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Keywords: THE LAND USE ACT OF 1978




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


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





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


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


prospects of the Act.


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.


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.


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


attention is given to the Land Use Act, 19787.


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.


7 Ibid


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


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.)


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


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


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)’


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.


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


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


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


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


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


because the Military Governor held such land for the use and common benefit of ‘all


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.


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


* 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


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


* 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


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


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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Keywords: THE LAND USE ACT OF 1978


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