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The Land Use Act and Land Ownership Debate in Nigeria: Resolving the Impasse

Authors:
  • University of Lagos

Abstract

This paper sets out to examine the concept of ownership with respect to land within the confines of the provisions of the Land Use Act and in the light of the diverse positions taken by scholars and commentators on the provisions of the Act. It discusses the positions of the 2 schools of thought on the subject, rationalizes them and posits that the underlying intent of the Act was to Nationalize all lands in the country by vesting the beneficial interest in the land in the state, leaving the citizens with determinable possessory rights and beneficial interest in the developments and improvements on the land. Resolving the impasse, the paper advocates for review of the Act to be in tandem with its underlying philosophy and principles as espoused in the preamble to the Act.
The Land Use Act and Land Ownership Debate in Nigeria: Resolving the
Impasse.
Introduction
The of concept of ownership has, over the years, dominated legal theory just as other concepts
such as the concept of law, morality, justice, right, duties, legal personality and so many others.
Though many have termed the concept indefinable, it is worthy to state that without its
conceptualization it cannot form a useful tool in economic, political and legal thoughts. The
concept has been variously defined in varying degrees of absolutism and within the philosophical
context of capitalism, socialism and communism. With respect to land the concept of ownership
has elicited scrupulous and most times emotional responses from commentators and stakeholders
alike.
In Nigeria, the debate has continued to rage as to the domicile of ownership within the land
management arrangement in the country, particularly with promulgation of the Land Use Act in
1978. There is dichotomy among scholars, jurist and stakeholders as to where ownership lies in
land matters; that is, whether it is in the State or in the individual citizen. Though it has been said
that; ‘ownership of land per se is irrelevant….’1 it is however incontestable that ownership of
land confers indelible rights and opportunities of the holders of the ownership rights.
This paper sets out to examine the concept of ownership with respect to land within the confines
of the provisions of the Land Use Act and in the light of the diverse positions taken by scholars
and commentators on the provisions of the Act. It discusses the positions of the 2 schools of
thought on the subject, rationalizes them and posits that the underlying intent of the Act was to
Nationalise all lands in the country by vesting the beneficial interest in the land in the state,
leaving the citizens with determinable possessory rights and beneficial interest in the
developments and improvements on the land. Resolving the impasse, the paper advocates for
1 General Olusegun Obasanjo, the Nigerian Military Head of State at the time the Act was promulgated stated in a
special broadcast to the nation
However, the Land Use Act has given birth to myriads to legal implications on the
hitherto various Land Tenure System that operated prior to its coming into effect the
impact of which is not thoroughly understood by the generality of Nigerians, especially
the “Land Owing Unit” (community, family and individuals) despite its thirty – five –
years of existence.
1
review of the Act to be in tandem with its underlying philosophy and principles as espoused in
the preamble to the Act. The paper thus sets out seriatim.
Concept of Ownership
Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In
Roman law ownership and possession were respectively termed as dominiumand ‘possessio’.
The term dominium denotes absolute right to a thing while possessio implied only physical
control over it. The concept of ownership consists of a number of claims such as liberty, power
and immunity in regard to the thing owned. Jurists have defined ownership in different ways. All
of them accept the right of ownership as the complete or supreme right that can be exercised over
anything. Thus, Waldron conceived ownership from the perspective of private ownership. In his
words,
ownership… expresses the very abstract idea of an object being correlated
with the name of some individuals, in relation to a rule which says that
society will uphold that individual’s decision as final when there is any
dispute about what is to be done with the object. The owner of an object is
the person who has been put in that privilege position.2
As much as this conception can be true in terms of private property it must be noted that it falls
short of the concept of public property. According to Garner, “ownership is a legal relationship
between a person capable of owning and an object capable of being owned.” 3 All persons (both
natural and juristic persons) are capable of ownership. As we have already stated, objects capable
of being owned include material objects such as interest in land and movables, rights in
intangible property such as stocks, shares, patents copyrights etc.
An
important
and widely agreed
feature
of
ownership
is that
there
is some individual or
collective whose decisions with
respect
to a thing others are bound to accept as final.4 Finality
of decision making with regard to an object is an important characteristic of ownership. As Katz
has rightly stated,
2 Waldron J. The right to private property. Oxford: Clarendon Press, 1988
3 Garner, J. F. “Ownership and the Common Law” (1976) JPEL p. 403
4 Katz L, “The Concept of Ownership and
the
Relativity
of
Title”
(2011) 2(1)
Jurisprudence
191–203; also,
available on www.ssrn.com (accessed 2/07/13)
2
What makes his
decision
an
ownership
decision is its quality of finality: no
other
private
person
can
override
his decision in the way that he can
override mine
.
5
The concept of ownership also emphasizes non-interference from outsiders (i.e non owners).
Katz had held the owner to be
the
exclusive
agenda-setter
for a thing and to whose authority
others have, at
minimum,
obli
gations of
deference.
