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ABSTRACT From time immemorial through the period of agriculture to the period of industrial development, land has remained the most valuable property in the life of man and his development. It is a source of wealth to those who have it and the mother of all properties. In other words, virtually all the basic needs of human existence are land dependent. In view of the importance and usefulness of land to man and his development as well as the development of his society, every person generally desires to acquire and own a portion of land to achieve the various ends for which the land is meant. Therefore, to make land in Nigeria available to all and to ensure that land is acquired and put to a proper use for the needed development, governments during and after colonial period enacted laws to govern the use or administration of land in Nigeria. Before the arrival of the colonial masters, there were customary laws which governed the administration of land in Nigeria. These customary laws varied from one locality to another because of the differences in customs of the people. This accounted for the multiplicity of land laws in Nigeria prior to the promulgation of the Land Use Act of 1978. These laws were applied in each region to regulate land in the region. Notwithstanding the existence of laws regulating land, the problems of land tenure and land administration persisted both in the Northern and Southern Nigeria. There were new problems such as land racketeering and speculations. Exorbitant compensations were demanded by landowners whenever the government acquired land for development. Thus, acquisition of land by government or individuals was becoming almost impossible in Nigeria. In fact, one of the major factors that was said to be a stumbling block against efficient implementation of the Second Development Plan 1975-1980, was lack of land for development project. To break this barrier and monopolies of landlords, the Federal Military Government set up some panels to consider how best to solve the problems iv associated with land tenure and administration in Nigeria. The report of one of these panels i.e., the Land Use Panel of 1977 eventually formed the basis of the Land Use Act No. 6 of 1978. The purpose of this essay therefore, is to critically examine the Land Use Act of 1978 to see the extent to which it has enhanced the administration of land in Nigeria. In this connection, reforms and innovations introduced by the Act to improve the administration of land are critically examined. Bearing in mind that every being has its scar, the Act is not without shortcomings. In this regard, this study further beams its search lights in figuring out the inherent problems of the Act. Finally, this work makes recommendations on how to improve the Act in view of the recent proposal by Government to review the Act. CHAPTER 1 GENERAL INTRODUCTION 1.1.0 BACKGROUND TO THE STUDY The importance of land to man on earth through all ages can hardly be overemphasized. Land, though represents only about two-fifth of the earth’s surface, it provides a platform on which man’s activities are predicated. It is however ironical that while the world population increases, the land in supply appears to be receding. Hence land is never thought to be sufficiently available to meet the need of man in a society. The ownership of land is jealously guarded against. Wars are fought, territories conquered to assert and preserve the ownership of land. The rift between Nigeria and Cameroon over Bakassi Peninsula, wars between Ife and Modakeke and that between Erinle and Offa attest to the above claim. For few available land to be equitably administered among the people and be maximally utilized there is need for a good land policy to be put in place for effective control and management of land in order to witness the desired development in the society. Prior to 29th March, 19781 when the Land Use Act was enacted, there were land laws2 which governed land tenure systems in Nigeria before, during and after the advent of the 1 The Land Use Act No. 6 March 29, Cap L5. LFN 2004 2 These pre-existing land laws include-customary, received English land laws and the Land Tenure Law 2 colonial masters. These laws continued to be in operation until they were found to be defective because despite their existence, the problems of land tenure persisted in Nigeria. One the most serious of these problems was the difficulty in acquiring land by the government in major urban centres for national development because of land speculations, racketeering and high cost of compensation3 usually demanded by the land owners whenever government acquired land to execute its projects. Against this background, the Federal Government in a deliberate effort to unify land tenure, streamline and simplify ownership of land in Nigeria, set up the Land Use Panel in 19774 with certain terms of reference. The recommendations of this panel were particularly related to the land tenure system in the Southern States. The recommendations were studied and adopted by government which promulgated the Land Use Act, 19785. This