CHAPTER TWO
LITERATURE REVIEW:-
2.0 Meaning and Nature of Land.
The Interpretation Act defined land as immovable property or “land” includes land and everything attached to the earth and all chattels real. The Blacks’s Law Dictionary defines land as an immovable and indestructible three dimensional area consisting of a portion of the earth’s surface, the space above and below the surface, and everything growing on or permanently affixed to it.[4] According to the property and conveyance law of Western Nigeria: Land includes land of any tenure, building or parts of buildings (whether the division is horizontal, vertical or made in any other way), and other corporeal hereditaments, and easements rights, privilege or benefit in, over, or derived from land[5].
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The Collins English Dictionary defines land as the solid part of the surface of the earth as distinct from seas, lakes, etc. it further defines land as any tract of ground capable of being owned as property.[6] However, some legal luminaries and writers were able to come up with a lot of definitions. Prof. B.O Nwabueze in his book “Nigeria Land Law”, stated that land means not only the ground and its subsoil, but includes also all structures and objects, like buildings and trees, standing on its[7]. Obi in his book “The Ibo law of Property”, Claims that a remarkable aspect of African include things growing on, or attached to, the soil, and that neither economic trees nor houses form a part of the land on which they stand[8] Also, Lloyd, in his “Yoruba Land Law” claims that in Yoruba Customary Law, a distinction is drawn between land (the soil) and improvements there on[9]. On his own part, Dr. Coker in his “Family property Among the Yorubas made it clear that in any application of the term “land” includes buildings thereon[10]. Be that as it may, it is very expedient to note that Coker’s view received support by the position of Ollennu in his Customary land law in Ghana, where he pointed out that:
The term land as understood in customary law has a wide application. It includes the land itself, i.e, the surface soil; it includes things on the soil which are enjoyed with it as being part of the land by nature, e.g, rivers, streams, lakes, lagoons, and creeks, growing trees, like palm trees, and dawadawar trees, or as being artificially fixed to it like houses, buildings and structures whatsoever; it also includes any estate, interest or right in, to or over the land or over any of the other things which land denotes, e.g, the right to collect snails, herbs, or hunt on land[11] . Furthermore, to be noted at this juncture is that Coker’s view is desirable here for it agrees with judicial decisions on the subject.[12] Therefore, to be noted as well is that what emerges is that land may have both a natural content namely, the ground and its subsoil and things growing naturally on it, that forms its basic element. Where an artificial content, like buildings and other structures or trees, has been added, the question has arisen whether such additional structures form and integral part of the ground, so as to accrue to the owner of the ground.
Under English law, the principle which is supported by Dr. Coker’s view and that of ollennu is quicquid prantatur solo, solo cedit, meaning that whatever is affixed to the land is part of it.
2.1 - Historical Background of the Land Use Act:-
An Anti – Inflation Task Force was appointed by the Federal Government, in 1975, to examine the current inflation tendencies in the economy, identify their causes, and recommend short and long term solutions. As regards dealings in land, the Task Force recommended the promulgation of a Decree which will have the effect of vesting all land, in principle, in the state Government. The Government rejected this recommendation in its white paper on the Reports, because such recommendation will result in vesting all private land in all parts of the country in the state. Then, in 1976, a Rent Panel was appointed by the Federal Government to review the level and structure of rents in relation to the housing situation in the country with particular reference to urban Centres, and also to examine the adequacy of housing programmes in the Country…. and to suggest appropriate remedial measures and make recommendations. The panel suggested that the major hindrance to rapid economic development was the land tenure system existing in Nigeria. It therefore, recommended that in the long term interest of future economic development in the Country, Government should look into the question of vesting all lands in the state. The above recommendation was accepted by the Government, which called for a further study of its practical implications[13] . in 1977, the Federal Government set up an eleven man land Use Panel with the following terms of reference:-
a. to undertake an in – dept study of the various land tenure, Land Use, and land conservation practices in the Country and recommend steps to be taken to streamline them;
b. to study and analyse all the implications of a uniform land policy for the Country;
c. to examine the feasibility of a uniform land policy for the entire Country, make necessary recommendations and propose guidelines for implementation; and
d. to examine steps necessary for controlling future Land Use and also opening and development of new land for the needs of Government and Nigeria’s growing population in both urban and rural areas and make appropriate recommendations.[14] The Panel Submitted a three hundred (300) Pages Report which was not published by the Government. The Government rather issued a very short white paper in which it expressed its views on the Report.
