OWNERSHIP OF PETROLEUM IN NIGERIA | LEGISLATION AFFECTING OIL INDUSTRY AND LAND USE



CHAPTER ONE
GENERAL INTRODUCTION
      1:1      Background of the Study
      1:2      Statement of the Problem
      1:3      Research Questions
      1:4      Objectives of Study
      1:5      Methodology
      1:6      Relevance of the Study
      1:7      Delimitation or Scope of the                      Study
      1.8      Limitations

1:1      Background of the Study
      Nigeria, with an oil production capacity of about 2-million barrels per day, is the world’s sixth producer and  Africa’s leading oil producing country with its oil reserves concentrated in the Niger Delta region of the country, and accounting for over 80% of GDP, 95% of National Budget and 90% of foreign exchange earning.
      The most important oil-related legislations in Nigeria include; The Petroleum Act 1969 (now cap10 LFN 2004), Oil Pipelines Act 1956 (now cap. 07 LFN 2004), Oil in Navigable Waters Act 1988 (now cap 06 LFN 2004), Federal Environmental Protection Agency 1988, and the Land Use Act 1978 (now cap. L5 LFN 2004).  By the Petroleum Act (continuing a colonial policy) the entire property in petroleum (mineral oils) is vested in the state.  The result is that the Federal Government has absolute right and control over oil resources in the country; it farms out oil-mining rights to oil companies and receives rents and royalties from them in return, whereas the Land Use Act vests all lands in any state of the Federation in the Governor of such State.
      The Niger Delta region claims that 13% of the oil revenue allocated to the states, by the 1999 constitution is a slap on the face, and want as much as 50.
      Secondly, there is the problem of the state of the environment, Oil companies having no respect for the environment and that has threatened the survival of the oil producing communities.
      Thirdly, is the issue of compensation for land and improvement on it S.36 of schedule 1 to the Petroleum Act 1969 provide for the payment of “fair” and “adequate” compensation, which refer to surface right including and to specified plants.
      Fourthly, is the issue of conflict between the oil communities and State:
      Revocation of people’s right to their land
      Deprivation of owner’s choice as to who acquires his or her land.
      Denying an owner of land a choice of due compensation for the acquisition.
      Owners living under a perpetual likelihood of losing their land to government
      Owners’ inability to decide activities that should be carried out on his property or neighbourhood.
        The Governor may well acquire any resource rich land for any “public purpose”.
1:2      Statement of the Problem
      The crisis over ownership of oil and gas in Nigeria has been of tripodal imperative:  between local communities and the government; local communities and oil corporations on the other and between Federal and State Government.
      The question of the position or place of the individual/community user of land, since the land belongs to the State Government, and the resources beneath the land belong to the Federal Government
      the problem of ownership of Land and natural resources between the federal government and the state government in the light of the principle of quic quid plantatur solo, solo cedit
1:3      Research Questions
      1:3 Research Questions
      Considering the ownership position of Land in Nigeria and the principle of quic quid plantatur solo, solo cedit, who is actually the owner of land for the application of this principle?
      If the state government is the owner of land, what is the legal position of the holders of the infrastructural interest having regard to the fact that the federal government can move to expropriate mineral resources in those land.
1:4      Objectives of Study
Accordingly, our objectives in this work will include:
      To examine the legal framework of ownership of petroleum in Nigeria and define some technical terms
      To assess the adequacy of the existing provisions
      To highlight defects and shortcomings in the existing provision.
      To proffer solution to the resource control problem in Nigeria
      To re-examine the rights of the oil producing communities in Nigeria
      To ensure that suggestions are made geared towards ensuring that further improvement can be made to enhance the country’s ownership right over her mineral resources.
      To reposition the role of the judiciary in settling oil dispute.
1:5      Methodology
      The work is a technical one; therefore our methodological approach will be primarily analytical. In addition, we will also carry out a comparative analysis of statutory enactments that are petroleum and land related. 
      However, we will not lose sight of the non-legal factors that have influenced ownership of petroleum resources in Nigeria.
1:6      Relevance of the Study
The research exercise is relevant as it provides knowledge on;
      The evolution of the statutory regime in the Nigerian oil industry.
      A lasting solution to the resource control problem in Nigeria.
      The rights of the oil producing communities vis-à-vis the right of ownership of petroleum by the Federal Government and ownership of land by the State Government.
      The determination of what is ‘adequate’ and ‘fair’ compensation when disasters occur in the oil industry.
      The various petroleum related enactments, pointing out their adequacies, shortcomings and making suggestions for way forward.
1:7      Delimitation or Scope of the Study
      The main focus of our consideration is the question of who owns ‘what’ and gets ‘what’ in the Nigeria petroleum industry.  To do this efficiently, we employ the maxim quic quid plantatur solo, solo cedit, and a critical examination of the various legislations affecting the oil industry and land use in Nigeria.
1.8      Limitations
      Fund to be able to assess materials online and equally type the work.
      Collections and retrieval of documents from archives, libraries and even those of higher institutions and courts turned out to be huge obstacles.
      The cost of traveling to obtain these materials limits the movement to some places.

