POSITION PAPER ON THE NEED FOR THE REPEAL OF THE LAND USE ACT 1978.
Introduction: Human society the world over is heavily dependent on land and its resources. It is not an overstatement to say that without land there would be no human existence. This is because it is from land that man gets items very essential for his survival such as food, fuel, clothing, shelter, medication and others.
According to Omotola J. Learned Professor of Law;
“Every person requires land for his support, preservation and self actualization within the general ideals of the society. Land is the foundation of shelter, food and employment. Man lives on land during his life and upon his demise, his remains are kept in it permanently. Even where the remains are cremated, the ashes eventually settle on land. It is therefore crucial to the existence of the individual and the society. It is inseparable from the concept of the society. Man has been aptly described as a land animal.”
Consequently, it is apparent that the life of man and that of the society revolve around land and its resources. Thus, it is pertinent that man’s fulfilment of his potentials in life depends to a great extent on his relationship with land. International recognition of the relevance of land to the life of man can be gleaned from the proceedings at the United Nations Conference on Human Settlement (Habitat II) 1996 where many countries committed themselves to:
“promoting optimal use of productive land in urban and rural areas and protecting fragile ecosystems and environmentally vulnerable areas from the negative impacts of human settlements".
It is this importance of land to man and the society that influenced the state intrusion into property legislation in order to ensure adequate and efficient land management technique for the benefits of the greatest number of the members of the society. This point is further underscored in the words of Banire M. A. in his Book titled “Land Management in Nigeria: Towards a new legal framework”, that;
“virtually every form of investment or development by government and private entities is dependent upon land in one way or another. It is now generally accepted that poor land administration can impede economic development and social welfare”.
Therefore no nation can fold its arms and allow its land use management to fall in disarray as “no nation handles the issue of land management within its borders with levity.” It is this nexus between land and economic prosperity of an individual and a nation that probably informed the constitutional provision respecting the inviolability of private property rights in various jurisdictions around the world.
In Nigeria, the provision of Section 43 of the Constitution provides that no right or interest in movable or immovable property shall be compulsorily acquired anywhere in Nigeria without the payment of adequate compensation.
Thus while the constitution recognizes the importance of land to personal economic growth by preserving individual property rights; it also recognizes the eminent domain status of the state to take private property upon the payment of adequate compensation to the victim. It is therefore imperative that the state should endeavour to strike an equitable balance between private property rights and state rights to compulsorily acquire private lands for public good. This balancing posture is to ensure that land, the scarce and limited resources of the nation is put to an optimal judicious use. This balancing ratio needs to be reviewed from time to time and in line with the socio-economic reality of the nation.
The Advent of the Land Use Act:The Land Use Act, 1978 was ostensibly enacted to address the importance of land to Nigerians and therefore provide viable management options to land administration in Nigeria. The Act was promulgated as Land Use Decree in 1978 by the then military government under General Olusegun Obasanjo. In a bid to retain the law in the statute books even after he had left office, the Obasanjo-led Supreme Military Council made the Land Use Decree an integral part of the Constitution which he handed over to the Alhaji Shehu Shagari-led federal government.
Section 1 of the Act vested all land comprised in the territory of each state (except land vested in the federal government or its agencies) solely in the governor of the state, who would ordinarily hold such land in trust for the people and be responsible for allocation of land in all urban areas to individuals resident in the state and to organizations for residential, agriculture, commercial and other purposes, while similar powers with respect to non urban areas are conferred on local governments.
Regrettably several obstacles, probably not foreseen by formulators of the law, invariably cropped up during its implementation. These obstacles, including tenure complexities, limited access to land by federal and local governments as well as foreigners, non-implementation of land ceiling, insecurity of certificate of occupancy, inhibiting consent provisions, high cost of land transactions and non-enforcement of development permission among others.
In a nutshell, the main fault of the Land Use Act of 1978 was Section 1 of the Act Which transferred title and ownership of land from individuals and communities to the governors who hold the land in trust but many of whom have been known to have abused the power and privileges conferred on them by the Act. It also made acquisition of land by individuals and corporate bodies for commercial and economic development purposes extremely difficult.
Despite all the cries and agitations for review of the Act, the federal government before now obstinately refused to embark upon such review exercise. To further exacerbate the situation, the federal government further placed the Act under the 1999 Constitution thus making it extra difficult to review and amend it because any such review and amendment will have to go through the same process as stipulated for the review and amendment of the Constitution itself under section 9 of the said Constitution.
Eso JSC in the celebrated case of
Nkwocha v. Governor of Anambra State [1984] 6 SC 362 at 404, has this to say:
“The 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”.
Obaseki JSC expressed the same sentiment when he posited that:
“It is an understatement to say that this Decree or Act abrogated the right of ownership of land hitherto enjoyed by all Nigerians.”
