Land ownership
is of legal and social interest; hence, its function as judicial policy has
been appropriated by politics. Relatively, MACOMIK said that “there are few
more important aspects to life in any society than land and the relation
between land and human kind. Economics recognize land as been of the three
economic fundamentals of the society along with labour and capital. Ownership
of land as throughout all ages and in all societies being a factor in
determining class structures. Policies about land are policies of society, how
it shall be governed and what relationship it shall has between the different
groups and people in the society”.
The Land Use Act
being a federal stature established a uniform land ownership structure
throughout Nigeria. In the states in the former Southern Nigeria, the new
structure as it concerns the maximal ownership title, represent a major
departure from the pre – existing situation described in chapter two above. In
the states in the former Northern Nigeria, however, the new structure in the
main represents a general endorsement of the basic structure established by the
Land Tenure Law 19622.
Under the land
use Act, two palmary forms of land titles are recognized namely: the maximal ownership
title, which may be absolute or radical and the right of occupancy.
In addition, the
Act, by its various provisions which effectively preserve and protect existing
customary land tenure system subject to S. 1 of the Act, permits the continued
existence and operation of various ancillary customary land relationships and
transactions, the principal and most profound among which is the customary
tenancy.
3.2 MAXIMAL OWNERSHIP TITLE
The foundation
of this form of title to land under the Land Use Act is rooted is S.1 of the
Act. The section provides:-
“Subject to the
provision of this Act, all the land comprised in the territory of each state of
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
Nigeria in accordance with the provision of this Act” 3
S. 49 (1) of the
Act 4. Significantly
modifies this provision and must be read together with it. It provides:
“Nothing in this
Act shall affect any title to land whether developed or underdeveloped held by
the Federal Government or any agency of the Federal Government at the common
cement of this Act and accordingly and such land shall continue to vest in the
Federal Government or the agency concerned”.
The combined
effects of SS.1 and 49 (1) as trenchantly discussed and explained by the count
of appeal in Ona V Atenda 5,
is to repose the ownership of the maximal title to all lands in Nigeria –
whether in the form of absolute title or radical title – in only three
categories of owners, namely: The Federal Government, existing Federal
Government Agencies and the State Government of each state.
All those things
identified in chapter two of this work who owned such title under the pre –
existing order – i.e., the community, the chieftaincy office, individuals and
cooperate bodies are completely excluded. The position of the three ownership –
holding bodies is as follows:
3.2.1 THE
FEDERAL GOVERNMENT
The Federal
Government retains and holds the absolute and beneficial ownership of all
lands, whenever located, vested in it at the commencement of the Land Use Act,
this is, as on 29th March, 1978; whether such lands are developed or
underdeveloped. One major example of such land are lands comprised in the
Federal Capital Territory Abuja, the ownership of which, had been vested in the
Federal Government since 1976 by S. 1(3) of the Federal Capital Territory Act
1976 6.
Other examples
are lands located in different state territories in respect of which, the
Nigeria fee simple title has been vested in the Federal Government before the
Land Use Act by virtue of the compulsory acquisition statists. The Federal
Government holds the ownership of such land absolutely for its own use or
benefit and not in trust for any person or organization. S. 49(1) of the Act 7
provides that nothing in the Act shall affect such title and according the
lands concerned shall continue to vet absolutely in the Federal Government.
3.2.3. ANY FEDERAL GOVERNMENT AGENCY IN EXISTENCE AT
THE COMMENCEMENT OF THE LAND USE ACT
A Federal
Government Agency is defined in S. 49(2) of the Act 8 to including statutory establishment. But the Act is
silent on the quantum of land to be given to a “Deemed Holder” of right of
occupancy in a rural area. Therefore, it is safe to conclude, that a deemed
holder can hold any quantum of land, without restriction, whether developed or
underdeveloped in a rural area.
Therefore, the
land today is no more a subject of ownership as it used to be before the Land
Use Act, 1978.
The only
interest capable of enjoyment in land is more possessory right in the nature of
right of occupancy, which may be statutory, customary or deemed right of
occupancy.
3.3 PROOF
OF TITLE
On
the inception of the Land Use Act, court action can only be commenced in the High
Courts in respect of land for which a statutory right of occupancy has been
granted by the Governor or in – respect of questions as to who is entitled to
compensation for improvements on lands under the Act or for a declaration of
title to a statutory right of occupancy.
The obvious
effect of this provision is that it is only in respect of ownership of
statutory right of occupancy overland that declarations and other related
pronouncements can be made by superior court of record. Declaration can root be
made to the effect that fee simple estate, fee tail or indeed any other form of
allodia or radical ownership over land vests in any individual. This is a reiteration
that the highest interest enjoyable over land under Land Use Act is a right of
occupancy. It was on this legal platform that the court of Appeal, nullified a
declaration of title to land in dispute in the case of Usman V Garke 9. The court held inter –
alia, that by virtue of S.1 of the Land Use Act, 1978 all lands comprised in
the territory of each state in the federation are vested in the Governor of
that state and by SS.5 & 6 of the Act, the only right that any individual
or community may be entitled to in respect of land is a right of occupancy,
statutory or customary. In the instant case, having regard to the change in the
Land Tenure System brought about by the Land Use Act, the trial court was in
error to have awarded the respondent a declaration of title to land in dispute,
instead of a right of occupancy.
