In the course of this study and in the bid to
critically examine the effects of the land use Act, 1978 on the customary
tenancy in Nigeria, it was observed that, even before the coming of the
colonial masters, the entity today known as Nigeria had its own land tenure
system with customary tenancy as part of it. It was also observed that under the customary tenancy,
the overlord is not at liberty to eject the customary tenant at any slightest
provocation. For the customary tenant to forfeit the tenancy to the over load,
he must have conducted himself in a manner that is considered to be considered to be enemical to the interest of the
overlord as can be seen from the decided cases. This includes alienation of the
property without the consent of the overlord.
Also, it was observed that the existing land tenure
system and customary tenancy in Nigeria before the promulgation of the land use
Act 1978, was occasioning hardship on the government and individuals thereby
hindering development. Therefore, the Land Use Act, 1978 is a statutory
approach or device used by the then Federal Military Government to consolidate
and harmonise the diverse land tenure prevalent in the country before the
promulgation. It aims at ensuring the protection of the rights of all Nigerian
to enable them to provide for the sustenance of themselves and their families.
It abolished the age long tradition of private
ownership in the south and introduced a uniform system of land tenure
throughout the country and vest all land comprised in the territory of each
state on the state governor.
Furthermore, it was observed that the legal principle
expressed in the Latin maxim Quic quid plantatour solo solo cedit (every thing
attached to the land, is part of the land) is part of our legal system.
Additionally, I observed that there are types of customary tenancy under the Nigerian
legal system. They include Rent Free or Gratuitous Tenancy, Service Tenancy,
Cash Tenancy and Kola Tenancy. In the same vein, I
observed that there are rights accruing to the customary tenant. These rights
are to wit: Right to exclusive possession, right not to be evicted from the
property without due process. It was further observed that the customary tenant
owe his overlord some obligations. These include obligation not to deny the grantor
his title, not to alienate without the grantor’s consent, obligation not to use
the land for a different purpose, obligation to pay rent or tribute etc.
The following
sections of the Act, that is sections 1,2,5,6,24,28,29,34,36,40, and 50 are the
relevant provisions that dealt with the issue at hand.
I also observed that the attendant effect of the
provisions of the land use Act, 1978 especially section 36 (1) (2) (3) and (4)
and the definition of “holder” and “occupier” in section 50 seemed to have
confused many people as to what interpretation to be ascribe to them.
I observed that some of the justices of the Supreme
Court insist that with the promulgation of the land use Act, 1978, the
customary tenant is entitled to be issued with the right of occupancy subject
to the existing customary land law but others out rightly maintained that the
customary land owner is entitled to be issued with right of occupancy as doing
otherwise, will amount to robbing Peter to pay Paul.
RECOMMENDATIONS
Having seen and brought to limelight the observations
that were made in the course of examining the effects of the land use Act, 1978
on the customary tenancy in Nigeria, it is pertinent to make some
recommendations which will ensure the best land tenure system in Nigeria. The
recommendations are as follows:
1.
That first of
all, the land use Act should be removed from the constitution completely in order
to make its amendment easy.
2.
There is need to
curtail such powers as vested on the governors since it is excessive and could
be used by overzealous ones for political gains.
3.
The Act in section
34(5) and (6) took away many plots of land held by the former land owners
without any compensation in return. I humbly submit that property legislation
should not confiscate property right of the people. The right to property is a
fundamental right and should not be violated indiscriminately and spontaneously
even where such confiscation is necessary, the legislation should provide
compensation to that effect. Subsequent amendment should take cognizance of
this.
4.
not minding who
is in occupation or possession before or immediately after the promulgation of
the land use Act, 1978m the overlord that is the person to whom the land vested
before the Act should be adequately compensated so as to engage his loss and
also be given the option of applying for customary or statutory right of
occupancy before any other person.
5.
In order to
ensure the involvement of the traditional rulers (whose positions are held in
high esteem in the rural areas) in hand tenure in the country they should be
made chairman of land allocation committee in different LGAs for grating
customary right of occupancy.
6.
The debate as to
who the property or land vest on between the overlord and the customary tenant
should be laid to rest in favour of the overlord.
7.
Government should
first acquire all the land as is in section 1(1) and 30(1) of the land use Act,
and then give equal opportunity to all to apply for right of occupancy.