In the academic circle this opinion finds expression in the works of Umezulike where he posited among other things that Section 1 of the Act hints at only one radical possibility, namely the expropriation or nationalization of land.
Before the Act, control over land was vested in families, clans, villages and communities in Southern Nigeria. Under the traditional or customary agrarian land tenure system, individuals did not have complete control over the land and the sale of land was hardly possible. Individual occupants of land were identified by the right they hold rather than by actual possession of land. In Northern Nigeria, the ownership and control of land was vested in the State government under the Land Tenure Law of 1962. However, the methods of agricultural organisation and production were similar to the system prevailing in the South.
But the Act was to abolish all these as it vested all lands in a state in the governor and in the hands of a few people who are well connected with government, while depriving the small-scale farmers of land; causing delays in securing Certificate of Occupancy from government. Lofty as its intentions were, however, it was a matter of time before the Act became a piece of dysfunctional legislation.
Thus with the governor being vested with the radical title to all lands in the state, all other interest in land became an estate less than freehold. It then means that no person can hold a fee simple, fee tail or even a life estate in land in any state in Nigeria. The best interest accruable under the Act could be likened to a lease. It is no doubt that the Land Use Act has fundamentally and drastically changed the landscape of property law rights and interest in Nigeria. But has it been able to rationally and efficiently address the issues and problems that led to its promulgation positively and adequately? The Act has generated and will continue to generate further discourse in view of its indigent drafting, inchoate and unclear nature of the right derivable under it, and the extent to which the law affects private property rights of the citizens.
Most of the state governors in whose care the “people’s land” is entrusted by the Act have demonstrably failed to make the land easily accessible to the people for their “use and common benefit”. Instead, some people in government have merely upstaged the local land speculators and assumed that same pernicious role as most governors and officials in charge of land dispensary have suddenly become multiple landowners by virtue of their offices.
Effects of the Act on Land Acquisition for Developmental/Agricultural Purposes: The Act obnoxiously concentrated too much power in the hands of state governors, who often exploit this for economic and political reasons to the detriment of other stakeholders, including even the federal and local governments as well as individuals who might require lands for industrial and agricultural developments. Sections 21 and 22 prescribe the requirement of a governor’s consent for the alienation of customary and statutory rights of occupancy, the procurement of which is however characterized by long and frustrating delays. For this reason, most holders of right of occupancy evade the consent provisions, leading to multiplicity of imperfect titles.
In this respect, the position of the governor as the person in whom the land is vested can be likened to the position of the crown in England, where ownership of land is vested in the crown with the subjects owing only an interest in the land, which interest is defeasible. Thus like a fee simple holder in England a deemed grantee who had freehold land prior to the Act, though subject to the limitations expressed in section 34 and 36 as to quantum of interest he may have, continue to hold an indeterminable interest in the property subject only to the state right of compulsory take over of his property for overriding public purposes and limited right of alienation. Such deemed grantee will only lose this fundamental allodial right where he applies for the issuance of certificate of occupancy from the Governor, thus making his interest determinable, as he will not be granted any tenure beyond 99 years.
Over time, the Act has remained a sore point in Nigerians quest to acquire land for building in most urban areas, and a major hindrance in real estate development and transaction in the country. Under the Act, the overwhelming powers granted the governors over land have been blamed for the country’s seemingly insurmountable housing problems. Most of the time, the Certificate of Occupancy (C-of-O) which confers ownership of land on individuals are given to the highest bidder instead of those that actually need the land. In some states, obtaining a certificate of occupancy has become a Herculean task these days. Some state governments have even given and cancelled certificates of occupancy on flimsy excuses.
Professionals, private property developers and the organised private sector have always fingered the law as the greatest disincentive to real estate development and the growth of the real sector of the nation’s economy as it limits access to land for development purposes. One of the most contentious sections of the Act has to do with the Governor’s consent and the issuance of the Certificate of Occupancy ( C of O ) which is required as collateral for obtaining loans from financial houses.
At the moment, Nigeria has a housing deficit burden of 17 million units hanging down its neck which requires about N35 trillion (about $27 billion) to fund. According to World Bank estimates, Nigeria needs to produce about 720,000 housing units for the next 20 years to be able to close the housing gap in the country. Available statistics show that since its inception in 1973 up to 2006, the Federal Housing Authority (FHA) has built only 30,000 housing units. When this housing output in the last 33 years is juxtaposed with the present huge housing need a gloomy picture of the critical housing condition in the country is apparent.
The United Arab Emirate (UAE) is today a world tourism destination simply because of changes it made in its land rules. In 2002, UAE liberalised its land rules, granting foreigners the right to acquire and develop land in the country. Today, the story is what we see as Masdar City in Abu Dhabi; Burj Dubai and Burj Al-Arab, both in Dubai. It is believed that Nigeria with its rich and abundant natural endowment can surpass UAE’s records if only there could be the political will to review the country’s moribund Land Use Act.