CHAPTER TWO
LITERATURE REVIEW
      2.1      Introduction
      2.2      Relationship between Legal Regime  of Ownership of Petroleum  Resources in Nigeria and Non- Participation of the People of the Niger-Delta Region in the Petroleum Industry
      2.3      Relationship between Expropriation of Petroleum and Land Resources and Militancy in the Niger-Delta
      2.4 The Land Use Act and Expropriation of the   Livelihood of the People of the Niger Delta
      2.5 Nature of Surface Rights and Quantum of     Compensation for Oil Pollution

2.1      Introduction
In this chapter we shall examine:
       The literature that discusses the legal regime of ownership of petroleum and land use in Nigeria.;
      How scholars have treated the relationship between the legal regime of ownership of petroleum resources in Nigeria and non-participation of the people of the Niger-Delta region in the petroleum industry;
      How the literature treats the question of land expropriation under the Land Use Act and how this affects the lives of the people of the Niger-Delta region;
      Views of authors on the nature of surface rights and quantum of compensation paid for breach of such rights in Nigeria, especially in the Niger-Delta;
      The causes of militancy in the Niger-Delta.

2.2 Relationship between Legal Regime of Ownership of Petroleum Resources in Nigeria and Non-Participation of the People of the Niger-Delta Region in the Petroleum        Industry
      According to Kaniye Ebeku, prior to the enactment of the current expropriatory legal regime on the ownership and exploration of crude oil in Nigeria, the people who live in the region where the product is exploited, derived satisfaction in the level of their participation in the industry through the rights over their lands in the region. As such, oil companies that had obtained mining rights from the federal government approached oil-bearing/land-owning communities for a right of access to the land for its operations. This was a way by which the communities had some sense of participation in oil operations, as they received some compensation for granting access and for any damage to land and any surface rights thereon.
      It would appear that this sense of participation has been lost since the unity of land rights with oil rights in 1978
      Under the 1999 Constitution of the Federal Republic of Nigeria, 13% of revenue accruing to the federal government from oil resources derived from any state of the federation is to be paid back to that state.
      Ejibunu, observes that this percentage has failed to satisfy the yearnings of the people of the Niger Delta region, and has served to exacerbate insurrection and create the violence, instability and conflict in the Niger Delta, as the youths are left idle and alienated from the presence and impact of government and particularly, participation in the oil industry.
2.3 Relationship between Expropriation  of Petroleum and Land Resources  and Militancy in the Niger-Delta
      Many writers situate the remote causes of the violence and militancy in the context of the expropriatory regime of oil legislation that tend to remove both oil and land from the control of the people of the Niger-Delta, while the proximate causes are related to the clamoring for resource control and convention of a sovereign national conference.
      Oyefusi did a large survey of the Niger Delta Oil Communities and discovered that 5% of the population felt satisfied with the status quo and an astonishing 36.23% revealed a “willingness or propensity to take up arms against the state
       Osaghae, notes that what is today considered as militancy in the Niger-Delta started since the 1980s in a low key by youth and other ethnic movements – and was subsequently captured by the southern political classes from the oil producing states as means providing political pressure on the revenue allocation process. Thus, the minority fears of the 1950s’s became minority grievances in the 1980s and minority militancy by the 1990s..
      Gbomo Jomo (the spokesman of MEND) made it clear that MEND had “no intention of dealing directly with a government which “knows nothing about rights or justice”. Resource control meant that the states would “directly manage” oil.
      Ledum Mitte, opines quite appositely that the Delta's problem is a crisis of frustration
      According to Obi, in more ways than one, the struggle for resource control by the Niger Delta is fundamentally one over the ownership and control of natural resources within a claimed political space, and in the context of the Niger Delta this also significantly includes land that is rich in oil and gas – Nigeria’s chief revenue earner(s)
      2.4 The Land Use Act and Expropriation of the Livelihood of the People of the Niger Delta
      By virtue of Section 1, LUA, the governors are to hold all lands in a state though on trust for the use and common benefit of all Nigerians
      section 28 of the Act, which provides that land may be appropriated for “overriding public interests”, has been defined to include, “the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith. In essence, the inhabilitants of the region may be dispossessed of their land whenever their land is required for oil exploration, making them tenant-at-will of the oil industry on the land they have owned and inhabited for centuries.
      Omeje stated that the Act in theory makes land a property of the state and vest its allocation and administration in the state governor. And as a result of this oil exploration, some people became landless and this affected their livelihood negatively.
      It was based on all these deprivation, exploration  and exploitation of the Niger Delta land, which rises as a result of section 28 of the Land Use Act, that the movement for the Emancipation of the Niger Delta (MEND) stated thus: “we will fight for our land with the last drop of our blood regardless of how many people the government of Nigeria and Oil Companies are successful in bribing”.
      2.5 Nature of Surface Rights and Quantum of     Compensation for Oil Pollution
      The term “surface right” according to Black’s Law Dictionary, is also known as surface interest. It is defined as every right in real property other than the mineral interest. The surface right owner or surface interest owner is entitled to whatever non-mineral substances that may be found in or under the soil.
      Akanimo Sampson, it observes that the main statutory liability under Section 11 (5) of Oil Pipeline Act, is to pay compensation.
       A.O. Ekpu, has asserted that there are three strands under which victims of oil pollution may seek payment of compensation from oil industry. These are the Statutes, the Common law and the rule of international law.
      The essence of compensation as held by the court in the case of Rawyards v. Coal Co., is to restore the injured party to the position he or she was in, prior to the harm or injury complained of.
      Vincent Okwechime, Jr, critically looked at impacted land and impacted water, in order to determine the quantum of compensation. For impacted land, he said that, where the damage is as a result of the spill on the land, it may lead to ‘a loss of farming right’. Where this is the situation, it must be claimed and proved.
      He further stated that in addition to payment of “ temporary loss of use”, due to the structures have been affected, the polluter may be required to take care of the cost of the temporary relocation until the spill has been properly clean up.
      As regards to impact on water, he stipulates that damage caused to fishing nets and other fishing equipments and paraphernalia as a result of a spill must be made good by way of monetary recompense; and in some cases, the damaged items may have to be replaced. And the measure of compensation is the current market value of the items.
      If a fish pond is a structure that is impacted, the potential number of fishes, and its income generating capacity will be taken into account for compensation of compensation. And where there is ‘loss of fishing right’ the size of the area fished, the kind of fish in that area which form the daily catch, the number of fisherman and women involved in the fishing and the income generating capacity will be taken into consideration for compensation of compensation.
      Finally, he stipulates that when it has to do with “loss of water right” that the oil producers Trade  Section rates, provides for the square nature of the affected body of water
      According to Uduehi ., payment of compensation by oil firm is procedural. In an event of a spill resulting in damage to property, the first approach by the concerned department of the oil firm is to initiate assessment or evaluation of the extent of damage.
      Monday Effiong Noah, however, has observed that the above method is ambiguous. The owner of the impacted or impaired property is never consulted in the so-called scientific evaluation to ascertain how much he has invested on the farm, pond or land as the case may be.
      The World Bank revealed that based on annual rent of #5000 that the amount of compensation for land should at least be #50,000 per hectare.
      Aghalino states that the right to be adequately compensated is also negated by the provision of the Act. He specifically mentions Section 77 of the Minerals Act, which provides that any person prospecting or mining shall: pay to the “holder or occupier” of private land such sums as may be fair and reasonable compensation for any disturbance of the surface rights of that owner or occupier and for any damage done to the surface of the land upon which his prospecting or mining is being or has been carried on, and shall compensate the owner for any crops, economic trees, buildings or works damaged, removed or destroyed by him or by his agents or servants.