S.40
of the Act provides for pending proceedings before the Act and declares that
where, on the commencement of the Act, proceedings had been commenced or where
pending in any court or tribunal in respect of any question concerning to title
to any land or interest therein, such proceedings may be continued and be
finally disposed off by the relevant court, provided that any order or decision
of the court shall only be as regards the entitlement of either of the parties
to a right of occupancy, whether statutory or customary in respect of such
land.
This
is another reiteration of right of occupancy as having replaced former interest
in land. The implication seems to be that those who had predicated their
pending cases on claim of allodial ownership had to effect necessary amendments
to their pleadings so as to now ask for right of occupancy and nothing more
than just that.
3.4
THE UNCERTAIN NATURE OF THE QUANTUM OF INTEREST CONFERRED ON THE BENEFICIAL OWNER
Another
effect of Land Use Act over Acquisition and Ownership on Traditional Land
Tenure System is the quantum of interest enjoyable by a holder of right of
occupancy. This is premised on the fact that the courts had not been certain on
the quantum of the interest enjoyed by the beneficial owner. Thus, in CHIROMA
V. SUWA 10, OGUNDARE JCA
stated: that a certificate of occupancy creates a term of years absolute or a
lease for number of years stated.
While
in OZUNGWA V. GBISHE 11, ANIAGOLU
JSC differently put that a right of occupancy under the Land Tenure Law, and a
portion, by virtue of S.48 of the Land Use Act, represents “the nearest
equivalent to the right of ownership as obtained in the Southern part of
Nigeria”.
The courts have
also held the view that the beneficial owner is entitled to interest for an
indefinite period based on SS. 34 & 36 of the Act dealing with deemed right
of occupancy. Thus, in Savana Bank Ltd and Anor V. Ajilo & Anor 12, the Supreme Court held
that indefinite duration of tenure is not inconsistent with the Act, the
Governor while issuing a certificate of occupancy under S. 9(1)(b) or (c) to
applicants under SS:34 and 36 to confirm a deemed right of occupancy could
grant an indefinite duration, as the, “holder” had such tenure before the Land
Use Act.
The
effort of Juristic authorities cannot be left unmentioned in this quest to
determine the quantum of interest conferred on a beneficial owner. PROF.
OMOTALA asserts that ….. a right of occupancy is a hybrid form of rights,
something between personal and proprietary right. PROF. UMOZULIKE opined that a
beneficial owner has the right to occupy and use land without making reference
to the duration of time.
From
the foregoing therefore, it is clear that there is no certain quantum of
interest conferred on the beneficial owner, since it is noted that an
indefinite period is specifically held or fixed, though the state land law has
provided for 99 years, it is only practicable as expressed in a conveyance
agreement.
This
conflicting opinion about the quantum of interest could only avail us the
opportunity to wait for our Supreme Court to come out with a specifically
general quantum of interest, which a beneficial owner is entitled to enjoy.
Till then, the quantum of interest conferred on a beneficial owner in Nigeria
remains an impediment to land ownership.
3.5 THE
CONSENT PROVISION UNDER THE ACT
Section
21, 22 and 23 of the Act are basically provisions that require the consent of
the Governor in transactions concerning Land Ownership. The implication of this
on customary Land tenure system is that no holder of customary or statutory right
of occupancy can alienate this right of occupancy without the consent of the
Local Government Chairman 13
or State Governor 14, as
the case may be and if the alienation is done without the necessary consent, S.
26 of the Act provides that the whole transaction will be declared null and
void and can be a ground for revocation of the right of occupancy 15 or the holder may be
penalized 16
Alienation
simply means to assign by away of conveyance, mortgage, lease, sub – lease or
part with possession of the land in whatever way by the holder. It has been
observed that the prohibition placed on alienation of right of occupancy is not
water – tight in that the holder of a right of occupancy is at liberty, without
any legal restriction, to negotiate the alienation of his right of occupancy.
Thus, in Onuboys Technical Services Limited V Union Banks of Nig. Ltd. 22 Wherein the Supreme Court
held as follows: “A holder of a right of occupancy may enter into an agreement
or contract with a view to alienation his right of occupancy. To enter into
such an agreement, or contract, he does not need the consent of the Governor”.
Notwithstanding
these anxiety and fear expressed concerning the consent provision of the Act,
the National Assembly appears reluctant to amend, review or repeal the Land Use
Act 17.