Some states in the Federation are not helping matters in the way they go about land charges in their domain. In Lagos State for instance, land is gold and has therefore become the exclusive preserve of the rich who can pay the millions that land values attract. The story is not different in Ogun State, or in Abuja. Recently, the FCTA announced a 150-percent increase in its land charges. Apart from the improvement in home ownership, which increased access to land would engender, other economic activities such as agriculture, industries and tourism will benefit from the review or amendment of the Act, especially at a time like this when revenue from oil has plummeted following falling prices in the world oil market.
The effect of the Act in the Niger Delta:As earlier noted land is the most vital ingredient of national socioeconomic development of a nation. Land is wealth no matter its nature or conditions. No land is ever without its purpose. This is because on it depends every economic activity. How a community or country utilizes land determines the level and kind of economic development that takes place in that community or country. Ever since the promulgation of the Act, there has been countless litigation in courts both on hitherto customary ownership and the new methods of land acquisition that have set individuals, communities and the state against one another. This conflict is most manifest in the Niger Delta region of Nigeria where the people there are vociferously claiming ownership of lands and all the mineral resources inherent in them.
Let me quickly remind you that, the Niger Delta region has a population of 27 million people, covering an area of 70,000 square kilometers, with 5000 communities, 50 ethnic groups and 250 dialects. The region is not only rich in oil and gas, but also well endowed with other natural resources like water, timber and other forest resources, wild life and sharp sand. It is the third largest wetland in the world, following after the Amazon basin in Latin America. The Niger Delta is endowed with various species of aquatic organisms. Sadly though the significant feature of the Niger Delta is the general state of underdevelopment, not only by world standards but also in relation to many parts of Nigeria itself.
The poverty of this region, whilst being the source of the majority of Nigeria’s wealth, is the contradiction that poses one of the key challenges of our emerging democracy. Stakeholders who seek the evolution of democratic and stable governance in Nigeria must regard the resolution of the Niger Delta contradiction as a key building block. The Niger Delta was recognized as a region for a special development initiative and attention in the Independence Constitution of 1960. The Pre-Independence Constitution also recognized a special right of the region to oil and gas resources ownership. Thus, 50% of royalty deriving from the Oil and Gas exploitation was paid to the Oil Producing Regions or States.
But by the provision of the Land Use Decree of 1978, the inhabitants of the oil producing communities were turned into squatters in their own ancestral homes, as land where oil is explored, produced, transported and stored were decreed to belong to the state long after political independence in 1960. The existence and application of the Land Use Act of 1978 have directly or indirectly contributed to the present state of neglect, under-development and the insecurity of the region. In all appearances, the root cause of the crisis in the Niger Delta remains the denial of the peoples’ right to land and its content, which the above piece of legislation have concentrated on the state. Naturally, the recipe for peace in the enclave is fundamentally the return of the rights of the people to land and its contents as it was under the pre-colonial period.
The Proposed Amendment of the Act by the Present Administration:It is perhaps against this backdrop that the Yar’Adua administration came up with the idea of land reforms that is intended to make land available and accessible to the people, and by so doing increase home-ownership level. It is therefore heart-warming that President Umaru Musa Yar’Adua has considered it imperative to call for a fairly comprehensive review of the Act by sending 14 Amendment clauses (titled Land Use Act (Amendment) Act 2009 or the Constitution (First Amendment) Act 2009) to the National Assembly for this purpose.
For now, it is believed under the President Yar’Adua’s proposal, the amendment would enable farmers to use land as collateral for loans for commercial farming and invariably lead to a boost in agriculture and the economy. Speaking with the media, Special Adviser to the President on Media, Mr. Segun Adeniyi, said that the amendment “is to restrict the requirement for governor’s consent in land transactions to assignments only. The amendments therefore will render such consent unnecessary for mortgages, subleases and other land transfers in order to make transactions in land less cumbersome and facilitate economic growth.”
The presentation of the bill to the National Assembly marks the commencement of the implementation of the Yar’Adua Administration’s strategic agenda to overcome some of the major legal and logistical constraints to capital accumulation in Nigeria. Its passage it is believed would make land a much more easily convertible asset that can be used with less hindrance to raise capital for ventures in other areas of the economy. Specifically, the bill proposes to amend the Land Use Act by restricting the requirement of the Governor’s consent in land transactions to assignment only. The proposed amendments relate to sections 5,7,15,21,22,23 and 28 of the existing Act.
Conclusion/suggestion:It is noteworthy that since the Act came into being this is the first time such amendment is being proposed. I also note that this amendment is coming exactly thirty one years after the Act came into existence. However, lofty as this proposed amendment may seem, it is obvious that the amendment, with due respect, did not address the crux of the matter, to wit: the overbearing control exercised by the Governors over land in the states as well as the ownership of land and its inherent resources by individuals and communities. The President’s draft bill did not propose any amendment to Section 1 of the Act, which vested all lands comprised in a state on the governor. There is no doubt therefore, that the Act with particularly reference to Section 1, has become anachronistic and moribund and is long due for appropriate review, amendment or outright repeal.
