the land use act of 1978: appraisal, …...iv associated with land tenure and administration in...

i

THE LAND USE ACT OF 1978: APPRAISAL, PROBLEMS

AND PROSPECTS

BY

SADIQ EMMANUEL RASAK

MATRIC NO. O6/40IA168

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW,

UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILMENTS

OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF

BARCHELOR OF LAW (LL.B HONS.) IN COMMON LAW

MAY 2011

ii

CERTIFICATION

This is to certify that this long essay: THE LAND USE ACT 1978: APPRAISAL,

PROBLEMS AND PROSPECTS was written by SADIQ EMMANUEL RASAK It

has been read and approved as meeting parts of the requirements for the award of

Bachelor of Law (LL.B Hons.) Degree in Common Law in the Faculty of Law,

University of Ilorin, Ilorin, Nigeria.

MRS. M.B JAIYEOLA DATE SIGNATURE

Supervisor ………………. …………………..

DR. HAKEEM IJAYA DATE SIGNATURE

H.O.D of Host Dept.

Dept. of Private and Property Law …………….… …………………

PROF. A. ZUBAIR DATE SIGNATURE

H.O.D of Graduating Dept.

Dept. of Islamic Law ………………… ………………….

DR. WAHAB O. EGBEWOLE DATE SIGNATURE

Dean, Faculty of Law ……………….. ………………..

……………………………. DATE SIGNATURE

EXTERNAL EXAMINER ………………… ………………….

iii

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.

v

TABLE OF CONTENTS

COVER PAGE…………………………………………………………………………...i

CERTIFICATION PAGE……………………………..………………..………………ii

ABSTRACT……………………………………………………………………………..iii

TABLE OF CONTENTS……………………………….………………………………iv

DEDICATION……………………………………………………………………..…...vii

ACKNOWLEDGMENT…………………..…………………………………......……viii

TABLE OF CASES…………………………………….……………………………..…x

TABLE OF STATUTES…………………………………………………………..…...xii

LIST OF ABBREVIATIONS…………………………………...…………………….xiii

CHAPTER 1

GENERAL INTRODUCTION

1.0.0. INTRODUCTION………………………………………………………………...1

1.1.0. BACKGROUND TO THE STUDY………………………………………………1

1.2.0. OBJECTIVE OF THE STUDY…………………………………………………...3

1.3.0. FOCUS OF THE STUDY………………………………………………………...3

1.4.0. SCOPE OF THE STUDY……………………………………………………........3

1.5.0. METHODOLOGY……………………………………………………..................4

1.6.0. LITERATURE REVIEW……………………………………………………........5

1.7.0. DEFINATION OF TERMS……………………………………………………...15

1.8.0. CONCLUSION. ……………………………………………………....................18

vi

CHAPTER 2

THE NECESSITY OF THE LAND USE ACT OF 1978

2.0.0 INTRODUCTION…………………………………………………….................19

2.1.0 NATURE OF LAND HOLDING PRIOR TO THE PROMULGATION OF THE

ACT……………………………………………….....................................19

2.1.1 CUSTOMARY SYSTEM OF LAND TENURE………………………………...20

2.1.2 NON CUSTOMARY SYSTEM OF LAND TENURE………………………….23

2.1.3 THE SPECIAL LAND TENURE SYSTEM IN THE FORMER NORTHERN

NIGERIA………………………………………………………………………...26

2.2.0 HISTORICAL BACKGROUND OF THE LAND USE ACT…………………..28

2.3.0 IDEOLOGICAL AND PHILOSOPHICAL BASIS FOR THE

PROMULGATION OF THE LAND USE ACT…………………………….......33

2.4.0 EFFECT OF THE LAND USE ACT ON THE PRE-EXISTING LAND LAWS

IN NIGERIA……..……………………………………………………................34

2.4.1 THE LAND USE ACT AND CUSTOMARY LAND LAW AND TENURE…..34

2.4.2 THE LAND USE ACT AND THE RECEIVED ENGLISH LAND LAW AND

TENURE. ……………………………………………………..............................36

2.4.3 THE LAND USE ACT AND THE LAND TENURE LAW, 1962……………...37

2.5.0 CONCLUSION. ……………………………………………………....................38

CHAPTER 3

THE LAND USE ACT: REFORMS & INNOVATIONS

3.0.0. INTRODUCTION…………………………………………………….................39

3.1.0. POLICIES INTENDED BY THE ACT…………………………………………39

3.1.1 UNIFORM LAND POLICY…………………………………………………….40

3.1.2 STATE OWNERSHIP, CONTROL AND TRUSTEESHIP POLICY………….41

3.1.3 PLANNED DEVELOPMENT AND ENVIRONMENTAL PROTECTION

POLICY. ……………………………………………………...................................45

vii

3.1.4 LAND USE POLICY……………………………………………………............48

3.1.5 RIGHT OF OCCUPANCY OR LEASEHOLD POLICY…………………….…49

3.1.6 CERTIFICATE OF OCCUPANCY……………………………………………..52

3.1.7 REDISTRIBUTION AND EQUITABLE POLICY……………………………..55

3.1.8 ALIENABILITY OF A RIGHT OF OCCUPANCY……………………………56

3.1.9 PROSCRIPTION OF DISCRIMINATION AGAINST FELLOW

NIGERIANS.……………………………………………………........................58

3.1.10 REVOCATION OF A RIGHT OF OCCUPANCY UNDER THE ACT………..59

3.1.11 THE ACT, A SOURCE OF GOVERNMENT REVENUE…………………..…61

3.2.0 CONCLUSION…………………………………………………….................62

CHAPTER 4

THE LAND USE ACT, PROBLEMS AND PROSPECTS

4.0.0 INTRODUCTION…………………………………………………….................63

4.1.0 PROBLEMS OF THE ACT……………………………………………………..63

4.1.1 PROBLEMS IN RESPECT OF TRUST CONCEPT INTODUCED BY THE

ACT……………………………………………....................................................64

4.1.2 PROBLEM IN RESPECT OF POWER CONTROL AND MANAGEMENT BY

THE STATE……………………………………………......................................65

4.1.3 THE ATTITUDE OF FORMER LAND OWNERS TO THE ACT…………….66

4.1.4 CONSENT REQUIREMENT AND ITS ATTENDANT PROBLEMS………...68

4.1.5 THE GOVERNOR’S UNFETTERED POWER TO DESIGNATE CERTAIN

AREAS AS URBAN LAND. ……………………………………......................70

4.1.6 THE HALF HECTARE RULE BY THE ACT IS CONFISCATORY…………72.

4.1.7 FINALITY OF DECISION OF THE LAND USE AND ALLOCATION

COMMITTEE. ……………………………………..............................................72

4.1.8 THE GOVERNOR CONCURRENT POSSESSION WITH THE OCCUPIER’S

RIGHT, A BAR TO ACTIONABLE TRESPASS………………………………74

viii

4.1.9 THE GOVERNOR’S EXCLUSIVE POWER OF REVOCATION UNDER THE

ACT…………………………………....................................................................76

4.1.10 THE DISCRMINATORY AND RESTRICTIVE NATURE OF THE ACT……77

4.1.11 THE ACT AND THE CONSTITUTION…………………………………..........79

4.2.0 CONCLUSION…………………………………..................................................82

CHAPTER 5

CONCLUSION AND RECOMMENDATION

5.0.0. CONCLUSION ………………………………….................................................83

5.1.0. RECOMMENDATION …………………………………...................................86.

BIBILOGRAPHY…………………………………..............................................91

ix

DEDICATION

This work is dedicated to God, the Father of my Lord Jesus Christ, my Saviour and my

very hope of existence. The Father of mercy and God of all sufficient, sustaining and

encouraging grace in whom I live, move and have my being.

x

ACKNOWLEDGMENT

I deeply appreciate the Lord, my King and my Redeemer for His faithfulness, love,

strength, protection, provisions and sustaining grace over me which have kept me secured

and seen me through these years of my academic sojourn. Through the thicks and thins in

these years that the soul went in search of knowledge, God indeed has been all in all and

most sufficient to me. His banner over me has been love. I will ever be grateful to Him who

ever cares for me-spirit, soul and body, and who alone has made me what I am today.

I also acknowledge my uncle and his wife, Mr. & Mrs. Sunday John with whom I stay ever

since I found myself in Ilorin. You have really taken care of me. The pages of this work

will not be enough to express my gratitude for all that God has used you to do for me both

in kind and in cash. May you never lose your reward. The Lord will promote you in all

ramifications and take your children to the height he desires for them in life in Jesus name!

To my Aunt, Mummy Debo (Mrs. Daodu), you are just too wonderful to me. Your timely

encouragements, prayers and gifts have ministered strength to me in the course of this

academic pursuit. You and your family are highly blessed!

My grandma (Mama Alice John), you are really a role model of an affectionate mother that

any grandson will love to have for a grandmother. You have not only told me you love and

care for me, but I have seen you demonstrated it through untiring love, care and generosity.

You have been a great encouragement to me during those years of my academic pursuit. I

am proud to have you for a grandma. You will fulfill your days in health and sound

relationship with the Lord Jesus. Amen!

Mum, (I call you by your maiden name: Iyabo!) really, there is no one like you to me. I

bless God for bringing me into the world through you. I have confirmed it to my soul in the

course of my academic pursuit that you really cherish and care for your only son. I deeply

appreciate your motherly love over me and all that you have contributed to my

xi

academic success. Blessed ever!

To all my friends: Segun, Dan, Olumide, Biodun, Yemisi, etc, who prayed for me,

encouraged me and extended generosity to me, I really appreciate all of you. To all the

New Testament Christian Mission Campus Fellowship (NTCMCF) and Christian Law

Students Fellowship of Nigeria Ilorin Chapter (CLASFON) members, I acknowledge you

all. I really felt the impacts of your prayers. Greater strength for the fellowships in Jesus

name!

To my parents in the Lord, I am really grateful for your timely prayers, words of

encouragements, counsels and gifts. May the Lord reward you all abundantly. To you all

my academic friends: Fatai, Kaseem, Ayo, James, Seyi, Nike, Toyin, Foluso (All – D -

Laws), I appreciate your imparting companies. You are all great achievers in Jesus name!

I also say big thanks to all my lecturers in the great Faculty of Law who taught me from

level 100 up to level 500 and those with whom I have had cause to interact with

academically. Without your efforts over me, I wouldn’t be what I am today. I am indeed

obliged!

Finally, my appreciation goes to my amiable supervisor. Of course, this acknowledgement

would not be complete if I fail to mention her name. She is Mrs. M.B. Jaiyeola. She is that

woman under whose supervision this beautiful work was carried out. The diligence and

painstaking, with which you read through this work, removed the immaterials and added

the materials have added more color to this work. I am highly obliged ma. The Lord will

continue to strengthen you, take you and your family to the height He desires for you.

Amen! To all of you who have contributed to my academic success one way or the other

whose names have not entered these pages, I remain grateful. May you never lose your

reward both here on earth and heaven above.

xii

TABLES OF CASES

• Abioye v. Yakubu (1991) 5 NWLR(pt 190) p.30

• A.G of Lagos State v. N.E.P.A Suit No. LD/372/81 delivered on 5/7/82

• A.G of Ogun State v. A.G.F(1982) 3 NCLR pp. 193-194

• A.G of Southern Nigeria v. John Holt(1910) 2 NLR 1

• Akpan Sam Adua v. Akpan Udo Essien (2010) 8ALL FWLR(pt. 535) p.361

• Amodu Tijani v. Secretary of Southern Nigeria(1921) AC 399 at 404

• Animashaun v. Sufiami Suit No. LD 19/77 dated 10/6/08

• Chief Christopher I. Monkom & Ors v. Augustine Odili (2010) 9 ALL FWLR (pt.

536) p.552

• Chief R. Nkwocha v. Governor Anambra State & Ors (1983)4 NCLR 719

• Davies v. Ilo Suit No. Ik/3/73

• Eze v. Igiliegbe & Ors 14 WACA 61

• J.M. Aina & Co. Ltd v. Commissioner for Lands and Housing, Oyo State of

Nigeria (1983)4 NCLR 643

• Madam Safuratu Salami & Ors v. Eniola Oke (1987) 9-11 SC 43

• Makeri v. Kafinta (1990) 7NWLR 158

• National Bank of Nig. Ltd v. Adedeji (1989) 1NWLR (pt. 76) 212

• Oduntan Osiniwo v. A.G of Southern Province (1912) 2NWLR p.77

• Ogunche v. Iliyasu (1974) NNLR (1972) 2 UILR (pt. iv) 424

• Ogunleye v. Oni (1990) 2NWLR (pt.135) 745

• Ogunola v. Eiyekole (1990) 4NWLR (pt.146) 632 at 647

• Okunola v. Oluwo (1987) 4NWLR (pt.64) p.141

xiii

• Otunba Bola Adewumi v. Mile ogunbowale & Ors. Suit No ID/115/81, High

Court Ikeja, 28/05/82.

