POWERS OF THE STATE GOVERNORS UNDER THE LAND USE ACT 1978

 

CHAPTER ONE

GENERAL INTRODUCTION

Background to study

Land administration systems entail the management of land as a natural resource to ensure its sustainable use and development. In other words, they are concerned with the social, legal, cultural, economic and technical framework within which land managers and administrators must operate.1 Good practice in land administration benefits not only the present generation, but also posterity. It operates as the instrument to ensure equitable access to land by stakeholders within the policy[1]framework of a country.[2] Furthermore, it determines how the system can offer security of tenure and how government can regulate land markets, implement land reform, protect the environment and levy land taxes to enhance the utility and value of land. A good land administration system will not only guarantee ownership and security of tenure, support land and property taxation, provide security for credit, develop and monitor land markets, and reduce land disputes, but it will also facilitate land reform, improve urban planning and infrastructure development, and support environmental management.[3]These positive indices of good land administration need to be seen in Nigeria given the need to diversify the country’s oil-dependent economy and encourage more private investments, particularly in agriculture and infrastructure development. Thus, a pristine examination of the law on land administration in Nigeria under the Land Use Act[4] is imperative at this inauspicious period of national life.

The Land Use Act, promulgated in 1978, was motivated by the need to make land accessible to all Nigerians; prevent speculative purchases of communal land; streamline and simplify the management and ownership of land; make land available to governments at all levels for development; and provide a system of government administration of rights that would improve tenure security.5

 

The Act vests all land comprised in the territory of each State in the Federation in the governor of the State, in trust, to be administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.[5] Under the provision of section 3 of the Act, the basis of the control and management of land by the governor or the local government is determined by the designation of land as urban area and confining the undesignated areas to the control of the local governments.

The Land Use Act in section 2 empowers the governor to control and manage land within an urban area only, while the local government is empowered to administer land outside a designated urban area. It is imperative, therefore, that for the governor to control and manage land in the state, there must be a defined territory called urban area clearly spelt out in a gazette. Without the classification or demarcation of an area as urban, the governor has no area of control and management of land in the state, as all lands are presumed to be non-urban area by the Act.[6] Unfortunately, there has been no nationally approved standard for this demarcation as envisaged by the Act. The National Council of States saddled with the responsibility is yet to come up with any regulation in that respect.

In the absence of clear criteria for qualifying any area as urban, manifest confusion is being experienced in the land management sector of the nation. According to a commentator:[7]

the absence of clear criteria for qualifying any area as urban breeds the problem of uncertainty as to extent of land under the governor’s control; appropriateness of certificate to be issued; jurisdiction of courts in the adjudication of land matters; confused land identification processes and administrative conflicts between the governor and the local government amongst others, in the land management sector of the nation.

In the absence of any regulatory standard, States resort to the provisions of section 4 of the Act[8] and impose different standards and regulations in respect of the designation of areas of the state as urban and non-urban lands.[9] It is necessary, therefore, to have uniform standards and parameters for designating an area as urban or nonurban in order to move the land reform agenda to the next level.

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 examination of land administration in Nigeria and the Powers of the state Governors under the land use act 1978. Hence the following objectives were raised.

  1. To assess the legal and institutional framework for lamd administration in Nigeria
  2. To examine the reforms of the land use act
  3. To critically review the limits and forms of powers of the state government in land administration under the land use act of 1978.

Significance Of The study

This study would help researchers to add to the body of knowledge in the field of study. It would also be of immense help to the government Acquiring Authority and the stakeholders in land acquisition and utilization. Also This study examined the difficulties associated with, and incidental to the strict implementation of the consent requirement with their attendant legal, socio-economic and developmental dysfunction. Moreover it reviewed the current Amendment Bill before the National Assembly while unattended areas were highlighted, which, if not taken care of, may resonate another call in no distant future for a further amendment.

 

Methodology

The study is more analytical than descriptive. An analysis of the evaluation of the problems of the Act is 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 1978[10], Land Tenure Law of 1962[11], Public Land Acquisition Act[12], the Nigerian Constitutions[13] 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.