3.6 LACK
OF EXCLUSIVE POSSESSION
The
Lack of exclusive possession is also an impediment in ownership of land in
Nigeria. The effect of S. 14 of the Act is that in relation to the land itself,
the holder should have exclusive rights against all persons other than the
Governor. Therefore, the holder does not have exclusive possession of the land
he occupies. The Governor can revoke the right of occupancy of overriding
public interest. And the holder has no right to object to the revocation for
overriding public interest. It should be noted that when revoking a right of
occupancy for an overriding public interest, the Governor must comply with the
statutory provisions in that direction otherwise the revocation will be
declared null and void even if it is intended for overriding public interest.
3.7 THE
INSECURITY OF TITLE
Since
SS. 6(3) and 28 of the Act empower the Local government and the Governor to
revoke any right of occupancy for the overriding public interest, and also the
vesting of ownership of land in the state to the Governor of the state, the
Land Use Act has created the problem of insecurity of title to holder of right
of occupancy.
One
of the most pre – requisite for adequate provision of housing is security of
title to lands, for it is on land the house will stand. The importants of land
to housing are of twofold: it provides the base on which the house is built,
and it could also serve as security for raising capital to build the house by
way of mortgage.
But
since the title given by the Governor is not secured as it sounds, this has
surely affected the development of housing sector of the economy. Note that
there are some other effects of Land Use Act on acquisition and ownership, but
we are obliged to do with the once highlighted above for want of space.
CHAPTER FOUR
4.1
EFFECT OF LAND USE ACT ON LAND ACQUISITION AND OWNERSHIP
The
Land Use Act, was promulgated by the Federal Military Government during the
require of Gen. Olusegun Obasanjo as Land Use Decree (No. 6. 1978) and later
transformed into an Act; Land Use Act Cap. 202 LFN, 1990 (Now Land Use Act cap
L5 vol. 8 LFN; 2004).
The
Act was entranced in the 1979 constitution 1
and subsequently in the instant 1999 constitution 2 as one of the existing Laws. The main purpose of the
Act was stated by the Head of state in his national broadcast at the time the
Act was promulgated as follows:
“The
main purpose of the Decree is to make Land for development available to all
including individuals, corporate bodies, institutions and governments ….. fast
economic and social development at all levels and in all the parts of our
country is our main purpose.”3
After
setting out the broadcast of Gen. Obasanjo and the terms of the preambles to
the Act, Ekpu summarized the intendment of the Act as follows:
1. The provision of a Uniform Land Tenure
System in the country
2. To make land easily and cheaply
available to all Nigerians and the government for development purposes and
3. To check the practice of land
speculations whereby some wealthy individuals indulged in a lucrative trade in
land. 4
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. Hence an attempt is made in
this essay to make the position of the law clear vis – a – vis the legal
implication of the Land Use Act, and its impact on land acquisition and
ownership.
4.2 NATIONALIZATION OF LAND IN NIGERIA
The major effect
of the Land Use Act is the Nationalization of all lands in Nigeria. 5 The Act has completely
divested individuals, families, communities and villages of absolute and
outright ownership of land in the country. This point is driven home more
clearly in Nkwocha vs. Governor of Anambra state 6 where KOYODE ESO JSC observed that “the tenor of the
Act as a single piece of legislation is the nationalization of all lands in the
country by vesting of its ownership in the state leaving the private individual
with an interest in land which is a mere right of occupancy”. What is now left
to the individual is a mere right of occupancy”. The Governor under S.2 (1) (a)
of the Act has the power of control and management of all lands in the Urban
areas, while those in non – urban areas are under the control and management of
local government 7. In
Mrs. Gankon vs. Ugochukwu Chemical Industries 8, the Supreme Court, held that the control and
management of Land in Nigeria are by virtue of the provisions of S.2 (1) of the
Land Use Act: (a) with respect to land
in urban areas vested in the Governor of each state; while (b) other land
including land in rural areas are vested in the local government where the land
is situate. Also in Ofodile vs. Commissioner for Police Anambra State 9, the court of appeal
stated that S.1 of the Land Use Act vest all the land within the territory of a
state in the Governor of the state while S.2 of that Act appointed the control
and management of the land on the basis of the designation of the land into
urban and non – urban areas of the state. The Governor is vested with the
Administration of the land in urban areas while the local government of the
area where the land is situate is vested with the administration of land in non
– urban areas of the state.
4.3 RIGHT OF OCCUPANCY AS THE HIGHEST INTEREST IN
LAND
Under
the present legal regime, individuals can not own land, the only interest
individuals can have in land is right of occupancy. Right of occupancy may be
statutory or customary depending on the lex situs of the land in question.
Under S.5 (1), the Governor can grant statutory right of occupancy to
individuals in respect of land in urban area and issue certificate of occupancy
as evidence of the grant 10,
while the local government has power under S.6 (1) to grant customary right of
occupancy in respect of land in non – urban areas.