• Provost of Lagos State college of Education & Ors v. Dr Kolawole Edun & Ors

(2004) 6NWLR (pt.870) 476 at 509.

• Queen v. The Minister for Land and Survey Exparte, the Bank of the North

(1963) NWLR 58

• Savannah Bank (Nig) Ltd Plc v. Ajilo (1989)NWLR (pt.97) p.35

• Tijani Akinloye v. Chief Oyejide Suit No. HC3/9A/83 of 17/9/8

• Umar Ali & Co. (Nig) Ltd v. Commissioner for LandsS and Survey & Ors (1983)

4 NCLR 571

• Upper Benue River Basin Development Authority v. Auta Alka & (1998)

2NWL. (pt.537) 328

xiv

TABLE OF STATUTES

STATUTE:

*The Constitution of the Federation 1963 No.20

*The Constitution of the Federal Republic of Nigeria 1979

*The Constitution of the Federal Republic of Nigeria (Promulgation) 1999 Cap.24 LFN

2004

*The Land and Native Rights of Proclamation, 1910

*The Land and Native Rights of Ordinance, 1916

*The Land Use Act No.6 March 29, 1978 Cap L5 LFN 2004

*The Public Land (Miscellaneous) Decree, 1976

*The Public Land Acquisition (Miscellaneous Provisions) Act Cap 167, 1976

LAWS

*The High Court Law Cap 61 Laws of Eastern Nigeria, 1963

*The Land Tenure Law No.25 April 22 of 1962, Cap 59 Laws of Northern Nigeria 1963

TREATY

*Treaty of cession 1861

xv

LIST OF ABBREVIATIONS

ABU……………………………………………………….……...Amadu Bello University

AG…………..…………………………………………………….……...Attorney General

AGF………………………………………...............…Attorney General of the Federation

ALL FWLR……….………………………………………...…All Federation Law Report

LFN……………………………………………………..Laws of the Federation of Nigeria

NEPA……………………………...............................National Electrical Power Authority

NCLR……………………………………………….….Nigerian Constitution Law Report

NLR………………………...…….…………………………………… Nigeria Law report

NNLR………………………………………………….…... Northern Nigeria Law Report

NRNLR………………………….……….……....Northern Region of Nigeria Law Report

NWLR……………………………………………………....Nigerian Weekly Law Report

SC………………………………………...…………………...……………Supreme Cases

UI…………………………………………...……………..………….University of Ibadan

UILR………………….....…………………………………...University of Ife Law Report

UNIFE………………………...…………………………………….....University of Ile-Ife

UNILAG…………………………………..………….…………….....University of Lagos

WACA……………………………………………………...West African Court of Appeal

1

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 1962

9,

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


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



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)


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


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


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



62 Ibid foot note 57. See also Elias, Nigerian Land Law. Ibid foot note 20





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


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.

19

CHAPTER 2

NECESSITY OF THE LAND USE ACT, 1978

2.0.0. INTRODUCTION

The concern of this chapter is the necessity of the Act.70

In other words, why the Land

Use Act in 1978, bearing in mind the fact that there were pre-existing land laws and

tenure systems in Nigeria before 1978 when the Act was enacted. Thus, the chapter takes

cognizance of the following: Nature of landholding prior to the promulgation of the Act

in 1978; Historical background of the Act; Ideological and philosophical basis for the

promulgation of the Act; Effect of the Act on the pre-existing land laws in Nigeria; and

Conclusion.

2.1.0 NATURE OF LANDHOLDING PRIOR TO THE PROMULGATION OF

THE ACT IN1978.

Prior to the Land Use Act 1978, Nigeria operated three systems of land tenure vis:

customary, non-customary and special system of land tenure which was applied in the

former Northern Nigeria. The nature of these laws and the systems of land tenure

practiced under them are briefly reviewed.

2.1.1 Customary System of Land Tenure

Customary land tenure system is a system of landholding indigenous to the people, and

70 Ibid foot note 1

20

like all other customs, it varied from place to place. The system was pure and free from

external influences, values and judgments. The evolution of this system and the various

principles regulating it exhibit the historical credentials rooted in the custom and tradition

of the different ethno cultural grouping in Nigeria over a period of time.71

The basic rule under customary law is that land belongs to the villages, communities or

families with the Chief, community or the family head as the ‘manager’ or ‘trustee’,

holding the land in trust for the use of the whole community or family. Title to land under

customary law is vested in the corporate unit. It is trite law that land cannot be owned by

an individual. In the case of Amodu Tijani v. The Secretary of Southern Nigeria,72

Lord

Halden observed that the basis of ownership under customary law is communal

ownership. In that case, it was held that land belongs to the community or family, and

that the concept of individual ownership is alien to native idea. No individual can lay

claim to the ownership of land corporately owned. The individual’s right is limited to the

use and enjoyment of the land, and as such individual cannot alienate same without

requisite consent. This position was also supported by the court in Eze v. Igiliegbe &

Ors.73

71 Ibid footnote 19

72 (1921) A.C. 399 at p.404

73 14 WCA 61

21

As professor Oluyede succinctly puts it, the whole idea is that

group ownership in African context is an unrestricted right of the individual

in the group to run stock on what is held to be the common asset of land; the

right of all in the group to claim support from the group’s land; and the tacit

understanding that absolute ownership is vested in the community as a

whole.74

It is worthy of note that the Chief, village or a family head in the exercise of his power of

control and management of land is often regarded as a ‘trustee’, but he is not in the

proper concept of the English trusteeship because unlike the trustee in English Law, the

title to land is never vested in him but in the community or corporate unit. The Chief or

family head is a care-taker performing pure administrative function in a representative

capacity.

It is equally instructive to note that Elias, 75

Coker76

, Bensti-Enchill77

, among others have

taken contrary views to the observation of Lord Halden in Amodu Tijani’s case (supra).

In their views, the concept of individual ownership under customary law is not foreign to

native notion. According to them, individual ownership under customary law forms the

basis of either communal or family ownership in land. Thus, the concept of gift intervivo,

74 See Oluyede, ibid footnote 16

75 Elias, ibid footnote 20

76 See Coker, Family Property Among the Yorubas (Sweet & Maxwell 1966)

77 See Bensti-Enchill, Ghana Land Law (Sweet & Maxwell 1964) p.81

22

devolution of his property on his children when the founder of the family dies affirms the

concept of individual ownership under native and customary land law.

One thing that is very clear however is that, the traditional basis of tenure under

customary law is common ownership and that is one feature that even today makes the

system peculiar.

The customary land tenure and law was characterized by ownership problem, which in

turn created negative impact in the hope and aspiration of many Nigerians who spent

their hard earn money on the purchase of landed property and later discovered that they

had only bought from those without valid title in such property. According to Verity in

Ogunbambi v. Abowaba,78

many owners that sprang up were dishonest in the manner

they deliberately swindled the people all in the name of buying land. Supporting this

view, Adigun79

remarked that ‘…the means of verifying the authority or otherwise of

the title of the family was not in existence’.

Similarly, the Europeans upon their advent into Nigeria levied series of allegations

against customary land law. The system was seen as not performing up to the expectation

of the Europeans who wanted to commercialize land. It was seen as archaic, primitive

and confused. One of the serious allegations of the unsatisfactory nature of the Nigerian

78(1951) 13 WACA

79 See Adigun O., ibid footnote 33

23

customary land law was the inalienability of land. This was considered as a serious

inhibition on the right of an owner of land. It was also argued it was unable to guarantee

title to land because it is unwritten and its principles unascertainable like the common

law. This was the background against which the English land law was introduced into

Nigeria which applied side by side with the customary land law. The English Land Law

became the offshoot of the Land Use Act, 1978.80

2.1.2 Non-Customary System of Land Tenure

The non-customary tenure is the tenure systems under the received English land law

which comprises of the common law, doctrine of equity and statutes of General

application. By virtue of the Interpretation Act section 4581

, the English law of real

property was applicable in Nigeria, subject to the exceptions contained in the section.

Accordingly, the English common law and equity rules relating to tenures, disposition of

real property, estate and a number of others became applicable in Nigeria.

The received English land law is based on the doctrine of tenure. By the doctrine of

tenure all lands in England belong to the Crown. The radical title sometimes called

80 Ibid footnote 1

81See 45(1) (2) and (3) of the Interpretation Act, 1964. See also S.15 of the High Court Law, Cap 161, and

Laws of Eastern Nigeria, 1963

24

allodial title or absolute ownership is vested in the Crown to the exclusion of all the

subjects. The doctrine of estate which could be freehold or less than freehold estate is the

right to possession held by individuals either directly or indirectly to the crown as a

tenant. All titles to land under this doctrine are ultimately based on possession or ‘seisin’.

This right to seisin entitles its owner to exercise proprietary rights over the land for the

prescribed period subject to the observance of the tenure duties, and it may be disposed of

as freely as any other subject matter of ownership.82

Freehold estates are not subject to a superior title unlike the estates less than freehold

which usually have overlords or landlords. Also, the period of seisin in a freehold estate

is uncertain unlike a leasehold estate which is characterized by certainly of period.

Thus, while a leasehold estate can be equated with the right of occupancy created in

section 5, 6 of the Land Use Act, Estate of freehold is more than that, but may find

equivalence in the deemed grant of rights of occupancy created in sections 34 and 36 of

the Act because such a deemed grantee is not obliged to so limit his interest by obtaining

a certificate of occupancy which creates a term of years.

This doctrine of tenure and estate was practiced in Nigeria especially in Lagos Colony.

Thus, following the Treaty of cession in 1861, the British Crown became the absolute

owner of the land in Lagos by virtue of Article 1 of the Cession Treaty. However, the


25

rights of properties existing in the inhabitants under the grant were respected as

evidenced in AG. of Southern Nigeria v. John Holt.83

It was contended by the White-Cap

Chiefs (Idejo)84

that King Docemo85

could not transfer the land to the British

Government because of the principle of nemo dat quo non habet.

Logically, it can be inferred from the foregoing that despite the absolute ownership

granted to the Crown by the Cession Treaty, the people still have their interests in land

preserved. This agrees with Smith’s86

view that ‘the theoretical ownership of the

Crown in England is no bar to the existence of freehold estate in England’. By

implication, the English land tenure system also emphasizes individual landholding in the

form of freehold estate. This has a tendency of creating confusion as to who is entitled to

the ownership of land. Is it the Crown of a freehold estate holder? In Oduntan Osiniwo v.

A.G. of Southern Province,87

it was recognized that this nature of problem or confusion

was created by the Treaty of Cession 1861 which was said to have failed to state in

express terms the nature and scope of the right of the British Crown over the land in

Lagos. The received English land tenure system operated side by side with the customary

83 (1910) 2NLR 1

84 These are Chiefs with a more valid claim to Lagos Land by virtue of their headship of their respective

families who are the ultimate land owners in Lagos and its surroundings.

85 The King of Lagos who ceded Lagos Colony to the British Crown in 1861.

86 Smith I.O ibid footnote 19

87 (1912) 2 NWLR p.77 see also Article 1 of the Treaty of cession, 1861

26

land tenure system in Nigeria before the enactment of the Act.

2.1.3 The Special Land Tenure System in the Former Northern Nigeria

This land tenure system also known as paternalism was a system of landholding which

applied in the Northern Nigeria under the Land Tenure Law of 1962. Following the move

by the British Government to take over ownership of land, the Land and Native Rights

proclamation of 1910 was enacted, and later repealed and replaced by the Land and

Native Rights Ordinance, 1916, which in turn was repealed and replaced by the Land

Tenure Law in 1962. Under this law, all land comprised in Northern Nigeria was under

the control and management of the Governor for the use and benefit of the natives of any

particular area88

. The interest any person could acquire in any land was a right of

occupancy as opposed to right of absolute ownership. The law has the singular quality of

introducing state control of land into Nigeria.