Literature Review

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’[14] by Omotola J.A., ‘Essay on the Land Use Act 1978’[15] by Omotola J.A., ‘Handbook on the Land Use Act’[16] by Niki Tobi, ‘Nigerian Land Use Act: Policy and Principles’[17] by James R.W, ‘Modern Nigerian Land Law’[18] by P.O.A Oluyede, ‘Principles of the Land Use Act’[19] by Uwakwe Abugu, ‘The Land Use Decree 1978: A  Critical Analysis’[20] by Nweke O.

Umezuruike. ‘The Law of Real Property in Nigeria’[21] by Smith I. O, ‘Nigerian Land Law’[22] by Elias, ‘Nigerian Law of Real Property’[23] 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 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. Yakubu[24] 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 lawyer and the court easier in determining the applicable law.

Nweke[25]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’.[26]Also, in Nkwocha v. Governor of Anambra State & Ors[27], 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,[28] Abioro[29] and Adeyemi,[30] the Act is an obnoxious one. They therefore called for a repeal of same as it has deprived citizens of their ownership of land. Omotola[31] and Nnamani[32] 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 hasdone’. 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.[33] and Ogundare J.[34] 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, Adigun[35] argued that even with the Act ‘there are no landless Nigerians and that the Governor of a State is no more than a replacement of the trusteeship of say the Oba of Benin or the head of the family or community.’ To Oretuyi[36], 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, Smith[37] 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.Oni[38], 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 under section 36(2).

James R.W[39], observed that the Land Use Act effected a conversion of all existing title, freehold or customary, into rights of occupancy. Ojewumi[40] 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 Nweke[41], 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 Smith[42] 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:

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.[43]

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,[44] Obaseki,[45] Omotola[46] and Nnamani,[47] 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. Ajilo[48] said ‘the observation of Chief Williams that the requirement of consent in every 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)[49] 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,[50] 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,[51] Anya C.J. arrived at similar conclusion though for different reasons. However, in Chief Nkwocha v. Governor of Anambra State & Ors,[52] 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),[53] 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 [54], A.G. of Ogun State v. AGF[55] and AG of Lagos State v. NEPA[56] 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 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 & Ors[57], 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.

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
  • 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.[58]
  • 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 heirs[59].
  • 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.[60]
  • 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.[61]
  • Gift intervivos: This is the gift made when donor is living and provides that the gift takes effect while donor is living.[62]
  • Intendment (of law): This means the true meaning, the correct understanding or intention of the law.[63]
  • Life estate: This is an estate whose duration is limited to the life of the holder or some other person.[64]
  • Nemo dat quod non habet: This means he who has not cannot give.[65]
  • 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.[66]
  • Quicquid plantatur solo solo cedit: That is whatever is affixed to the soil belongs to the soil.[67]
  • Ratio: It means reason or understanding (of the court)[68]
  • 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.[69]

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.[70]

 

 

[1] Daniel Steudler, Abbas Rajabifard, and Ian P Williamson, “Evaluation of Land Administration Systems” (2004) 21 Land Use Policy 371.

[2] AN Ukaejiofo, “Perspectives in Land Administration Reforms in Nigeria” (2008) 2 Journal of the Environment 43.

[3] See generally, Gershon Feder and David Feeny, “Land Tenure and Property Rights: Theory and Implications for Development Policy” (1991) 5 The World Bank Economic Review 135; Ian Williamson and others, Land Administration for Sustainable Development (1st edn, ESRI Press 2010).

[4] Land Use Act 1978, The Complete 2004 Laws of Nigeria <http:// lawsofnigeria.placng.org/view2.php?sn=228> accessed 19 June 2018. (Land Use Act 1978). 5 ibid preamble.

[5] Land Use Act 1978, s 1.

[6] Valentine Ofogba,Understanding the Land Use Act” (Lawsprings & Co) <http:/ /lawsprings.com/index.php> accessed 24 December 2016.

[7] ibid.

[8] The provisions of the section permits adoption of different laws based on Land Tenure Law of the former Northern Nigeria or the various States Land Law.

[9] In Lagos State, the governor by a 1981 regulation, declared almost all the lands in Lagos State as urban lands leaving the local government with little or nothing in respect of management of land in the State.