study is carried out against the background of the Land Use Act to evaluate it in the light of its laudable objectives to see whether land is better managed and controlled under the Act. It also points out the inherent problems of the Act which range from interpretation to practical implementation of its provisions. This essay also considers the 3 The Public Land (Miscellaneous) Decree, 1976 which provided for the amount of compensation throughout the whole country. But it has been repealed by the Land Use Act 1978 4 The Land Use Panel set up on the 16th April 1977 headed by Justice Chike Idigbo 5 Ibid 3 prospects of the Act. 1.2.0 OBJECTIVE OF THE STUDY The importance of land to man, its immense contributions to national development and the yearning for efficacious land legislation has led to a careful and deliberate choice of this topic with the following objectives in view: Firstly, to assess the effectiveness or otherwise of the management of land under the Land Use Act6. Secondly, to make useful recommendations on how to improve upon the Act, particularly its provisions that seem most unclear and controversial. Thirdly, to make substantial contributions to our knowledge of land law in general and the Land Use Act in particular. 1.3.0 FOCUS OF THE STUDY The study particularly appraises the Land Use Act of 1978, concentrating on its problems and prospects. Therefore, a holistic study of this Act is done. 1.4.0 SCOPE OF THE STUDY The enormity of the subject matter has led to the selection of some aspects of our land laws in Nigeria. In general, reference is made to virtually all our land and property laws which were in existence before the enactment of the Act in 1978. However, particular 6 Ibid 4 attention is given to the Land Use Act, 19787. 1.5.0 METHODOLOGY The study is more analytical than descriptive. An analysis of the evaluation of the problems of the Act are embarked upon in order to achieve the objectives of this study. The information relied on for these works are sourced from primary and secondary sources. In this connection, the Land Use Act No. 6 of 19788, Land Tenure Law of 19629, Public Land Acquisition Act10, the Nigerian Constitutions11 among others serve as major primary source. The secondary source include-materials on the internet, books, essays, journals and articles published on the subject matter together with the opinions of the courts in judicial decisions. Information is also sourced from the libraries of other institutions like the University Of Ibadan, Nigeria Institute of Advanced Legal Studies, University of Lagos. Many law chambers were also visited to gather information through personal interaction with Lawyers in those chambers. 1.6.0 LITERATURE REVIEW 7 Ibid 8Ibid 9 The Land Tenure Law NO. 25, April 22, 1962. Cap 59 Laws of Northern States 1963 10 Cap 167 Public Land Acquisition (Miscellaneous Provisions) Act, 1976 11 The Constitution of the Federation 1963; See also the Constitutions of the Federal republic of Nigeria: 1979, 1999 5 As earlier noted, many treatises have been published on this subject matter, few of which are worthy of mention here. They include: ‘Cases on the Land Use Act’12 by Omotola J.A., ‘Essay on the Land Use Act 1978’13 by Omotola J.A., ‘Handbook on the Land Use Act’14 by Niki Tobi, ‘Nigerian Land Use Act: Policy and Principles’15 by James R.W, ‘Modern Nigerian Land Law’16 by P.O.A Oluyede, ‘Principles of the Land Use Act’17 by Uwakwe Abugu, ‘The Land Use Decree 1978: A Critical Analysis’18 by Nweke O. Umezuruike. ‘The Law of Real Property in Nigeria’19 by Smith I. O, ‘Nigerian Land Law’20 by Elias, ‘Nigerian Law of Real Property’21 by Utuama A.A. The opinions of those writers and that of the courts about the Act are subject to critical review with a view to bringing out the areas of controversies and also to reconciling them. Our position on these are stated. The idea behind the promulgation of the Land Use Act, 1978 was to enact one basic 12 (Lagos University Press 1985) 13 (Lagos University Press 1984) 14 (ABU Press Ltd., Zaria 1989) 15 (Unife Press Ltd. 1987) 16 (Evans Bros (Nig) Ltd 1989, Ibadan) 17 (Joyce Graphic Printers & Publisher 2008. Kaduna) 18 (Fab Anieh (Nig) Ltd. 1989 Jos) 19 (Law Center Lagos State University 1995) 20 (London Sweet and Maxwell 1971) 21 (Sheneson C.I. Ltd 1990.) 6 legislation in which land was vested in the Governor of a State, to bring land under the firm control of the government in order to reduce the hazards attendant to the activities of land speculators. In pursuance of its objectives, the Act in its section 1 asserts state control over land. The section provides: Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act. The forgoing section and other provisions of the Act have engendered serious controversies both at the academic circle and in practice. While some writers and court’s interpretations of this provision have battered the Act with virulent criticisms, others have to a greater extent commended the Act. The former attitude towards the Act is informed by inelegant drafting that characterized the Act and its Military antecedent. M.G. Yakubu22 opined that the Act has majorly unified