By section 4 of the law, which saved and perfected the existing rights the whole of the

land in the former Northern Nigeria whether occupied or non-occupied was declared to

be natives’ land subject to the provisions of sections 48 and 49 of the law. And no title to

the occupation and use of any such lands by an outsider is valid without the consent of

the Permanent Secretary by virtue of section 5 of the law. This makes the law to be

88 Section 5 of the Land Tenure Law of 1962

27

discriminatory against the non-natives in favour of the natives for whom the land is to be

held and administered for their use and common benefit. This distinction between natives

and non-natives was evident by the nature of the right of occupancy granted to them.

Only natives were by section 5 entitled to customary rights of occupancy, which are their

superior exclusive preserve. However, a statutory right of occupancy could be granted to

both natives and non-natives by the Minister.89

The expression ‘native’ is defined as a

‘person whose father was a member of any tribe indigenous to Northern Nigeria.’90

By implication, both Nigerians who are not indigenous to any part of the former Northern

State and aliens can only acquire statutory right of occupancy, the customary right of

occupancy being reserved only for the natives.

This land tenure system was criticized for being expropriatory by converting rights of

ownership into mere rights of occupancy. While the law seemed to assert State ownership

of land, it also protected the customary rights of the natives. It is in this spirit of dual

allegiance that the law found itself in a state of confusion in respect of absolute

ownership in land. This system adopted in the Northern part of this country was seen to

be more backward for national integration as it made discriminatory provisions in favour

of the natives.

89 Section 6 of the Land Tenure Law

90 Section 2 of the Land Tenure Law

28

2.2.0 HISTORICAL BACKGROUND OF THE ACT

Generally, the pre-Act Nigeria land tenure systems emphasized landholding and

commercialization of land as opposed to putting the land into effective use. The concept

of ownership under the systems did not go with the duty to develop such lands. As such

they encouraged the growth of a horde of land speculators who bought lands, held them

for as long as they liked until the value had appreciated sufficiently before disposing such

lands. In the same way the continued fragmentation of land by unguarded alienation

made it difficult for government to acquire sufficient lands to execute its projects. Also,

most lands held under customary tenancy lacked any documentary evidence of such

ownership. Consequently, such lands lay waste and could not be used as security for loan

for other projects. The system in the North was even more backward for national

integration because of its discrimination against other Nigerians.91

In the words of

Smith,92

‘the customary right of occupancy created by the Land Tenure Law was

merely designed to let indigenous landholders continue their use and occupation of

the land until the Federal State or Local Government found a better use for land’.

To Smith, ‘the whole legislation…lacks a precise or definite State policy on

landholding…’

91 Ibid footnote 87

92 Ibid footnote 89

29

It is therefore not surprising that the poor performance of the economy, the inability of

the country to feed herself, the inability of both the public and private sectors to provide

sufficient shelter for the people, even the inflationary trends in economy have been

blamed in a major respect on the system of land tenure.93

The system was seen as an

inhibition to national development.

In the third National Development Plan 1975-1980, the Federal Government was

emphatic on the need to build a just and egalitarian society. The Plan identified land

tenure as one of the constraints to national development. The plan emphasized that

several projects in the Second National Development Plan failed to take off because of

inalienability of land for the government or the price at which land was bought was often

prohibitive. Where land was readily available, the compensation usually claimed by the

land owners was generally exorbitant.

Against this background, the Government set up three different panels on different

occasions to study the problem associated with land. The first was the Anti-inflation Task

Force in 1975,94

and the second was the Rent Panel in 1976.95

They were to carry out

93 The Land acquired at high prices by government and private individuals when developed in form of

housing estate were in turn leased out to people at high prices.

94 Headed by Prof. Onitiri, H.A., which recommended a comprehensive national policy by the

30

certain studies which related to land. In their separate reports, the two panels identified

the land tenure system as contributory to the inflationary tendencies in the country.

Hence, they recommended that all lands should be vested in the state. The Government

White Paper on the Report of the Rent Panel accepted this recommendation in principle

but called for a further study of its practical implications. It is noteworthy that the Reports

of the two panels above provided a requisite impetus for the setting up of the Land Use

Panel96

on the 16th

May, 1977 with the following terms of reference:

i. To undertake an in-depth study of the various land tenure, land use and

conservation practices in the country and recommend steps to be taken to

streamline them;

ii. To study and analyze the implications of a uniform land policy for the country

iii. To examine the feasibility of a uniform land policy for the entire country make

necessary recommendations and propose guidelines for their implementation,

and

iv. To examine steps necessary for controlling future land use and also opening and

developing new lands for the needs of the government of Nigeria growing

population in both urban and rural areas and make appropriate

recommendations.97

The panel came out with very far reaching recommendations particularly on the tenure

promulgation of an Act which would have the effect of vesting all land in principle in the government.

95 Headed by Dr. Omolayole-recommended a fundamental review of the Land Tenure by vesting all land in

the state.

96 Headed by Justice Chike Idigbo

97 See Niki Tobi, ibid footnote 14

31

system. The recommendations were studied and accepted by Government and there upon

the Federal Military Government proceeded to promulgate the Land Use Act No.6, 29

March, 1978 in pursuance of the following objectives:

(i) To remove the bitter controversies resulting at times in loss of lives and limbs, which

land is known to be generating

(ii) To stream line and simplify the management and ownership of land in the country

(iii) To assist the citizenry, irrespective of his social status, to realize the ambition and

aspiration of owning the place where he and his family will live a secure and

peaceful life.

(iv) To enable the Government to bring under control the use to which land can be put

in all parts of the country and thus facilitates planning and zoning programme for

particular use.

(v) To generate revenue for the state by empowering the government to impose rents,

penal rents, revised rents and penalties;

(vi) To eliminate litigation in matter of sale, mortgage, lease or any other form of

alienation of land by making it necessary for an alienator to obtain the consent of

the governor or Local Government Chairman otherwise the transaction is not

lawful;

(vii) To facilitate acquisition of land for the Federal, State or Local Government by

vesting it in the State government;

(viii) To avoid concentration of land in the hands of only few people by fixing a ceiling on

land and in introducing the half hectare rule in urban areas;

(ix) To curb speculation in land which largely accounted for the astronomical rise in

land values especially in the urban areas;

(x) To encourage development by laying down terms and conditions for a holder and

providing compensation for unexhausted improvement only.98

98 See Nweke O.U., ibid footnote 18 ;see also Uwakwe Abugu ibid foot note 17

32

The decision of the Government to set up the panel was evident from the speech of major

General Musa Yara’Adua at the inauguration of the Land Use Panel which highlighted

the crying need for a fundamental sift from the existing land tenure to one that is

development friendly. Part of the speech is quoted in extenso:

The need for the establishment of this panel arose from the recommendation of various

commissions and panels set up to examine some aspects of the structure of our social and

economic life. The problem has also been foreseen and was fully articulated in the third

National Development Programmed. Both the Ant inflation Task Force and Rent Panel

Reports identified land as one of the bottlenecks to development efforts in the country and

recommended solutions…99

The Act sets out in its section 1 to assert the state ownership of land. Hence the power of

control and management over land in Nigeria is conferred on the government. Section 1

of the Act provides thus:

subject to the provision 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 hold in

trust and administered for the use and common benefit of all Nigerians in accordance with

the provision of this Act.

The implication of the foregoing provision is that the erstwhile owners are divested of

their ownership of land whether occupied or unoccupied.


33

2.2.0 IDEOLOGICAL AND PHILOSOPHICAL BASIS FOR THE

PROMULGATION OF THE ACT

The ideological and philosophical principle of the Act is as set out in the pre-amble to the

Act which provides:

WHEREAS it is in the public interest that the rights of all Nigerians to the land of

Nigeria be asserted and preserved by law WHEREAS it is also in the public interest

that the rights of all Nigerians to the use and enjoy land in Nigeria and the natural

fruit thereof in sufficient quantity to enable than to provide for the sustenance of

themselves and their families should be asserted protected and preserved.100

The summary of the above provision is that every Nigerian has the right to a piece of land

in Nigeria for his use and enjoyment, and this right as can be seen in the subsequent

provisions of the Act is that which must not be denied or refused by any authority. The

Act is thus aimed at assuring protecting and preserving these rights by vesting all land in

the state. In pursuance of its objectives and the philosophy above, the Act created a

tripartite system of landholding viz: State, Federal and Private.

2.4.0 EFFECT OF THE LAND USE ACT ON THE PRE-EXISTING LAND

LAWS IN NIGERIA.

Generally, the Act has not abolished pre-existing land laws and tenures even though the

latter have undergone some changes with the Act in place since 1978. Section 48 of the

100 Ibid footnote 21

34

Act provides that; ‘All existing laws relating to registration of title to or interest in, land or the

transfer of title to or any interest in land shall have effect subject to such modifications… as will

bring those laws into conformity with this Act or its general intendment.’101

Thus, under the Act, the pre-existing land law and tenure of which the principles are in

conformity with the general intendment of the Act are saved.

2.4.1 The Land Use Act and Customary Land Law and Tenure.

The provision of the above section 48 of the Act is true of the concept of customary law

and tenure that was in existence prior to the Act. As Smith102

observed, ‘the conception

of the Land Use Act as a piece of legislation is far from being an emasculations of

the pre-existing customary land tenure…’

By virtue of section 1 of the Land Use Act the concept of radical title to land existing in

the owner prior to the Act has been abolished and substituted with the limited title in the

form of a right of occupancy. The transitional provisions under the Act recognize and

protect the existing customary rights on land in that limited form. By the combined

effects of sections 34, 35, 36 and 51(1) paragraphs 3 and 15 of Act, the rights of any

person or community using or occupying land in accordance with customary law are

101 Section 48 of Land Use Act


35

preserved though in a limited form of a right occupancy under the Act. Also, the

devolution of right under customary law upon death of the holder of a right of occupancy

is preserved subject to section 24 of the Act, thereby sustaining the concept of family

property.

The institution of customary tenancy is also preserved by the Act together with its

incidents. In Okunnola v. Oluwo, 103

it was established that the Act has not destroyed the

concept of customary tenancy and it was not intended to transfer the possession of the

land from the owner to the tenant by whom the owner is in possession. By the combined

effect of sections 2(1) and (b) (5), 6 and other relevant provisions of the Act, the

customary right of use, control and management is also preserved. This is more so, since

no member of the family or community can validly apply for and obtain a certificate of

occupancy to use family property nor can a prospective customary tenant by pass the

customary land owner to apply to the Local Government for a lease of land. Also,

alienation of such land requires first and foremost the requisite consent of the family or

the community. The Act has also preserved the remedies or relieves or forfeiture

available to customary landlord whenever a tenant disputes the title of the former or

alienate without the consent of the landlord the land let to him (the tenant) by the

103 (1987) 4 NWLR (pt. 64) p. 141 at 366

36

landlord. This is the position of the Supreme Court in Salami v. Oke.104

Also, the

reversionary interest of the landlord is never extinguished by the passage of time. This is

also the position of the Court in Abioye v. Yakubu.105

2.4.2 The Land Use Act and the Received English Land Law and Tenure

The general provision of section 48 quoted in paragraph 2.4.0 is applicable to the

received English land law and tenure. Under the Land Use Act, the English doctrine of

estate has been modified. Section 1 of the Act can be said to have enacted the

equivalence of the English doctrine of tenure by which all land in England is vested

allodially in the Crown. No individual subject can claim the radical title to land, but in

theory an individual is entitled to the estate of freehold and leasehold.

Under the Land Use Act, the concepts and terminologies of English freehold estate: ‘fee

simple’, ‘fee tail’, ‘life estate’ appear to have been terminated by virtue of the systems of

a right of occupancy created and emphasized in sections 5,6,34, and 36 of the Act.

However, the concept of non freehold or leasehold estate remains in as much as the Act

recognizes a sublease as a means of dealing in a right of occupancy. The Act has also

largely preserved the principles of concurrent interests, settlement and mortgages as there

104 (1987) 9-11 S.C. p. 43 at 49

105 (1991) 5 NWLR (pt. 190) p.30

37

is nothing in the Act that suggests that such estate can not be created.

2.4.3 The Land Use Act and the Land Tenure Law, 1962

Subject to section 48 of the Act earlier referred to, the principles of Land Tenure Law

which are in conformity with the spirit and general intendment of the Act still apply.

Section 4 of the Act also recognizes as the applicable law the former state laws governing

land acquisition and use in the state subject to modifications as would bring those laws

into conformity with the general intendment of the Act.

