CHAPTER FOUR
4.1 Introduction
Ownership and control of Land and petroleum have been
of great controversy in Nigeria. “Whose Land”, according to Akpan Wilson[1] has been
one question that has continued to be the backbone of every conflict associated
with the exploitation of natural resources such as petroleum. The differing stances between the state and
stakeholder communities as to who has a legitimate claim to land and the
minerals under it can be quite complicating.
In Nigeria, the ownership of mineral resources is
vested in the federal Government,[2] while
the land is vested in the state governments.[3] A lot of
questions have risen over who owns what. In this chapter, we shall examine the
maxim quic quid plantatur solo solo cedit, its meaning, definition and
nature. Then apply the principle in
determining the actual owner of Land and mineral resources therein in
Nigeria. These will equally extend to
the agitation for resource control in Nigeria.
Finally a comparative analysis will be done on the
various methods of ownership of petroleum resource in other jurisdiction.
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4.2 Definition, Meaning and Nature of the
Principle of Quic Quid Plantatur Solo
Solo Cedit
Land is an indispensable factor of production. It is a basic factor of division of
labour. Land is a natural endowment,
which is a gift of nature. Every person
requires land for his supports, preservation and self-actualization within the
general ideals of the society. Two Latin
maxims are frequently employed to define “land” quicquid plantatur solo solo
cedit, and cuius est solum eius est usque ad colum et ad iferos. The former means that “whatever is attached
to the ground becomes part of it”, the latter means “he who owns the land owns
every thing extending to the heavens and to the depth of the earth.”
Common law conception of land is that it is made up of
the following:
·
The surface of
the soil or the earth surface
·
Everything naturally growing or attached to
the surface of the soil
·
Everything inside
the sub-soil
·
The air space
above the soil.
·
Things
artificially attached to the soil.
However such artificial attachment must be for
permanent purpose.
It therefore means that a house built on the surface
of the soil is as much land as the soil upon which it is built.[4] Again,
if, a house is erected upon a piece of land and objects are attached upon the
land, or upon the building, the word “Land” prima-facie include the soil, the
building and the object attached to the building.[5]
Two methods are used to determine whether a chattel or
object is a fixture or not. They are;
a. The degree of annexation
b. The purpose of annexation
This common law principle has been judicially recognized
as an established principle of our land law by the Supreme Court, in the
landmark judgement in the case of Otogbolu
v. Okeluwa.[6]
Again in Francis v. Ibitoye,[7]
Adamu v. Ikharo[8]
our courts equally defended this principle.
Under common law, certain exceptions are recognized in
relation to this maxin quic quid plantatur solo solo cedit, which include:
a. That a tenant has right to remove at the end of his
tenure his trade fixture (e.g. Counter, shelves, batcher), ornamental or
domestic fixture[9]
(e.g. flower, air conditioner, ceiling fan); and finally agricultural fixtures
(e.g. poultry cage/pen, yam barn).
b. In respect to things inside the sub-soil, gold and
silver are exclusively rested in the crown as a Royal Prerogative.
Then, on the second maxim “cuius est solum eius est
usque ad coelum et ad inferos”[10] there
is a presumption that a landowner also owns all mineral on or beneath the
surface of that land. This was applied
in the celebrated mining case of Commonwealth
v. New South Wales.[11]
The presumption is subject to the exception of the Royal metals. As early as the sixteenth century, the common
law held that all gold and silver, whether situated on public or private land belonged
to the Crown.[12]
Therefore, it is pertinent to note that at common law,
he who owns the land owns everything n the land, above the land and below the
land, subject to the exception of the Royal metal.[13] So, the
individual owner of land retains the ownership of mineral resource (e.g.