CHAPTER THREE

LEGAL REGIME OF OWNERSHIP OF PETROLEUM AND LAND OWNERSHIP AND USE IN NIGERIA
      3.1      Introduction
      3.2     Legal Regime of Ownership of Petroleum
      3.2.1    1999 Constitution of the Federal Republic of Nigeria
      3.2.2 The Petroleum Act 1969
      3.2.3. Oil Mineral Act 1959
      3.3      Legal Regime of Land Ownership and Use in Nigeria
      3.3.1   Land Use Act 1978
      3.3.1.1 An Appraisal of Right of Occupancy
      3.3.1.2           Regime of Certificate or Occupancy
      3.3.1.3            Revocation of Right of Occupancy
      3.3.1.4           Grounds for Revocation of Right of Occupancy
      3.3.1.5 Compensation for Revocation of Right of Occupancy
      3.3.1.6           Effect of Revocation
      3.3.1.7           Deemed Rights

3.1      Introduction
This chapter discusses:
       Legislations dealing with ownership of petroleum/land in Nigeria as same is entrapped in the land and cannot be exploited without access to (or acquisition of) land.
      Legal regime of ownership and use of land in Nigeria that is provided for under the Land Use Act of 1978 such as right of occupancy, certificate of occupancy and deemed right of occupancy
3.2     Legal Regime of Ownership of Petroleum
      3.2.1    1999 Constitution of the Federal Republic of Nigeria
      Section 44(3) of the 1999 Constitution of Nigeria provides: “Notwithstanding the foregoing provision of this section the entire property in and control of all minerals, mineral oils, natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and exclusive economic zone of Nigeria shall be managed in such manner as may be prescribed by the national assembly.
3.2.2 The Petroleum Act 1969
      Section 1 of the PA states:
      The entire ownership and control of all petroleum in, upon any lands to which this section applies shall be vested in the state.
      This section apples to all land (including land covered by water) which
       Is in Nigeria, or
      Is under the territorial waters of Nigeria or
       Forms part of the continental shelf

3.2.3. Oil Mineral Act 1959
      The 1959 Act maintained state ownership of oil mineral by enacting at section 3(1) that the entire property and control of mineral oils on, under or upon any land in Nigeria and of all rivers, streams and watercourses throughout Nigeria was to be in the British crown.  Surface right such as to crops on the land were left subject to customary land tenure thereby leaving such rights in the previous owners, i.e owners of the lands in which oil was found.
                  Under section 77 of the Act, any person prospecting or mining shall pay to the “owner or occupier” of private land such sums as may be fair and reasonable competitions for any disturbance of the surface rights of such owner or occupier and for any damage done to the surface of the land upon which his prospecting or mining is being or has been carried on and shall in addition pay to the owner of any crops, economic trees, buildings or works damaged, removed or destroyed by him or by any agent or servant of his compensation for such removal or destruction.
3.3      Legal Regime of Land Ownership and Use in Nigeria
3.3.1   Land Use Act 1978
      Before the Land Use Act 1978, land was vested in families clans, villages and communities in southern Nigeria. (now cap. L5 LFN 2004) Thereafter referred to as LUA
      The major aim of the LUA is to unify the nature of right to land in Nigeria.  The Act ended up divesting the natives of ownership of their land and has vested the management and control of all lands in a state in the “military governor” of that state that holds such land in trust for all Nigerians in the state.
3.3.1.1 An Appraisal of Right of Occupancy
      The absolute or maximal title: this now vests in three categories of owners. Namely
       (1) the federal government in respect of all lands where ever located vested in it at the commencement of the Land Use Act.  The 1999 constitution, Part ii, first schedule to CFRN, amplified this provision of LUA by providing expressly that “The ownership of all land comprised in the federal capital territory shall rest in the government of the Federal Republic of Nigeria”.
      (2) Any Federal Government agency existing at the commencement of the Act would hold the absolute or maximal title to any land wherever located vested in the agency at the commencement of the LUA.
      (3)       The State Governor