However, the impact of the Act in the Northern states is obvious from the analysis of the

differences between the Act and the Land Tenure Law of 1962. For instance, under the

Land Tenure Law, it was possible to grant customary rights of occupancy in urban area.

This became impossible under the Act as the said customary right of occupancy right of

occupancy could be converted to statutory right of occupancy by the application of

section 5(2) of the Act. This thus strengthens the legal status of those rights. The Land

Use Act has also made a tremendous impact on the Land Tenure Law on the payment of

compensation. For instance the provision for the payment of inconveniences suffered

while the right of occupancy is being revoked as contained in section 35(1) of the Land

38

Tenure Law has been modified by section 28 and 29 of the Act.106

It was held in Upper

Benue River Basin Development Authority v. Auta Alka & 7 Ors.,107

that section 35(1)

of the Land Tenure Law has been modified by the combined effect sections 4, 28, 29 and

48 of the Act by way of omission of provision for inconveniences to persons whose lands

are compulsorily acquired for public purposes under the Act to bring it into conformity

with the Act or its general intendment.

2.5.0 CONCLUSION

From the foregoing analysis, it is quite obvious that the Land Use Act of 1978 is a

revolutionary legislation in the area of land tenure in Nigeria. Its enactment was

necessitated by a number of socio-economic factors militating against conferment of

valid title in land, the realization of use and enjoyment of land in Nigerian and the

effective utilization of land by private entrepreneurs and the government for development

purposes.

106 Revocation and compensation sections of the Act.

107 (1998) 2 NWLR (pt. 537)328

39

CHAPTER 3

THE LAND USE ACT: REFORMS AND INNOVATIONS

3.0.0 INTRODUCTION

The Land Use Act108

is a revolutionary legislation and a landmark in the history of land

tenure in the country. As a writer succinctly put it, the announcement of the Decree (now

Act) was… greeted with ovation in many quarters and heralded as the only legislation

which was going to transform Nigeria from the abyss of underdevelopment.109

It is no

doubt that the Act came with laudable objectives. This perhaps informed the foregoing

attitude of the people to the announcement of the Act. Pursuant to its objectives, the Act

came up with certain policies as innovations in the area of land tenure and administration

in Nigeria. In this chapter, attention is focused on the evaluation of these policies of the

Act to see how far the Act has realized its objectives and improved land administration in

Nigeria.

3.1.0 THE POLICIES INTENDED BY THE ACT

The policies intended by the Land Use Act of 1978 which are otherwise known as the

108 Ibid footnote 1


40

reforms and innovations for the purpose of this study include the followings:

3.1.1 Uniform Land Policy

The Land Use Act of 1978 is the first and only legislation that has brought the land tenure

system in this country under a uniform land policy. Despite series of legislations on land

before the promulgation of the Act in 1978, the Southern part of Nigeria, especially, was

marked by lack of coordinated and formalized tenurial arrangement. The result of this

gave rise to endless litigations which constituted a clog on the economic development.

Under the Act, various laws relating to land tenure in Nigeria which applied prior to the

promulgation of the Act were unified into one legislation. Thus, these various state laws

were done away with. This has led to a dramatic change in land tenure system in the

country. It needs be mentioned that one of the objectives of the Act is to streamline the

land tenure system in this country by reducing areas of conflict. The idea was to enact

one basic legislation in which land was vested in the Governor of a state. By this

arrangement, it became easier to bring land under the firm control of the government,

thus reducing the hazard of the activities of land speculators. Supporting this view,

former President Shehu Shagari said that ‘the Act has harmonized the land tenure

system in this country and also eased access of government to land’.110

This reform


41

has also made the works of lawyers and courts easier in determining the applicable land

law in any case.

As Jakande111

puts it, ‘any appraisal of the policy of the Land Use Act, it is the first

time in this country that any government has undertaken an exhaustive and

comprehensive review of land policy in all its ramifications, and has come out with

clear-cut decisions, law and regulations.’

3.1.2 State Ownership, Control and Trusteeship Policy

One of the policies intended by the Act in land tenure and administration in Nigeria is the

state absolute control and ownership of land in Nigeria. The idea is to nationalize land

such that the absolute ownership and control of land in Nigeria would no longer be within

the powers of the communities, families or individuals but the Government. This policy

is asserted by section 1 of the Act which vests all land within the territory of each state in

the federation in the Governor to be held in trust and administered for the use and

common benefit of all Nigerians. The concept of state trusteeship for the whole nation is

to make sure that an individualistic conception of property does not rear its ugly head

again. Even in the case of the former Northern Nigeria where under the Land Tenure

111 Former Gov. of Lagos State at the Formal Opening of the National Workshop on the Land Use Act,

1978 on May 25, 1981 at the University of Lagos.

42

Law, the law seemed to assert state ownership over land, it also protected the customary

rights of the natives112

, thus creating dual allegiance. Under the Act, the ownership

concept was simplified. The Act in content vests the radical title in land in the Governor

as the trustee and the rights of occupancy in the people. This position was supported by

the court in Abioye v. Yakubu(supra) and Ogunola v. Eiyekole113

. Supporting the

foregoing view, Smith114

observed that with the advent of the Land Use Act, 1978, the

ownership structure has been radically transformed. He maintained further that, the

radical title to land within the territory of a state in Nigeria having being vested in the

Governor, what Nigerians enjoy are the rights of occupancy so that the ownership

concept in land in Nigeria today may be construed in terms of a right of occupancy. In

Madam Safuratu Salami & Ors v. Eniola Oke115

, Oputa J. S. C. said that ….the

innovation introduced by the Land Use Act was to divest any claimant of radical title and

limit his claim to a right of occupancy.

The Land Use Act by this policy of trusteeship differs from the paternalistic one in its

essential objects. While paternalism (i.e, the system adopted in Northern Nigeria) aimed

at ensuring for members of ethnic groups the use and occupation of land and permitted

112 See section 2, 5 of the Land Tenure Law 1962

113 (1990) 4 NWLR (pt. 146) 632 at 647

114 Ibid Smith I.O. footnote 19


43

discrimination against members of other ethnic groups, ‘Trusteeship’ aims at securing the

implementation of fundamental objectives of national policies and proscribes

discrimination in land matters. The method of achieving these objectives were by vesting

all land comprised in the state other than federal lands116

, in the Governor of the state for

the use and benefit of all Nigerians and by establishing uniform national principles. These

principles are as follows:

(a) The maximum interest the citizen is allowed in land is right of occupancy, but the

developer owns his improvement on the land117

.

(b) Dispositions are subject to control without reference to ethnic origin of the

transferee.

(c) Private land rights are subject to and must give way to overriding public interest,

and

(d) Security of tenure is depended on land use.

This policy facilitates Government access to land for development projects. Thus, in

Makeri v. Kafinta118

, it was held that under the Act, a legal notice that the entire land has

116 See section 49 of the Land Use Act, 1978.

117 See sections1, 5, 6 and 15 of the Land Use Act

118 (1990) 7NWLR (pt. 163) 411 at 419

44

been acquired by the government for public purpose without any further assurance would

dispense with the necessity for any certificate of title especially now that all lands in the

state’s territory have been vested in the (Military) Governor by section 1 of the Land Use

Act of 1978.

By the state ownership and control of land, and by the trusteeship arrangement,

speculations in land which largely accounted for astronomical rise in the value of land

especially in urban areas were done away with. Speculators now found alternative outlets

for their capital and entrepreneurial ability and this has contributed to the stabilization of

land value. Such stabilization has in turn contributed to the stabilization of the cost of

government projects especially in urban areas of the country.

More so, by making land available for both the federal and state governments, they have

to a greater extent realized their commitments on public sector housing, infrastructural

developments and the implementation of conservation schemes. This policy has also

secured for every Nigerian a piece of land for his use within his financial means. There

have also been reductions in the incidence of land disputes. Of course, the foregoing is

among the overall objectives the policy the Act intended to achieve.

45

3.1.3 Planned Development and Environmental Protection Policy

Planning in this contest has to do with physical or town planning as intended by the Land

Use Act. That is, master planning out in urban areas and local planning which has to do

with lay out development plan or site layouts. This physical or town planning can broadly

be described as the wise and most optimum use and management of the resources and the

direction and control of the development of an area in such a way as will most efficiently

promote and safeguard the health, safety, convenience and the economic, cultural, social

and general welfare of the people and the amenities of every part of any given area, small

or big.

Before the enactment of the Land Use Act in 1978, people could use land, build thereon

without proper planning. This however changed after the enactment of the Act. Although

there is nowhere in the Act where town planning is expressly mentioned, a critical look at

the provisions of the Act reveals that some physical planning terminologies are stated in

the Act. Example of these are: Land Use, Urban areas, Resettlement of person affected by

the revocation of rights of occupancy, Developed land, Undeveloped land, Erection of

any building, wall fence or other structures upon any land, Contravention119

Under the Act, some areas in the state are declared as urban areas where any person is to

119 See generally sections 1, 2, 3, 43, 2(2) (b), 33, 34(2) 36(4) 34(6) of the Act

46

have the right of occupancy of not more than half hectare (1.2 acres) of undeveloped land

that can be used ‘for all purposes.’120

Establishment of both state and Local Government

Land Allocation Committes.121

In non-urban areas, the Governor has the power to grant a

right of occupancy to a person on ‘400 hectares’ (988 acres) of land prospecting for

building materials like stones, gravels,122

etc The Local Government has the power to use

up to ‘500 hectare’ (1,235 acres) for ‘agricultural purposes’, and up to ‘5000 hectare’

(12.355 acres) for ‘grazing purposes.’ If any Local Government wants to grant more than

the above to any person, etc., it must obtain the Governor’s consent before doing so.123

No person or group of person has the power to sub-divide or layout any land above half

hectare (1.2 acres) in any urban area, and transfer any plot therein to any person without

the consent of the Governor124

. That is, no person or family or company, etc, can lay out

any land more than half hectare in any urban area and submit same to the Governor for

approval as was being done before the promulgation of the Land Use Act in 1978.

‘Contravention,’ in the realm of Town Planning, means an illegal or unauthorized

development having no approved building plan. That is, any structure erected anywhere

120 See sections 5(1) (a), 34(5) of the Act.

121 See sections 2(2) a (5) of the Act.

122 See section 12 of the Act

123 See section 6(2) of the Act

124See section 34(7) of the Act

47

above or underneath the ground without any approval is a contravention. This is frowned

at by the Act in section 43.

This policy has effected the following advantages:

Firstly, since all the undeveloped land in every state has been vested in the Governor, the

physical planner can plan vacant land and zone any part thereof for any use including

public open space.

Secondly, The Land Use Act enables the Town planner to plan in such a manner that

different land uses are juxtaposed in the most harmonious and beneficial relationship for

the good of the people in an area or in a state. This is because the end product of

scientific planning is the optimum use of land in any area for the good of the people in

the affected area at any given time frame.

Thirdly, by this policy, the Land Use Act has limited but not eliminated land garbling

practices of land speculators who buy land cheaply from those who claim to be original

owners and sell later at exorbitant prices to others.

Fourthly, by physical planning under the Act, freehold interests in land have been

cancelled since such interests have become leasehold interests for a limited period of time

as form 29th

March, 1978.

48

3.1.4 Land Use Policy

The Land Use Act of 1978 introduced and emphasized the principle of land use in land

tenure system in Nigeria. Under the Act, the right of occupancy introduced by the Act is

construed on the need to secure for all Nigerians the use and enjoyment of land, and the

natural fruit therefrom. This stands in direct opposite to the freehold system under the

common law in the sense that the Land Use Act places emphasis on the utilization of land

while the freehold system protects title to ownership of land. It can therefore be said to

day that the Land Use Act has brought into our land tenure system the principle of

effective utilization of land.

From the provisions of the Act, there are four aspects of the policy of land use which

need be clearly distinguished:

Firstly, the control of the manner in which land is used.

Secondly, the obligations imposed on the right holder to utilize his land and the

consequence of breach of these obligations.

The strongest argument for the introduction of rights of occupancy was the process of

facilitating planned development as an aspect of land tenure. While at common law, the

freehold system is characterized by discretion in the owner to use or neglect the use of his

land expressed as the concept guaranteed, the right of occupancy is characterized by the

49

adoption of the principle that security of tenure depends on land utilization.

Thirdly, the effect of occupation and use on title (land to the user)

Fourthly, the protection the law accords to the developer which may be expressed in

terms of the incentives to develop land and the guarantee of his rights to the unexhausted

improvements therein.