petroleum) under the common law doctrine (except the Royal metals).[14]
This common law principle has been adopted in Nigeria
as part of received English Law by section 3(3) of Interpretation Act 1945[15];
imports the common law meaning of land into Nigerian jurisprudence. The section
defines land as meaning the earth surface and everything attached to the earth
or permanently fastened to any thing that is attached to the earth and all
chattels real (i.e. a legal expression for lease-hold interest). Unfortunately, against the spirit of common law,
the section expressly excludes mineral from the definition. It went further to give the ownership of all
minerals (petroleum inclusive) to the central government.[16]
4.3 State Ownership of Land and Agitation for
Resource Control in Nigeria
The general law governing the title and use of land in
Nigeria today in the Land Use Act 1978.[17] The Act
provides:
Subject to the provisions of this Act, all Land
comprised in the territory of each state of 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 benefit of all Nigeria in accordance with the provisions
of this Acts17a
By virtue of this provision, the
governor of the state, for the benefit of all Nigerians, now holds all land
within the territory of each state of the federation in trust. It therefore means that the governor is the
trustee of the land of the people who are beneficiaries. Susan M. Weschler, in
her work Duties of A trustee states:
“He has a duty to possess, protect, and
preserve the trust property. He must
also defend the trust the trust and the beneficiaries against anyone who would
challenge the validity of the trust.[18]”
It therefore means that the trustee
has the right to manage, control and use the trust property against all persons
except the beneficiaries. It equally means that the right of ownership is
rested on him, not as owner or but on behalf of the owner.[19]
When we read section 1 of the LUA together with section 44 (3) of the 1999 Constitution,[20]
it will be observed that our law is very clear on who owns what. The Land is vested in state governors, while,
the mineral resources vests in the federal government. Commenting on these ownership systems, Prof. Angaye opined;
The Logic
that one owns the Land and another owns the oil extracted from beneath the Land
is Nigerian Logic or illogic propounded by parochial logicians. If crude oil
were found under “the big tree” eminent jurists would have inserted the
enabling section in the 1999 Constitution to read: Any oil found under any big
three belongs exclusively to the owner of the big tree.[21]
It
is therefore imperative to notice that this system runs contrary to the
principle of quic quid plantatur solo solo cedit on one land and the principle
of federalism on the other.
On
the principle of quic quid plantatur solo
solo cedit, it has been established that this principle means that “who
owns the Land, owns everything thereof”, therefore, it follows that if the
state government is vested with land, it equally should be vested with that
beneath the Land. This has led to a fight between the federal government and
the state government over the control of natural resource in Nigeria that is
known as ‘resource control.’ This problem has even threatened the existence of
the federation of Nigeria.
According
to Sagay[22]
resource control involves three major components:
·
The power and
rights of a community or state to raise fund by way of tax on persons, matters,
services and materials within its territory.
·
The exclusive
right to the ownership and control of resources, both natural and created
within its territory.
·
The right to
customs duties on goods destined for its territory and excise duties on goods
manufactured in its territory.
The federating units of Nigeria have been calling for
a method of resource control that is human and equally based on the principle
of Federalism.
Under the 1960/1963 Constitutions, each Region was
paid by the federal government a sum equal to 50% of proceeds of any royalty
received by the federation in respect of minerals extracted in that region and
mining rents derived within that region[23] for
the purpose of payment of mineral royalty and mining rents, the continental
shelf is computed and paid to the region.[24] This
signaled the beginning of what would later be known as the offshore criterion
used in the derivation principle in the allocation of revenue, which allocates
revenue not derived from within the shores of a state to that state.[25]
The Constitution (distributable pool account etc) Decree
No 13, of 1970 was made by military regime of Gen. Gowon that abolished the
regional system and created states. This
decree fundamentally altered the structure of revenue allocation and in
particular, the derivation principle in the allocation of revenue.[26] The
decree further reduced mineral royalties paid to the state, to 45% and mining
rents to 35%[27]
The offshore Decree No 9 of 1971 abolished the
principle of derivation in respect of mineral royalties and mining rents as
contained in the 1963 constitution to the effect that the continental shelf
shall be deemed to be part of a region for the purpose of computing and payment
of royalties and rents.[28]
Accordingly, all oil explored offshore was made the property of the federal
government and revenue accruing from it was paid directly to the states.