3.3.1.2           Regime of Certificate or Occupancy
      A certificate of occupancy is a document issued to a person entitled to a right of occupancy in evidence of such a right.
      Only the Governor and the Head of the Federal Government can issues a certificate of occupancy.
      During the term of statutory right of occupancy, the holder has the sole right and absolute possession of all improvements on the land. Likewise such protection ceases on the expiration of the right of occupancy.

3.3.1.3            Revocation of Right of Occupancy
      The power of revocation of both customary and statutory right of occupancy resides in the governor, while section 50 LUA vest the same power in the Head of the Federal Government in respect to land within the federal capital territory Section 28
3.3.1.4           Grounds for Revocation of Right of Occupancy
      The Omnibus ground for revocation is “ovIn connection with a statutory right of occupancy, overriding public interest means:
      The alienation of the Land by the occupier contrary to the provision of the Act or any regulations made there under.
      The requirement of the land by the Governor or Local Government or Federal Government for public purpose.
      The requirement of the Land for mining purposes or oil pipelines.

      In the case of a customary right of occupancy, overriding public interest means:
      a. The alienation of the Land by occupier without the required
      Consent or approval.
      b. The requirement of the Land for mining purposes or oil pipelines
      c. The requirement of the Land by the Local Government or State 
           Government or Federal Government for public purpose.
      d. The requirement of the Land for the extraction of building materials.
      overriding public interest

      The Governor in particular may also revoke a statutory right of occupancy or the head of the government on the following additional grounds stipulated in section 28(5) namely:
     Reach of any of the provisions implied in a certificate of occupancy under section 10
     Breach of any express term contained in a statutory certificate of occupancy or any special contract made under section 8.
     A refusal or neglect to accept and pay for a certificate of occupancy issued in evidence of the statutory right of occupancy. Any revocation made for reasons. Other than those above is null and void.

3.3.1.5 Compensation for Revocation of Right of Occupancy
      Where a right of occupancy is revoked on the grounds that the land is required for;
      Public purpose
      Extraction of building material
      Mining purpose
      Oil pipeline
      The basis of compensation is the value at the date of the revocation of the unexhausted improvements on the Land.
                  If any dispute arises as to the amount of compensation payable for such unexhausted improvements, the matter is referred to the Land Use and Allocation Committee for determination Section 29(1)

      Where a right of occupancy is revoked on the grounds that the land is required for;
      Public purpose
      Extraction of building material
      Mining purpose
      Oil pipeline
      The basis of compensation in the case of grounds A and B above is the value at the date of the revocation of the unexhausted improvements on the Land.
                  If any dispute arises as to the amount of compensation payable for such unexhausted improvements, the matter is referred to the Land Use and Allocation Committee for determination Section 29(1)

      In the case of revocation on grounds C and D above, compensation is paid in accordance with the provision of the Mineral’s Act or the Mineral oil’s Act now called petroleum Act.  Upon the revocation having been done, the Government or the Local Government has discretions to re-settle persons displaced if the revocation affected developed land. Section 29

3.3.1.6           Effect of Revocation
      Revocation when validly carried out operates to extinguish the title of the holder to the right of occupancy revoked.
      Revocation will not extinguish any debt which the holder or occupier owes to the government in respect of the right of occupancy revoked.

3.3.1.7           Deemed Rights
      Section 34 makes provision in respect of Land in Urban area. The provision is to the effect that any developed land in an urban area which was rested in a person, before the commencement of the Act, shall continue to hold as if the holder is a holder of statutory right of occupancy issued by the government or Head of the federal Government as the case may be.
      In respect of the Land that is undeveloped immediately before the commencement of the Act, a plot or portion of the Land not exceeding half of one hectare, shall continue to be vested in holder as if a statutory right of occupancy have been issued to the person.
      No underdeveloped land over which a person retains a right of occupancy shall further sub-divide or lay out in plots, or be sold or be transferred in any other except with the prior consent in writing of the Governor or president.
      In respect to land in a non-urban area section 36 provides that any occupier or holder of such Land whether under customary right or otherwise howsoever is permitted if he was using the Land for agricultural purposes to continue to be entitled to possession of the Land for use for agricultural purposes if customary right of occupancy has been granted to him by the appropriate Local Government.  Section 34 (5&6)

CHAPTER FOUR
 
THE PRINCIPLE OF QUIC QUID PLANTATUR SOLO, SOLO CEDIT, THE LAND USE ACT AND OWNERSHIP OF PETROLEUM
      4.1 Introduction
      4.2      Definition, Meaning and Nature of the     Principle of Quic Quid Plantatur Solo Solo             Cedit
      4.3      State Ownership of Land and Agitation for          Resource Control in Nigeria
      4.4    Individual Ownership of Land and   Petroleum:  Comparison with other             Jurisdictions   
4.1 Introduction
      Ownership and control of Land and petroleum have been of great controversy in Nigeria.
      In Nigeria, the ownership of mineral resources is vested in the federal Government, while the land is vested in the state governments. A lot of questions have risen over who owns what.
      Comparatively, what are the methods of ownership of petroleum resources in other jurisdictions.