The
question now arises as to what happens to the title of an “owner” of a land
after the promulgation of the Act? S.34 (2) of the Act provides that where the
land is in an urban area and in developed state, the holder shall be allowed to
hold such land as if he was a holder of a statutory right of occupancy granted by
the Governor and thus, he becomes a “Deemed Holder” of right of occupancy. A
Deemed Holder is defined in Yakubu v Abioye 11 as the person entitled to a right of occupancy and
includes the beneficiary of the deemed right of occupancy.
On the other
hand, if the land is in an urban area and undeveloped, the Act provides that a
plot or portion thereof should be given to the holder 12. And where the holder has several undeveloped plots
in an urban area, the holder should be given half (1/2) an hectare out of his total holding 13 cooperation or any other
body (whether cooperate or unincorporated) or any company wholly owned by the
Federal Government, like the federal government, any such agency retains and
holds the absolute and beneficial ownership of all lands, whether located in
Nigeria, vested in the agency as at the commencement of the Land Use Act,
whether such lands are developed or undeveloped and whether occupied or
unoccupied.
Examples
of such lands are; lands the ownership of which had been transferred, granted
or donated to the agency by any government or organization, or which the agency
itself had otherwise acquired or purchased. Again S. 49 (1) of the Act provides
that nothing in the Act shall affect the title of the agency in such lands.
4.4
THE GOVERNOR OF EACH STATE OF NIGERIA
S.1
of the Land Use Act 9,
provides “subject to the provision of this Act, all lands comprised in the
territory of each state in the federation are hereby vested in the Governor of
the state and such land shall be held in trust and administered for the use and
common benefits of all Nigerians in accordance with the provision of this Act”.
The
correct purport of this provision is that all lands in the territory of each
state other than those in which the absolute title is already vested in the
Federal Government or it’s agencies under the proceeding paragraphs; vest in
the Governor of the state and is required to be “held in trust and administered
for the use and common benefit of all Nigerians.” The effect of the Act is the
expropriation and nationalization of all lands in each state to the Governor of
that state. Thus, the obiter dictum of Kayade Eso Jsc (as he then was) in
Nkwocha v the Governor of Anambra state & Ors is pertinent and was relied
upon. “The tenure of the Act, as a single piece of legislative is the
nationalization of land in the country by the vesting of its ownership in the
state leaving the private individuals with an interest in the land which is a
mere right of occupancy and which is the only right protected in his favour by
the law, after the promulgation of the Act” 10
The
obligation of the Governor is to administer the lands for the use and common
benefit of “all Nigerians,” meaning Nigerians as a whole. It follows that
neither individual Nigerians nor citizens of any particular state have any
right to a superior or special claim to benefit on the land. Where such special
benefit is claimed, or accorded, it can only be founded or explained on the
basis of political expediency. It follows also that a non – Nigerian can not
apply for a right of occupancy. Indeed, it has been held in Ogunola v Eiyekole 11, that words “any person”
wherever used in the Act means, “any Nigerians” and does not included non –
Nigerians.
There
has been much controversy as to the nature of the power of the Governor of a
state in respect to land in his state. According to Dr. A. Nnamani, “No
Legislation promulgated in this country has elicited so much controversy, so
much criticism, so much divergence in the interpretation of its provisions, and
so much discourse in academic and business/financial circle as the Land Use
Act.” 12 Some jurist and
writers are of the view that by virtue of S.1 of the Act, Land Use Act has
created a trust concept on lands in a state, and the Governor is the trustee
who holds the land in trust and administered it for the use and common benefit
of all Nigerians. While others over that all lands in the country have been
expropriated by government and ownership vested in the Governor of the state.
In
view of this, this thesis has considered the critical examination of these
propositions in the lights of judicial postulations and legal authorities.
In
alluding to the trust concept created by the land use act, Professor James 13 hinted, “there would
appear to be no objection to expressing the nature of the Governor’s title as
one of trustee – ownership.
Reacting
to the provision of S.1 of the Act in the case of Ngwoch vs. the Governor of
Anambra state 14 Rerikefe
Jsc (as he then was) said “by this piece of legislation, a legal trust
affecting every rich of Nigerian land is created, constituting every state
military Governor as trustee in respect of land within the limit of his state
for the benefit of all Nigerians.
However,
even though the land use at in S.1 uses the word “shall be held in trust and
administered for the use and common benefit of all Nigeria,” its practicality
cannot be interpreted to mean that the Governor holds the lands in his state as
a trustee. Infact it is in support of this that Balogun J. in Otumba Adewumi V
Ogunbowale & ors 15
states that: “the concept of trusteeship as used in S.1 of the Land Use Act, as
enacted in a loose sense. It is not intended to confer upon every citizen of
Nigeria any right and cannot under the section as enacted claim against the
“Military Governor” an account for any benefit accruing from land held by him
under the Act in trust and administered by him for the common benefit of all
Nigerians. Also Prof. B. O. Nwabueze in reacting to the trusteeship concept of
the Land Use Act stated: “It is as well perhaps to emphasize that the concept
of trusteeship is used here in a loose and figurative sense; it confers upon
individual natives no rights which a beneficiary has against a trustee in
English Law. No native can claim against the Governor on account for any
benefit (E.g. rent) accruing from the Land” 16
Therefore,
the trust created in this regard must not be equated with the technical trust
known in equity so as to confer on an aggrieved citizen the right to proceed in
court against a Governor for a breach of an obligation impose on him by the Act.
