DIFFERENCE BETWEEN A C of O (CERTIFICATE OF OCCUPANCY) AND GOVERNOR’S CONSENT (REGISTERED DEED OF ASSIGNMENT)
In one of our previous articles Land titles, we highlighted some of the titles that cover landed properties/ real estate assets in Nigeria,. In this article, we would be focusing on two of the most popular land tiles most Nigerians are familiar with, either by handling or just hearing about them. We would explain in details what each of the title documents is, what they are not and also share images, as well as describing the differences between these two title documents.
WHAT IS A C of O (CERTIFICATE OF OCCUPANCY?)
A Certificate of Occupancy is an authorization document issued by the State Governor/Government (as the case in Nigeria) to an individual, groups of individuals or an entity conferring the right of occupancy of a particular property clearly defined by its location size and a term of 99 years.
WHO CAN ISSUE A CERTIFICATE OF OCCUPANCY?
The Land Use Act of 1978 unified the land tenure system in Nigeria and empowers by virtue of Section 9(1) the Governor of every state in Nigeria (the Minister of FCT for Abuja) to issue a Certificate of Occupancy under his hand in evidence of a right of occupancy. Hence, it is important to state that only the serving/incumbent State Governor can issue this certificate having acted in line with Sections 5, 9 and 10 of the Land Use Act of 1978, which confers the power and dominion of state land into the hands of the State governor.
WHO CAN BE ISSUED A CERTIFICATE OF OCCUPANCY?
The Constitution of Nigeria provides that every citizen of Nigeria has a right to acquire and own immovable property in Nigeria. There is no discrimination in terms of sex, name, ethnicity, and religion on issuance of this certificate to any person(s) provided the applicant meets the requirement. For anyone to be issued with a certificate of occupancy such a person must apply through the lands bureau of the state and proper documentations must be filed, screened, survey plan submitted, before the lands bureau would make recommendations to the Governor to sign the Certificate of Occupancy. Application is not automatic, as applicant must meet requirement before being entitled to the issuance
UNDER WHAT GRANT CAN A CERTIFICATE OF OCCUPANCY BE ISSUED?
The Land Use Act does not nullify any interest in the land prior to the Act. Under the Land Use Act 1978, there are two types of rights of occupancy recognized by the Act. These comprises Statutory right of occupancy and Customary right of occupancy. Both Statutory right of occupancy and Customary right of occupancy are of two classifications. The first is the Statutory right of occupancy granted by the State Governor pursuant to Section 5(1). The second classification is the Statutory right of occupancy deemed to have been granted by the State Governor pursuant to Section 34(2) In both cases of Statutory and Customary rights of occupancy, therefore, there exist an actual grant as well as a deemed grant.
ON WHICH LAND CAN A C of O BE ISSUED?
It must be emphasized without equivocation that no land can have two Certificates of Occupancy. If there exist two on a single land, one must be a fake document or issued in error due to deception of the government. We have seen circumstances like this before, which were settled in the court
A certificate of Occupancy after the 1978 Land Use Act should be the first document to be issued on a land that has never been registered at the lands registry, whether developed, brown field or green field. i.e there is no document on the land traceable to the land registry. Such land must be charted at the office of the Surveyor General of the state and Surveyor General of the federation (on federal land) to determine:
- If it is free from Government Acquisition
- If it is under acquisition is it committed or ratiafiable?
If the land is free from acquisition or falls under ratifiable land, the beneficiary of the land/applicant for the Certificate of Occupancy can then apply formally to the state Government, submitting requisite documents, and pay government fees for the issuance of the C of O on the unregistered land.
If the land is under government acquisition and also committed (non ratifiable) such applicant will not be issued a C of O
Note: C of O would only be issued if there is no record with the land registry about the land and no form of title has ever been issued Land Certificate, Conveyance or C of O on that particular land before the present application.
CAN A C OF O BE VOIDED, REVOKED AND CANCELLED?
The Land Use Act that states how the C of O can be granted also provides grounds under which the C of O can be revoked. The Certificate of Occupancy would clearly state the terms and conditions of the grant and where the holder of such certificate of occupancy fails to comply with the stated terms, the certificate of occupancy could be revoked or the holder may be penalized. Under Section 28 of the Land Use Act, the power of revocation of a right of occupancy is provided
There is a caveat in the C of O about the root of title. If after issuing the C of O, the root of title is found to be defective, the C of O can become null and void. Similarly, there are decided cases against an existing C of O where it was established that the root of obtaining the C of O were defective. One of such is JOSHUA OGUNLEYE v. BABATAYO ONI which was resolved in the Supreme Court., despite the plaintiff having a C of O; he still lost the land due to defective root of title.
WITH A C OF O, AM I THE OWNER OF THE LAND IN PERPETUITY?