[10] Ibid

[11] The Land Tenure Law NO. 25, April 22, 1962. Cap 59 Laws of Northern States 1963

[12] Cap 167 Public Land Acquisition (Miscellaneous Provisions) Act, 1976

[13] The Constitution of the Federation 1963; See also the Constitutions of the Federal republic of Nigeria: 1979, 1999

 

 

[14] (Lagos University Press 1985)

[15]  (Lagos University Press 1984)

[16]  (ABU Press Ltd., Zaria 1989)

[17]   (Unife Press Ltd. 1987)

[18] (Evans Bros (Nig) Ltd 1989, Ibadan)

[19]  (Joyce Graphic Printers & Publisher 2008. Kaduna)

[20]  (Fab Anieh (Nig) Ltd. 1989 Jos)

[21]  (Law Center Lagos State University 1995)

[22] (London Sweet and Maxwell 1971)

[23] (Sheneson C.I. Ltd 1990.)

 

 

[24]  Yakubu, M.G., Notes on the Land Use Act pp. 9-12

 

[25] Ibid foot note 18

[26]Daily Times May 12 , 1988th

[27] (1983)4 NCLR 719

[28]Sunday punch 18 August 1980th

[29] He was then the Traditional Chief  of Egba Land  and a lawyer by profession

[30]The National Concord, 20 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 2006th

[31] Omotola J.A., Law and Rights: Whither Nigeria? Being inaugural lecture lecture delivered at the University of Lagos on Wednesday June 29th 1988 Lagos.

[32] Nnamani, the Land Use Act II years after GRBPL, May 1989 p.31 cit. in Hakeem Ijaya Ibid footnote 28

[33] Ibid foot note 25

[34] See Tijani Akinloye v. Chief Oyejide suit No. HC3/9A/83 of 17/9/8

[35] 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)’

[36] Oretuyi, S.A., ‘Public Take over of Land-Federal and State Government Rights The Land Use Act: Ibid

Report foot note 33

[37] Smith I.O., Ibid foot note 20

[38] (1990) 2NWLR (pt 135) 745 at 784.

[39] James, R. W, ‘Modern Land Law in Nigeria, (University of Ife Press p.19)

[40]Daily Times, 15 August, 1980 at p.6 cit, in Hakeem Ijaya Ibid footnote 28th

[41] Ibid foot note 18

[42] Ibid foot note 19

[43] See Smith I.O. Ibid foot note 19

[44] Karibi- White, JSC. In Savanah Bank Ltd v. Ajilo (1989) NMLR (pt.97) p.305

[45] Obaseki JSC. The Judicial Impression of the Nigeria Law of Property

[46] Omotola, J.A., Ibid foot note 13

[47] Nnmani Ibid foot note 30

[48] (1989) NMLR (pt.97) p.305

[49] See the Constitutions of the Federal Republic of Nigeria 1979, sections 274(5); 1999, and section 315(5)

[50] (1983) 4 N.C.L.R. 643

[51] (1983) 4 N.C.C.R. 571

[52] (1983) 4 N.C.L.R. 719

[53] See the Constitutions of the Federal Republic of Nigeria: 1979, sections 276(1); 1999, sections 317(1)

[54] Ibid foot note 48

[55] (1982) 3 NCLR 193-194

[56] Suit No. LD/372/81 delivered on 5/7/82

[57] Ibid foot note 50

 

[58]Black’s Law Dictionary 6 ed. (1891-1991). See also Chief Christopher I. Monkom & Ors v. Augustine Odili (2010) 9 All FWLR (pt. 536) p. 552th

[59] Ibid Black’s Law Dictionary foot note 56

[60] Ibid foot note 57

[61] Provost of Lagos State College of Education & Ors v. Dr. Kolawole Edun & Ors (2004) 6NWLR (pt. 870) 476-509

[62] Ibid foot note 57

[63] Ibid foot note 57

[64] Ibid foot note 57. See also Elias, Nigerian Land Law. Ibid foot note 20

[65] Ibid foot note 57

[66] Ibid foot note 57

[67] Ibid foot note 57

[68] Ibid foot note 57

[69] Section 2 of the Land Tenure Law of 1962

[70] Ibid foot note 57

 

POWERS OF THE STATE GOVERNORS UNDER THE LAND USE ACT 1978

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