3.1.5 Right of Occupancy or the Leasehold Policy

This is a device adopted by the Land Use Act to link a person to a piece of land. Having

adopted the dual schemes of management and control of land between the state and the

Local Government,125

the Act proceeds to empower each of them to grant rights of

occupancy in appropriate cases which could be either statutory or customary rights of

occupancy. It is statutory if granted by the Governor, and customary if granted by the

Local Government. Both statutory and customary rights of occupancy can be expressly

granted or granted by the operation of law126

.

Although by vesting of all land in the territory of each state in the Federation in the

Governor of each state, the radical title to land now inheres in the state, by the policy of

right of occupancy which is equivalent of a leasehold interest in land, a claimant is still

125 Section 2(1) of the Act

126 See sections 5, 6, 34 and 36 of the Act

50

entitled to a declaration of title to a right of occupancy. Thus in Madam Safuratu

Salami’s127

case (supra), the court observed that the Land Use Act by this innovation was

to divest any claimant of radical title and limit his claim to a right of occupancy. The

claimant can thus be entitled to a declaration of a title to right of occupancy.

A statutory right occupancy may be granted for a term of year under section 8 of the Act.

This of course perhaps is the reason why the system of right of occupancy as devised

under the Act has been likened to a leasehold interest. The nature of right of occupancy is

that it is a possessory interest which is devoid of the concept of absolute ownership or the

radical title by virtue of section 1 of the Act128

. As a proprietary interest, it confers

possession and user, and this possession is exclusive against all other persons except the

Governor129

. A number of rights, powers and privileges which a right holder enjoys with

reference to the land can be highlighted as follows:

(a) The use, occupation and beneficial enjoyment;

(b) Possession; and

(c) Disposition i.e., the right is transmissible.


128 Which vests in the state the radical or absolute title to land.

129 Section 14 of the Act

51

The right holder exercises these rights for a fixed period in some cases or an indefinite

period in others130

. He is entitled to a document call a certificate of occupancy as the

evidence of his title to the land131

, and this certificate is a registrable instrument. The

right of the holder to peaceful enjoyment of land and improvements thereon cannot be

indiscriminately infringed upon at the instance of the Governor or other authorities.

These rights of enjoyment, of property possession thereof and security of interest are

constitutionally safeguarded.

On the final note, the policy of right of occupancy or leasehold policy is a system

intended by the Act to unify and simplify the land tenure system, and make land available

and to secure right to the land for developmental purposes. To this end, common

principles are established: The right holder is guaranteed security of tenure subject only

to the principle of overriding public interest. He has a special property in his

improvements to the land for which he is guaranteed compensation on the revocation of

his right of occupancy, and he is permitted to dispose of the land or improvement therein

but with the approval of the appropriate authority132

. He is however not permitted to

130 E.g. statutory right of occupancy in section 8 is fixed unlike the customary right granted in sections 6,

36 of the Act

131 Section 9 on the Act


52

fragment his holding into uneconomic portion, either intervivos or on death.

3.1.6 Certificate of Occupancy

Another important reform of the Land Use Act is the issue of certificate of occupancy.

Section 9(1) (a)-(c) of the land use Act which is in parimateria with section 10(1) (a)-(c)

of the Land Tenure Law of 1962 provides thus:

1. It shall be lawful for the Governor -

(a) When granting a statutory right of occupancy to any person; or

(b) When any person is in occupation of land under a customary right

of occupancy and applied in the prescribed manner; or

(c) When any person is entitled to a statutory right of occupancy,

to issue a certificate of occupancy under his hand in evidence of

such right of occupancy.

The significance of a certificate of occupancy as provided for in section 9 above is that

when issued under the hand of the Governor it evidences title as opposed to conferment

of ownership. One of the effects of the Land Use Act is that no person can now own land

as compared to the ownership of the right to use land. This situation makes it more

necessary than ever before that there must be a document specifying the quantum of

rights which a grantee has over a parcel of land.

The nature of a certificate of occupancy is that it is a title document and it evidences the

grant of a right of occupancy whether statutory or customary. As an evidence of title, the

53

Governor is thus empowered to grant a certificate of occupancy to any person under the

circumstance stipulated in section 9(1) (a) – (c) earlier quoted

From the provisions of the Act it is clear that only the Governor has the express power to

issue a certificate of occupancy. Where power to issue it has been delegated to the state

commissioner, such certificate shall be expressed to be granted on behalf of the

Governor133

. Even a grantee of a customary right of occupancy has to apply to the

Governor for the issuance of certificate of occupancy.

The beauty of this certificate lies in the fact that it may be a prima facie evidence of title

and raises a rebuttable presumption that the holder is in exclusive possession and has a

right over land. However, where a certificate of occupancy is defective it evidences

nothing, and it in the words of Professor Smith becomes a ‘miserable scrap of paper’134

.

Also where it is shown that another person has a better right to the grant, the court will if

asked to do so set aside the grant. In Ogunleye v. Oni,135

the Supreme Court held that a

certificate of occupancy issued pursuant to the Land Use Act only gives right to use and

occupy land and never conferred title. Nnemeka Agu J.S.C., in that case said:

…it would be wrong to assume …… that all that a person who resorts to a grant as

133 Section 45 of the Act

134 Smith I.O., ibid foot note 19

135 (1990) 2 NWLR (pt. 135) 745

54

a method of proving title to land needs is to produce a document of grant and rest

his case. Rather, whereas, depending upon the issues that emerged on the pleading it

may be suffice where the title of the grantor has been admitted, a different situation

arose in a case like this where an issue has been raised as to the title of the grantor.

In such a case, the origin of the grantor’s title has to be averred on the pleading and

proved by evidence.

Section 10 of the Act provides for implied terms and condition that every certificate of

occupancy is presumed to contain. These include the followings: (a) that the holder binds

himself to pay to the Governor the amount found to be payable in respect of any

unauthorized improvements existing on the land at the date of his entering into

occupation; (b) that the holder binds himself to pay to the Governor the rent fixed in

accordance with the provision of the section 16.

A certificate of occupancy confers the following advantages on the holder.

(i) It is the best evidence of title and valuable for the prevention of fraud since failure to

produce it at once alerts a third party who agreed to deal with the person who purported

to have an interest in land.

(ii) If the practice is adopted of recording, their in, dealing by the holder, the certificate,

could be the most convenient source of notice and record of third party’s rights.

Certificate of occupancy may be used as a pledge for a loan. Any money lender will have

a hold over a proprietor who has handed over his certificate of occupancy to him as a

55

security. Thus, it can be a convenient means of security, for instance, a bank overdraft

without the necessity of executing a format charge.

(iii) As the best evidence of the title, it would be the normal document which will be

deposited with the chargee or mortgagee of land, thus facilitating the equitable mortgage

or charge by depositing the document.

(iv) It can be the means of identifying land registry entries efficiently and quickly without

the risk of official error, for it gives the land official number.

Interestingly, it needs be noted that the certificate of occupancy as devised by the Act,

when compared to a Deed of Conveyance under the existing land tenure system, is a

better title document, which also mitigates the pre-Act land disputes in the country.

3.1.7 Redistribution and Equitable Policy

Before the Land Use Act, the land policy of the nation was inadequate to fulfill the hope

and aspirations of many Nigerians. The state lands were shared among the ruling classes

with some people owning three or four state plots when thousand of others had none. As

the Constitutional Drafting Committee noted in its report. ‘it is revolting to one’s

sense of justice and equity that one person alone should own 3 or 6 and more plots

of state land in any state, when others of comparable status have none’136

.

136 Report of the Constitution Drafting Committee vol.1 September 14, 1976 at p. xii

56

In essence, the monopoly of land by a few was the characteristic of the pre-Act land

tenure system especially in the Southern Nigeria. During this time, speculations over land

were the common feature and practice in land tenure system. This resulted from

fragmentation of land especially by the few influential. A typical example was the case of

Bamgbose’s family in Lagos or the Oloto’s family who held many plots of land at the

expense of the majority who had nothing to hold.

With the policy of equitable redistribution under Act, the situation however changed. By

section 34(5) and (6) of the Act, all undeveloped lands which were held in excess by the

occupiers or holders before the Act were reduced to only one plot not more than half

hectare which they can now retain. The remaining plots revert to the Governor to be held

in trust for the use and common benefit of all Nigerians.

By this policy, the Act has drastically reduced speculations and racketeering over land.

The half hectare rule as provided by the Act has been viewed to be ‘land pooling’ which

makes for presumably the equitable distribution of undeveloped land in urban areas.

On the final note, it must be stated that as from 29th

March,1978 when the Land Use Act

commenced, there is no room for holding undeveloped land in urban areas in excess of

one plot not more than a half hectare.

57

3.1.8 Alienability of a Right of Occupancy

One of the criticisms against the pre-Act customary land law was that it did not allow

alienation to a total stranger. This was seen as a strong inhibition to the value,

merchantability of land held under native law and custom. One of the objectives

underlying the introduction of the Land Use Act was to make transfer of land easy and

with the ultimate goal of enhancing the value of land. Thus, by the combined effect of

sections 21, 22, 23, 24, 26 and 34(7) of the Act, the objective of transferring land from

one hand to another is guaranteed. But such alienation must be subject to the consent of

the appropriate authority.

The foregoing is contrary to the belief of many Nigerians on absolute prohibition of

alienation or transfer of a right of occupancy by the Act whether in respect of developed

or undeveloped land. As such, with requisite consent having been sought and obtained,

the Act allows the holder of a right of occupancy to alienate or transfer all or part of his

interest in such right. Thus, in Savannah Bank Ltd v. Ajilo137

and National Bank of

Nigeria Ltd v. Adedeji138

, the courts held that ….the requisite consent is required for an

effective and valid alienation on both actual and deemed grants.

The Act also recognized that a right holder having sole and absolute possession of the

137(1989) 1 NWLR (pt. 97) 305

138(1989) 1 NWLR (pt. 76) 212

58

improvement on the land, he is entitled to dispose of same with the consent of the

Governor by virtue of section 15(a) (b) of the Act. The holder of a right is equally entitled

to compensation in the event of revocation of a statutory right of occupancy. Thus, the

maxim Quic quod plantatur solo cedit, does not apply to a holder of a statutory right of

occupancy with improvements theron since 29th

, March 1978.

3.1.9 Proscription of Discrimination against Follow Nigerians.

Having vested the ownership and control of land in the state by section 1, the Land Use

Act ensures that such land so vested are held in trust for the use and common benefit of

all Nigerians. Also by sections 5(1)(a) and 6(1)(a)and(b) of the Act, the Governor or the

Local government is empowered to grant either statutory or customary rights of

occupancy as the case may be to ‘any person.’

In view of the above provisions, the Land Use Act of the 1978 unlike the existing Land

Tenure Law of 1962 has facilitated the living together of Nigerians by properly regarding

them as ‘Nigerians’ and not ‘natives’. It has ended all discriminations against fellow

Nigerians who were regarded as non-natives under the Land Tenure Law of 1962.139

The

Act does not start a new brand of apartheid by taking the land of one Nigerian and

granting it to another Nigerian without any good reason.

Thus, in effect, any Nigerian from any part of the country is entitled and can be granted a

139 Sections 5, 6 of the Land Tenure Law

59

statutory or customary right of occupancy under the Land Use Act except in a very

restricted case in the circumstance of person under the age of 21 according to section 7 of

the Act.

3.1.10 Revocation of a Right of Occupancy under the Act

The power of the Governor to revoke a right of occupancy under the Act is exercised in

the public interests. This power is guaranteed under section 28 of the land Act. It should

be noted however, that the individual’s right to acquire and own immovable property

anywhere in the country is a fundamental right. Because of the respect for this right,

government rarely and whenever it becomes inevitable, reluctantly invokes the power of

compulsory acquisition. The Act in section 28(1)-(3) empowers the Governor to revoke a

right of occupancy for overriding public interest among other things. In the present time,

‘revocation is in fact peremptory’.

In order to protect the fundamental property right of the individuals, the Act is very

detailed on the procedure for a revocation which must be complied with strictly. The law

demands that the revocation provision be construed fortissime contra preferentis.

The procedures as provided by the Act are as follows:

Firstly, the notice to compulsorily acquired land must be published to the whole world

60

with specific deadline for raising of objections140

.

Secondly, the revocation of occupancy shall be signified under the hand of a public

officer duly authorized in that behalf by the Governor and the notice thereof shall be

given to the holder141

.