The Constitution (Financial Provision) Decree No. 16
of 1975 abolished decrees No. 18 of 1965, No. 67 of 1966, No. 13 of 1970 and
No. 9 of 1971. It equally reduced the revenue that will accrue to a mineral
producing state to 40%.
Under Decree No. 106 of 1992[29] the
revenue was reduced to 1% however offshore revenue was again returned to the
states. This state of affairs continued
until the coming of the 1999 Constitution which in its section 162 (2) granted 13% derivable revenue from minerals to the
states from where it is derived. The
Constitution is silent as to how the mineral resources are attributed to the
state in other words, it does not mention onshore.
Following widespread protests, the federal government
instituted a case against the 36 states of the federation asking the Supreme
Court to interpret what constituted the seaward boundary of a littoral state in
Nigeria.[30]
The court gave a ruling that effectively resuscitated the 1971 position.
The federal government contended that southern
(seaward) boundary of each of these states is the low-water mark of the land
surface of such state, or the seaward limit of inland water within the
state. The federal government maintained
that natural resources located within the continental shelf of Nigeria are not
derivable from any state of the federation.
The eight littoral states[31] held a
contrary view. They maintained that
their territories extended upon to the continental shelf and that natural
resources from both the onshore and offshore are derivable from their
respective territories and in respect thereof each is entitled to not less than
13% allocation as provided in the provision of section 162 of the constitution. The Supreme Court found for the federal
government. Justice Walli (JSC) maintained that they couldn’t claim that
revenue accruing from mineral resources offshore belong to any of them.
The decision was widely rejected by Nigerians. Eventually to avert a wave of protects and
resistance that could truncate the country’s new democracy, the Federal
Government struck what is called “political settlement”, with the oil
states. An Onshore/Offshore Dichotomy
Abrogation Act of February 2004 made it possible for littoral states to receive
derivation revenues on petroleum resources lying within “water depth of 200 meters.”
Even at this, the people are still demanding for a
mode of resource control that is based on federalism. Prof. Ben Nwabueze[32] defines
federalism as
An arrangement whereby powers of government and a
number of regionalized (i.e. territorially localized) government are shared in
such a way that each exists as a government separately and independently from
the others operating directly on persons and property within its territorial
area, with a will of its own apparatus for the conduct of its affairs, and with
an authority in some matter exclusive of all others.
A
fundamental principle of federalism is that the governments of the federal
union are allowed to take their destiny into their hands in the management of
their respective administrative autonomy and natural resources within the
agreed sovereign competence ceded to the federation for their mutual beneficial
purposes.[33]
In Nigeria, it is important to get
to the root of our nation hood. Nigeria
was formerly independent kingdoms, empires, nations and autonomous communities
that were forcefully brought together under a unitary system of government by
the colonial masters for their selfish interests. It was under system of
government that the mineral Act of 1946
that was purely unitary in nature was made. Nigeria accepted to become a
federation in the first national conference in 1950. Therefore, according to Itse Sagay[34]“it is
clear that it is the coming together of these autonomous communities that gave
rise to a federal government. In other
words, the Federal Government is an agency of the Nigerian nationalities that
make up the various states. The subsequent
“creation” of states by federal military governments must be discounted as part
of the distortions and mutilations of the true political order, brought about
by unlawful military usurpation of power.
Nigeria is, therefore, a federation of former kingdoms, empires, states,
nations and autonomous communities
Nigeria unfortunately retained the unitary provisions
of the British colonial rule in the independence and republican constitutions, reason
being that the constitution was greatly influenced by the British government. However, in a bid to maintain its federal
nature, it allowed 50% of revenue from natural resources derived from each of
the regions to the region. This gave
rise to a healthy competition among the different region that led to wealth on
all sides. The east had palm products;
the west had cocoa and the north groundnut.
In conclusion, we are of the view
that in the spirit of federalism and upon the principle of quic quid plantatur solo solo cedit the section 4 (3) of the 1999 constitution should be amended so as to
read the true meaning of Land. It is certainly illogical to state that one owns
land and another owns the thing buried inside.