4.2      Definition, Meaning and Nature of the Principle of Quic Quid Plantatur Solo Solo Cedit
      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 for permanent purposes onto the soil
      Two methods are used to determine whether a chattel or object is a fixture or not. They are;
      The degree of annexation
      The purpose of annexation
      The maxim “cuius est solum eius est usque ad coelum et ad inferos” there is a presumption that a landowner also owns all mineral on or beneath the surface of that land. 
      The presumption is subject to the exception of the Royal metals.
      So, the individual owner of land retains the ownership of mineral resource (e.g. petroleum) under the common law doctrine (except the Royal metals)
      This common law principle has been adopted in Nigeria as part of received English Law by section 3(3) of Interpretation Act 1945
      Unfortunately, against the spirit of common law, the section expressly excludes mineral from the definition as it gave the ownership of all minerals (petroleum inclusive) to the central government.

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 which makes the governor of the state, for the benefit of all Nigerians, hold all land within the territory of each state of the federation in trust. As such, 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.
      The Land is vested in state governors, while, the mineral resources vests in the federal government. section 1 of the LUA together with section 44 (3) of the 1999 Constitution
      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.
      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.’
      According to Sagay 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.
      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.

4.4    Individual Ownership of Land and Petroleum:
Comparison with other Jurisdictions   
      The LUA does not vest land in the government as an owner but rather as a trustee, so who then is the real owner of land or who is the beneficiary of this trust property land?
      To determine the true owner of land, we critically examine the clause“….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.
      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 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
      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 concern themselves with freedom of contacts or of the press.”
      With a stroke of the military pen, this callous and arm-twisting law snatched from individuals, families, villages, and ethnic nationalities their inalienable right to property and source of livelihood and turned them 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 said that this is not just a pity it is a danger.
      As already alluded to, resource control is a legal incidence of ownership of natural resources whoever owns a thing of value manages it.

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, Norway, Russia, Zambia, Botswana, 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.
      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
      As Chukwuemerie 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. 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.
      The important thing is that, the country and indeed any country ought to enthrone a legal framework that would work justice on all sides

CHAPTER FIVE
 
GOVERNMENT EXPROPRIATION OF OIL MINERAL RESOURCES AND LAND IN NIGERIA AND LEGAL POSITION OF LANDHOLDERS
      5.1      Introduction
      5.2 Federal Management and Control of Oil Mineral Resource and Processes of Exploitation of Oil in Nigeria
      5.2.1.1            Issuance of Licences to Oil Companies
      5.2.2 Right of Way Granted to Oil Companies
      5.3      Legal positions of Land Holders
      5.3.1   Compensation for Loss of Earning and grant of Right of  Way to Oil Companies.
      5.3.1.1           Land per se
      5.3.1.2           Items that Exist Naturally or as a Result of Man-Made Improvements
      5.3.2 Compensation for Pollution and Danger to
        Livelihood
      5.3.3   Effects of Oil Pollution on the Niger Delta Environment

5.1      Introduction
      Crude oil, as of now, is Nigeria’s highest income earner; hence the need for proper monitoring of activities in the petroleum sector of the economy. This means that in Nigeria, mining concessions in the oil drilling field are very serious business
      Here, we shall discuss the various ways in which the Federal Government manages and controls its oils mineral resources and the processes of exploitation of oil in Nigeria.  Emphasis would be laid on issuance of various licences and the Right of way granted to the International Oil Companies (IOC). Secondly, an attempt would be made to examine the legal position of landholders vis a vis the right granted to the oil companies.

5.2 Federal Management and Control of Oil Mineral Resource and Processes of Exploitation of Oil in Nigeria
      The right to manage and control oil mineral resources in Nigeria is vested in the federal government. This right is claimed to be derived from the UN General Assembly Declaration in Resolution 1803 (xvii) of 14 December, 1962, which provided for states sovereignty over their natural resources Ibid

      Before the Petroleum Act, the early concessions granted were lopsided in favour of the IOCs, at the expense of the HC, because the HC knew little or nothing about the possibilities of the resources, and were too easily satisfied with the little loyalties received.
      According to S.K.B. Asante “The concessions granted were instruments of blatant exploitation
      Now with the Petroleum Act, we shall examine the various licences and contractual agreement that Nigeria has either with these IOCs, and secondly the right of way (ROW) granted to the IOCs.

5.2.1.1            Issuance of Licenses to Oil Companies
      Under the Act, the minister of petroleum resources is vested with the power to grant licences for oil exploration, oil prospecting and oil mining lease, to explore, prospect, search for, win, work, carry away and dispose of petroleum. However, it is only a Nigeria or a company registered in Nigeria under Company and Allied matter Act (CAMA) or any corresponding law that can be granted license or lease.
The various mining concessions in Nigeria include the following:
      (I)         Oil Exploration Licence (O.E.L)
      (II)        Oil Prospecting Licence (O.P.L)
      (III)       Oil Mining Leases (O.M.L)
The contractual agreements in Nigeria include:
      (1)       Joint Venture Agreement/Joint Operating Agreement (JOA)
      (II)        Service Contracts
      (III)       The Production Sharing Contract
      (IV)      Technical Assistance Agreements (TAA)