17
It
is my humble position on this matter that S.1 of the Land Use Act does not
create trust relationship in the actual sense, but rather a nominal trust.
Therefore, the dictum of Irikefe Jsc in Nkwocha’s case and that of R W James,
is with due respect hard to follow; and the later view is preferable.
The
true nature of the right of property vested in the Governor under S.1 has
variously been described as “radical title” or “nominal ownership” 18, in contrast, with
absolute and beneficial ownership held by the Federal Government and its
agencies. The ownership is said to be radical or nominal for two principal
reasons. First, because S.1 vests the title in the land to the Governor
“subject to the provisions of (the) Act” and the Act, by S.34 provides for the
preservation of the possessory right of previous owner of land in all their
developed land, and in urban area. Also by S.36, the Act similarly provides for
the preservation of the possessory rights of previous owners in all their
agricultural lands and in all their developed lands in non – urban area. The
second reason why the Governor is said to hold only a radical or norminal title
is because S.1 enjoins him to have the land vested in him held “in trust and
administered for the use and common good of all Nigerians”. Smith, for example,
concluded that being a trustee of land vested in him, the Governor holds only
norminal ownership of land for the purpose of accomplishing the objective of
the trust. 19
These
reasons are no doubt persuasive of the view that the Governor’s ownership title
is only norminal or radical and not absolute. But, it nevertheless seems
important in evaluating the true nature of the Governor’s ownership title to
have regard to all those powers over land which Prof. Nwabueze correctly takes to
constitute” the real essence of ownership,” 20 and which truly reposes in the governor under the
Act. Together with the title vested in him, the Governor holds the full power
of control, disposition and administration of the land. He has power to make grant
of right of occupancy and other rights over unoccupied and even occupied land
anywhere in the state 21,
charging rent, 22 and his
due grant of occupancy right over any land automatically extinguishes all
existing occupancy rights in the land. 23
The Governor can revoke any right of occupancy under certain condition 24 and is not required to
pay any compensation for the land itself but only for the value of unexhausted
improvements thereon. If, any. 25
This is so even as regards deemed rights of occupancy existing by reason of
previous customary or non – customary ownership or user under SS.34 and 36,
which are potentially of indefinite duration. No person can validly alienate
any right of occupancy granted or deemed to be granted by the Governor with his
consent. 26 Thus, in
Savanah Bank v Aajilo 27,
the Supreme Court held that alienation of both actual grant and deemed grant of
right of occupancy required consent.
Indeed,
such is the near absolute character of the Governor’s powers over land that the
occupier of land the subject of a right of occupancy granted by him can claim
no right of exclusive possession against him. 28
For
these reasons given above, it seems necessary to tread with caution in writing
off the Governor’s ownership title to lands in his state as a mere norminal or
radial title.
The
picture that emerges is that of a substantial or near absolute ownership title,
qualified only by a pious obligation to administer the lands “for the use and
common benefit of all Nigerians”. It is this conclusion that Eso Jsc’s viewed S.1 of the Act in Nkwocha vs. the Governor of
Anambra state 29 as a
nationalization of land in Nigeria finds justification.
4.5 RIGHT OF OCCUPANCY
This
is the second primary form of land title, which exists under the land use Act.
The Land Use Act does not make any positive provision as to the ownership of
right of occupancy. But, it does not inferentially or in a negative way by
wholly and exclusively vesting the maximal title to land in the Governor under S.1
and then going on in SS.5 and 6, and in SS.34 and 36 respectively, to limit a
“right of occupancy”, the right which the Governor or local government can
grant in land to any person or organization or which any person or organization
– whether individual, family, community, corporation or otherwise can own land;
all that they can have is a right of occupancy which, if granted by the
Governor anywhere in the state in called a statutory right of occupancy, and if
granted by the local government or raised by reason of customary user or
occupation under S.36 is called a customary right of occupancy.
4.6 NATURE OF RIGHT OCCUPANCY
After
a critical examination of the Land Use Act, it appears that the only interest
created under the Act in favour of a man who has interest in land is the right
of occupancy.