6
On this view, setting the agenda for
things is a key part of
the
exercise of ownership authority. But this does not imply a
person-
thing
relationship;
7
rather,
the owner’s decision itself
concerns
the
agenda
for a thing, and
so does
not
directly
concern
what others may do with his
property.
It is instead the
effect
of
the
owner’s decision that is of primary interest to
property
law—specifically, its effect
on
the
duties of
non-owners
(they are not entitled to
interfere
with the owner’s
agenda). It
is the
structure
of the owner’s right that is
relational rather
than the
nature
of
the
owner’s
decisions themselves.
Another key important feature of the concept of ownership is the exclusivity of ownership which
refers to the special place of
authority
the owner occupies with respect to
a
thing. Note that
exclusivity is not at all the same thing as what we might call
‘exclu
sion’ or the right to
exclude
others from a thing (
although
most
exclusion-based
accounts impliedly or explicitly
accept that ownership is
exclusionar
y
as well as
exclu
sive). But ownership’s exclusivity is not
based on a
person-thing relationship.
Indeed,
one of the most
important
accounts to insist on
the exclusivity of
ownership—namely
Kant’s—emphatically
rejects the
identification
of
owner with thing as the basis
for
property
rights. One of Kant’s most
important
contributions
to
property
theory was to expose the
relational
aspect of
ownership—the
way
in which a system of
property
establishes the juridical relations
between people
with respect
to the things
neces
sary for
freedom.
On this
view,
ownership carves out a sphere of exclusive
jurisdiction
with respect to a thing in which one’s choices are not subject to the choices of
oth
ers. 8
These three cardinal features traditionally appear to be the pivot upon which the earliest
5 Ibid
6 Ibid
7 Cf Dorfman A, ‘Private
Ownership’
(2010) 16
Legal Theory
1
(while discussing
exclusivity of ownership
suggested
that “ my theory commits me to a
person-thing
relationship”).
8 Ripstein. A,
Force
and
Freedom: Kant’s Legal
and
Political Philosophy
(Har
vard
University Press, 2009)
3
conceptualization of ownership revolved. Blackstone, in his famous definition of ownership
had defined same to mean the “…sole and despotic dominion which one man claims and
exercises over the external things of the world, in total exclusion of the right of any other
individual in the universe.”9 This absolutistic view of ownership appears to have significantly
declined in recent years in view of the instrumentalists’ view that individual property rights
should be allocated in whatever way that best promotes some societal goal. They take the
structure of individual property rights to be up for grabs and to be determined in whatever way
that best promotes some societal goal10
Echoes of the almost discarded absolutistic view of the concept of ownership arose recently in
the case of Attorney General of Lagos State v. Attorney General of the Federation & 35 others
11 where Niki Tobi JSC in a minority decision sought to apply the absolutism of the concept
ownership to justify his position. He stated thus,
Title to land is the highest form of land ownership in our tenure system.
Ownership is a complete and total right over a property. The owner of the
property is not subject to the right of another person, as long as he remains
the allodial owner. Because he is the owner, he has the full and final right to
put the property or make use of it in anyway including planning of the land
if the need arises. The owner of the property can use it for any purpose
material or immaterial, substantial or non-substantial, valuable, invaluable,
beneficial or even for a purpose which is detrimental to his personal or
proprietary interest. In so far as the property inheres in him, nobody can say
anything. This is because the property begins with him and ends with him.12
The majority decision of the apex court differed from this absolutistic view and held that like
any other landowner, ownership of land by the Federal Government is primarily limited to the
question of the title, right of possession and use.
The postulation of his Lordship has been severely punctured by Smith in his scholarly work.
9 Blackstone, W. Commentaries on The Law of England” available at:
http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book2.1.html accessed 06/11/2012
10 Ab. Bell & G . Parchomovsky: A Theory of Property Cornell Law Review, Vol. 90, p. 531, 2005
11 (2003) 12 NWLR (833) 1
12 At. 247
4
According to Smith,
It is difficult to see how the postulation of Niki Tobi JSC could be accepted
as the true application of the concept of ownership rights in the 21 st century.
With due respect, the right conferred by ownership especially of land has
much been eroded both at common law and by an increasing regime of
statutory provisions. Right like easements, and restrictive covenants which
run the land and bind subsequent purchasers without notice, the rule in
Rylands v. Fletcher, common law nuisance etc are examples of a plethora of
instances where allodial ownership has been eroded. Planning laws
particularly impose operationally a system of regulatory restriction upon the
general right of every landowner to use or develop his land the way he
likes.13
The above lends credence to the fact that there cannot be absolutism of the concept of ownership.