5.2.2 Right of Way Granted to Oil Companies
      Right of Way (ROW) is the right granted by the Federal Government to an IOC through legislations, to prospect, explore or mine for oil that belongs to the Federal Government without encroaching on the land (as oil is entrapped in land and cannot be exploited without access to land), so as to shield them from the hostility of landowners. Regulation 15(1) of the Petroleum (Drilling and Production) Regulations.
      Section 15(2) provides that the licensee or lessee may exercise any of his rights or powers through agents or independent contractors, but shall be responsible for all the actions of the agents and contractors in question

5.3      Legal positions of Land Holders

5.3.1   Compensation for Loss of Earning and grant of Right of Way to Oil Companies.
      The granting of license or a lease to an IOC gives the IOC the power over oil within the subsoil.  However, for the IOCs to exercise this right, they need to acquire rights over the surface of the parcel of land and around the immediate geographical area in which it proposes to drill a well
      The paragraph 36 of the First Schedule to the Petroleum Act gives the people in lawful occupation or the owner of the land right to demand adequate compensation for the disturbance of surface rights

5.3.1.1           Land per se
      Before the coming of the LUA, payment for compensation was made to the individual or community owner or occupier of Land that is to be acquired for oil operation.  Compensation was in the form of annual rent or a one-time compounded payment made in respect of various terrains Paragraph 36 of the First Schedule to the Petroleum Act  
      With the LUA,
      Where the land is acquired, occupied and developed by the lessee prior to the LUA’s effective date, compensation therefore, which may be by way of annual rent would continue to be paid to the parties from whom the land was originally occupied.  The reasons being that their rights were not extinguished by the LUA.
      Where the land is acquired by the lessee after the commencement of the LUA; compensation is payable to the person in whom the land is vested by the Act;

5.3.1.2           Items that Exist Naturally or as a Result of Man-Made Improvements:
(a) Items Naturally Found on the Land (Fructus Naturales)
      These are those items that mainly grow naturally on the land without cultivation, and include protected trees.
      These trees can only be cut or taken away by the lessee with the consent of the state authority that established the forest reserve by law.  Productive trees like raffia palms, palm trees, mangrove trees etc that can grow without cultivation are also included in the naturales.

(b)       Man-made Improvement (Fructus Industriales)
      These are those improvements on the Land, which were made by man. Such improvements include; cultivated crops; animal traps and fences; damned locks and canals; farm wells; fish basket fences; poles; stakes; traps and fishing gear; houses and huts, shrines, sacred bushes, forests and venerated objects, machinery and plants, yam stakes etc. 
                  Compensation for this man-made improvement is paid to the individual occupier or owner of such land.  Payments are also made to communities where a community’s shrine, juju tree or venerated object or bush is involved.

5.3.2 Compensation for Pollution and Danger to   Livelihood
      Oil pollution is that pollution that comes from oil and gas operation. To contend with the situation, Nigeria under her Petroleum Act 1969 generally empowers the minister to make regulation for the prevention of pollution of watercourse and the atmosphere that is a clear environmental protection provision.
      Regulations 38 and 39 enjoin operators to use approved methods and practices for the production of oil and gas, and for confining petroleum respectively. merely requiring the operator or licensees “to take prompt steps to control, and if possible end the pollution” shows that these provisions have very low legal strength.

      However, on the issue of compensation, existing statutory provisions, legal or extra legal, do not adequately cater for individual victims of oil pollution.
      A person whose property, farm or fish pond is destroyed or damaged as a result of the activities of the oil industry undergoes a lot before he can obtain legal redress. Compensation is the next available right the individual has in the oil pollution cases.  This remedy has been trivialized by the fact that oil operators are quite aware of the fact that it is highly unimaginable for the courts to grant an injunction against oil companies to stop oil activities. People have usually relied on Regulations 36, 21 and 23 which provides that on the occurrence pollution, that the operator should pay fair and adequate compensation to the victims.
      What does “fair and adequate compensation” mean? Who determines what “fair and adequate compensation” is
      Nigeria is yet to evolve an adequate compensation regime along with feasible regulation on petroleum waste management and control.
      It is laughable that the fine for failure to install oil pollution prevention equipment and for discharge of oil in Nigerian waters is not to exceed N2000.     Breach of duty to keep record of pollution or oil spillage is at the fine of N1000. Failure to place oil reception facilities as demanded by law attracts a fine not exceeding N200 for each day during which the default continues. Section 10, places a fine not exceeding N400 on failure to report discharging of oil into waters of a harbour.  Commenting on this issue, Yinka Omorogbe had this to say: “A fine of N100 is laughable and can only deter the very poor members of the population and certainly not oil corporation…. Even “high” fines of N20,000 cannot be said to be deterrent to oil companies.”

5.3.3   Effects of Oil Pollution on the Niger Delta Environment.  
      The tragedy of oil pollution lies in the fact that land generally should be protected to sustain both the current generation and the generation yet unborn.  The devastation of the land leaves no legacy for the future generation that would be saddled with sterile land, lakes and rivers.  The rejuvenation of the land normally will take a very long process and the possibility of restoration of the land to its natural state would be almost impossible.  There is no gainsaying the fact that oil spillage constitutes hazards on the environment and utmost care must be taken to curtail to the barest minimum the incessant and frequent oil spills.
      This phenomenon has led to the near collapse of the traditional economy and the people displaced from their traditional occupations, which included fishing, farming and palm oil production and canoe construction.
      The socio-economic symptoms of the situation are many and varied. They include the ugly scenes of infrastructural decay, massive unemployment, youth restiveness, violent anti-social behaviour, high crime rate, inter-ethnic conflicts and investment hostile environment in the Niger Delta region.