However,
SS.5 and 6 of the Act empowered the Governor and the Local Government to grant
statutory and customary rights of occupancy respectively. Also S.8 provides
that the statutory right of occupancy granted under S.5 (1) (a) shall be for a
definite time and may be granted subject to the terms of any conduct which may
be made by the Governor and the holder not being inconsistent with the provisions
of the Act, but there is no such requirement for a customary right of
occupancy. S.10 provides for certain condition and provisions in the
certificate of occupancy upon grant of statutory right of occupancy as evidence
of such grant to the holder of the right of occupancy.
Again,
SS.34 and 36 of the Act provide for deemed right of occupancy by recognizing
the existence of right of ownership before the land use act, 2978. It follows
that a customary right of occupancy, whether granted or already being used or
occupied, must be used or must have been used in accordance with customary law,
either by the individual, group or family. Thus, S.24 of the Act deals
specifically with devolution of right of occupancy upon one’s death. Also, S.29
(1) deals with compensation payable on revocation of right of occupancy by the
governor in certain cases. And S.35 (1) deals on compensation for improvement
in certain cases and recognizes various units of ownership before the Act.
Hence, it implies that a customary right of occupancy as defined “in the real
sense” predates the Act, as it is not the subject of a grant, because of the
use of the phrase “and includes a customary right of occupancy granted.”
Based
on the above discussion, the following forms of right of occupancy are
discernable under the present legal regime viz:-
I. Formal statutory right of occupancy
granted under S.5
II. Formal customary right of occupancy
granted under S.6
III. Deemed statutory right of occupancy
granted under S.34
IV. Deemed customary right of occupancy
granted under S.36
4.7 IS THE RIGHT OF OCCUPANCY A LEASE, A
MORTGAGE, OR A TENANCY?.
This
question becomes pertinent because of the controversy created by the Act during
interpretation by jurists and legal writers. Thus, it is often asked, what is
the nature, the quantum and the incidence of occupancy and use inherent in a
right of occupancy?. How, for example, do they compare with the common law
leasehold, mortgage of tenancy? Is the right of occupancy the same as, substantially
similar to, or totally different from a lease?. Over the years starting even
well before the Land Use Act, these questions have agitated judges and text
writers. In Majiyagbe vs. Attorney General of Northern Nigeria 30, the court dealing with a
statutory right of occupancy under the land tenure law 1962 of the Northern
Nigeria, stated that is was “in substance a lease”. But the privy council in
Preinchand Nathy Co. Ltd vs. Land officer 31,
which considered the nature of a right of occupancy under the Tanganyika Land
ordinance, concluded that it was sui generis – “an entirely new interest in
land, similar to lease in some respects but different in other”.
Professor Omotala agrees with this view and
emphasizes that a right of occupancy is “a new form of right not coming within
any form of right known to property law”32.
Also in Lagos State Development and Property & ors v Foreign Finance
Corporation 33, Ademola
JCA stated “The right of occupancy is in nature a hybrid between a license and
a lease for a fixed term and conditions which upon breach by the holder is
subject to revocation by the Governor” while the Supreme Court held contrary
view on the matter in savanna bank (Nig) Ltd v Ajilo 34 and Osho v Foreign Finance Corporation 35 which express right of
occupancy as a form of mortgage.
It
is submitted with due respect that right of occupancy is not a mortgage or
lease as opined by the supreme court in savanna bank and osho cases (supra).
This is why smith 36
placed his support correctly with the Preinchad’s case and Omotal’s view. He
stated,, 37 “trying to
find the equivalent of a land tenure system operating in Nigeria or Tanzania in
English Law is an exercise in futility for every society designs for itself the
system of landholding.
The
truth perhaps is that in conceptualizing the right of occupancy in the Land Use
Act and in earlier statutes of similar nature in Northern Nigeria and elsewhere
in Africa, the legislature did not have in mind to create a juristically new
and self sufficient interest in land with a life and spirit of its own. The
whole contraption seems to be utility driven, with the focus of intension being
to secure to citizens familiar right of user and occupation sufficient to
enable them enjoy the greatest possible benefit from the land. This being the
case, the right of occupancy contraption admits into its fold only principles
and rules of leasehold law appropriate and sufficient for its purpose while at
the same time embody other fancied principles and rules entirely inconsistent
with those of leasehold.
Thus,
for example, while a statutory right of occupancy interest admits such
leasehold. Principles as certainly of term, 38, express term, implied term 40, alienability with consent 41; it only partially accommodates such a fundamental
leasehold principles as exclusive possession even against the land lord, for
S.14 of the Act only accords to the holder of an exclusive possession of the
land against all persons except the Governor and although S.15 also accords the
holder sole (i.e. exclusive) right and absolute possession, this is restricted
to his improvements on the land and does not extend to the land itself. Again,
while a lease is normally determined in accordance with the terms of the lease,
a right of occupancy, whether statutory or customary, is determined mainly on
the ground of overriding public interest 42.
Furthermore,
some of the rules and principles, which govern the landlord and tenant
relationship clearly conflict with some express provisions of the Act regulating
the right of occupancy interest. One example is S.18 which provides that the
acceptance of rent shall not operate as a waiver of any forfeiture accruing by
reason of the breach of any covenant conditions in certificate of occupancy.