ABBREVIATIONS
ALLNLR: All Nigeria Law Reports
FNLR:
Eastern Nigeria Law Reports
FSC: Selected judgments of the Higher
Courts of Lagos
HL: Law of Lords
LRYCP: Law Report: The Privy Council
LRN: Law Reports of Nigeria
NLLC: Nigerian Land Law Repot
NLP: Nigerian Monthly Law Reports
NWLR: Nigerian Weekly Law Reports
SC: Judgments
of the Supreme Court of Nigeria
WACA: West African Court of Appeal Law
Reports
WNLR: Western Nigerian Law Reports
WRNLR: western Nigeria Law Report
NIGERIAN STATES
1. Constitution
of the Federal Republic of Nigeria, 1999, sections 315(5) (d) and 9(2)
2. Interpretation
Act, 1964, Section 18(3)
3. Land
use Act (Degree No. (6) 1978 Section 1,2,5,6 (b) 22, 24,26 , 29, 34, (1) (2)
(4) 36(1) (2) (3) (4) 40 and 50 (1)
NIGERIAN BOOKS REFEREED TO
1. Essays
on the Land Use Act. 1978, p 8 By J.A. Omotola
2. Ewe
Law of Property (Evans London) 1974 p. by Kuoze
3. Family
property among The Yorubas (Sweel & Maxwell. London 1966) 2nd
Ed. PAGE 34 by Coker G.R.A
4. How to
handle land cases in practice y Emmanuel Egburuonu
5. Ibo
Law of property (Butherworths. London) 1963 Page 43 by Obi
6. Nature
of African customary law, 3nd impression, 1972, pages 162-163 by Elias.
7. Nigerian
Land Law by Nwabueze, B. O.
8. Nigerian
Land Law Cases: Vol t BY I. E. Ogberde ihama Esq.
9. Principles
and practice of land law by J. N. Egwumuo
10. Title
By Adverse Possession And under customary Law by justice
11. Yoruba
Land Law (Oxford University, Press) Ibadan 1962, page 56, by PC Llovd
CONCLUSION
It
should be noted that the essence of this work has been achieved. The effects of
Land Use Act since its promulgation radically altered to a great extent the
system of customary land tenure law in Nigeria. The Act, divest any claimant of
radical title and limits his claims to a Right of Occupancy. The attendant effects
of the provisions of Land Use Act especially sections 36(1) (2) (3) and (4) and
the definition of “holder” and occupier in Section 50 seemed to have confused
many people as to what interpretation to be ascribed to them. The court cannot
in the absence of express words, properly give the Act a construction which in
effect expropriates the rights of the holder (the customary landowner) or
reduces him to the same level with the customary tenet. For it is settled that
any law which has the effect of depriving a citizen of any right to his
property. That the customary land law survived the Land Use Act is not in doubt,
though in a modified form. The question of who is to be granted right of
occupancy between the customary owners and the customary tenant is still hazy.
The position taken by the Supreme Court in this regard, calls for concern. Some
of the justices of the supreme court insist that with the promulgation of the
Land Use Act, 1978, the customary tenant is entitled to be issued with the
Right of Occupancy subject to the existing customary land law but others out
rightly insist that the customary landowner is entitled to be issued with Right
of Occupancy as it is like robbing Peter to pay Paul to do otherwise. I
completely agree with this later view or position because any thing short of
this must surely work hardship on the landowner and be at variance with the
spirit and general intendment of the Act. According to the Courts, it is the
customary landowner who is entitled to be issued the certificate of Occupancy since
he is imposing through his tenant.
