purpose.

5.      To recover rent to be paid on any land occupied on the strength of a customary
right of occupancy, court action can be started in the area court or customary court or
in any similar court, which has the authority or approval to hear such a case. The
action must be started in the name of the Local Government where the land in
question is situated.




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