This is in sharp contrast with the rule in leasehold law that acceptance of
rent by the landlord, even “without prejudice” for a period subsequent to
breach, constitutes a waiver of the right to forfeit the lease 43.
An
example is the rule, which the court have consistently applied that the
decision of the Governor or Local Government to give or without consent or
approval to alienate a right of occupancy is discretionary and cannot be
enforced by Mandamus or specific
performance 44 . This
again, is in sharp contrast with the rule in leasehold law that the landlord
will not be allowed to unreasonably without his consent to renew or sublet the
tenancy. 45
All
these differences point strongly that right of occupancy is not a lease,
mortgage or tenancy.
4.8 WHAT THEN IS RIGHT OF OCCUPANCY?
Even
though, the right of occupancy has been introduced by the land Use Act, it is
not specifically defined by the Act. The act in S. 51(1)46 only tries to define customary right of occupancy and
statutory right of occupancy. According to this section, customary right of
occupancy means the right of a person or community lawfully using or occupying
land in accordance with customary law and includes a customary right of
occupancy granted by local government under this Act. While the same section defined statutory right of occupancy
as a right of occupancy granted by the Governor under this Act. But right of
occupancy perse is not defined by the Act.
We
are therefore, compelled to look at previous similar enactment which defined the
term right of occupancy. The most relevant of such enactment in the present
context is the land tenure law of the northern Nigeria 1962 47. This is so because the Land
Use Act borrowed the right of occupancy system from the land Tenure Law of Northern
Nigeria. The said law had defined right of occupancy as follows: “The title to
the use and occupation of land and includes a customary right of occupancy and
statutory right of occupancy”
Giving
the similarity between the Land Tenure Law of Northern Nigeria and Land Use
Act, the definition applies Mutatis Mutandis to the land use act. The obvious
implication is that right of occupancy has become the highest form of estate of
interest capable of enjoyment hence the inception of the land use act.
The
position of the law is what the right of occupancy is a new form of right, it
is sui – generis, a hybrid of personal, proprietary and usupructory rights in
land. This position is in all four similar to the view expressed by the privy
council in Preinchand Nathy and Co. Ltd
v Land Office 48 that the
concept of the right of occupancy is sui – generis and that the intension of
the law in introducing the right of occupancy system was to establish an
entirely new interest in land.
Also,
Prof. Omaotala 49 asserts
that “there is nothing wrong in the right of occupancy being a new form of
right, and submits that a right of occupancy is a hybrid form of right
something between personal and proprietary right.
From
the foregoing, there are too broad categories of right of occupancy, which are
dependent on the locus situs of the land in question. If the land is situate in
a non – urban area, it is capable of customary right of occupancy. On the other
hand, if it is situate in an urban area, it can only be the subject of a
statutory right of occupancy.
4.9 CUSTOMARY TENANCY
Customary
tenancy is unquestionably the most profound of the ancillary interest
recognized by customary land tenure system which is obviously unknown to the
English law 50. This is
owning to the nature of the interest the very ambiguous provisions made in S.36
of Land Use Act which sought to preserve and protect existing possessory
interests in customary law, and the definition of “holder” and “occupier” in
S.51(1) of the Act, the status of customary tenants in the new scheme of titles
introduced by the Act has become a matter of serious controversy. It will be
helpful to start with a discussion of the legal nature of customary tenancy.
4.10 NATURE OF CUSTOMARY TENANCY
A
customary tenancy involves the transfer of an interest in land from the
customary landlord or overlord to the customary tenant to exclusive possession
of the land and which interest, subject to good behavior he holds in
perpetuity. Unless it is otherwise excluded, the main feature of a customary
tenancy is the payment of tributes by the customary tenants to the overlord 51. The status of his exclusive
possession is such that it is enforceable against the whole world including
even the customary landlord or those claiming through him. 52
The
genesis of this form of tenancy can be traced to the early days of Nigeria’s
history when it was not uncommon for strangers to come into a community and buy
land either for farming or for settlement or for both. When such land was
granted to the strangers by the community,
Nigerian
customary law would presume a conditional grant 53.
The
principle governing the grant of customary tenancy is as enunciated by various
judicial authorities are now well established. For instance, the land must be
used for the purpose for which it was granted and for no other 54. The tenant is under
obligation to pay yearly tribute to the grantor as an acknowledgement of the
latter’s over lordship 55.
Neither the tenant nor the overlord can alienate the land without the consent
of the other. Customary tenancy is usually granted for an indefinite period
subject to good behavior on the part of the customary tenant 56. The interest secured by
the tenant is one of inheritance 57.