According to the White Paper:-
The main report of the Panel examined various sources of land ownership in the Country and arrived at the conclusion that for the moment it would advice un-equivocal terms against –
a. nationalization of lands either at federal or state level; and
b. the extension of the 1962 land tenure law to the south[15] .
it is evident, therefore, that the panel recommended against nationalization of land in Nigeria. The Panel is of the opinion that land tenure systems in Nigeria cannot be harmonized or interposed, Furthermore, it does not subscribe to the vesting of the proprietary and radical title in any land in the Federal Government[16].
In view of the majority, and attempt to harmonise the land tenure system or inter change the one in the South for the North and vice verse, would cause social upheaval and will not necessarily produce a lasting solution to the problems. The Panel rather suggested uniformity o aspect of land Use and conservation practice extensive reforms in planning and zoning laws, registration laws, mining laws and others. In 1978, the Federal Government after tinkering on these reports, rather promulgated the land Use Act in force today.
2.2 – Objective of The Land Use Act, 1978:-
The sole object of the Land Use Act as enumerated there in includes:
1. To remove the bitter controversies, resulting at times in loss of lives and limbs which land is known to be generating
2. To streamline and simplify the management and ownership of land in the country.
3. To assist the citizen, irrespective of his social status to realize his ambition and aspirations of owing the place where he and his family will live a secure and peaceful live
4. To enable the government to bring under control the use to which land can be put in all parts of the country and thus facilitate planning and zoning programmes for particular use[17]
Unfortunately, the Land Use Act merely made mention of the term Land tenure law in a very loose sense in section 4. Lo and behold, what the Act did is to vest all land comprised in the territory of each state in the Federation 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. As regards land situated or comprised in the rural area, such land is vested on the local Government Chairman or administrator. However, the term “vested” as used in the Act is defined by the Black’s Law Dictionary to mean “to confer ownership of (property) upon a person or to invest (a person) with full title to property. Or to give (a person) an immediate, fixed right to present or future enjoyment[18] .
The term “tenure” is also defined in the Same Black’s Law Dictionary as a right, term, or mode of holding lands or tenements, in subordinate to a superior. Thus, from the line of analysis and definitions, It is evident that what the Governors acquire is a mere right akin to that of a trustee. The resultant effect of such right is to be discussed in the next topic.
2.4 – Land tenure and its Negative Effects Under the Land Use Act, 1978.
Under this heading, we are to look into the negative effects which the land tenure practice produces in our society. Since the Governor or any authority, as the case may be, acquires a mere right similar to that of a trustee, they cannot confer or grant a title more than they have. The above trite principle is express in latin as nemo dat quod non habet. Which means that no one can give what he does not have. It follows that any claim of right in the name of tenure is according to the Act a mere illusion. To buttress this point, in our property law jurisprudence, and owner of a property can put it into any use he likes or even do away with it without being under any body’s control.[19] Standing by the above position, one can be tempted into saying
That the claim of title or ownership by the provision of the Act is a mere fiction. To believe otherwise it to say that the power to revoke as conveyed on the Governors enables them to aprobate and reprobate[20]. In other words, how can a right granted to a person be revoked by the same grantor? The worse case is that that the right of revocation is abuse frequently for selfish or political reasons or consideration under the pretext that it is for public interest[21]. Unfortunately, the Act provided for any contracts upon which a statutory right of occupancy could be granted.[22] But it fails to define or rather mention those contracts which the grant is subjected to. The implication being that the Governor is given a discretionary power because it became a subjective case rather than an objective one. In the light of the foregoing, we should remember that many families have been rendered homeless due to an unnecessary act of revocation all for the sake of tenurial practice. A number of lives and limbs have also be claimed as the aftermath of such revocation. The report also evince that many companies, industries or firms have winded up or closed today as a result of revocation of their occupancy right. In turn, the level of unemployment problem arising from the loss of job by the already employed workers posed a big danger to the society. For want of space, the effect of unemployment will not form part of our discussion here. Notwithstanding, the provision for compensation or allocation of alternative site to persons whom right of occupancy have been revoked are mostly inadequate[23]. To add that the new environments or location by these affected establishments may not be favourable for their business to thrive on.