the laws relating to land tenure in Nigeria. According to him, the Act has to a greater extent done away with the various state land laws governing land tenure system in the country, thus making the work of a 22 Yakubu, M.G., Notes on the Land Use Act pp. 9-12 7 lawyer and the court easier in determining the applicable law. Nweke23 also observed that ‘….the Land Use Decree is a landmark in the history of land tenure in the country’. In the same vein, former President Shehu Shagari had earlier remarked that ‘the Act has harmonized the tenure system in the country and also eased access of Government to land to execute its projects’.24 Also, in Nkwocha v. Governor of Anambra State & Ors25, Irekefe JSC, stated that the Act is the most impactful of all legislations touching upon land tenural system of this country and after full nationhood. However, in discrediting the Act, the word ‘vest’ as used in section 1 has been suggested to imply the vesting of the ownership of all lands in the Governor which has the effect of divesting all previous owners of land of the ownership of their lands. These owners included the communities, families or individuals. In the words of Lipede,26 Abioro27 and Adeyemi,28 the Act is an obnoxious one. They therefore called for a repeal of same as it 23 Ibid foot note 18 24 Daily Times May 12th, 1988 25 (1983)4 NCLR 719 26 Sunday punch 18th August 1980. 27 He was then the Traditional Chief of Egba Land and a lawyer by profession 28 The National Concord, 20th August, 1980 cit, in Hakeem Ijaya’s Land Use Act A critical Analysis in the Jurist, an Annual publication of the Law Students’ society of Nigeria University of Ilorin vol. 11 2006 8 has deprived citizens of their ownership of land. Omotola29 and Nnamani30 remarked that the Act has created confusion to the system of land administration in Nigeria. With due regard, it appears that these learned writers seemed not to be aware or did not appreciate the policy objectives of the Act. In the words of Nnamani, ‘I cannot think of any statute which has produced so many ambiguities, contradictions, absurdities and confusions as this Act has done’. Omotola, an ardent anti-Land Use Act admitted that ‘if there be any award for bad drafting, the draft man of the Land Use Act will easily win the first prize’. Eso JSC.31 and Ogundare J.32 opined that the Act has virtually confiscated all the undeveloped lands in Nigeria from its community and private owners to the government. The duo observed that the ‘use of the word ‘vested’ in section 1 has the effect of transferring to the Governor of the State the ownership of lands in that State’. Contrary to the above view, Adigun33 argued that even with the Act ‘there are no landless Nigerians and that the Governor of a State is no more than a replacement 29 Omotola J.A., Law and Rights: Whither Nigeria? Being inaugural lecture lecture delivered at the University of Lagos on Wednesday June 29th 1988 Lagos. 30 Nnamani, the Land Use Act II years after GRBPL, May 1989 p.31 cit. in Hakeem Ijaya Ibid footnote 28 31 Ibid foot note 25 32 See Tijani Akinloye v. Chief Oyejide suit No. HC3/9A/83 of 17/9/8 33 Adugun O, ‘The Equity of the Land Use Act in Report of National Work Held at Lagos University on 25th – 28th May 1981 University (Press 1982)’ 9 of the trusteeship of say the Oba of Benin or the head of the family or community.’ To Oretuyi34, by section 1, the Governor becomes the legal owner of the land even though the ownership is not absolute since the land is held in trust for the use and common benefit of all Nigerians. Similarly, Smith35 expressed the view that section 1 vests the radical title on the land in every State in the Governor of that State subject to the provision of the Act. The radical title as expressed above can be said to be the legal title to land which inheres in the Governor while the other less titles can be described as the equitable title which every Nigerian owns. Thus, while the previous legal title can be said to have been taken away, sections 34(2) and 36(2) of the Act preserve the equitable rights of possession, occupation and enjoyment of all previous owners of land be it in urban or rural areas. In Ogunleye v.Oni36, Nnaemeka Agu JSC (as he then was) observed that: …The Land Use Act never set out to abolish all existing titles and rights to possession of land. Rather, when such rights or titles relates to developed lands in urban areas, the possessor or owner of that rights or titles is deemed to be a statutory grantee of a right of occupancy under section 34(2) of the Act. Where it is in non-urban land, the holder or owner customary law or otherwise is deemed to be a deemed grantee of a right of occupancy under the appropriate Local Government 34 Oretuyi, S.A., ‘Public Take over of Land-Federal and State Government Rights The Land Use Act: Ibid Report foot note 33 35 Smith I.O., Ibid foot note 20 36 (1990) 2NWLR (pt 135) 745 at 784. 