However, the land cannot revert to overlord except upon proven misbehavior on
the part of the customary tenant, or on the rare case of the extinction of the
tenant and his family 58
The
only weapon in the hands of the over – lord for dealing with the tenant after
the grant is his power to forfeit the customary tenancy. To constitute the
ground for forfeiture, the action of the customary tenant must be wrongful,
substantial and must relate to the use of the land subject of tenancy.
Equitably,
the law cannot be used as instrument of fraud; it is by this assertion that the
grounds for which the overlord can forfeit tenancy include, abandonment, by the
customary tenant. Denial of the overland title to the alienation or attempted
alienation of the land without the consent of the overlord. Putting the land to
use other than the purpose for which it was originally agreed upon, withholding
customary dues, persistently, wanton waste and lack of effective user.
Forfeiture however, is not authomatic and misbehavior merely makes the tenant
liable to the forfeiture at the will of the overlord which nowadays if resisted
can only enforced by reference to the court 59.
Conclusively,
customary tenancy is an ancillary form of interest recognized in customary land
tenure, when the provisions of SS.1, 36 and the definition of “holder” and “occupier”
under S.51 (1) of the Act are read together. The Supreme Court made this point
clear in Abioye v. yakubu 60,
where Pa Obaseki Jsc said, “the land use act has defined in S.50 (Now S.51 (1)
“occupier” to mean any person lawful occupying land in accordance with
customary law and includes a sub – lease and sub – under lease under customary
law are and full under category of customary tenants.
A
holder on the other hand is defined, in relation to a right of occupancy, to
mean person entitled to a right of occupancy and includes any person to whom a
right of occupancy has been validly assigned or has validly passed on the death
of a holder but does not include any person to whom a right of occupancy has
been sold or transferred without valid assignment, nor a mortgage, sub – lease
or sub – under – lease. By this definition, a customary tenant is not entitle
to be a holder of a right of occupancy. 61
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CHAPTER
FIVE
CONCLUSION, OBSERVATION AND
RECOMMENDATION
5.1
CONCLUSION.
This
essay, as stated at the beginning has examined the meaning of land, the
structure and problems of land ownership and acquisition, which existed in
Nigeria before the land use act, 1978, and the changes introduced by the act.
The
picture that seems to emerge is that the land use act has effectively unified
the maximal ownership title to land and relocated it in the state, clothing the
state with enormous powers of control, disposition and administration of land,
while leaving the citizens free at customary law, and subject to those controls,
to occupy, use and transact on the land as before. In general sense, it may be
correct to say that it has remained business as usual for the citizens. The
average landowner, especially in non – urban communities, is almost completely
indifferent to the acclaimed government powers over land in his daily
sustenance activities on land. As KARIBE – WHITE, Jsc said in Ogunsola &
ors v Eiyekole & ors 1
land is still held under customary tenure even though dominium is on the
governor. The most pervasive effect of the land use act is the diminution of
the plentitude of powers of the holder of land. The character in which they
hold remains substantially the same. Thus, an owner in customary law remains
owner all the same even though he is no longer the ultimate owner2
The
end result in practice is to render illusory the high expectation of Government
which prompted the enactment of the land use act, that the act will “streamline
and simplify the management and ownership of land for development available to
government and corporate bodies and individuals. “Bloody communal and
individual clashes over land still abound in the country and governments,
including the federal government, still go through harrowing consent of
communities to acquire even long unoccupied or never occupied lands for
government projects.
5.2 OBSERVATION AND RECOMMENDATIONS
The
land use act is the most controversial act enacted by the federal government
under the military regime. Its implementation has occasioned a lot of
litigations on land matters. It is therefore suggested that the amendment of
the act will go a long way to avoid avoidable litigations on land matters in
Nigeria.
Therefore
a provision should be inserted in S. 5(2) to the effect that the grant of a
right of occupancy under S.5. (1) does not extinguish the existing interest of
a deemed holder of a right of occupancy that has not otherwise been revoked.
There
should be a provision clarifying the provision as to whom, between the holder
and occupier, is entitled to a certificate of occupancy in respect of the land
to which S.36 (2) applies.
The
half – hectare provision should be expunged from the Act. Not only is its
wording incoherent, its practical implementation is fraught with difficulties
moreover, it raises the normal question: if the Governor can grant more than
half hectare to a person under S. 5 (1) why curtail the quantum of existing
interest to half – hectare per person.
It
is my view that the land Use Act be amended to revoke for easy transferability
of land. If land cannot be easily transferred, then its value is in doubt, its
benefit unknown and its utility use attractive. Land should be easily
transferable like shears under the CAMA 3.
Administrative
bottlenecks should be removed to hasten the perfection of interest in land.
This will be consistent with the Federal Government’s Policy of economic
globalization and transformation.
More
importantly, the Land Use Act should be excised from the constitution 4 and the National Assembly
must wake up to its legislative responsibility of implementing the terms of
social contracts which they signal with Nigerians as it affects the land use
act 1978.
The
land use act, as it is today, is contrary and inconsistent with the Federal
Government Policy on privatization 5