CHAPTER SIX

CONCLUSION AND RECOMMENDATIONS
      6.1 Observation
      6.2      Recommendations
      5:3 Contributions to Knowledge

6.1      Observation
      If land is vested in the State Governor the vesting of ownership of resources on another person or body is contrary to the maxim quic quid plantatur solo, solo cedit. 
      The ownership of natural resources is vested in the Federal Government, yet oil is entrapped in land and cannot be exploited without access to land, which is vested in the State Governor.  This has resulted in a crisis tagged resource control, which calls for a fair, just, equitable and manageable natural resources sharing policy that shall be favourable to all Nigerian stakeholders.
      The Petroleum Act and the constitution vested in the Federal Government ownership of mineral resources leaving surface rights to the individual landowners.  The Act also provided for just and reasonable compensation without a benchmark and which in the long run has proved to be unjust compensation, since there are no clear-cut provisions as to compensation payable.
      The advent of the Land Use Act brought about a radical change by vesting land in the state thereby removing the surface rights; which has the following implications in the communities interest:
      Revocation of people’s right to their land
      Deprivation of owner’s choice as to who acquires his or her land.
      Denying an owner of a choice of due compensation of acquisition of land
      Owner living under perpetual likelihood of losing their land to government.
      Owners’ inability to decide activities that should be carried out on his property or neigbourhood.
      The law invariably vests the government with all the resources on the owner’s land.  The government may well acquire any resource rich-land for any public purpose.
      Finally, on the crisis between the people and the oil companies, which have been on the maintenance of a healthy environment.  Over 50 years of exploration and production, oil companies have left large parts of the Niger Delta uncultivable, due to frequent oil spills. Leakages and the effect of gas flaring or other accidents.  Militants in the region demand that oil companies operate in an environmental friendly manner, the same demand by Saro-Wiwa.
      The judiciary in most cases has failed to play their role as the last hope of the common man, thereby, turning themselves into the “Lost hope of the common man”; this has caused people in the Niger Delta to resort to all kinds of self-help.

Recommendations
      In view of the fore-going legal problems that require detailed attention, we make the following recommendations .
      That two cannot work together unless they agree.  There has not been a people oriented constitution since the colonial rule.  Therefore, we call for a Sovereign National Conference wherein the people will gather and re-define their federalism.
      That in the light of the state of the Nation discussed above, legislation has a very big role to play in the settlement of some of the issues raised.  We therefore recommend that some of the current law be repealed, some amended, some enacted and some others must be enforced.
      Laws to be repealed: The Land Use Act has been one piece of legislation transverse with many controversies.  Its negative consequences out-weigh its positive consequences on a balance.  The Land use Act should be repealed and land vested in the former owners; this will mark the beginning of serious effects towards a better life for Nigerians and of disentanglement of the country from the web and snare of dictatorial past.
      Laws to be amended: We  call for the amendment of the Petroleum Act 1969 and its Regulations, so that it would
      Define the term ‘fair and adequate compensation’
      Define the phrase ‘good oilfield practice’
      Review the fine for polluters, what is now obtainable cannot even deter an ordinary man let alone an oil company
      That pollution offence in the oil sector be a strict liability offence, so as to save the people from proving the scientific technicalities that they cannot comprehend.
                  Secondly, the petroleum Act, the Excusive Economic Zone Act, The Mineral and Mines Act, The section 44(3) of 1999 constitution and indeed the Land Use Act, which have repressive provisions, should be amended to
      Grant owners and the communities full capacity to improve their status using their God given resources.
      Vest all title upon land to the former owners.
      Allow people to negotiate their interest on their land.

