THE RELEVANT PROVISION OF THE LAND USE ACT AS IT AFFECTS CUSTOMARY TENANCY



Here, Section 1, 2, 5, 6, 24, 28, 29, 34, 36, 40 and 50 are the relevant provision that will be given prominence. Section 1 of the Act provides as follows:

‘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 held in trust and administered for the use and common benefit of all Nigerians in accordance with the provision of this Act.


            This provision can rightly be said to contain the general intendment of the Act, which is to make land easily accessible to both the governments and people of Nigeria.3
            By this provision all land in a state became vested in the Governor of that state and he is to hold same in trust and administer them for the use and common benefit of all Nigerians. This implies that there is no longer any ownership of land in Nigeria by individuals. What an individual can now possess with respect to land is a right of occupancy which could be statutory or  customary according to Section 5 and 6 of the Act.
            Section 5 (1) (a) provides as follows:
  ‘It shall be lawful for the Governor in respect of land whether or not in an urban area (a) to grant statutory rights of occupancy to any person for all purposes”.
Also section 6 (1)  of the Act provides”
“It shall be lawful for a local government in respect of land not in an     urban areas.
(a)  To grant customary rights of occupancy to any person or organization for the use of land in the local government area for agricultural residential and other purposes,

(b)  To grant statutory rights of occupancy to any person or organization for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government Area concerned.
The combining effect of Section 1, 5 and 6 is that there is no longer ownership of land in Nigeria. What one could have in Nigeria today with respect to land is right of occupancy, which could be statutory, as the case may be. In other words, people wanting to make use of land for any purpose will now have to apply to the Governor to be granted a right of occupancy, if the land is situated in the Local Government, the application will be directed to the Local Government concerned. The land so granted will not be alienated without the consent of the Governor or the Local Government, as the case may be. Any violation of these provisions will result to revocation of the right of occupancy. Section 28 empowers the Governor to revoke a right of occupancy, statutory or customary, for overriding public interest.
      Section 2 provides as follows:
1.      As from the commencement of this Act
a.      All land in urban areas shall be under the control and management of the Governor of each state and
b.      All other land shall subject to this Act, be under the control and management of the local government within the area of jurisdiction of the land is situated.
But what is the position of people who before the commencement of the Act were already in possession of land? Would they have to apply directly to the Governor or the Local Government for grant of rights of occupancy? Provisions were made for them in section 38 and 36 of the Act. Section 34 makes provision for possessors of land in the urban areas. According to this section, where the land is developed, it shall continue to be held by the person in whom it was vested immediately before the commencement of the Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under the Act.

According to sub-section (3) of that section, the person can still apply directly for the issuance of certificate of occupancy and the Governor is enjoined to make sure that the applicant is the person in whom the land was truly vested before the commencement of the Act. However, sub section (4) is very relevant here, it provides as follows.
“where the land to which subsection (2) of this section applies was subjected to any mortgage, legal or equitable or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject, unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions, or general intendment of this Act”.
            It appears that this last mentioned subsection embraces customary tenancy. Since it does not run contrary to the general intendment of the Act, which has been stated above, and has been lawfully in existence even before the commencement of the Act. The question then is, who is vested in possession before the commencement of the Act, the tenant or the landlord? This must be determined so as to know who is entitle to apply for the certificate of occupancy.
            However, before this question is answered, it is important to note that the fact that customary tenancy is a valid interest in land under the Act can be supported by the express recognition by the Act of certain customary laws, for instance, section 29 dealing with compensation payable on revocation of right of occupancy by the Governor provides in subsection (3) as follows:
                 “If the holder or the occupier entitled to compensation under the section in a community the Governor may direct that any compensation payable to it shall be paid
a.                           To the community
b.               To the chief or leader of the community to be disposed by him for the benefit of the community in accordance with the applicable customary law.
Again, Section 40 of the Act makes special provision for proceedings pending in court with respect to any question concerning or pertaining to title to any land or interest therein. According to the provision, such proceeding may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be in respect to   the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary in respect of such land as provided in the Act.
From the above provisions, it could be gathered that the fact that the Act recognizes the existence of the institution of customary tenancy is not at all in doubt4. What is in doubt is who is entitled to be issued the certificate of occupancy under section 34 and 36, is it the tenant or the overlord? This problem is compounded more by the use of the words vested” as can be seen in Section 2, 36 (2). The implication is that if the customary tenant is entitled to the right of occupancy, then the institution of customary tenancy must have been extinguished by the land use Act. But, if the landlord is entitled to it, that is certificate of occupancy then the institution must have survived that Act. A detailed examination of the judicial decisions in this regard will probably throw more light on this.


3 See The Head of State, Broadcast to the Nation, Wed 29th March, produced by the Ministry of Education and information. Owerri
Share on Google Plus

Declaimer - MARTINS LIBRARY

The publications and/or documents on this website are provided for general information purposes only. Your use of any of these sample documents is subjected to your own decision NB: Join our Social Media Network on Google Plus | Facebook | Twitter | Linkedin

READ RECENT UPDATES HERE