Therefore, the laws which, contrary to the maxim quicquid plantatur solo solo cedit expropriate the land and
riparian resources of our people.
This made James Ibori, at the
inaugural meeting of the Governors and National Assembly members from the South
region at Asaba on Friday 31st March 2000 in his keynote address, to
declare;
The mission of law is not to rob Peter to pay Paul. It
is, in the view of the government and the people of Delta State, to create a
stable polity founded on freedom, equality and justice; a polity where every
subject dreams according to his power of vision and translate his dreams to
reality according to his strength and endowment without being deprived by
forces external to him. This is the
vision of Deltans for our state, the south-south zone of the federation. A dream of egalitarianism.
Therefore, any law in our statute books which directly
or indirectly frustrates the realization of our dreams through a calculated
scheme of expropriation of our natural resource should be seen as repressive
and should be expunged. This should be
one of the fundamental objectives of the governments and peoples of the
south-south zone. But let me quickly add
that in making this change, I am not less a federalist. These objectives are to be pursued within the
shared vales of democracy and true federalism
A fundamental principle of federalism is that the
governments of the federal union are allowed to take their destiny into their own
hands in the management of their respective administrative autonomy and natural
resources within an aggress sovereign competence ceded to the federation for
their mutually beneficial purposes.
The demand for resource control and
true federalism was advanced by Temi Harriman on 10th May 2001 in
the National Assembly for the amendment of the petroleum Act intended to vest
the entire ownership of the petroleum deposits in the oil-producing states of
the Niger-delta regional, though the bill was defeated, it established the
determination of the people to use all democratic processes available to turn around
their plight.
4.4 Individual
Ownership of Land and Petroleum:
Comparison
with other Jurisdictions
A situation where some communities lay golden and
silvery eggs for the country and yet live in criminal neglect while just a few
people fatten themselves on the income from those resources is extremely crude,
extremely wicked and extremely criminal.
A Nigeria marching into the 21st century must purge itself of
the practice.[35]
It has been discovered that the federal
government does not own land.[36] This is
seen in section 3 of the 1999 Constitution
that provides that Nigeria is made of 36 states and the FCT. The constitution equally vested ownership of
mineral resources in the federal government,[37] but was
silent on the question of surface rights.
This lacunae was partially
filled by the section 1 of LUA which
provides;
…..all the land comprised the territory of each state
of the federation are hereby vested in the military government of the state and
such land shall be held in trust and administered for the use and common
benefit of all Nigeria in accordance with the provisions of this decree.
However, a lucid look into this provision will reveal
that this provision does not vest land in the government as an owner[38] but
rather as a trustee. One would at this
point be left with no other option except to ask, who then is the real owner of land or who is the beneficiary of this
trust property land, since neither the federal government nor the state
governments own land.
Therefore, for us to determine the true owner of land,
we will have to critically examine the phrase “….such land shall be held in trust and administered for the use and
common benefit of all Nigerians…” This shows that the government is only a
trustee for all Nigerians. By this, it
is therefore meant that Nigerians are the beneficiaries of the trust. Since
they are the beneficiaries of the trust, they are therefore the true owners of
land. This could be traced to the land tenure system before the creation of
Nigeria and subsequently the Land Use Act of 1978. Before, then, land belonged to the community,
the village or family and by extension to the individual when the community,
village or family bequeaths such land to him.
The Willink’s report 1958 succinctly declared that Nigeria is a group of
independent and autonomous kingdoms and peoples with separate languages,
culture and religion, equal in status and in no way subordinate to one another
but united as a corporate body to form the federal Republic.[39] It
means that these autonomous kingdoms and people, before the advent of the Land
Use Act, controlled land. Our
independence constitution and even the Petroleum Act, which was highly, motivated
by greed, still recognise the people’s ownership of land, when contrary to the
principle of quic quid plantatur solo
solo, vested ownership of minerals in the Federal Government, but were
silent on the issue of ownership of land, yet oil is entrapped in land and
cannot be exploited without access to land.