TABLE OF CASES
1. ABIOYE
AND ORS V YAKUBU AND (200) INLLCI
2. ADELEKE
V. ADEWUSIN (1961) INMLR 37
3. ADEWOYIN
OGUNSUSI V. HYAMIYA DUNODOLA HIGH CORUT ONDO SUIT NO HOD/8A/82
4. AGWU
V. OGOKE (unreported) suit no HOW/133/1967 of 31/8/67
5. AKINKUOWO
V. FAFUMO U. (19650 MNLR 8, 45
6. AKINLOYE
V. OGUNGBE (1979) 2lrn 282
7. AKINLOYE
V. OYEJIDE (unreported) Suit no. HCT/9A/81
8. AKUNNE
V. EKWUNO (1952) 14 WACA 59
9. AKWRILOWO
V. ANWO (1959) WNLR 178
10. ANNAN
V. BIN (1947) 12 WACA 177
11. AROWAB
V. ADESHINA (1946) 12 WACA 18
12. ASHOGHON
V. ODUIAN (1935) 12 NLR 7
13. BAILLIE
V. OFFION (1923) 5 NLR 29
14. BONGAY
V. MACAULEY (1932) 1 WACA 225
15. BASSEY
V. ETTA (1938) 4 WACA 153
16. COLE V.
BEGHO (1959) AF SO74
17. DABIRI
V. GBAJUMO (1961) 1 ALL NLR 225
18. EMEGWARE
V. NWAIMO (1953) 14 WACA 347
19. ETIM v.
EKE (1949) 10 NLR 43
20. EZEANI
V. EJIDIKE (1965) NMLR 95
21. EZEILO
V. OBI (1960) ENLR 19
22. HOLLAND
V. HODGSON (1872) LR 7CP 328 AT 344
23. NASA V.
OSHODO (1930) 10 NLR 4
24. KUGBUIYI
V. ODUNTO (1926) 7 NLR 51
25. LADEGA
V. AKINILIYI (1975) 2 SC 91
26. LASISI
V. TUBI (1974) 1 ALL NLR (PART II) 438
27. MAKANJUOLA
V. BALOGUN (1989) NWLR PART 108-111
28. MGBELEKE
V. IYAJI (1931) SC NO. 4/1931 (unreported)
29. NKWOCHA
V. GOVERNOR OF ANAMBRA STATE (1984) 6 SC 362
30. OGBAKUM-ANWU
V. CHIABOLO (1950) 19 NLR 107
31. OGBODE
V. OSIEO (unreported) SUIT NO 11/9/66 HGIH COURT UBIAGA
32. OGUNOLA
V. EIYOKOLE SUIT NO HCL/43/80
33. OKOTA
V. FALOLU (1950) 19 NLR 107
34. OMOLOWUN
V. OLOKUDE (1958) WNLR 130
35. ONIAH
V. ONYIA (1989) 1 NWLR 14 SC
36. ONISIWO
V. FAGBENRO (1954) 21 NLR 3
37. ONISIWO
V. GBAMGBOYI (1941) 7 WACA 69
38. OKOH V.
OLOLU (1958) 20 NLR 123
39. OKOIKO
V. ESEDALUE (1974) 3 SC 15
40. OKUAJEROR
V. SAGAY (1958) WRNLR 70
41. ONOTAIRE
V. ONOKPASE (1984) 12 SC 19
42. OSHODI
V. OLOJE (1958) LLRI
43. RAMSDEN
V. DYSON (1866) ihi 140 p. 24
44. SALAMI
V. OKE (1987) 4 NWLR 1
45. SANTENG
V. DARKWA (1940) 6 WACA 52
46. SAVANNA
BANK V. AJILO (1987) NWLR, (part 57) 421
47. SOLOMON
V. MOGAJI (1982) 11SC 1 at 45
48. SNMONU
V. BINADU (UNREPORTED) Ibadan suit No. 4 1928
49. TAIWO
V. AKINWUNMI (1975) 45c 143
50. UNITED
AFRICAN COMPANY LTD V. APAW (1936) 3 WACA 14
51. UWANI
V. AKOM (1928) 8 NLR 19
52. WAGHOR-EGBOR
V. AGHENEGHEN 1974 1SC P1
BIBLIOGRAPHY
Coker,
G. B. A.: “Family Property Among The Yoruba”, London, Sweet and Maxwell 2nd Ed. (1966)
Egburuonu,
E.: “How to Handle Land Cases in Practice”, Aba, Basic Rights Publication Ltd, (2001).
Egwummuo.
J. N. “Principles and Practice of Land Law” Enugu, Okechukwu Communications, (1999).
Elias,
I. O. “Nature of African Customary Law”, London, Sweet and Maxwell, (1972).
Kiudeze
Ewe “Law Property,” London Evans, (1974)
Kloyd,
P. C. “Yoruba Land Law” Ibadan, Oxford University Press, (1962)
Nwabueze,
B. O. “Nigerian Land Law”, Enugu, Nwamile Publishers Ltd (1974)
Obi,
S. N. “Ibo Law of Property,” Enugu Butterworths, Butterworths African Law Series, (1996).
Ogbede-Ihama,
T. E. “Nigerian Land Law Cases” Benin, Lawbooks Publication Division Vol, V. (2000).
Omotota,
J. A. “Essays On The Land Use Act,” Lagos, University Press (1983).
Umezulike
I. A. “Title By Adverse Possession And Under Customary Law” Ibadan, Oxford University Press, (2011).