      Laws to be enacted:
      We adopt Ogbuigwe’s recommendation on laws to be enacted.  These laws she said will be based on a true federalist system of government, unrestrained access to justice and the protection of environmental right. These laws should be aimed at achieving the following for all Nigerians:
     Full ownership of individual/ communities of their natural resources.
     Partnership in the exploitation and exploration of such resources.
     Technological development and advancement in the exploration and exploitation of resources.
     Establishment of viable and conscientious institutions for the conservation of the resources and the protection of the environment.
     Development and marketability of local skills and the heritage of the people.
     Enactment of specific laws for biodiversity protection and conservation.
     Encouragement of other forms of economic activity other than oil exploration.
     Implementation of international treaties and conventions on the environment rights of indigenous peoples and control of natural resources.  
      That the mode of ownership of petroleum be reviewed. Since we have deductively arrived at the conclusion that the Land belongs to the people, the natural resource should equally belong to them.  However, considering our level of development and the technicalities involved in oil exploitation, we recommend that the federal government should continue to hold natural resources, this time, not as owners, but as trustees of the people.
      The Section 162(2) of the 1999 constitution should be amended to give the oil deriving state 50% of the revenue derived from the natural resource within the state 25% of such allocation should be directed to the individual or community that owns such land, for development and emancipation of the people since their means of livelihood have been scattered.  The Federal Government should set-up a petroleum trusteeship committee – made – up of the owners of the land (or their representatives) and the government representative that will see to the proper disbursement of the allocation.  The royalty and rent for land acquisition and use should be directly paid to the communities, the government should only impose tax on such royalties or rent.  The Federal and State Government would of course still owe their traditional duties to those communities with respect to development and welfare outside the communities’ share of the proceeds of their natural resources.  We suppose that this will be the hallmark of our federalism.  By this agreement, the Federal and State governments will have no option but to revitalise other sectors of the economy and stop over
      reliance on oil.
     That for the government to quell the restiveness of the youths, in the area, that the government should partner with the oil companies and provide employment and scholarship for the youths in tertiary and other levels of education.  We commend the amnesty granted to the Niger Delta militants and the creation of the Federal Ministry of Niger Delta Affairs.  To further build confidence and consolidate the amnesty gains, the Federal Government as a matter of urgency should commence the rehabilitation programme for the ex-militants.  The Niger Delta people are not a conquered people and should therefore not be treated as such in the implementation of the post Amnesty Programme.  Massive Development of the Niger Delta to provide urgently needed infrastructural development and employment should commence forthwith, as this is the only way to sustain and ensure the irreversibility of the current peace gains.
     The onshore – offshore dichotomy legislation 2004 should continue to exist with amendments thereby extending derivation rights of littoral states to 200 nautical miles into the sea.  The offshore revenue should be the shared on the ratio of 75:25.  The Federal Government 75, the States 25, this is because, the sea actually belong to the state of Nigeria.
     We recommend that the Nigerian judiciary require extensive awareness, sensitisation on the current judicial trend in the area of environmental protection in other countries, and an appreciation of the environment and its problem.  The judiciary must be empowered through effective training and sensitisation to become relevant in the national and international community in vindicating environmental concerns, and strengthening the endeavours to safeguard the environment by all stakeholders.                                                                Judges should be guided by the rule of law, protect and enforce it without fear or favour and resist any encroachment by government or political parties on their independence as judges.                                                                              The Nigeria judiciary should not relax in tackling emerging problems of environmental degradation and the need to check the wide spread abuse of nature.
     The government should also organise periodic meeting with the chiefs and elders of the various tribes in the region.  This will inform the people of the region that their culture is also respected just like Yoruba, Igbo and Hausa cultures.  Local government should be strengthened.  Local representation in the political process should be encouraged.   At the same time, the government will be working to gain the trust of the people.
     That oil pollution cases should fall under Fundamental Rights (Enforcement Procedure) Rules, 2009.  This is because; right to life under section 33 of the 1999 Constitution entitles principally breathing; and breathing pure air.  The oil pollution like gas flaring, river pollution, food pollution would gradually lead to deprivation of right to life. This is because, section 46(1) provides that any persons whose right is “… .. likely to be contravened in any state on relation to him may apply to a High Court in  that state for redress.” We equally recommend that the people can also enforce their right to dignity of human person.  This is because it is inhuman and degrading to subject the people helplessly to polluted water, food and environment.

5:3 Contributions to Knowledge
      This dissertation deductively traced the actual owner of land and the resources entrapped therein, from the Federal Government to the ordinary individual land occupier.  The revelation of this dissertation, by tracing the ownership of petroleum and land to the individual and community landowners, the issue of who ‘owns’ and ‘who control what’ is as good as settled
      The dissertation also examined the importance and significance of land to both the individual and community owners of land vis-à-vis it’s economic relevance, socio-cultural and metaphysical attachment of the people to their land.
      The dissertation equally examined environmental impact assessment of the Nigerian Niger Delta region.  So far, the means through which people obtain remedy in court for oil pollution matters, have been through the Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulation 1969, enabled by Section 9 of the Petroleum Act.
      The dissertation equally examined environmental impact assessment of the Nigerian Niger Delta region.  So far, the means through which people obtain remedy in court for oil pollution matters, have been through the Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulation 1969, enabled by Section 9 of the Petroleum Act. the dissertation also examined the importance and significance of land to both the individual and community owners of land vis-à-vis it’s economic relevance, socio-cultural and metaphysical attachment of the people to their land.
      this work, suggests that we proceed through Fundamental Right (Enforcement Procedure) Rule 2009 which is much liberal.  This is because the 2009 Constitution of the Federal Republic of Nigeria guarantees every one’s right to life and dignity of human person in sections 33 and 34 respectively.  The constitution in  section 46(1), and Order II Rule I of the Fundamental Right (enforcement procedure) Rules 2009 state that any person who alleges that any of his right “has been, is being, or is likely to be infringed, may apply to the Court in state where the infringement occurs of is likely to occur for redress.”
                  We therefore submit that oil pollution; spillage and gas flaring are of such a nature as to likely infringe on a person’s right to life.
      Secondly, when people living in the Niger Delta Islands and rural communities are subjected to drink polluted water, eat polluted food, breathe polluted air and are exposed to diseases, their right to life is infringed. The total picture is one of complete degradation of their humanity and total loss of individual’s dignity as a human person.
      Therefore, people can approach the court under Fundamental Rights enforcement procedure Rule 2009 in oil pollution and gas flaring cases because they are of such a nature that they infringe on people’s right to life and dignity of human person.
      The law itself should provide adequate and efficient remedies for the abuse or misuse of power from whatever quarter it may come.  No matter who it is – who is guilty of the abuse or misuse. Be it Governor, national or local.  Be it trade unions, be it the press.  Be it management. Be it labour. Whoever it may be, no matter how powerful, the law should provide a remedy for the abuse or misuse of power.  Or else the oppressed will get to the point when they will stand it no longer.  They will find their own remedy.  There will be anarchy.

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