This is further buttressed by the notion that ownership is constituted by a complex bundle of
rights.14 Thus, it is in this complex nature that one says ownership is made up of specific
Hohfeldian rights to wit; that for all the claims, liberties, power and immunities enjoyed by him
there is also a corresponding duty. 15 The exercise of one’s right is subject to other persons’
rights and this is often expressed in the Latin maxim, sic utere tuo ut alienum non laedas. For
example, Daniel has the right to use his house for whatever he likes but he has a duty not to
cause harm or inconvenience to his neighbour by way of constituting nuisance or causing
pollution. 16
Incidents of ownership
13 Smith I. O., Power to Make Town Planning Laws in a Federation: The Nigerian Experience (2004) Vol. 24 JPPL
pg. 23. It is worthy of note that this absolutistic view had earlier be held by the learned jurist at the Court of Appeal
in the case of Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53 where he described the owner of the property
as the Alpha and Omega who could use it for whatsoever he wants to. His Lordship view in this case did not escape
the criticism of learned scholar on the same line as it has been punctured. See Professor C. Ilegbune, Land
Ownership Structure Under the Land Use Act (2003) Vol. 23 JPPL pg. 25.
14 Anna di Robilant, Property: A Bundle of Sticks or a Tree? Vanderbilt Law Review [Vol. 66:3:869 2013]
15Holfeld, W. N. “Fundamental Legal Conceptions” (Yale, 1977 ) cited in Elegido, J. M. op cit p. 158
16 Prof Garner gave this example to show that the exclusive right of a person to possess and enjoy his property is not
absolute.
5
Even if ownership is termed indefinable, the concept can better be understood by identifying its
incidents. The specific incidents of ownership have been discussed by different scholars of
note.17 In trying to determine what ownership actually is, Honoré 18 set out an account of what he
conceived to be the standard incidents of ownership. Through a review and analysis of the
jurisprudence in property, he arrived at a set of 11 rights, duties and other elements which, taken
together, give an account of ownership. These incidents of ownership are as follows:
1) the right to possess
2) the right to use
3) the right to manage
4) the right to the income of the thing
5) the right to the capital
6) the right to security
7) the right of transmissibility
8) the right of absence of term
9) the duty to prevent harm
10) liability to execution and
11) the incident of residuarity
It is to be noted that these incidents of ownership are cumulative and not disjunctive, though
some may have been impacted on by the state incursion into property rights domain and
therefore subject to state control.
Ownership of land before the Land Use Act
In its ideological and legal form, the concept of ownership represents a legal expression
of property relations of possession, use and disposal formalised in legal norms that are
reflective of production relations.19 In real property, it means;
17 Professor Paton proposed four of these incidents. See, Paton, G. W. and Derham, D. P.. A Textbook of
Jurisprudence (1972, 4th Ed) p. 517; Professor John Salmond proposed five of them. See, Salmond on Jurisprudence
(1966, 12th Ed Sweet & Maxwell), p 246-249. Prof. Garner reduced these incidents to three which are the right to
possess and enjoy, right to alienate and the right to destroy. See, Prof. Garner, J. F. supra.
18 Honoré A M. Ownership. Making law bind: essays legal and philosophical. Oxford: Clarendon Press, 161–92,
(Originally published in Guest AG, ed. Oxford essays in jurisprudence. Oxford: Oxford University Press 1961. 107–
147.147 cited Elegido, J. M. op cit p. 209. Also cited in Waldron, J supra p 336
19 Agbosu L. K.: The Land Use Act and the State of Nigerian Land Law: Journal of African Law, Vol. 32, No. 1
(Spring, 1988), pp. 1-43 at p. 5
6
a complete and total right over a property. The owner of the property is not
subject to the right of another person, as long as he remains the allodia
owner. In so far as the property inheres in him, nobody can say anything.
This is because the property begins with him and ends with him.20
The above represents the concept of property in absolute terms; but it should be noted
that this absolutistic view of property ownership has been criticized,21 and rightly so.22 It
is however sacrosanct that ownership resides in he who has the ultimate right to reversion
of the property.23
With respect to land, ownership refers to the right of the owner of land to possess, use, or
otherwise benefits from, as well as disposes of, the land.24 It is the largest right that can
exist in land. Ownership vests in the claimant an immediate or mediate right to
possession of land that is not restricted or curtailed by any superior right vesting in
another person.25 It is the ultimate interest in land beyond which no other claim/interest
exists. In the body of ownership, there are many sub-rights, and each sub-right can be
detached from the concept of absolute ownership by the owner and vest in some other
person. When all these sub-rights are deducted, the person who is the owner must have a
residual/remainder right. The test of ownership is who has the residual interest after
deducting other interests in land. After referring to the views of Salmon26 and other
Jurists; Dias27 comes to the conclusion that a person is owner of a thing when his interest
will outlast the interests of other persons in the same thing. An owner may be divested of
his claims, etc., to such an extent that he may be left with no immediate practical benefit.
He remains owner nonetheless. This is because his interest in the thing, which is
ownership, will outlast that of others.
20 Attorney General of Lagos State v. Attorney General of the Federation & 35 others(2003) 12 NWLR (833) 1
21 Smith. I. O, Power to Make Town Planning Laws in a Federation: The Nigerian Experience (2004) Vol. 24 JPPL
pg. 23.
