CONCEPT OF TRUST AND ALIENATION OF RIGHT OF OCCUPANCY UNDER THE LAND USE ACT, 1978: IS CONSENT REQUIRED FOR CREATION OF TRUST

The article examined the provisions of sections 21 and 22 of the Land Use Act, 1978 which provides for consent of the local government or Governor to alienation of Customary Right of Occupancy or Statutory Right of Occupancy respectively. The provisions of the aforementioned sections clearly lay out methods of alienations of right of occupancy for which consent is required and instances where consent shall not be required. The article relied on the doctrinal research methodology to analyse the concept of trust as a method of alienation of right of occupancy with the objective of determining whether consent is required for creation of trust over land covered by right of occupancy. To this end, the article explored the principles governing creation of trust, evolution of trust, and classification of trust. The article found that although the Land Use Act does not mention trust as a method of alienation, creation of express trust does not automatically involve alienation of right of occupancy by the holder to another. More so, implied trusts are not contemplated by sections 21 and 22 of the Land Use Act since such trusts arise by operation of law. Based on the foregoing finding, it is suggested that in determining whether consent is required for creation of trust, the approach should be based on substance rather than the form of the trust. Therefore, the article concluded that requirement of consent for creation of trust depends on whether the trust operates to transfer the holder’s interest to another person as trustee.