It is important to state unequivocally that the concept of ownership of the land in absoluteness does not apply to land in Nigeria anymore since the commencement of the Land Use Act. For you to sell any land from 1978 to date, you require the consent of the Governor of that state. Hence, you do not own the land in perpetuity. In fact what you given is the statutory right to occupy and use subject land the specific use the Governor says you can use the land for. A certificate of occupancy is granted for a term of 99 years and can be renewed if the Governor wishes after expiration. Unlike your car and your other no real estate assets that you can dispose as you so wish without the consent of anyone, the reverse is the case for land, as ownership is vested into the state Governor.
WHAT HAPPENS AFTER 99 YEARS LEASE STATED IN THE C OF O EXPIRES?
This is another question many would have at the back of their minds in view of the fact that the C of O confirms the Governor as the perpetual owner of the land, while the holder of the C of O is an occupier for 99 years only.
Simple answer is that, the incumbent governor at the time of expiration can either renew the lease for another 99 years in consideration for payment or decide not to.
IF I HAVE A DEED OF ASSIGNMENT, DO I STILL NEED TO APPLY FOR A C OF O?
It depends entirely on the status of your deed of assignment. A deed of assignment that is executed by parties in the agreement needs to be registered. A registered deed of assignment is what is known in Nigeria as ‘Governor’s Consent’
As posited in this article, landed property is different from any other kind of asset that can be alienated at the discretion of the owner. In a case of land, no one can sell land, mortgage, transfer possession, sub-lease, or otherwise without the consent of the Governor. Hence, after selling a land, a deed of assignment is executed between the buyer (assignee) and the seller (assignor). The buyer must now take a step further by registering the assignment for it to be known as Governor’s Consent or registered Deed of Assignment.
In response to the question on whether a C of O is required. A registered Deed of Assignment or Governor’s Consent would most likely derive its title from an existing C of O, through an assignment. Hence, a Certificate of Occupancy will not be issued to a holder of a Governor’s Consent on the same land.
In a situation where your deed of assignment is not registered at the land registry, it is the root of title of the assignor that would determine whether you are to be given a fresh C of O or you would only be required to register the deed of assignment. This is further explained below
WHAT IS GOVERNOR’S CONSENT (REGISTERED DEED OF ASSIGNMENT?)
We are used to the term ‘Governor’s Consent’ and not many understand what it means. At times you ask people for the title document covering a land and you hear responses like ‘the property has a ‘Governor’s Consent’ as if ‘Governor’s Consent’ is a document like a C of O is.
For education, ‘Governor’s Consent’ is an action by the governor or his appointee consenting to a land transaction on a deed of assignment executed between an assignor and assignee through appending of signature on the executed document.
Unlike a C of O which is a document produced by the government and personally signed by the governor him/herself conferring right of occupancy unto the holder for 99 years, Governor’s Consent is appended on a page in a deed of assignment that is submitted by the assignee to the government informing the government that a transaction has taken place and they require the consent of the Governor for the transaction to be valid as required by the Land Use Act.
The consent of the Governor appended on the deed of assignment does not confer o n the beneficiary a fresh term, as the C of O does. It only affirms the transaction and the unexpired term stated in the C of O is still maintained.
The below table explains more
|Terms||C of O||Governor’s Consent|
|Issuing Institution||It is a document issued by the government directly and signed by the Governor him/herself
|It is a document prepared by either the assignor or the assignee’s lawyer and only sent to governor for his/her consent.
|Who Can Sign||Land Use Act says only the Governor
|The governor can sign personally or delegate to any commissioner or Deputy Governor to consent to it
|Term Created||Upon issuance, the holder gets fresh 99 years right of occupancy from a commencement date stated in the C of O
|There is no fresh 99 years term, as it continues from the commencement date of interest of the predecessor in title.
|Governor’s consent before alienation, transfer, mortgage||Holder of a C of O cannot alienate, transfer, mortgage or otherwise without the consent of the Governor.
|Holder of a Governor’s consent cannot alienate, transfer, mortgage or otherwise without the consent of the Governor.
|Number of times document can be issued||Only one (1) C of O can be issued on a particular property for the initial 99 years. If the holder sells property, the buyer is only entitled to Governor’s Consent and not another C of O
|Multiple Governors’ consent can be obtained on a single property provided the transaction keeps getting consent of the Governor. i.e party A can sell to party B and obtain consent. Party B can sell same property to party C and obtain Consent. Party C can sell to party D and obtain consent.
|Validity||It is a valid legal title to land conferring right of occupancy. Predecessor in title can be the Governor through Actual Grant by Section 5 of Land Use Act or through deemed grant by section 34 of the Land Use Act
|It is a valid legal title to land from the holder of C of O(assignor) to the new owner (assignee) through registered Deed of Assignment