22 Ilegbune. C, Land Ownership Structure under the Land Use Act (2003) Vol. 23 JPPL pg. 25.
23 Kelly. O & Kelly.E.A ,The law of property available at http://www.oakadvocates.co.ke/userfiles accessed
03/06/2013
24 Qin L..M, Reform of land system in China 1994 Singapore journal of Legal Studies 495-520
25 Olawoye. C. O. Title to land in Nigeria. Evans Brothers Ltd ( 1974) p. 1
26 Fitzgerald P.J: Salmond on jurisprudence. Sweet & Maxwell 12th ed. 1966
27 Dias R. W. M Jurisprudence, 3rd Edition Butterworth & Co Publishers Ltd pp 369-70
7
The concept and domicile of ownership right under the Land Use Act is fluid. It is
enmeshed in vigorous academic and judicial divergent arguments and embellished by
commentaries from different stakeholders. There are various schools of thought on the
issue as to whether the Act nationalized all lands in the country in favour of the State or
not; that is, whether the ownership of land in Nigeria resides in the State or the citizens
with the promulgation of the Act. The gravamen of the arguments is founded on the
provision of section 1 of the Act which states that;
Subject to the provisions of the Act, all land comprised in the territory of
each state in the Federation are vested in the Governor of that state and such
land shall be held in trust and administered for the use and common benefit
of Nigerians in accordance with the provision of this Act28
This particular provision of the Act has been variously interpreted by courts,
commentators and academic writers. While to some, the provision signals the death knell
of private property rights because the provision nationalizes all lands in the country, by
vesting the ownership of same in the state via the Governor; others believe the contrary,
asserting that the provision does not expropriate or extinguish individual land rights. The
2 views, christened the Nationalisation and Private property rights schools are here
discussed in details.
Nationalization school
The seed towards nationalization thought was sown in the interim report submitted by
the Anti-inflation Task Force, appointment by the Federal Military Government in
1975.29 The Task Force identified the system of land tenure in the country as the major
clog in the wheel of national development and recommended the promulgation of a
decree that will have effect of vesting all land in principle in the state government.30 It
went on to state that such a policy, all future transactions in land will require the
28 Land Use Act 1978 CAP L5 L.F.N. Laws of federation of Nigeria 2004
29 The Anti-inflation Tack Force (hereafter the Task Force) was set up “to examine the current inflationary
tendencies in the economy and identify their causes; and recommend bearing in mind the economic and social
objectives of the country, short and long term policies and measures that would effectively contain inflationary
pressure in the national economy”. Federal Ministry Information. Lagos. 1975 Vol. 1 page 292.
30 Professor Nwabueze had in 1972 advocated the extension of state ownership of land operating in the North to
other parts of the country as a viable direction for the reformation of land tenure in Nigeria. See: Nwabueze,
Nigerian Land Law. Nwamife Publishers, Enugu 1972, p 632
8
approval of the respective state government and will be on leasehold basis.31 The
Government rejected these recommendations. The recommendations of the Rent Panel
set up by the government in 1977 to deal with the high incidence of soaring house rents
in the country also followed this line of thought in its report.32 Earlier the in the same
year, some members of the Constitution Drafting Committee, also recommended the
nationalization of all undeveloped lands in Nigeria. According to them, it is revolting to
one's sense of justice and equity that one person alone should own about ten or more plots
of State lands...when others have none'.33
However, the foundation for the nationalization school of thought was laid in the
government White Paper on the Report and Recommendation of the Land Use Panel in
1978.34 In the national broadcast sequel to the presentation of the report, the government
had this to say on the justification and doctrinal philosophy underpinning the enactment
of the Land Use Act vis-à-vis the customary land tenurial system to wit:
[A]ll Nigerians are collectively owners of all land in the country and the
rights of all Nigerians to use and enjoy the land of the country and the natural
fruits thereof in sufficient quantity to enable them provide for the sustenance
of themselves and their families should be ensured, protected and preserved.
Ownership of land per se is irrelevant. What is important is the use to which
31 Emphasis supplied.
32 While the Panel dealt exclusively with the high incidence of soaring house rents, it nevertheless recommended the
need for the establishment of a land reform Commission to be charged with four main functions, namely: to study
very closely the various aspects of our land tenure systems and to recommend to the Federal Government steps to be
taken to streamline them; to take stock of the land situation in the country and establish an order of priorities; to
control future uses and open new lands for the needs of Nigeria's growing population especially in the urban centres:
that a decree be promulgated which will vest in the State Governments within two years... all undeveloped sites in
private layouts within defined urban centres (Nigeria: Report of Rent Panel 1976: 67).