10 under section 36(2). James R.W37, observed that the Land Use Act effected a conversion of all existing title, freehold or customary, into rights of occupancy. Ojewumi38 noted that ‘…many so called land owners continue to sit on their holding whilst state, which is declared as a trustee for the people is looking helpless’. To Nweke39, one wonders whether the ‘vesting’ of land in the Governor is the best way to achieve the objective of the Act. According Nweke, “Nigerians’ who are to use and enjoy land in Nigeria is not qualified in anyway according to the state origin of such Nigerians. The only organ which can assure the equitable use and enjoyment of land throughout Nigeria by ‘all Nigerians’ is the Federal Government.’ Professor Smith40 further observed that, the ownership structure in Nigeria has been radically transformed with the advent of the Land Use Act, 1978. In his words, the radical little to all land within the territory of a State in Nigeria having being vested in the Governor of that State, what Nigerians enjoy are rights of occupancy. While examining the effects of the Act on Customary Land Tenure System in Nigeria, Smith further remarked that: 37 James, R. W, ‘Modern Land Law in Nigeria, (University of Ife Press p.19) 38 Daily Times, 15th August, 1980 at p.6 cit, in Hakeem Ijaya Ibid footnote 28 39 Ibid foot note 18 40 Ibid foot note 19 11 the conception of Land Use Act as a piece of legislation is far from being an emasculation of the pre-existing system of customary land tenure rather, it is meant to solve the various socio-economic problems associated with it, establish a uniform land policy to cater for the need of the society, eradicate the multifarious problem associated with the issue of title to land in Nigeria and ensure availability of land for agricultural and industrial development.41 Other major aspects of the Act where divergent views have been expressed either for or against the Act include the status of the Act vis-à-vis the Constitution, succession of the Civilian Governor to the power and position formerly exercised and occupied by the Military Governor and the consent provision. For instance, the Act requires the consent of the Governor for a valid transfer of interest in land. This has been held to be a good innovation by the Act by some writers and judges. However, to Karibi White,42 Obaseki,43 Omotola44 and Nnamani,45 this requirement is a clog to economic development in Nigeria. Karibi White while concurring with the view expressed by Obaseki in Savannah Bank (Nig) Ltd v. Ajilo46 said ‘the observation of Chief Williams that the requirement of consent in every 41 See Smith I.O. Ibid foot note 19 42 Karibi- White, JSC. In Savanah Bank Ltd v. Ajilo (1989) NMLR (pt.97) p.305 43 Obaseki JSC. The Judicial Impression of the Nigeria Law of Property 44 Omotola, J.A., Ibid foot note 13 45 Nnmani Ibid foot note 30 46 (1989) NMLR (pt.97) p.305 12 transaction is a veritable clog in the progress of the commercial life of the nation and requires urgent review.’ On the status of the Act under the Constitution since its inclusion in section 274(5) of the 1979 Constitution (now section 315(5) of the 1999 Constitution)47 there have been decisions of the constitutionality and other constitutional aspects of the Act. The interpretation of this provision has thrown up a lot of controversy among writers and judges. While some of them have vehemently maintained that the Act is a mere existing law, not forming part and parcel of the Constitution, others maintained that it is part of the Constitution. In J.M. Aina & Co. Ltd v. Commissioner for Lands and Housing, Oyo State of Nigeria,48 Fakayode C.J. held that the Land Use Act is not an existing law but it formed part and parcel of the Constitution and it had to be regarded as such to all intent and purposes. It was also held in that case that the Act has repealed itself by its own terms and by being part of the 1979 Constitution instead of being an existing law. Also in Umar Ali & Co(Nig) Ltd v. Commissioner for Lands and Survey & Ors,49 Anya C.J. arrived at similar conclusion though for different reasons. However, in Chief Nkwocha v. Governor of 47 See the Constitutions of the Federal Republic of Nigeria 1979, sections 274(5); 1999, and section 315(5) 48 (1983) 4 N.C.L.R. 643 49 (1983) 4 N.C.C.R. 571 13 Anambra State & Ors,50 the Supreme Court settled the confusion on the status of the Act by holding that the Land Use Act is not a mere existing law but part and parcel of the Constitution. Also, on the succession of the Civilian Governor to the position and power of the former Military Governor as contained in section 276(1) of the 1979 Constitution (now section 317(1) of the 1999 Constitution),51 the interpretation of this provision has equally engendered conflict of opinions among writers and judges. In this regard, the Courts in J.M. Aina & Co Ltd v. Commissioner Land and Housing, Oyo State & 2 Ors 52, A.G. of Ogun State v. AGF53 and AG of Lagos State v. NEPA54 maintained that under section 276 of the 1979 Constitution (now 317 of the 1999) the Governor could only succeed to such property, right, privilege, liability or obligation as was held by the Military Governor which immediately before the date when the Constitution came into force was vested in or exercisable by or against the former authority and it cannot be a sheer inadvertence that the power is omitted. Accordingly, the rights and powers of the Military Governor over all lands in the State could not be succeeded by the (Civilian) Governor 50 (1983) 4 N.C.L.R. 719 51 See the Constitutions of the Federal Republic of Nigeria: 1979, sections 276(1); 1999, sections 317(1) 52 Ibid foot note 48 53 (1982) 3 NCLR 193-194 54 Suit No. LD/372/81 delivered on 5/7/82 14 because the Military Governor held such land for the use and common benefit of ‘all Nigerians.’ However, in Chief Nkwocha v. Governor of Anambra State & Ors55, it was held that the State Governor under the 1979 Constitution would succeed to the powers of the Military Governor under the Land Use Act and that consequently on 1st Octobers, 1979 the land comprised in Anambra State became vested in the duly elected Executive Governor of Anambra State to hold the land in the State for the benefit of all Nigerians. The learned Chief Judge in that case opined that if the State Governor did not succeed to the powers which the Military Governor previously enjoyed in that State under the Land Use Decree (now Act) it would make the provisions of section 274(5) (now 315 of the 1999 Constitution) meaningless and nugatory, since the power conferred by the Land Use Act would never be operated. 1.7.0 DEFINITION OF TERMS For a better understanding of this study it is necessary to defined the following terms as used in the work. They are: * Expressio unius est exclusio uterius: i.e, express mention of one thing is to the exclusion of all other things not mentioned 55 Ibid foot note 50 15 * Fair hearing: This is one in which authority is fairly exercised; that is consistent with the fundamental principle of justice embraced within the conception of due process of law, and contemplated in fair hearing is the right to present evidence, to cross examine, and to have finding supported by evidence. It is giving equal opportunity to parties to be heard in the court.56 * Fee Simple: This is a heritable estate which lasts until a grantee of it or a subsequent alienee dies intestate and leaves no heir, and it descends to collateral, if there are no lineal or heirs. That is, it is not restricted to a particular class of heirs57. * Fee tail: Is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee and which the regular and general succession of heirs at law is cut off.58 * Fortissime contra preferentis: This term has been defined by court to mean strictly (in applying expropriatory provision of law) against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived.59 * Gift intervivos: This is the gift made when donor is living and provides that the gift 56 Black’s Law Dictionary 6th ed. (1891-1991). See also Chief Christopher I. Monkom & Ors v. Augustine Odili (2010) 9 All FWLR (pt. 536) p. 552. 57 Ibid Black’s Law Dictionary foot note 56 58 Ibid foot note 57 59 Provost of Lagos State College of Education & Ors v. Dr. Kolawole Edun & Ors (2004) 6NWLR (pt. 870) 476-509 16 takes effect while donor is living.60 * Intendment (of law): This means the true meaning, the correct understanding or intention of the law.61 * Life estate: This is an estate whose duration is limited to the life of the holder or some other person.62 * Nemo dat quod non habet: This means he who has not cannot give.63 * Nemo judex in causa sua or Nemo debet esse judex in propria causa: That is, a man ought not to be a judge in his own cause.64 * Quicquid plantatur solo solo cedit: That is whatever is affixed to the soil belongs to the soil.65 * Ratio: It means reason or understanding (of the court)66 * Right of occupancy: This is a title to use and occupation of land and included customary and statutory rights of occupancy but does not include licence.67 60 Ibid foot note 57 61 Ibid foot note 57 62 Ibid foot note 57. See also Elias, Nigerian Land Law. Ibid foot note 20 63 Ibid foot note 57 64 Ibid foot note 57 65 Ibid foot note 57 66 Ibid foot note 57 67 Section 2 of the Land Tenure Law of 1962 17 * Seisin: A possession of real property under claim of freehold estate. It is a right to immediate possession according to the nature of the estate it gives right to exercise proprietary interest over the property or land for the prescribed period subject to the observance of tenural duties.68 1.8.0 CONCLUSION It is clear from what has being said so far, that in a deliberate effort to unify land tenure and to simplify ownership of land in Nigeria, the Land Use Act of 1978 was promulgated. By the Act, the control and management of Land in Nigeria became vested in the State.69 This State control and management over land is asserted by section 1 of the Act which vests all lands in the territory of each State of the Federation in the Governor of that State. The interpretation of which has engendered a lot of controversies among writers and judges. This not withstanding, what must be borne in mind is that at the time 68 Ibid foot note 57 69 See Section 1 of the Land Use Act 1978 18 the Act was enacted, there was a dire need to have a most comprehensive land legislation for effective management of land in Nigeria.
Keywords: THE LAND USE ACT OF 1978
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