Upon the advent of the Land Use Act, which was meant
to solve the problem of land speculation and make land available for developmental
programmes of the government, the people were divested of their ownership rights
to land, which was then vested in the Governor as a trustee for the use and
common benefit of all Nigerians. Trusteeship,
we want to submit, has totally failed since the aims of the trust relationship
has not been realised even after 32 years.
The LUA has, vis-Ã -vis communal interests, achieved the following
outcomes;
1. Revocation of the peoples’ right to their land;
2. Deprivation of owner’s choice as to who acquires his
or her land;
3. Denying an owner of a choice of due compensation for
the acquisition of land;
4. Owners living under perpetual likelihood of losing
their land to government;
5. Owner’s inability to decide activities that should be
carried out on his property or interns of the communities, in their
neighborhood;
6. The law invariably vests in the government all the
resources in or on the owner’s land. The
government may well acquire any resource rich-land for any public purpose.[40]
The LUA has failed to meet the human security needs of
Nigerians, and without security, defined in the terms of food, shelter and
clothing, there can be no freedom. Necessitous men are not free men. Isaiah Berlin puts it well when he said that:
“Men who live in conditions where there is no sufficient food, warmth, shelter
and the minimum degree of scarcity can scarcely be expected to[41] concern
themselves with freedom of contacts or of the press.”
This is the problem with the LUA. With a stroke of the military pen, this
callous and arm-twisting law[42]
snatched from individuals, families, villages, and ethnic nationalities their
inalienable right to property and source of livelihood and turned into
beggar. With bowls in their hands, as
all beggars do, Nigerians now go to the governor or the appropriate officer to
obtain “crumbs” of lands for housing, Agricultural or other developmental
purposes. Nsongurua J. Udombana[43] said
that this is not just a pity it is a danger.
Kavl
Polanyi[44]
underscored the importance of land when he said that land “is an element of
nature inextricably interwoven with man’s institutions.” According to him, the
economic function is but one of the many vital function of land. “it invests man’s life with stability it is
the site of his habitation, it is a condition of physical safety, it is the
landscape and the seasons,” “we might as well imagine him being born without
hands and feet as carrying on his life without land.
After a wide – ranging survey of the
literature on land, Akin Mabogunje[45]
concluded that land “is a very constitutive part of the capacity of any society
to organise itself for growth and development stressing that a society does
this through its land tenure system which “establishes the effectiveness and
efficiency of societal transactions in land and greatly influences the rate of
growth and development of its economy.”
Against this background, the people
of Niger Delta are crying for the control of their land and minerals buried
there under. Resource control is
therefore the hearth cry of people, who have suffered grave injustice,
inequities, environmental devastation, brutal killing, hunger, marginalization
and pains beyond words for justice.[46]
According to Lucky Igbinedion[47]
Resource control means that if I as a Benin man go to
Kebbi state and find gold, the resource should belong to me and not the state
or federal government. All I owe the
federal government is to pay taxes and royalties. The same principle should apply if a Kano man
comes to Edo, Delta or Bayelsa and strikes oil.
He only pays royalties and taxes to the state or the federal government.
As
already alluded to, resource control is a legal incidence of ownership of natural
resources whoever owns a thing of value manages it. This is a basic principle of the jurisprudence
of property law. Niki Tobi JCA as he
then was, amply stated this in Abraham v.
Olournfunmi[48]
that; “In so far as the property is his and inheres in him, nobody can say
anything. He is the alpha and omega of
the property. The property begins with
him and also ends with him.”
Utuama[49] has succinctly
noted that subject to administrative and legal qualifications that may vary in
content from jurisdiction to jurisdiction, it is trite law that the owner of a
thing controls, manages, uses and enjoys or may even abuse the thing. Thus, the demand for resource control simply
implies the wish of people of the Niger Delta region to exercise the legal
right to control, manage, use, enjoy and abuse the natural resources located in
the Niger Delta region.