33 Mamman A. B Land management in Nigeria: Land Use Policies Since 1960. Available at:
http://www.onlinenigeria.com/links/landadv.asp?blurb=529 accessed 24/07/2012
34 On May 16, 1977, the Federal Military Government appointed a 12 member Land Use Panel under the
Chairmanship of the Hon. Justice Chukwunweike Idigbe, Justice, Supreme Court of Nigeria, 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 o a uniform land policy for the country, as well as examine the feasibility
of a uniform land policy for the entire country make necessary recommendations and propose guidelines for their
implementation; and
(iii) to examine steps necessary for controlling future land use and also opening and developing new lands for the
needs of the Government and Nigeria's (ever growing population in both urban and rural areas, and make
appropriate recommendations (Nigeria: Land Use Panel 1977:1)
9
land is put and no Government should abdicate its responsibility in respect of
a proper planning of land use within its territory.35
Consequently, the Land Use Act in its section 1 vests all lands in every state of the
Federation in the Governor of the State who holds same in trust and is enjoined to
administer them for the use and common benefit of all Nigerians in accordance with the
provisions of the Act.36 Uchendu,37 observed that by implication, the logical sovereign in
land matters though not specifically mentioned in the law (decree), is the Nigerian state.
The same position was taken by Udoh.38 The thought of Agbosu3 9 on the subject
represents a graphic picture of the effect of the Act on preexisting land tenure system and
land rights. According to the learned author;
The effect of section 1 of the Land Use Act which vests "all lands comprised
in the territory of each state in the Federation in the Military Governor of that
State" to be held in trust and administered for the use and common benefit of
all Nigerians in accordance with its provisions is to divest irrevocably such
artificial legal persons of the customary law of their allodia ownership rights.
This has fundamental consequences for the customary law and all landed
rights which had hitherto been dependent on the allodia ownership of the
social groups.
The nationalization school of thought was given judicial credence by the Supreme Court
by Eso JSC in the celebrated case of Nkwocha v. Governor of Anambra State40 where his
Lordship said:
(T)he tenor of that Act as a single piece of legislation is the nationalization of
all lands in the country by the vesting of its ownership in the state leaving the
private individuals with an interest in land which is a mere right of occupancy.
35 General Olusegun Obasanjo, the Nigerian Military Head of State at the time the Act was promulgated stated in a
special broadcast to the nation that its purpose was ‘to make land for development available to all including
individuals, corporate bodies, institutions and government…’
36 Land Use Act, s.1.
37Uchendu, State, Land and Society in Nigeria. A Critical Assessment of the Land Degree, Journal of African
Studies (1978) Vol. 6 pp. 62-74.
38Udo, R.K Understanding Nigeria’s Land Use Law. Paper delivered at Nigeria Land Rights Forum Speakers and
Papers available at http://www.course.earthrights.net/node/416 --> accessed 17/04/2012. See also: Udo, R.K.
(1990), Land Use policy and Land Ownership in Nigeria. Ebieakwa Ventures, 12 Aba Road, Ikot Ekpene
39 Agbosu L. K.: The Land Use Act and the State of Nigerian Land Law: Journal of African Law, Vol. 32, No. 1
(Spring, 1988), pp. 1-43 at p5
40 [1984] 6 SC 362 at 404
10
Obaseki JSC expressed the same sentiment when he said, “It is an understatement to say
that this Decree or Act abrogated the right of ownership of land hitherto enjoyed by all
Nigerians.”41
In the academic circle this opinion finds expression in the works of Umezulike42 when he
posits, among other things, that Section 1 of the Act hints at only one radical possibility,
namely the expropriation or nationalization of land. By this provision, the Act altered the
existing land laws particularly in the Southern part of the country, in three fundamental
ways: it removed corporate groups, families and chiefs from the trusteeship of land and
replaced them with the State governor; individual interests in land which have expanded
with economic development arising from the 'oil boom' are now one of occupancy and
therefore fall short of the plenary. Consequently, the community's allodia interests in land
are denied or frozen: and the Act broke up local sovereignties and merged them into a
single sovereign.43 The same position was taken by Fatula44 that by virtue of section 1 of
the Act the Land Use Act dissolved all previous forms of interest owned in land prior to
its promulgation by vesting all lands in the State in the Governor of the State. In its stead
the Act created a right of occupancy as the paramount interest that a person may have
under the Act; which interest is a right to the use and occupation of land and not a
proprietary or personal right.
Still on nationalization school Mabogunje45 asserts that the Decree, as it stands,
represents an abrogation of the right of ownership of land hitherto enjoyed by Nigerians,
at least in the southern half of the country, and its nationalization by government is
inconsistent with democratic practices and the operations of a free market economic
41 Paper delivered at the Law Teachers’ Conference 1988.
42 Umezulike “Does Land Use Act expropriate” Another view (1986) 5 JPPL p. 61.
43 Uchendu. C, State land and society in Nigeria: a critical assessment of the Land Use Decree of 1978. Seminar
paper. Institute of African Studies, University of Nigeria, Nsukka, Nigeria. 1979
44 Fatula, O.A: Fundamentals of Nigerian Real Property Law. Afribic Press Ibadan 2012 p175
45Mabogunje A.L Land Reform In Nigeria: Progress, Problems & Prospects available at
http://siteresources.worldbank.org accessed 04/06/2013
11
system. Aluko and Amidu46 echoed the same view point at the 5th FIG Regional
Conference on Promoting Land Administration and Good Governance held in Ghana.