Practically, it has been held in many cases that where the overriding public interest for

which a right of occupancy was revoked failed or where the procedures for revocation are

not strictly complied with, such revocation should be null and void. Thus, in Provost of

Lagos State College of Education & ors v. Dr. Kolawole Edun & Ors142

, where the

giving of adequate notice was in issue, the court held that the description of the land

acquired as a ‘global acquisition of 120.50 square miles’ was not sufficient as it failed to

mention Ijanikin / Otto town or village where the land was situated. Also in J.M Aina &

Co. Ltd v. Commissioner for Land and Housing, Oyo State of Nigeria & Ors143

,

where the notice of revocation of a right of occupancy was not served on the plaintiff and

it was published only in the newspapers and not in the Gazette as required by the law, the

court held that this omission rendered the revocation null and void. Similarly, in Umar




143 Ibid

61

Ali & Co Nig Ltd v. Commissioner for Land & Survey & Ors144

, it was held that the

public purposes for which the land in dispute was required which led to the purported

revocation had failed. And upon failure of these purposes for which the plot was

required, the plot should by operation of law revert to the plaintiff.

It must be noted that development would not be possible if the Governor does not have

such power of revocation. For instance in 1980, the Lagos State Government required

land on which to construct over 11,000 classrooms. This was only made possible by

compulsory acquisition of private land. The same argument goes for low-cost houses

both now and then. For instance, in some years back, the same Lagos State Government

was able to build 2,000 housing units in Amuwo-Odofin; 1,000 in Iponri; 3,000 in

Dolphin; 3,000 in Abesan Agege; and 100 in Abule-Nla through the revocation of

occupancy rights which had been previously allocated to some citizens.

A sensible Government must lawfully take control of the land situation now if the

populations of the future are to be taken care of. This means that individual greed must be

suppressed for public good. That is, where private interest over land conflicts with public

interest, the latter must override the former.

144 Ibid

62

3.1.11 The Act, a Source of Government Revenue

One of the objectives of the Land Use Act is that the government by allocating land is

able to raise revenue for development purposes. Hence, one of the great achievements of

the Act since 1978 is that it has generated more revenue for the government. This is so

because the assignors or mortgagors of land must pay certain amount of money to the

government before they can obtain consent to their transfer.

3.2.0 CONCLUSION

As evidenced from the foregoing analysis, through the policies intended by the Land Use

Act, reformation which have led to some form of development have been witnessed in

land tenure and land administration in Nigeria. Paramount of these are: uniform land

legislation, easy ascertainment of where the ownership and control of land now reside,

effective and efficient utilization of land, equitable distribution of land among all citizens

without discrimination, revenue generation and of course, most importantly,

Government’s easy and quick access to land needed for developmental projects. In this

regard, the Land Use Act is very laudable; whatever may be short coming in other

directions.

63

CHAPTER 4

PROBLEMS OF THE LAND USE ACT, 1978

4.0.0 INTRODUCTION

The Land Use Act145

is an organic document which has held sway in land administration,

acquisition and enjoyment in Nigeria for over thirty-three years now. During these long

years, the true interpretation of the Act has proved a knotty issue for all those directly

connected therewith.

The Act though with the compact document of only 52 sections, has probably generated

more controversy on the true import and purport of its provisions than even the

constitution. The basis of such controversy is owning to two major factors namely: the

apparent inelegance that characterized its draftsmanship and its military antecedent. This

chapter critically examines the inherent problems in the Act which range from the

interpretation to practical implementation of the provisions of the Act.

4.1.0. PROBLEMS OF THE ACT

What is intended to be done here is to bring to fore the faulty aspects of the Act on which

little or nothing has been written, and not to repeat the earlier works or writings on this

sub-heading.


64

4.1.1 Problems in Respect of Trust Concept Introduced by the Act.

Section 1 of the Act provides, inter alias, that all land shall be held in trust and

administered for the use and common benefit of all Nigerians by the Governor of a

state.146

The foregoing section sets up Global Trust over land in which case the Governor of a

state is the trustee, holding land in trust for all Nigerians who can be regarded as the

beneficiaries. It is however unfortunate that the Act has made no effort to lay down even

in outline, the principles on which this trust shall be administered and discharged. In

normal trust for instance, several onerous duties are placed on the trustee in respect of the

trust property. These duties include: duty to act unanimously, duty not to delegate, duty

to account to the beneficiary, etc. The question then is who will have the right to probe

the performance of this trust seemingly created by the Act? On this important question

and many other questions that may be raised in this regard, the Act is silent.

It needs be noted that the beneficiaries of this global trust are Nigerians, not indigenes of

the individual states. Can Nigerians as the beneficiaries under this global trust impeach

all persons who are involved in the performance of this trust just like the beneficiary

under the normal trust has a right to do? And if the ordinary Nigerians cannot impeach

the trustee, who can do that? These are the issues the Act has failed to attend to. In


65

Otunba Bola Adewumi v. Mike Ogunbowale & Ors147

, Balogun J. in an obiter dictum

remarked on this global trust thus:

The concept of trusteeship is used in section 1 of the Land Use Act,

as enacted, in a loose sense. It is not intended to confer upon every

citizen of Nigeria the benefit which the beneficiary has against a

trustee under the common Law. No Nigerian citizen can under that

section… claim against the Military Governor an account for any

benefit accruing from the land held by him under the Act in trust

and administered by him for the common benefit of all Nigerians.

As such, when trust in its true sense is considered vis-à-vis that created by the Act, it is

discovered that the position of the latter idea of trust does not represent the real concept

of normal trust. The implication of this is that the beneficiaries under this global trust

under the Act i.e., Nigerians are denied many of the benefits they should have enjoyed

against the trustee (the Governor) in relation the trust property, that is, land.

4.1.2 Problem in Respect of Power of Control and Management by the State.

By section 1 of the Act, all lands in the territory of each state in the Federation are vested

in the Governor of that state to be held in trust and administered for the common benefit

of all Nigerians… The Act by above section148

has altered the existing land laws

147 Suit No. ID/115/81, High Court of Ikeja, 28/5/82


66

particularly in the Southern part of the country in a fundamental way: it usurped the

power of control and management of land which was hitherto vested in the families,

villages and communities. It has also removed corporate groups, families and chiefs from

the ownership of land and replaced them with the state Governors. This usurpation of the

power of control and management from the former owners has placed land out of the

reach of the natives because the Governor who sometimes lives far away in the state

capital is too far from the majority of the people whom the Governor is purported to hold

land in trust for. This, it can be contended has made acquisition, use and enjoyment of

land more difficult for most Nigerians.

Thus, the objectives of the Act at present can be said not to have been realized to a

greater extent because land is placed far away from the people. In fact it is arguable that

as things are now, especially considering the rigorous process in obtaining the

Governor’s consent for a valid grant, it is harder to acquire land by an individual than it

was before the enactment of the Act.

4.1.3 The Attitude of Former Land Owners to the Act

One important character which any legislation should have is its popularity with the

people the legislation is to serve. The Land Use Act obviously does not get that

acceptability as it should from individuals, communities especially in the rural areas

67

and even the Bench and the Bar. In this connection, sections 34 and 36 of the Act in

general preserve the existing rights of the citizens in land. The practical result of this is

that there is no change at all in the attitude of the citizens to land or indeed the number of

land disputes. The overlords still go to court to ask for forfeiture of the right of the

customary tenant. In the same vein, families still sue for a declaration of title to land. In

fact, the struggles for land still linger despite the Act. The ratio in Animashaun v.

Sufiami149

and Davies v. Ilo150

where the court observed that refusal to pay tribute would

amount to denial of the overlord’s title which will incur forfeiture clearly shows that the

ownership of land remains unaltered. In some cases, a revocation order made by the

Governor could not be implemented because of stiff resistance by group owners. In the

words of Niki Tobi151

:

A more fundamental problem is in respect of the attitude of the land owners before

the promulgation of the Act. Despite the provisions of the Act and the notices sent to

the previous land owners to evaluate the land for the purpose of survey, they do not

generally co-operate with the surveyors. This results at times to physical

confrontation or court action. The lack of co-operation form previous land owners

has also resulted in some practical difficulties of developing master plans which

materially affect the physical development of the land.

The communal rifts between the people of Modakeke and Ife further buttresses the fact

149 Suit No Ld/19/77

150 Suit No IK/3/73

151 See Niki Tobi Ibid footnote 14

68

that the Act lacks popularity as it reveals the attitude of the people to land despite the Act.

The Modakeke refused to pay ‘ishakole’ (i.e. tribute) to the people of Ife on the ground

that the Act has abolished customary system. The Ife resisted this and instantly denied the

Modakeke of their possession in land. This resulted in war between the two communities

which claimed many lives.

4.1.4 Requirement of Consent and its Attendant Problems

One of the objectives of the Land Use Act is to make transfer of land easy. However, any

alienation without the consent of the Governor or the Local Government is unlawful.

Thus, by the provisions of sections 21, 22, 23, 26 and 34(7), no alienation or transfer of

any interest in land whatsoever can be validly made under the Act until the requisite

consent is obtained.

The requirement of consent in the case of alienation is strict and applies to both actual

and deemed grants. Thus in the case of Savannah Bank Ltd v. Ajilo152

, where the issue of

consent was first seriously considered, the Supreme Court held that both actual and

deemed grants have the same effect under the general tenor of the Act, and that the

requisite consent is required for effective and valid alienation of both types of grants.

The issue of consent has been criticized for being responsible for delay which both a


69

prospective vendor and purchaser usually face in such transactions. As it is the practice

now, it takes between six months to three years before a Governor’s consent to alienation

can be obtained, thus making alienation of land now even more difficult than it was under

the pre-Act laws. This is a serious constraint on someone who is desirous to sell or buy a

piece of land for industrial, residential or agricultural purposes. This is why to some text

writers the consent requirement has been described as a clog in the wheel of economic

development in Nigeria. The adverse effect of this on the economic and business

activities of this country is obviously undesirable. The alarm of the adverse effect of

these consent requirements on the commercial life of this country was raised by Obaseki

J.S.C. in Savannah Bank Ltd v. Ajilo (supra) where he stated thus:

`In my view and I agree with Chief Williams expression of anxiety over the

implementation or consequences of the implementation of the consent

provisions or clauses in the Act. It is bound to have a suffocating effect on

the commercial life of the land and house owning class of the society who

use their properties to raise loans and advances from Banks… These areas

of the Land Use Act need urgent review to remove their problem nature.

It is noteworthy that there is no provision in the Act that consent shall not be

unreasonably withheld. And from the sections relating to consent earlier enumerated, it is

quite clear from the wordings of the sections that an occupier who wants to alienate his

right of occupancy cannot demand for the Governor’s consent as a right. So, where the

70

Governor refuses his consent, there is nothing the affected party can do. In Majiyagbe v.

A.G. & Ors153

, the court maintained that the affected party cannot compel the Governor

or the Local Government as the head of the family or the community to grant consents.

Also, in Queen v. The Minister for Land and Survey Experte the Bank of the North154

,

where an order of mandamus was applied to compel the Minister to give consent, Reed J.

held inter alia, that an order of mandamus does not lie to compel the exercise of

discretionary powers conferred by the statute.

4.1.5 Unfettered Power of the Governor to Designate Certain Areas as Urban

Land.

By section 3 of the Act, the Governor reserves an unfettered power by order published in

the State’s Gazette to designate parts of the areas of the state as urban land. By this

discretionary power, it then suggests that the governor reserves the choice to the

designate any how the land in his state. This has led a former Governor of a particular

state to designate the entire land in his state as urban land155

, thus leaving the Local

Government in the state without any land to control according to the power conferred on

them under section 2(1) (b) of the Act.

153 (1957) NRNLR 158

154 (1963) NNLR 58

155 Former Gov. Lateef Jakande by Designation of Urban Area Order 1982 designated all Lagos Land as

urban land

71

This unquestionable power of the Governor to designate certain areas as urban land and

in fact the silence of the Act156

on the designation of ‘other land’ to my own mind is a

serious erosion of the power of control and management conferred on the Local

Government by the Act. This is because whatever the Governor decides to do in respect

of his designation power seems to be the most appropriate. Regrettably, failure of the Act

in setting a standard as to which particular parts of the state should be declared as urban

land and which part not to be so declared which has led to indiscriminate designation has

succeeded in defeating the object of the Act by not permitting the Local Governments to

operate in this matter. This, it may be claimed, is largely responsible. for the failure of the

Act, for example in meeting agricultural needs in the country especially in rural areas

because of insufficient land in these areas.