In common law parlance, land
endowments in terms of natural resources in or under the land belongs to the
owner of the land. This is explained by
the maxim quic quid plantatur solo solo
cedit earlier referred to which has been judicially recognized as an
established principle of our land law by the Supreme Court, in the landmark
judgement in Otogbolu v. Okeluwa.[50] It
simply means that what is attached to land is part of the land and by
implication belongs to the owner. As
such, the owner has the amplitude of rights vested in him to be enjoyed as he
pleases limited by the right of his adjoining neighbour to the reasonable
enjoyment of his land. Based on this
legal proposition, all the natural resources in the Niger Delta region should
rightly belong to its peoples.
No wonder, the Ogoni people
boycotted the 1999 presidential election; they had argued “Ogoni should not
give legitimacy to a president who would swear to uphold a constitution that
dispossessed Ogoni people of their natural rights”[51] The
closing statements of Ken Saro-Wiwa to Military appointed tribunal would
equally showcase the feeling of the. He
said:
…we all stand before history. I am a man of peace, of ideas. Appalled by the
denigrating poverty of my people who live on a richly endowed land, distressed
by their political marginalisation and economic strangulation, angered by the
devastation of their land, their ultimate heritage, anxious to preserve their
right to live and to a decent living…….No imprisonment or death can stop our
ultimate victory…. I call upon the Ogoni people; the peoples of the Niger
Delta….to stand up now and fight fearlessly and peacefully for their
rights. History is on their side. God is on their side. For the Holy Quran says in Sura 42, verse 41:
“all those that fight when oppressed
incur no guilt, but Allah shall punish the oppressor come the day.
This has motivated Niger Delta
youths into militant activities within the region, some are calling for
secession of the region from the federation, others are calling for improved
welfare packages for the region, and some crying that the true owners should
manage the resources.
Comparison with other Jurisdiction
There are three modes of ownership
of natural resource in the world today.
The first is absolute state ownership.
This pattern seems to be dominant.
It is practiced by countries like Venezuela,
Mexico[52],
Norway,[53]
Russia,[54]
Zambia,[55]
Botswana,[56]
Namibia, Argentina, United Kingdom and of course Nigeria
The second pattern of ownership is individual
ownership of natural resources, which is found under, in or upon his land. This is operated in the states of Texas,
Tennessee, Mississippi and Ohio of the USA. This method of ownership is
predicated upon the maximum quic quid
plantator solo solo cedit.
The third pattern is a hybrid of
absolute state ownership and individual ownership rights in the natural
resources. The USA states of
Pennsylvania and California have one form of qualified ownership arrangement or
the other.[57]
Having ascertained the true owner of
land to be the people, and considered the various modes of ownership across the
world, the question now would be, what mode of ownership of oil natural
resources is the best for Nigeria?
It has been argued that since state
ownership is the dominant mode across the world, Nigeria should also continue with
that pattern. The advocates of this mode support their position by relying on
UN Resolution 1803 of 1962 on the permanent sovereignty of states over their
natural resources. This school of
thought equally believes that Nigeria as a developing country needs a uniform
development of its resources so that it could be managed for the good of all
Nigerian. They argue further that if the
natural resources are allowed to be managed by the individual or state
government, it will make some states to be so powerful as to completely
intimidate and overawe the other states and indeed the Federal Government. It
is also further arguable that considering the recent internecine wars that have
characterized the relationship of oil and gas yielding communities of the Niger
Delta one with another and the perennial boundary disputes between states,
vesting the ownership of natural resources in individuals, communities or
states will be a recipe for anarchy and mayhem! Finally, they maintained that
private individuals lack the technical capacity to negotiate with
multi-national oil companies.
But on the other hand, Nigeria
should not adopt any mode of ownership because it is the dominant, this is
because Nigeria is an independent country with peculiar economic, social,
geo-political considerations and realities and since law ought to be an
instrument of social engineering, it must take due note of those factors in
establishing rules, more so in such sensitive areas as natural resources and
natural wealth.[58]
Then on the permanent sovereignty of
states over natural resources, adopted by UN Resolution 1803 of 1962, the aim
of the resolution was to prevent external intrusions into the management of
resources within a particular sovereign state.