The decree removed corporate groups, chiefs and families from the trusteeship of land
and replaced them with the state governor. By this act, Nigeria now operates, a
contractual system of tenure validated by a certificate of occupancy, which sets out terms
of tenure including access, succession, duration and rents.47 What this Act means is that
rather than own land in perpetuity, the citizen is granted a determinable right of use of
land. The effect is that radical ownership of land was vested in the Governor and private
persons were only entitled to a leasehold interest through a right of occupancy.48
The foundation for the argument on nationalization is premised on the word ‘vested’ and
‘trust’ as used in the section. According to Nwabueze,49
By the land use decree 1978 all lands comprised in the territory of each state
with the exception of land belonging to the Federal government or its agencies
at the commencement of the Decree are vested in the Governor of the State.
The meaning and effect of vesting all lands in the government is that private
ownership is hereby abolished and the title of the former private owners
transferred to Government.50
Eso JSC echoed the same sentiment on the import of the use of the term ‘vested’ in
section 1 of the Act; to the learned Jurist;
‘the use of the word “vested” in section 1 of the land Use Act has the effect of
transferring to the Governor of a state the ownership of all land in the state’51
46 Aluko B.T & Amidu A. R: Women and Land Rights Reforms in Nigeria. Promoting Land Administration and
Good Governance 5th FIG Regional Conference Accra, Ghana, March 8-11, 2006 available at:
http://www.fig.net/pub/accra/papers/ts09/ts09_04_aluko_amidu.pdf accessed 04/06/2013
47 See: www.serac.org/SERAC-LANDUSEACT.doc accessed 24/07/2012
48 Adefulu. A & Esionye. N: An Overview of Nigeria´s Land Use Amendment Bill. Available at:
http://www.mondaq.com/x/81844/agriculture+land+law/An+Overview+Of+Nigerias+Land+Use+Amendment+Bill
accessed 17/04/2012
49 Nwabueze ‘Nationalization of land in Nigeria’ paper delivered at Annual Bar Dinner, Onitsha Branch on 8th
December, 1984 p. 1
50 Emphasis supplied
51 Nkwocha v. Governor of Anambra State. (supra)
12
Commenting on the import of the section and that of section 49 on the ownership status
of land under the Act, Ilegbune52 opined that the combined effect of the two sections is to
repose the ownership of the maximal title to all lands in Nigeria in only 3 categories of
owners, namely the Federal government, existing Federal Agencies and the State
Governors. All pre-existing ownership sources like the community, chieftaincy, families
and individuals are completely excluded.53 Thus the intention of the Act appears to be
that land now belongs to the government allodially, leaving in the citizen a mere right of
user.54 The words of Okunniga55 aptly describe the import of section 1 of the Land Use
Act on pre-existing ownership rights. According to the learned author, ‘ownership of
freehold, leasehold, fee simple, fee tail and such like estates went into a death sleep on
the night of March 28, 1978. The Land Use Act did not even announce their obituary
when it came out the following morning. It silently ignored that they existed. In their
place the Act substitute one basic legal proprietary interest in land, namely, the right of
occupancy.’
Private Property Right School
On the other side of the divide are the views of Prof. J.A. Omotola56 James,57 Fekumo58
and Smith.59 Their view on the issue of the nature of right created by the Act is christened
the private property right school, championed by Professor Omotola and his disciples. To
them the Act did not and cannot be said to have nationalized all lands in the state for
there are copious provisions to support the recognition and retention of private property
rights under the Act.
In the words of Omotola, the Land Use Act by its tenor does not operate as a
nationalization of land in the country; the rights of the citizen to enjoy his interest in land
52 Ilegbune. C. Land ownership structure under the Land Use Act 1978 (2003) 23 JPPL p 24-42
53 Ibid. p 33
54 Umezulike,I.A. Does Land Use Act Expropriate? (1986) 5 JPPL p61-69
55 Okunniga, A.A: The Land Use Act and Private Ownership of Land In Nigeria in the proceedings of the 17th
Annual Conference of The Nigerian Association of Law Teachers p 228. Quoted with permission from Fatula op.cit