This is quite an unfortunate and confusing situation of the Act in that, the Act, having

vested the control and management powers over land in two independent authorities

namely the State and Local Governments,157

the Act again creates a pathetic scenario in

which the power of the one authority can be swallowed up, undermined and seriously

eroded at will by the other. This obviously is the evidence of inelegance that attended the

Act.

156 i.e, section 3 of the Act.


72

4.1.6 The Half Hectare Rule by the Act is Confiscatory

In pursuance of the policy of Re-distribution and Equitable policy, the Act decides to

introduce the Half Hectare Rule as enshrined in the transitional provisions158

of the Act.

The idea behind this rule is to revert the land in excess earlier held by the former owners

to the government, leaving such former owners with a plot not more than half hectare.

And the excess lands so reverted are administered for the common benefit of all

Nigerians as provided for in section 34(5) and (6) (a) & (b) of the Act.

The above section has been interpreted as having confiscated land in excess of half

hectare without payment of any compensation. This has not been fair at all to the former

owners who lose their many portions of land to the government without any

compensation in return.

4.1.7 Finality of the Decision of the Land Use and Allocation Committee

Section 2 (2), (5)159

mandates each State and the Local Government to establish the

committees known as the Land Use and Allocation Committee and Land Allocation

Advisory Committee respectively. The Committees shall perform such functions as:

advising on matter related to compensation, resettlement of person affected by the

revocation on ground of overriding public interest and overall management. By section

158 Section 34(5) & (6) which contains half hectare rule

159 of the Land Use Act, 1978

73

2(3) and (4), the Governor shall determine the composition of the State’s Committee’s

membership and the person who presides over the proceedings of the Committee. The

State Committee is by section 2(2)(c) conferred with adjudicating role of determining

disputes as to the quantum of compensation payable under the Act for improvement on

land compulsorily acquired by the Government160

. This later role destroys the advisory

nature of the committee as intended by the Act.

By section 30 of the Act, any dispute as to the amount of compensation that may arise

under section 29161

shall be referred to the Land Use and Allocation Committee. And on a

matter of constitutional and public importance as the above, it is obvious from the

express provision of section 47(2) of the Act that whatever the Committee decides is

final.

The above provisions are affronts on the fundamental right of fair hearing enshrined in

section 36 of the 1999 Constitution which guarantees the right to fear hearing to a citizen

by a court or tribunal established by law and ‘constituted in such a manner as to secure

its independence and impartiality’. The Land Use Act and Allocation Committee

certainly does not qualify either as a court or tribunal envisaged by the constitution. The


161 Section 29 Land Use Act, compensation section for a land compulsorily acquired by the Government

under section 28

74

Committee is set up by the Governor who also has the power to revoke statutory right of

occupancy for overriding public interest and any dispute on compensation arising from it

refers to his Committee. Of course, this decision of the Governor also ultra vires the rule

of natural justice of fair hearing as expressed a Latin maxim as Nemo judex in causa

sua- that is, a person shall not be a judge in his own cause.

4.1.8 The Governor’s Concurrent Possession With The Occupier’s Right, a Bar to

Actionable Trespass

By the provision of section 14 of the Act, the Governor holds possession concurrently

with the occupier. Also, section 11 of the Act gives the Governor or any public officer

duly authorized by him the power to enter and inspect the land comprised in any statutory

right of occupancy or any improvements effected thereupon at any reasonable hour in the

day time.

Although it is in the interest of the society that the Governor or any public officer duly

authorized by him has a right of entry, such right obliges the Governor to exercise the

power to enter reasonably and for the specific purpose of inspecting the land and any

improvements. It then holds that such power of entry cannot be exercised capriciously by

the Governor or any other authority for that matter. An unjustifiable invasion of the

possession of the occupier will amount to actionable trespass.

75

However, as evidenced from the express provision of section 14 above, no such action in

trespass is maintainable against the Governor or his duly authorized officer for such entry

because the occupier’s possession is not exclusive of the Governor’s. It is an established

principle in law that an action in trespass is not maintainable against a person by another

with whom he shares concurrent possession e.g., tenant in- common or joint tenants.

Thus, in Akapan Sam Adua v. Akpan Akpan Udo Udo Essien,162

the Court of Appeal

said:

For a plaintiff to commence an action in trespass, he must show that he is in

exclusive possession; exclusive possession in the sense that he does not share his

right of possession with any other person. He need not show ownership of the land;

proof of actual possession can sustain an action in trespass.

In relation to the Land Tenure Law of 1962, it was held in Oguche v. Iliyasu163

that the

entering upon land comprised in a statutory occupancy by the defendant on the authority

of the Commissioner to demolish the building the plaintiff erected on the land amounted

to trespass. It is submitted that the same attitude should be adopted in relation to the

provisions under discussion.

162 (2010). 8 ALL FWLR (pt. 535) 361

163 (1974) NNLR. (1972) 2 UILR (pt. iv) 424

76

4.1.9 The Governor’s Exclusive Power of Revocation under the Act.

The Governor is mandated by section 28(4) of the Act to revoke a right of occupancy in

the event of the issue of a notice by or on behalf of the President, declaring such land to

be required by Government for public purposes. The question that may well arise here is,

if the Governor refuses to revoke rights of occupancy as indicated by the Federal

Government, has the Federal Government got any way out? This inter alias is the

problem left unsettled by the Act. This provision makes the cooperation of the State

Government indispensable to the Federal Government’s acquisition of land for its use.

Thus, subjecting the exigencies of the Federal Government to the politics and

bureaucracy of relevant State Government.

There is no power anywhere in the Act enabling the Federal Government to revoke rights

of occupancy under any circumstance. Thus, the best the Federal Government can do

subsequent to such acquisition in a case of refusal by the Governor to revoke a right of

occupancy following the Federal Government’s notice, is to enter into negotiation with

the holders or occupiers affected by the acquisition so that such holders or occupiers can

voluntarily surrender their rights and be compensated by the Federal Government for

such rights. There is no doubt that in such a case the Federal Government will most likely

pay more than the compensations the Act or state’s Committee would have

77

recommended. And if the Federal Government is not willing to pay more, the private

holders or occupiers might want to join the State Government in refusing to co-operate

with the Federal Government.

We have seen for instance, how an agent of Oyo State Government demolished houses

being built by the Federal Government under the Low cost Housing Scheme. The action

was reported to have been taken because the land on which the houses were built was not

allocated to the Federal Government by Oyo State Government, and that the Federal

Government does not have right to acquire land directly nor by private treaty from any

other individual in the state. Consequently, the projects continue to suffer until may be

when the Federal Government secures a court order compelling the Governor to revoke

the subsisting rights of occupancy. This again portrays a pathetic situation of the Act in

relation to the Federal Government’s right to acquire land for public purposes which is

only exercisable at the mercy of the Governor.

4.1.10 The Land Use Act is both Discriminatory and Restrictive

Section 1 of the Act states that the Governor holds the land for the benefit of ‘all

Nigerians’. Interpreting the general words ‘any person’ as used in sections 5(1)(a),

6(1)(a) and 36(s) must be construed in accordance with the express provision of and in a

78

way consistent with the spirit of section 1 above, given the rule of statutory interpretation

– Expressio unius est. exclusio uterius, then ‘all Nigerians’ will mean Nigerians

simpliciter and no more. As such, foreigners are discriminated against by the Act. That is,

they are not in the category of persons for whose common benefit the Governor holds the

land.

This non-inclusion of the ‘foreigners’ in section 1 or any other relevant provisions of the

Act, and failure to lay down the procedure for acquiring land in Nigeria by the foreigner

leaves anyone to wonder whether or not the foreigners are entitled or have access to a

right of occupancy in land in Nigeria. In interpreting section 1 of the Act, the court in

Ogunola v. Eiyekole164

held that the foreigners cannot apply for certificate of statutory

right of occupancy but only Nigerians.

Similarly in section 7 of Act, the Governor is prohibited from granting a statutory right of

occupancy to persons under the age of 21 without such express provision in respect of

customary right of occupancy.

Niki Tobi165

has opined that a number of issues arose from this provision: What is the

rationale behind the age restriction? Could there be any special reason for putting the age

164 (1990) 4 NWLR (pt. 146) 632 at 647

165 See Niki Tobi, ibid footnote 14

79

limit to 21 years? The Act seems not to provide any answer to these questions.

In Nigeria, the age of puberty under the customary way of life is the age of maturity

while in England the maturity age is 21 years. Oluyede166

observed that under the

English, a person of under 21 years of age could hold land. Yakubu167

also observed that

many Nigerians at age of 21 years are wealthy enough to own large farms and acquire

lands for residential and industrial purposes. It is therefore submitted that there is no

reason why the Act should put the age restriction at 21 when a person under age 21 in

English law is entitled to hold land. The provision is therefore discriminatory, the age

restriction has no basis and it is unreasonable. This also does not confirm with the

philosophy of the entire legislation (i.e., to ensure that every Nigerian has the right to a

piece of land for his use and enjoyment) and it is also unrealistic.

4.1.11 The Land Use Act and the Constitution

At the time the Land Use Act168

was promulgated there was a dire need for land policy

which was thought was very crucial for the development objective of Nigeria. The

government wanted to be firm on the new law which was thought was only panacea for

the realization of development objectives at that time. To show Nigeria that land policy

and administration which was to quicken development process was of the utmost priority

166 See Oluyede P.O.A., ibid footnote 16

167 See Yakubu M.G., ibid footnote 22

168 Ibid footnote 1

80

of the government, The Federal Military Government decided to annex the Act to the

1979 Constitution169

with a view that the its provision should not be easily annulled. The

incorporation of the Act into the constitution has led to confusion as to the actual status of

the Act.

Besides, there are a lot of inconsistencies between the provisions of the Act and the

Constitution. The highlights of these areas of inconsistencies are as follows:

Firstly, section 1 of the Act vests all land in the Government, thus living the individual

with certain rights in form of rights of occupancy devoid of ownership. This drastically

curtails the property right of the individual as regards his ultimate ownership in land

under section 43 of the 1999 Constitution, which guarantees the individual right to

acquire and own immovable property (i.e., land) anywhere in Nigeria.

Secondly, section 47(1) of the Act makes the Act to have effect on any law or rule of law

including the Constitution of the Federal Republic of Nigeria. This subsection also ousts

the jurisdiction of the court in inquiring into any question concerning the vesting of all

land in the Governor, the right to grant statutory and customary rights of occupancy by

the Governor and the Local Government respectively and in section 2, any question as to

the amount or adequacy of any compensation paid or payable under the Act. Section

169 See section 274 (5) (d) of the 1979 Constitution

81

47(1) above is inconsistent, with and an affront to the supremacy of the constitution as

contain in section 1(1) and (3) of the 1999 Constitution. Also the ouster clauses contained

in section 47(1), (2) above are in consistent with section 272 of the 1999 constitution

which guarantees the jurisdiction of the High Court of a state to hear and determine any

civil or criminal proceeding involving the existence or extent of legal right, power, duty,

liability, privilege, obligation or any claim in any issue, penalty, forfeiture, punishment or

other liability in respect of an offence committed by any person. Thus, the jurisdictions of

the court which are really important to enforce the intention of the Act are seriously

undermined or curtailed by the provision of the section 47 of the Act. This is really

undesirable.

Thirdly, the finality of the Land Use and Allocation Committee’s decision on disputes

referred to it170

as regard the amount of compensation payable under section 29 in respect

of land compulsory acquired in the public interest without appeal to court is ultra vires to

section 44(1) of the 1999 Constitution which gives any person claiming compensation or

amount of compensation payable (in the event of compulsory acquisition of his property)

a right of access to court to determine his interest.

170 See section 30 of the Land Use Act.

82

In the final analysis, section 47171

above only confirms the military antecedent of the Act.

The section could only apply under a dispensation where the provision of the constitution

are clearly suspended and have effect at the pleasure of the Military Government. In the

present dispensation, the constitution is supreme, and if any other law is inconsistent with

its provisions the constitution shall prevail, and that other law shall to the extent of the

inconsistency be void172

. This should be the relationship between the Act and the

constitution.

4.2.0 CONCLUSION

The analysis in this chapter has clearly revealed that the Land Use Act of 1978 though

enacted on the premise of good policies intended by the government for the people of

Nigeria has generated a lot of problems. These problems which range from the

interpretation to practical implementation of the provisions of the Act are against the

background of the inelegance that characterized the draftsmanship of the Act and its

military antecedent. These problems as analyzed have led to: stagnation in land

transactions; general ineffectiveness in land administration; and stagnation in general

development in Nigeria.

