Here,
Section 1, 2, 5, 6, 24, 28, 29, 34, 36, 40 and 50 are the relevant provision
that will be given prominence. Section 1 of the Act provides as follows:
‘Subject to
the provision of this Act, all land comprised in the territory of each state in
the federation are hereby vested in the Governor of that state and such land
shall be held in trust and administered for the use and common benefit of all
Nigerians in accordance with the provision of this Act.
This provision can rightly be said
to contain the general intendment of the Act, which is to make land easily
accessible to both the governments and people of Nigeria.3
By this provision all land in a
state became vested in the Governor of that state and he is to hold same in
trust and administer them for the use and common benefit of all Nigerians. This
implies that there is no longer any ownership of land in Nigeria by
individuals. What an individual can now possess with respect to land is a right
of occupancy which could be statutory or
customary according to Section 5 and 6 of the Act.
Section 5 (1) (a) provides as
follows:
‘It shall be lawful for the Governor in respect of land whether
or not in an urban area (a) to grant statutory rights of occupancy to any
person for all purposes”.
Also
section 6 (1) of the Act provides”
“It shall be lawful for a local government in respect
of land not in an urban areas.
(a) To grant customary rights of occupancy to any person
or organization for the use of land in the local government area for
agricultural residential and other purposes,
(b) To grant statutory rights of occupancy to any person
or organization for the use of land for grazing purposes and such other
purposes ancillary to agricultural purposes as may be customary in the Local
Government Area concerned.
The combining effect of Section 1, 5 and 6 is that
there is no longer ownership of land in Nigeria. What one could have in Nigeria
today with respect to land is right of occupancy, which could be statutory, as
the case may be. In other words, people wanting to make use of land for any
purpose will now have to apply to the Governor to be granted a right of
occupancy, if the land is situated in the Local Government, the application
will be directed to the Local Government concerned. The land so granted will
not be alienated without the consent of the Governor or the Local Government,
as the case may be. Any violation of these provisions will result to revocation
of the right of occupancy. Section 28 empowers the Governor to revoke a right
of occupancy, statutory or customary, for overriding public interest.
Section 2 provides as follows:
1. As from the commencement of this Act
a. All land in urban areas shall be under the control and
management of the Governor of each state and
b. All other land shall subject to this Act, be under the
control and management of the local government within the area of jurisdiction
of the land is situated.
But
what is the position of people who before the commencement of the Act were
already in possession of land? Would they have to apply directly to the
Governor or the Local Government for grant of rights of occupancy? Provisions
were made for them in section 38 and 36 of the Act. Section 34 makes provision
for possessors of land in the urban areas. According to this section, where the
land is developed, it shall continue to be held by the person in whom it was
vested immediately before the commencement of the Act as if the holder of the
land was the holder of a statutory right of occupancy issued by the Governor
under the Act.
According
to sub-section (3) of that section, the person can still apply directly for the
issuance of certificate of occupancy and the Governor is enjoined to make sure
that the applicant is the person in whom the land was truly vested before the
commencement of the Act. However, sub section (4) is very relevant here, it
provides as follows.
“where the
land to which subsection (2) of this section applies was subjected to any
mortgage, legal or equitable or any encumbrance or interest valid in law such
land shall continue to be so subject and the certificate of occupancy issued,
shall indicate that the land is so subject, unless the continued operation of
the encumbrance or interest would in the opinion of the Governor be
inconsistent with the provisions, or general intendment of this Act”.
It appears that this last mentioned
subsection embraces customary tenancy. Since it does not run contrary to the
general intendment of the Act, which has been stated above, and has been
lawfully in existence even before the commencement of the Act. The question
then is, who is vested in possession before the commencement of the Act, the
tenant or the landlord? This must be determined so as to know who is entitle to
apply for the certificate of occupancy.
However, before this question is
answered, it is important to note that the fact that customary tenancy is a
valid interest in land under the Act can be supported by the express
recognition by the Act of certain customary laws, for instance, section 29
dealing with compensation payable on revocation of right of occupancy by the
Governor provides in subsection (3) as follows:
“If the holder or the occupier entitled to
compensation under the section in a community the Governor may direct that any
compensation payable to it shall be paid
a.
To the community
b.
To the chief or
leader of the community to be disposed by him for the benefit of the community
in accordance with the applicable customary law.
Again, Section 40 of the Act makes special provision
for proceedings pending in court with respect to any question concerning or
pertaining to title to any land or interest therein. According to the
provision, such proceeding may be continued and be finally disposed of by the
court concerned but any order or decision of the court shall only be in respect
to the entitlement of either of the
parties to the proceedings to a right of occupancy, whether statutory or
customary in respect of such land as provided in the Act.
From
the above provisions, it could be gathered that the fact that the Act
recognizes the existence of the institution of customary tenancy is not at all
in doubt4. What is in doubt is who is entitled to be issued the
certificate of occupancy under section 34 and 36, is it the tenant or the
overlord? This problem is compounded more by the use of the words vested” as
can be seen in Section 2, 36 (2). The implication is that if the customary
tenant is entitled to the right of occupancy, then the institution of customary
tenancy must have been extinguished by the land use Act. But, if the landlord
is entitled to it, that is certificate of occupancy then the institution must
have survived that Act. A detailed examination of the judicial decisions in this
regard will probably throw more light on this.