56 Omotala.J.A. “Does the Land Use Act Expropriate? (1985) 3 JPPL p. 1.
57 James R.W. “Nigerian Land Use Act, Policy and Principles” Unife Press 1987 p. 33.
58 Fekumo.J.F Does Land Use Act Expropriate? - A Rejoinder. (1978/88) 8/9 JPPL p 5-20
59 Smith I.O “Practical Approach to Law of Real Property in Nigeria” (Ecowatch) 1999 p. 70-71.
13
remains and his right to alienate this interest is only impaired to the extent that the
transaction relates to land coming under section 36 of the Act. Thus in effect not much
has been has altered in terms of tenure and citizen’s ownership interest in land.60 The
learned author also said that existing rights are preserved in its transitional provisions to
be enjoyed as a right of occupancy. They are however of permanent character; no time
limit is set for their existence.61
To him the provision of section 1 of the Act, including the word ‘vested’ must be read
subject to other provisions of the Act, particularly the provisions of
sections2,3,4,5,9,12,14,15,21,22,23,24,26,28,29,34,36,37,38,39,40,41,43,48,49 and 50 in
order to appreciate its true effect.62 He concludes that the reading of the sections into the
provisions of section 1 will reveal the limited powers vested in the Governor by the
section and the supremacy of private property rights subject only to the need to obtain
consent before any alienation of land. He argues further that if the Governor is the owner
of all lands in the state it would not have been necessary to insert section 28 of the Act
which gives the Governor the power of revocation.63
Fekumo, also followed the same line of thought in his work by saying that sections 24,
29(3) and 35 of the Act recognize the various units of ownership before the Act; meaning
that customary right of occupancy as defined in the real sense predates the Act. He
therefore concludes that looking at the whole context of the Land Use Act; it will appear
to one that there are three types of ownership: customary ownership, customary right of
occupancy and statutory right of occupancy. According to him what has happened under
the Act is that the Governor, as trust-owner, has the radical title in the land, leaving the
real ownership with the indigenous owners.64 The private property right school of thought
argued further that the governor is not the beneficial owner of the land by virtue of
60 Omotola.J.A. Does land use act expropriate? (1985) 3 JPPL p 1
61 Omotola. J.A. Tenth Anniversary of the Land Use Act. (1978/88) 8/9 JPPL p 1
62 Omotola. Supra note 43 p 6
63 Ibid. This argument runs in the face of the fact that the governor only revokes the possessory rights of the occupier
and not ownership which is already vested in the governor. The foregoing position is confirmed by the fact that no
compensation is paid for the revocation of right of occupancy over undeveloped land as the government will not pay
compensation for its own land in possession of another who has in no way improved the land.
64 Fekumo.J.F. supra note 35 p 15-18
14
Section 1 of the Act, but only a trustee, for the section created a trust18 in favour of all
Nigerians.
Smith, agreeing with Omotola to a limited extent, opines that while section 1 of the Act
swept away all the unlimited rights and interests Nigerians had in their lands and
substituted therefore limited rights in the form of a right of occupancy, the transitional
provisions recognize and protect the existing rights in land in that limited form.65 He thus
concedes the fact that what obtains presently under the Act is a user right which is
definitely less than ownership.
Nature of the State Interest In Land.
In summary, on the one hand the import of the provision of section 1 is that the legal
status of the Nigerian land user becomes that of statutory occupancy, not one of
ownership'; and the economic interests and benefits of 'statutory rights of occupancy are
severely limited by law since proprietary interests in land are lost and claims are
restricted to improvements made on the land.66 Ownership of land before the Land Use
Act was either by settlement, conquest, sale, gift or larches and acquiescence. With the
promulgation of the Land Use Act, any subsequent ownership acquired by the above
methods became extinguished and became vested in the Governor of the state. Freehold
interest acquired prior to the Act became converted to leasehold, the Governor becoming
the lessor. Thus it can be safely said that the Act stripped off the ownership rights vested
in individuals, families and communities prior to its enactment and vested the same in the
Governor.
The Act was designed to pose a direct challenge to alternative sources of societal
authority by relegating all private transactions in land to governmental agencies. As far as
individuals are concerned, 'reglementation'67 was designed to take the form of certificates
65 Smith. Supra note 39
66See Land Management Under the Land Use Act available at: http://www.onlinenigeria.com/land/?blurb=530
accessed 24/06/2012
67 Defined as the progressive expansion of rule-bearing authority by state institutions. This concept has been
explored in detail from another perspective by Sally Falk Moore, Law as Process: an anthropological approach
(Boston, I978).
15
of occupancy, which now exist as the sole legal medium for transactions in land.68 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 conclusion is inescapable given the fact that the ultimate reversionary interest in all
lands in the state is vested in the state as represented by the Governor. Smith in his
inaugural lecture69 conceded this much where he said:
Section 8 of the Land Use Act subjects an actual grant of statutory right of
occupancy by the Governor to a fixed term. The term is usually expressed to
be for duration of 99 years; it could be less. Because a fixed term will
inevitably come to an end by effluxion of time, technically, all rights
appertaining to the land reverts back to the reversioner i.e the Governor, at the
expiration of the term, and like the situation under a leasehold interest, the
holder is expected to relinquish possession. Where there are no improvements
on the land, no issue arises as to the status of the holder for, he owns not the
land but only the improvements made thereon. However, where the holder
owns improvements on the land which he retains at the expiration of his term
of years, the question is whether on known legal principles, his rights over
same do not become extinguished.