171 See section 47 of the Land Use Act excludes certain proceedings from the jurisdiction of the courts.

172 See section 1(1) & (3) of the 1999 Constitution

83

CHAPTER 5

CONCLUSION AND RECOMMENDATION

5.0.0 CONCLUSION

This work has examined in detail the subject The Land Use Act 1978: appraisal,

problems and prospects. It is crystal clear from the background of this study that the

problems in the pre-Act land laws and tenure necessitated the promulgation of the Land

Use Act in 1978. The pre-Act land tenure policies were not satisfactory because of their

attendant problems, such as insecurity of title, land litigations, fragmentation of holdings,

difficulty in acquisition and alienation of land, etc. All these contributed to housing

problems, slum development and general lack of infrastructural developments in Nigeria.

With the Act in place, these various pre-Act land laws and land tenure policies were

largely done away with, but the principles of those pre-Act laws which are inconformity

with the spirit and general intendment of the Act are preserved.173

An analysis of judicial opinions as well as the writers’ views done in this study has

shown that the Act by its policy objectives has improved land tenure and administration

in Nigeria. The Act inter alia has unified land policy, initiated the principle of effective

173 Section 48 of the Land Use Act. See also section 4 of the Act

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utilization to our land tenure system, ensured equitable redistribution of land among the

citizens without discrimination on ground of state origin and facilitated both governments

and private industrialists’ quick access to land needed for developments. The Act has

also generated more revenues for the government. In this respect, this study has found the

Act laudable.

Notwithstanding the foregoing positive impacts of the Act, the study has further beamed

its searchlights in figuring out the inherent problems in the Act. These problems have

been considered in this study against the circumstances surrounding the promulgation of

the Decree. The Act (formerly known as Decree) was hurriedly drafted and promulgated

by the defunct federal military government without the necessary consultations. Hence

the drafting of the Decree was characterized by inelegance. These inelegant and military

antecedent natures of the Act were two major factors responsible for all the interpretation

and implementation problems that have greeted the Act so far. It is instructive therefore

to say that any criticism against the Act or any problem attributable to it must recognize

these two factors as the genesis of all the shortcomings of the Act.

In this study, it has been discovered that there are gaps between the expectations and the

achievements of the Act. In this connection, some of the problems earlier identified with

the pre-Act land laws and tenure policies which the Act claims to improve have been

85

made worse than they were before. For instance, vesting of all lands in the state in the

Governor174

has made acquisition of land more difficult especially for the individuals.

More so, compensations payable under the Act175

are grossly inadequate compared to

what was paid under the Land Tenure Law. Furthermore, the consent provisions under

the Act176

with the rigorous processes and delay usually experience in obtaining it has

stagnated land transaction in the country, and thus has become a dog in the wheel of

development. Again, the Governor’s reluctant to exercise his exclusive power of

revocation177

in favour of the Federal Government could stagnate Federal Government

development projects. Moreover, the jurisdictions of the courts necessary to enforce the

Act and give effect to its provisions have been seriously eroded.178

It is against the background of these inherent problems of the Act that this study deems it

fit to consider what should be the prospects for the future of the Act which also serve as

the recommendations of this study in the next sub-heading.

174 Ibid section 1

175 See section 29 of the Land Use Act. Also, section 35(1) Land Tenure Law further provided

compensation for inconveniences.

176 See sections 21,22,24, 26, 34(7) of the Act

177 See section 28 of the Act.

178 See sections 30, 47 of the Act

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5.10 RECOMMENDATION

The Federal Government has been making efforts on how to review the Act. One of the

Seven Points Agenda of late President Umar Ya’adua was land reform. Even before this

administration, the Attorney General of the Federation and Minister of the Justice under

the Obasanjo Administration, Chief Bayo Ojo (SAN) had put in place the National

Working Group on the Review of Investment Laws in Nigeria. One of the major tasks of

the Working Group is to propose an amendment to the Land Use Act 1978. However, all

the proposals so far made in this connection are policy statements. They have not yet

been passed into law. This explains why the Act still remains the same.

It is obvious from the discussions so far that there are a lot in the Land Use Act which

requires a second look. A review of the Act is most urgent. The Federal Government

should therefore expedite actions to effectuate the review of the Act. It cannot be denied

that the policy objectives of the Act are lofty and still very relevant to us today.

Therefore, these policy objectives should be fortified by a review and necessary

amendments to the provisions of the Act rather than repealing the Act as some writers

have suggested. This is because as normally experienced in passing a bill into law in

Nigeria, it will take the National Assembly years to enact an entirely new land statute to

govern this important aspect of our lives if a total repeal of the Act is opted for.

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The following amendments are hereby remanded:

1. In order to make the amendment of the Act easy, it should be removed completely

from the constitution. After all, the Act is like any other statutory law and there is

no reason whatsoever for giving it such a status in the supreme law of the land.

2. The Act has made no effort to lay down even in outline the principles on which

the trust created under the Act in section 1 shall be administered and discharged.

It is considered much better for the Federal Government to insert into the Act the

standard of practice which each trustee (i.e., the Governor) should be expected to

observe in administering land for the common benefit of all Nigerians. For

instance, the Governor should at least be accountable to all Nigerians (i.e., the

beneficiaries) in relation to land under his trust as is usually the practice in normal

trust. Such provision will make the trustees (Governors) in each state wary of the

onerous duties which they owe citizens of their states and Nigerians as a whole.

3. The Act in section 3 confers on the Governor a discretionary power to declare part

of the state land as urban land without laying down what should guide the

exercise of such power. i.e., where particularly in the state should be declared as

urban land and where not to be so declared. This has led to the practice of

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indiscriminate designation of all land in the state as urban land179

. The Act is

equally silent as to the designation of ‘other land’. It is therefore suggested that

the Act should set a standard that guides the Governor in the exercise of

designation of urban land. In the same manner, in view of the bureaucracy

involved in granting the rights of occupancy by the governments, it is suggested

that the Act should be more assertive on the designation of other lands. In this

connection, the Local Governments which are closer to the people should be

given power to designate such other lands as non-urban land to allow them to

exercise their power of control and management over land.

4. The Act has vested so many powers in the Governor, so much so that an

overzealous Governor can misuse them for his political or personal gain. The Act

should contain administrative remedies available to persons that have a certificate

of occupancy that shows that they are entitled to such land to curb the many

powers of the Governor.

5. In order to ensure the involvement of the traditional rulers (whose positions are

held in high esteem in the rural areas) in land tenure in the country, they should be

made chairmen of Land Allocation and Advisory Committee in different Local

Government areas for the granting of customary rights of occupancy.

179 See the former Governor of Lagos State Ibid footnote 154

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6. All provisions of the Act relating to non-justiceability should be expunged

forthwith or should generally be justiceable. This will ensure the operation of

Chapter IV of the constitution vis-a vis the Act without inhibition.

7. To avoid the unnecessary delay usually experienced in obtaining consent, and the

hardship same has created, the Act should mandate the Governor to grant his

consent without unnecessary delay. It should also be incorporated into the Act

such provision as ‘such consent if sought should not be unreasonably

withheld’.

8. There is no provision in the Act enabling the Federal Government to revoke the

rights of occupancy for its urgent use under any circumstance. It is therefore

suggested that the Act should contain a provision that will enable the Federal

Government to acquire land in any part of the federation for public purposes

without going through the state Governor.

9. Provisions on compensation are grossly insufficient. The National Assembly

should make definite efforts to improve upon the present system. Section 35 of

the Land Tenure Law of 1962 which further provided compensation for

disturbances should guide the bodies in their efforts.

10. Reference of disputes arising from the quantum of compensation should cease to

90

be made to the Land Use and Allocation Committee. Section 30 of the Act should

therefore be amended to that effect. Also, the decision of the committee should

not be made final as provided for in section 47(2). This provision should equally

be amended so that complaints are allowed to have recourse to ordinary court of

law in such disputes.

11. The Act in section 34(5) and (6) took away many plots of land held by the former

land owners without any compensation in return. I humbly submit that property

legislation should not confiscate property right of the people. The right to

property is a fundamental right 180

and should not be violated indiscriminately and

spontaneously. Even where such confiscation is necessary, the legislation should

provide compensation to that effect. Subsequently amendment should take

cognizance of this.

180 See section 44(1) of the 1999 Constitutions

91

BIBLOGRAPY

ARTICLES IN JOURNALS

• Abubarka M.M., ‘The Land Use Act Policies: An overview’ in Journal of

Private and Comparative Law, vol. 1 No. 1 2006, A Publication of Private

Law ABU, Zaria pp. 69-98

• Ijaiya A, ‘The Land Use Act: A Critical Review’ in An Annual Publication of

Law Students’ Society University of Ilorin, Faculty of Law 2006. pp.196-203.

BOOKS

• Bensti-Enchill, Ghanna Land Law (London Sweet & Maxwell 1964) p. 81

• Elias T. O., Nigerian Land Law (London Sweet & Maxwell, 1971)

• Emeka Egburuonu, How to Handle Land Cases in Practice (Basic Rights

Publication Ltd.2001)

• James R. W, Nigerian Land Use Act: Policy and Principles (Unife Press Ltd

1987)

• Niki Tobi, Handbook on the Land Use Act (ABU Press Ltd, 1989, Zaria)

• Nweke O.U, The Land Use Act Decree 1978: A Critical Analysis (Fab. Anieh

(Nig) Ltd, 1989, Jos)

• Omotola J.A, Cases on the Land Use Act (Lagos University Press, 1985)

• Omotola J.A, Essay on the Land Use Act 1978 (Lagos University Press, 1984)

• Oluyede P.O.A, Modern Nig Land Law (Evans Bros (Nig) Ltd 1989, Ibadan)

92

• Smith I.O, Secured Credit in a Global Economy –Challenges and Prospects

(Published by Dpt. Of Private and Property Law, Faculty of Law, Unilag

2003)

• Smith I.O, The Law of Real Property of Nigeria (Law Centre, Lagos State

University, 1995)

• Utuama A.A, Nigerian Law of Real Property (Shaneson C.I, Ltd 1990)

• Uwakwe Abugu, Principles of the Land Use Act, 1978 (Joyce Graphic

Printers & Publishers 2008, Kaduna)

• Yakubu M.G, Notes on the Land Use Act (ABU, Zaria 1986)

NEWSPAPER REPORTS

• Daily Times, May 12th

, 1988 cit. in Ijaya H., ‘Land Use Act: A Critical

Analysis’ in ‘The Jurist’, an Annual Publication of Law Students’ Society,

University of Ilorin vol.11, 2006.p.200

• Daily Times, August 15th



University of Ilorin vol.11 2006.p.199

• Sunday Punch, August 18th



University of Ilorin vol.11 2006.p.200

PAPERS PRESENTED AT WORKSHOPS

• Adigun O, ‘The Equity of The Land Use Act’ in The Land Use Act: Report of

93

National Workshop held at the University of Lagos on 25th

-28th

May, 81,

Unilag Press 1982. pp.64-73

• Essang S.M, ‘Reflection on some of the provisions of the Land Use Act 1978’

being his Keynote address at the workshop on the Land Use Act: Report of the

National Workshop held at the University of Lagos on 25th

-28th

May 81,

• Oretuyi S.A, ‘Public Take Over of Land –Federal and State Rights in the Land

Use Act: Report of the National Workshop (Supra) p.74-79

• Awogbemi J.O.A, ‘Planning in the context of the Nigeria Land Use Act No. 6.

1978,’ in the Land Use Act: Report of the National Workshop (Supra) pp.

108-112

REPORTS AND OFFICIAL DOCUMENTS

• Nigeria Constitution Drafting Committee vol. 1 p.vii, The Draft to the 1979

Constitution Submitted to the Country’s Head of State Lt. Gen.(later General)

Obasanjo ( September 14, 1976)

• Nigeria Anti-Inflation Task Force, Report on the Comprehensive National

Land Policy by promulgation of an Act with effect of vesting all lands in the

Government(1975)

• Nigeria Rent Panel, Report on Fundamental Review of the Land Tenure Law

by vesting all lands in the State (1976)

• Nigeria Land Use Panel, which came out with a far reaching

recommendations particularly on the Land Tenure System (1977)

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REPORTS OFFICIAL DOCUMENTS ON THE INTERNET

• Land Management under the Land Use Act

http:// www. onlinenigeria.com / land? blurb =530 accessed on 11 May 2011

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