The International legislation did not in any way prefer mode of
regulation of natural resources within a sovereign state. Again, as
Chukwuemerie [59]
noted some countries such as the USA and Canada operate private ownership or a
combination of state and private ownership because such an arrangement has been
found fitting for their environment. It has not been suggested nor can it be
suggested that they have breached any international protocol or rule by so
doing. Nigeria, like they, reserves the
right to adopt private ownership or a hybrid of the two if that is what will
mostly suit the country.
On the belief that state ownership
protects or sustains uniform development in Nigeria, we want to point out that
the Nigeria state have failed in this area, the Niger Delta people have been
wallowing in incredible squalor and the grossest forms of deprivation running
the risk of extinction through environmental injuries and hazards of oil and
gas operations. From recklessness shown
above, what moral or legal justification is there for the Federal Government
still to retain ownership of mineral resources? The Federal Government is a
behemoth while the federating units are helpless Lilliputians. There is therefore so much scrambling,
bickering and inordinate quest to control the center (the Federal Government)
were natural resources vested in individual or state it would not be so. Individual or state government ownership will
equally strike a positive competition amongst the different sectors of the
country. When in the First Republic, the
Regions and their residents were allowed substantial control of their
resources, a healthy competition led to wealth on all sides. The East had palm products, the West had
cocoa and the North had groundnuts. Private ownership of natural resources may
fast-track the revival of those alternative sources of income
State ownership of resources is
controlled through the public sector that is known to be characterised with
corruption. If natural resources were to belong to the individual or
communities, the bureaucracy and corruption would certainly be a thing of the
past since an individual cannot steal from himself, and the forces of demand
and supply will control the market, which would eradicate waste and bring about
greater efficiency. Private ownership
would have annihilated the wasteful but deadly flaring of gas in the Delta.
We wish to conclude by stating that
Nigeria has practiced this state ownership since independence up till
today. This method has operated for over
60 years. The law has failed totally.
Prof. Chukwuemerie said that it is imposition. He captured it thus:
As an imposition it cannot be sustain for all times,
not even with the fiercest use of the Federal right. It can definitely not be sustained for so
long in the face of the determined social and popular quest for a change. A
legal framework perceived as unjust and anachronistic cannot be long
sustained. The will of a people at the
end of the day will normally win over force however awesome or brutal the force
may be… the important thing is that, the country and indeed any country ought
to enthrone a legal framework that would work justice on all sides.[60]
He
ended by say that state ownership can only be allowed if 50% of derivation
would go to the state from which it is derived, while 30% of such state
allocation goes to the individual or community land owners. A Trust can be constitutionally created in
the state to monitor the distribution.
The state and federal government would still be giving these individuals
or communities their entitlement outside the communities/individual share of
the proceeds of their natural resources.
[1]
Akpan Wilson: Oil, people and Environment www.Codegria.Org
(links/conferences/general/assembly/paper/akpan pdf.) (Visited 2010, March 10)
[2]
Section 44(3) 1999 constitution
[3]
Section 1 Land Use Act 1978
[4]
Huddersfield banking company v. Lister (1895)
2ch p.273
[5]
Ibid
[6]
(1981) 68 S.C. 99 At 146
[7]
(1936) Is nir Pg. 11
[8]
(1988) NWLR pt. 89 Pg. 471
[9]
S. 3 U.K Landlord and Tenant Act 1861
[10]
which only explains the former quic quid plantatur solo solo cedit
[11]
(1923) 33 CLR 1 at 23
[12]
Case of Mines (1567) 1 plowd 316, 75
E R 472
[13]
Silver and Gold
[14]
Michael W. Hunt, Mining Law in Western Australia, (lechhardt: the federation
press, 3rd ed. 2001) p. 34
[15]
Cap. 192, LFN 1990
[16]
Minerals Act cap. 226 1990, Petroleum Act 1969, and section 44(3) 1999
constitution of the Federal Republic of Nigeria
[17]
Herein after referred to as LUA
90a Section 1 LUA
[18] www.Suit101com/.../63511
(visited 2010, April 23)
[19]
in this context the people of Nigeria
[20]
which vests ownership of mineral resources on the Federal Government
[21]
Angaye; “who owns papa’s Land and Oil in Nigeria?” www.NigerDeltacongress.com/glarticle.