To cap it all reference is here made to the comment of Ezejiofor70 when analyzing the
import of the provisions of the land Tenure Law of Northern Nigeria, the precursor of the
Land Use Act. He said;
‘The Law and its predecessors took away from the natives of Northern Nigeria
proprietary rights to the lands which originally belonged to them and which
they occupied and over which they exercised acts of ownership according to
their native laws and customs. In place of their ownership titles they got mere
customary rights of occupancy-the right to occupy and use the land-which can
68 Williams, D.C Measuring the Impact of Land Reform Policy in Nigeria The Journal of Modern African Studies,
30, 4 (1992), pp. 587-608
69 Smith I.O.: Sidelining Orthodoxy In Quest For Reality: Towards An Efficient Legal Regime of Land Tenure in
Nigeria. An Inaugural Lecture Delivered at the University of Lagos On Wednesday, 18th June 2008 University of
Lagos Press, 2008 p 20-21
70 Ezejiofor. G Constitutional Guarantee of Property Rights in Nigeria Journal of African Law, Vol. 18, No. 2
(Autumn, 1974), pp. 127-148
16
be revoked by the Minister or a local authority for good cause and sometimes
without payment of compensation for improvements on the land. At no time
was any compensation paid to the natives of Northern Nigeria for this act of
expropriation. ’71
It is thus arguable that the Act nationalized all lands in favour of the state, whilst
allowing private ownership of the improvements on the land. It can be argued that the
argument of the private property rights school to the contrary failed to consider the
import of the provisions of section 29 subsection (1) and (4) which in reality divested
private beneficial interest in land simpliciter and vests same in the state. The provision
provides that the holder and the occupier shall be entitled to compensation for the value
at the date of revocation of their unexhausted improvements; and compensation under
subsection (1) of this section shall be, as respects the land, for an amount equal to the
rent, if any, paid by the occupier during the year in which the right of occupancy was
revoked. The full import of this provision is that the beneficial value in land is vested in
the state as private rights to compensation for land simpliciter is lost to the state.
On the other hand, the fact that most of the land in the country are in the rural non-urban
areas and mostly held under a deemed grant of customary rights of occupancy with
indeterminable tenure and free from all government restrictions, save the requirement of
Governor’s consent to alienation and revocation, one is tempted to hold that holders of
these rights enjoys rights akin to ownership over the land in their care. They pay no rents
and have no business with the government in the management of the land. Even where
the land is compulsorily acquired by the State for overriding public purposes and allotted
by government thereafter, these communal land ‘owners’ still find ways of coercing the
developer to repurchase and or pay additional compensation to them in respect of the land
before allowing any development on it. The realisation of the exertive powers of this
Omo-Onile syndrome in land ownership struggles in Nigeria must have informed the
move by the Lagos State government to criminalize land theft. The same issue reared its
head in the Niger Delta militant struggles and resource control debacle. It is therefore
71 At page 142
17
difficult to wish away the fact that some molecule of ownership traits is left in the
citizenry, particularly where the land in question is not subject of actual grant of rights of
occupancy.
Given this picture, it is arguable that the land Use Act did not nationalized all lands in the
state except those lands vested in the federal government and its agencies. This position
is buttressed by the fact that land owners prior to the promulgation of the Act, deemed
grantees, are not compelled to convert to the new determinable interest of rights of
occupancy by the Act except where such holder elects to do so at his own peril. This
conclusion is affirmed by the provisions of section 36 and 48 of the Act which provisions
give the deemed holder the discretion whether to convert his holdings or not. Section 48
on its own validates the currency of proprietary titles prior to the enactment of the Act.
Consequences of dichotomy in land ownership
This dichotomous posture of ownership under the Act permeates throughout its
provisions and impacts on the policy and administration of the Act. It is the genesis of
most of the confusion and administrative anarchism occasioned by the Act. Issues on the
proper position of the trusteeship concept under the Act; insecurity of title and tenure;
urban and non-urban lands debacle; revocation and compensation imbroglio; state and
federal lands controversy; the consent argument; deemed and actual grants dichotomy;
statutory and customary rights contradictions and many more are traceable to the
equivocal nature of ownership status under the Act. The indecisive ownership
arrangement under the Act also affects people’s perception of the Act and obstructs a
purposeful interpretation of the provisions of the Act by the courts and academia. It
impacts negatively on private property rights, the rule of law and fundamental rights of
the citizens. It breeds socio-economic injustice and adversely affects the business
environment particularly the mortgage industry.
Recommendations
18
To assure the State ownership status of all lands in the state and put to rest this seeming
confusing status of land ownership in the country, it is suggested that the provision of
section 1 of the Act should be amended to clearly reflect the intention and objective of
the law which is to vest the beneficial interest in all lands in the state, leaving citizen with
beneficial rights only in the improvement made on the land. The new amendment should
read:
From the commencement of this law the beneficial interest in all lands
comprised in the territory of each State in the Federation are hereby
vested in the State Land Use and Allocation Board (the Board)72
established under this Act and such land shall be held and administered
for the use and common benefit of all Nigerians in accordance with the
provisions of this Act.73
A provision of this nature will expressly bring all lands in the state under the control of
the Governor; and by bringing all lands under the ownership and control of the Governor,
the scramble and battle over land and the uncertainty surrounding security of and title to
land would become history.74
72 The creation of the Board is one of the recommendations in the proposed by this study in the new law on Land
management in Nigeria.
73 See the proposed law on Land Management in Nigeria in the appendix.
74 Umezulike,I.A. Does Land Use Act Expropriate? (1986) 5 JPPL p61-69
19
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