2.5 – Negative Effect of title holding in Nigeria Under the 199 Constitution:-
In the Nigerian Constitution 1999 (as amended) provision is made for the acquisition and ownership of immovable property anywhere in Nigeria.[24] The wording of the above section is thus:
“subject to the provisions of this constitution, every citizen of Nigerian shall have the right to acquire and own immovable property anywhere in Nigeria.” The Constitution went further to provide in its S.44(1) (a) and (b) thus:
(1) No moveable property or any interest in an immoveable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the Manner and for the purposes prescribed by a law that, among other things-
(a) requires the prompt payment of compensation thereof; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
The phrase prompt payment of compensation is not defined or rather explained by the constitution. It appears that it depends on what the Court in the exercise of its discretionary power may decide to award. If we marry the constitutional provision together with that of the Land Use Act concerning land acquisition, both evidences that no ownership is absolute but rather an imperfect claim of right. However, unlike the Land Use Act, the constitution provides for non – compulsory acquisition. Unfortunately, the Land Use Act takes preeminence to the constitution[25]. The above constitutional provision notwithstanding, speed CJ. Have expressed rightly in my view that:
“it can hardly be denied that these ideas as to ownership of property were entirely unsuitable to modern requirement. And that sooner or later, either the legislature of the colony or the court in exercise of its equitable jurisdiction will have to give the coup-de-grace of the whole[26].
Regrettably, the judicial prophecy of the erudite judge was never taken cognizance of in the promulgation of the radical Land Use Act. The Act (LUA) through its provision manacled the law makers from effecting the Coup-de-grace by constitutional amendment or review.[27] To be noted is that the only exceptional case open for the repealing of or modification of same, is too rigorous in achievement[28]. Our hope is that the inflexibility of the provision of S.9(2) our constitution will be revisited at the on-going constitutional review, and so also every other section or subsection having any negative effect whatsoever. In other to bring this heading to a close, it is necessary that we bring into focus that the list of the negative effect of title holding in Nigeria Constitution can never be exhausted. This point can be strengthening further if we consider the fact that our society is a dynamic one. That is, as the society changes, new form of problem and hardship evolves.
2.6 – Negative effect of land tenure to National Income:-
From all indication, Land is the mainstay of all the economic activities of any nation, Nigerian inclusive. It follows, therefore, that the success or otherwise of any country’s economy hinges on the availability of and the effective utilization of its resources. Undoubtedly, land is at the epicenter of these resources. Infact, it is regarded as the hobnob or wheel upon which the whole economic activities revolves. Having established this common fact, our pendulum will now make a little shift into the meaning or definition of the term “national income”. According to the Collins English Dictionary, national income accruing over a specified period to residents of a Country. Also, in his book “Basic Economic Theory and Principle,” Sylvester Ike Udaba defined national income as the total money value of all the goods and services produced by a Country I one year[29].
From the above definitions of national income, it became evident that the national income of a Country serves as the yardstick or benchmark for the measuring of its level of growth and development. A remarkable question needed at this juncture is this: are the resources needed for the achievement of the economic goal of the country, Nigeria fully utilized?
The answer is by no doubt on the negative. This research exposes a lot of waste both of man power and material resources. For instance, in a place like Udi Local Government Area of Enugu State, where their custom permits someone to enter into another person’s land and pick some crops that fell from their parent free. In an interview with a woman who have been into this practice shows that in every crop season, that she use to generate not less than 200 litres of red oil. The quantities her family consumes not include.
Still in another interview, a man and his wife made it clear that their family have for past years relied on early morning crop gathering. In a categorical statement, they said that crop gathering have contributed in no small way to the well being of their family, hence, their reliance on it. In a further statement, the family said that they have been able to train two of their children in tertiary institution from what they derive from Crop gathering.
Furthermore, a number of rural settlers evinced that a lot of income is being generated not only from the gathering of palm fruits, but as well, from other economic or cash crops such as bread fruit, oil beam, cola nut, cashew, et –cetra. A woman sadly said that she use to make a whole lot of money through crop gathering not until some communities barnned the entrance of a person into another person land so as to pick crops thereon. The report shows that most title holders in the name of land tenure system are urban dwellers. And that hardly do they care to visit those lands so as to make good use of them and their produce. It is a common feature among these society to see a large number of hectares of land owned by people who stay even outside the Country for more than a century[30].
All these is as a result of land tenure practice. There is no doubt that a proper harvest and cultivation of those virgin lands would be a boost to the level of national income or the country. in most cases, a lot of firms, companies or industries were unable to secure land for their establishment. This problem not only effect the increase in our national income data, but also brings about unemployment situation in the country. suffice it to say that an effective utilization of all the resources available in our society would bring about a rapid increment to the level of the national income of our country, Nigeria.
Finally, for want of space, it is sufficient to submit that in other to enumerate all the negative effects of land tenure system on national income will lead to the production of a sizeable text book which will in turn make the research work uninteresting.