S.1 of the Land Use Act, provides “subject to the
provision of this Act, all lands comprised in the territory of each state in
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 benefits of all
Nigerians in accordance with the provision of this Act”.
The
correct purport of this provision is that all lands in the territory of each
state other than those in which the absolute title is already vested in the
Federal Government or it’s agencies under the proceeding paragraphs; vest in
the Governor of the state and is required to be “held in trust and administered
for the use and common benefit of all Nigerians.” The effect of the Act is the
expropriation and nationalization of all lands in each state to the Governor of
that state. Thus, the obiter dictum of Kayade Eso Jsc (as he then was) in
Nkwocha v the Governor of Anambra state & Ors is pertinent and was relied
upon. “The tenure of the Act, as a single piece of legislative is the
nationalization of land in the country by the vesting of its ownership in the
state leaving the private individuals with an interest in the land which is a
mere right of occupancy and which is the only right protected in his favour by
the law, after the promulgation of the Act”
The obligation of the Governor is
to administer the lands for the use and common benefit of “all Nigerians,” meaning
Nigerians as a whole. It follows that neither individual Nigerians nor citizens
of any particular state have any right to a superior or special claim to
benefit on the land. Where such special benefit is claimed, or accorded, it can
only be founded or explained on the basis of political expediency. It follows
also that a non – Nigerian can not apply for a right of occupancy. Indeed, it
has been held in Ogunola v Eiyekole,
that words “any person” wherever used in the Act means, “any Nigerians” and
does not included non – Nigerians.
There has been much controversy
as to the nature of the power of the Governor of a state in respect to land in
his state. According to Dr. A. Nnamani, “No Legislation promulgated in this
country has elicited so much controversy, so much criticism, so much divergence
in the interpretation of its provisions, and so much discourse in academic and
business/financial circle as the Land Use Act.” Some jurist and writers are of the view that by
virtue of S.1 of the Act, Land Use Act has created a trust concept on lands in
a state, and the Governor is the trustee who holds the land in trust and
administered it for the use and common benefit of all Nigerians. While others
over that all lands in the country have been expropriated by government and
ownership vested in the Governor of the state.
In view of this, this thesis has
considered the critical examination of these propositions in the lights of
judicial postulations and legal authorities.
In alluding to the trust concept
created by the land use act, Professor James hinted, “there would appear to be no objection to
expressing the nature of the Governor’s title as one of trustee – ownership.
Reacting to the provision of S.1
of the Act in the case of Ngwoch vs. the Governor of Anambra state Rerikefe Jsc (as he then
was) said “by this piece of legislation, a legal trust affecting every rich of
Nigerian land is created, constituting every state military Governor as trustee
in respect of land within the limit of his state for the benefit of all
Nigerians.
However, even though the land use
at in S.1 uses the word “shall be held in trust and administered for the use
and common benefit of all Nigeria,” its practicality cannot be interpreted to
mean that the Governor holds the lands in his state as a trustee. Infact it is
in support of this that Balogun J. in Otumba Adewumi V Ogunbowale & ors states that: “the concept
of trusteeship as used in S.1 of the Land Use Act, as enacted in a loose sense.
It is not intended to confer upon every citizen of Nigeria any right and cannot
under the section as enacted claim against the “Military Governor” an account
for any benefit accruing from land held by him under the Act in trust and
administered by him for the common benefit of all Nigerians. Also Prof. B. O.
Nwabueze in reacting to the trusteeship concept of the Land Use Act stated: “It
is as well perhaps to emphasize that the concept of trusteeship is used here in
a loose and figurative sense; it confers upon individual natives no rights
which a beneficiary has against a trustee in English Law. No native can claim
against the Governor on account for any benefit (E.g. rent) accruing from the
Land”
Therefore, the trust created in
this regard must not be equated with the technical trust known in equity so as
to confer on an aggrieved citizen the right to proceed in court against a
Governor for a breach of an obligation impose on him by the Act.
It is my humble position on this
matter that S.1 of the Land Use Act does not create trust relationship in the
actual sense, but rather a nominal trust. Therefore, the dictum of Irikefe Jsc
in Nkwocha’s case and that of R W James, is with due respect hard to follow;
and the later view is preferable.
The true nature of the right of
property vested in the Governor under S.1 has variously been described as
“radical title” or “nominal ownership” ,
in contrast, with absolute and beneficial ownership held by the Federal
Government and its agencies. The ownership is said to be radical or nominal for
two principal reasons. First, because S.1 vests the title in the land to the
Governor “subject to the provisions of (the) Act” and the Act, by S.34 provides
for the preservation of the possessory right of previous owner of land in all
their developed land, and in urban area. Also by S.36, the Act similarly
provides for the preservation of the possessory rights of previous owners in
all their agricultural lands and in all their developed lands in non – urban
area. The second reason why the Governor is said to hold only a radical or
norminal title is because S.1 enjoins him to have the land vested in him held
“in trust and administered for the use and common good of all Nigerians”.
Smith, for example, concluded that being a trustee of land vested in him, the
Governor holds only norminal ownership of land for the purpose of accomplishing
the objective of the trust.
These reasons are no doubt
persuasive of the view that the Governor’s ownership title is only norminal or
radical and not absolute. But, it nevertheless seems important in evaluating
the true nature of the Governor’s ownership title to have regard to all those
powers over land which Prof. Nwabueze correctly takes to constitute” the real
essence of ownership,”
and which truly reposes in the governor under the Act. Together with the title
vested in him, the Governor holds the full power of control, disposition and
administration of the land. He has power to make grant of right of occupancy
and other rights over unoccupied and even occupied land anywhere in the state, charging rent, and his due grant of
occupancy right over any land automatically extinguishes all existing occupancy
rights in the land.
The Governor can revoke any right of occupancy under certain condition and is not required to
pay any compensation for the land itself but only for the value of unexhausted
improvements thereon. If, any.
This is so even as regards deemed rights of occupancy existing by reason of
previous customary or non – customary ownership or user under SS.34 and 36,
which are potentially of indefinite duration. No person can validly alienate
any right of occupancy granted or deemed to be granted by the Governor with his
consent. Thus, in
Savanah Bank v Aajilo,
the Supreme Court held that alienation of both actual grant and deemed grant of
right of occupancy required consent.
Indeed, such is the near absolute
character of the Governor’s powers over land that the occupier of land the
subject of a right of occupancy granted by him can claim no right of exclusive
possession against him.
For these reasons given above, it
seems necessary to tread with caution in writing off the Governor’s ownership
title to lands in his state as a mere norminal or radial title.
The picture that emerges is that
of a substantial or near absolute ownership title, qualified only by a pious
obligation to administer the lands “for the use and common benefit of all Nigerians”.
It is this conclusion that Eso Jsc’s viewed
S.1 of the Act in Nkwocha vs. the Governor of Anambra state as a nationalization of
land in Nigeria finds justification.