LEGAL PRINCIPLE: LAND LAW – Certificate of Occupancy – Invalid Grant Cannot Extinguish Prior Rights Under Section 5(2)
PRINCIPLE STATEMENT
An invalid certificate of occupancy cannot extinguish all previous rights over the land as envisaged in section 5(2) of the Land Use Act because a valid grant is required to produce that effect.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Nigeria Engineering Works Ltd. v. Denap Ltd. & Anor (2001) NLC-1631997(SC) at p. 42; Paras A–A.
"Having held, and rightly too, that the revocation of plaintiff's right of occupancy was invalid, null and void, the Military Governor could not validly grant a right of occupancy to another person over the same land; the second grant, while the first subsists, must be invalid. An invalid certificate of occupancy would not have the effect of extinguishing all previous rights over the land as envisaged in section 5(2)."
EXPLANATION / SCOPE
Section 5(2) of the Land Use Act provides that a certificate of occupancy extinguishes all previous rights over the land. However, this applies only to a valid certificate of occupancy. An invalid grant cannot extinguish prior rights. If the revocation of the prior right of occupancy was invalid, the subsequent grant is also invalid. The first right of occupancy remains subsisting. The principle prevents the government from using an invalid grant to defeat existing rights. The court will set aside an invalid certificate. The holder of a prior valid right of occupancy retains their interest. The invalidity of the revocation infects the subsequent grant.