[22]
Sagay Itse, “Nigeria
federalism, the constitution and resource control” www.dado.com/sagay (visited
2010, April 4).
[23]
Section 140 of the 1963 constitution
[24]
(supra)
[25]
Dadem I.Y. “The derivation principle in the allocation of revenue”, the journal
of private and property law vol. 25, 2004. pg. 75
[26]
(supra)
[27]
Section 4(and b)
[28]
(supra)
[29]
Section 2 (d) (vi), section 6 (6)
[30]
AG Federation v. AG Abia State and 35
ors (2202) 6 NWLR (pT 164) 543 - 905
[31]
Akwa Ibom, Bayelsa, Cross
River, Delta, Lagos, Ogun, Ondo and
Rivers states
[32]
Cited in justice Ejembi Eko, Towards the review of the Land Use Act, Land Use
Policy and Administration (2004) pg. 144
[33]
Utuama A.A. “challenges of democracy and the rule of law.” www.NigerDeltaCogressOrg.
(visited 2010, April.)
[34]
Itse sagay “Nigeria
federalism, the constitution and resource control” www.Dadao.com/sagay/limit
(visited 2010, April 23).
[35]
Chukwuemerie A.I. New Dimension in Commercial Oil and Gas laws in Nigeria (Enugu, Chengbo limited
2007). P.654
[36]
Except the Federal Capital Territory,
Abuja
[37]
Section 44(3) of 1999 CFRN
[38]
Like what is seen under S. 44(3) CFRN which vests ownership on FG
[39]
Senator David Dafinone: “Resource Control: the Economic and political
Dimensions.” (Urhobottistory) @ www.waado.Org/dafinone.htm. (visited 2010,
April 23)
[40]
A.E. Ogbuigwe, Law and Environment: The
Niger Delta challenge (1999) Vol. 1 PHIJ 96.
[41]
Isaiah Berlin, Four Essays on Liberty xiii (1969).
[42]
Abrogating the Land Use Act, This Day
Dec. 29, 2000 at 15 Nigeria’s
Land Use Act and Human Rights (supra) pg. 66
[43]
N.J. Udombana; “weighed in the balance and found wanting Nigeria’s Land
Use Act and Human Rights”. (supra) Pg. 66
[44]
Karl Polaryi quoted by Prof. Akin Mabogunke, at the presidential Technical
Committee on housing and urban development stakeholder forum. November, 2007
[45]
Ibid
[46]
Paper presented by the Egis People Action Group on Environment and Development
(EPEAG) by Chizor Wistom Dike.
[47]
Lucky Igbinedion, addressing reporters after the Southern states governors’
third summit in Benin City,
March 27, 2001.
[48]
(1991) 1 NWLR (pt. 1.65)p. 53
[49]
A.A Utuama; “Challenges of democracy and the Rule of law” (supra)
[50]
(1981) 6-8 S.C. 99 at 146
[51]
Ebeku K.S.A; “Oil and the Niger Delta people”; www.dandee.org/ebeku.htm
(visited 2010, April 30).
[52]
Articles 27-31 of the Mexican Constitution 1917
[53]
The Petroleum Act of Birway 1985
[54]
Articles 72 of Russian Constitution
[55]
The Zambian Mines and Minerals Act No. 32 of 1976
[56]
Minerals Act of Botzwana 1978
[57]
Chukwuemerie A.I; New Dimesions in commercial
and Oil and Gas Laws; (Enugu Chengbo Limited 2007) p. 6&2 - 735
[58]
Ibid, p. 723
[59]
Ibid
[60]
Ibid p. 731