Observation
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 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 granting
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 36(1) of the land use Act,
and then give equal opportunity to all to apply for right of occupancy.
5.3 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.
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).