Before the President’s Bill there have been strident calls for the review of the Land Use Act. Eminent jurists and experts were speculating that government would organise conferences to examine the Land Use Act as it affects development purposes in various parts of the country. But this is just conjectural as this Bill has shown. This amendment does not capture the expectation of Nigerians as it failed to address some conflicts and contradictions that the Land Use Act has thrown up. By section 315(5) of the 1999 Constitution, the process of amendment of this Act is so tedious and cumbersome, requiring the concurrence of 2/3 majority of the National Assembly as well as resolution of the Houses of Assembly of not less than 2/3 of all the States as laid down by section 9 of the Constitution for the amendment of the Constitution. To go through this rigour and not meet the expectations of Nigerians is quite an effort in futility.
The deficiencies of the Land Use Act were aptly summarized by Justice Augustine Nnamani who, as Attorney General was responsible for drafting of the Act and its incorporation into the Constitution. He said; “in the course of these years, it has become clear that due to its implementation ... the objectives for which the Land Use Act was promulgated have largely remained unfulfilled; indeed, they have been distorted, abused and seriously undermined.”
Land is usually taken to include not only the physical soil, but also everything beneath it (minerals and water) and everything extending up to the sky above it. The 1979 Constitution of the Federal Republic of Nigeria like the 1960 Constitution recognizes and stipulates that all interests in mineral resources belong to the owner of the land and water resources contained therein. This Act has remained an instrument for the alienation of the peoples of the Niger Delta from their natural oil and land resources and other sources of livelihood.
On compensation to those whose lands were taken for development activities, it seems that no amount of compensation can assuage the feelings of an average Nigerian to whom land has profound cultural and social-political values and spiritual aspects. To the subsistence farmer, land is the basis of his survival; it is to him life giving. Thus to take land away from him for a public purpose, with which he cannot identify with, without prompt payment of adequate compensation or resettlement, is to ask for trouble.
Again the Act, has not eliminated speculation in land; it has only driven it underground or fuelled it and concentrates both economic and political powers in the hands of governors, military elites and “rubber barons” who use it to dispossess their political opponents and/or peasant farmers through large-scale acquisition of land for commercial agriculture, paying only for un-exhausted improvement, stipulated by the Act.
Furthermore, the allocation of land under the operation of the Act was hardly made to the low-income earners ‘No government has yet earmarked a percentage of land available for allocation to this category of Nigerians as a deliberate policy. Nor has there been allocation of a percentage of land available for allocation to the community or family that previously owned the land now acquired by government’.
With all these contradictions against the Land Use Act, the expectations in many quarters are that The Land Use Act ought to have been amended to capture these agitations or out rightly repealed. To only seek to remove governor’s consent with regards to alienation of land actually goes to no issue in assuaging the contradictions that the Act has engendered.
The pains of land disputes and conflicts remain gruesome and indelible in the memories of the victims and the collective consciousness of Nigerians. It is, therefore, the position of this paper in consonance with the powerful pronouncements of Eso JSC and Obaseki JSC in Nkwocha v. Governor of Anambra State, supra, that the Land Use Act is nothing but a nationalization instrument which took away the right of ownership and management of land from the citizens and vested it in the state. In fact, the tenor and essence of the Act as could be gleaned from the readings of its provisions is that it has succeeded in turning landlords into tenants over their lands and impoverishing citizens as it sought to remove the economic and wealth creation attributes of land.
This conclusion is founded on the fact that under the Act individual rights and interests in land is curtailed and limited only to right of occupancy and the fact that a bare and undeveloped land under the Act bears no economic value as no compensation is paid for its acquisition by the state. Consequently, the repeal of the Land Use Act 1978, is therefore imperative or where that becomes difficult to achieve, the Act should without delay be expunged from the Constitution in order to permit its easy review or repeal whenever the need arises.
This conclusion is further buttressed by Professor Patrick Oshio recently, while delivering a lecture entitled “Perfecting the Imperfections in Nigerian Legislation”, at the University of Benin. The learned professor, also called for the repeal of the Act, saying that it cannot provide land for agriculture. He rather preferred the adoption of the British Agriculture Act of 1947 which, he said, harmonized government policy of encouraging agriculture, saying that the British Agriculture Act also made direct provisions on agricultural development, adding that this was the type of action and thrust which Nigeria desperately needed at this period.
I do not only share this viewpoint with the learned Professor, but I also feel challenged to cause a restoration of Nigerian people’s rights to ownership of land and its content as it was under the pre-colonial period.
