GENERAL INTRODUCTION
1.1 Background
of the Study
Nigeria (surface area: 923 sq
kilometers; population: 140 million) is an immensely rich country with every
state liberally endowed. Who is not blessed in Nigeria? This seeming innocuous
question begs for an answer because not since the Europeans discovered the
wealth of Africa has such greed drew wickedness as has been visited on the
people of people of Niger Delta because of the discovery of crude oil in their
lands and waters. Why these laser beams focus and fixation on a single
resource? Is it because neither the government nor the people know that there
are resources in every nook and cranny of the country which is properly
exploited are capable of generating much revenue as crude oil?[1]
After many years of military
dictatorship which witnessed monumental profligacy and widespread corruption in
the policy, Nigeria heaved a sign of relief when the 1999 constitution[2],
ushered in democratically elected Government on the 20th
May, 1999[3]
this government was headed by Chief Olusegum Obasanjo, who was the president
and commander- in- chief of the Armed forces of the Federal Republic of
Nigeria. When the government came with the issue of who should be in charge of
exploration of mineral and solid deposits arose, also, the lateral State[4]
(Nigeria Delta States) with rich oil deposits commenced their agitation for the
resources control. The concept of “resources control” denotes the control of
the gift of nature or natural resources. Expropriation
of mineral and solid deposit in the taking over of the natural resources by the
federal government for public use as any material in its native state which
when extracted has economic values. Examples of natural resources are crude
oil, gas wells, iron ore, Coal and other mineral deposits. Among these mineral deposit mentioned
above, Crude oil generates about 95% of our foreign exchange earnings. It
occupies a strategic position in the world political economy. Because of it
high level of demand in the international market[5],
other natural resources have suffered. neglect in terms of extraction,
exploration and processing. The littoral states are richly endowed with this
crude oil deposit, which is the bedrock of our national economy. The demand for
the expropriation of these mineral and solid deposits by the littoral states
and indeed all other states where other solid deposits other than crude were
discovered is the demand for the control of mineral resources. The states in
the vanguard of this call are in the south -south geo-political zone[6] of
the country. It is believed that some of these states have about 65% of their
land fully endowed with mineral deposits. Mineral
and solid deposits are not in the direct control the control and regulation of
how it will be explored are under the direct supervision of the federal
government. This is provided in the 1999 constitution as (amended) as follows:
“Notwithstanding
the foregoing provision for this section, the entire property in the control of
all mineral oil and natural gas in, under, or upon any land in Nigeria, under
or upon the territorial water and the exclusive economic zone of Nigeria shall
vested in the government and federation and shall be managed in such manner as
may be prescribed by the national assembly”[7]
The section expressly makes known that the control of
mineral and oil deposits is vested in the government of the federation, and not
the state governments or the individuals. It is no surprise then, that the
states governments have teamed up in the present Niger Delta to request that
control of resources should be ceded to them, even though not in an absolute
capacity. The federal government grants oil prospecting license to oil
companies to explore mineral oil for terms of years. The federal ministry of
natural resources is responsible for the granting of these license and lease to
oil companies.
It should be noted that the land use Act[8]
did not vest ownership of land on the federal Government, but it vested all
land in the urban areas in the territory of the a state in the government of
that state (except land vested in the federal government or its agencies) to
hold in trust for the people and allocate residential, agricultural, commercial
and other purpose (with similar powers conferred in the local government in
respect of lands in non-urban areas)[9].
What to note here, is that this provision only vest surface right on the state
government and does not recognize those rights below the surface of the earth.-Where
mineral are found under these lands, the right to the minerals is vested upon
the federal government. The act can be criticized to project alienation of the
people from their land, by giving them only surface rights.
The interest of the geese that lay the golden egg is
not adequately accommodated. They are not always parties to any contract
negotiation bordering on oil between federal government and multinational oil
companies, neither are they consulted before the formulation of legal rules
bordering on how oil exploration and expropriation should be regulated.
Therefore, the oil companies, owe the communities no duty or obligation in
the course of their operation, the
communities in which these companies carry their operations suffer grave
ecological devastation, environmental degradation and other health hazard, from
uncontrolled exploration of mineral and soled deposits. Economically, the
effect of oil exploration when there is oil spillages impair farm lands and
unexhausted improvement thereon. More often than not it invades the Greeks, sea
and Tributary River killing sea foods in quantum and destroying aquatic life.
Compensation for these, are not
adequate in the estimation. The oil producing states for instance, become
“master of their faith by joining forces to press for resources control. The
demand culminated into a legal battle in the celebrated case of Attorney
General of the Federation V Attorney General of Abia State & 35 Ors[10].
This case which was instituted in the Supreme Court
with Original Jurisdiction as regards the interpretation of statue was resolved
in favour of the federal government. This decision has not deterred the oil
producing states from further sustaining the tempo and pressure in their demand
for the control of their resources.
Nigerians are dreaming of an era in which relevant
regulation on expropriation of minerals
and deposits that will adequately compensate the affected communities will be made
and observed, an era of which social responsibly is according prominence in
management decision and activities, where vital needs of host communities
receive due attention of prospecting companies. In their own little way, the
indigenous firms must show how much of local content could reasonably be
injected into oil production operations, in fact, how much Nigeria could save
is the multinational adopted the appropriate attitude to sourcing of inputs.
Today, our constitution[11]
provides 13 percent of such revenue according of natural resource to the
derived source while 87percent goes to the federation account. This is
regardless of how, or by whom the mineral is mined. Obnoxious as some of the
law that govern expropriation of minerals are solid deposits, the fact remains
today, all minerals upon or under all Nigerians soil and waters belong to the
federal government.
1.2
Statement of Problem
As
noted earlier in the background of this work, the expropriation of mineral and
solid deposits by the federal government and implication under the land Use Act
has also been an area of conflict between the federal government and some of the
state government in Nigeria with these natural resources. This conflict arises
as a result of the demand for resources by these states. This is because; they
discover the compensation from the federal government to term is not adequate,
as 87 percent of the revenue generated goes directly into the federation
account. It therefore follows that the issue of compensation is a problem.
Also, even when this 13 percent of the revenue is paid
to the state coffers, they are not adequately utilized by the state to bring
grass root development to the rural dwellers who suffer the decimation of their
entire ecosystem occasioned by mineral and solid deposit exploration. Another problem in this area is section
162(2) of the 1999 constitution (as amended) which relates to the derivation
principle in that it did not expressly provide that the 13percent derivation
principle reflect the entire oil drilled in both on-share and offshore oil
fields incase of states that produce oil. The provision of the constitution is
destitute of clear expression thereby making its interpretation a subject of
controversy. The federal government harped on this and unilaterally
interpreted, declared and implemented the thirteen percents derivation
principle on the exploration of mineral and solid deposit. This has provoked
deep thought in the minds of the states with these mineral and solid deposits
in Nigeria. It becomes Obvious that they are not getting enough from the
natural resources which they are endowed with. Finally,
the power of the federal government in the expropriation of mineral and solid
deposit has divested the state Governor of power to exercise legislative power
over areas of land with mineral and solid deposit. In other word, those areas
of land would no long be subject to insurance of certificate of occupancy. In
consequence, it robs section 1 of
the land Use Act its legal content and thereby rendering it destitute of
meaning. Because of the monopoly of mineral and solid deposits by the federal
government, it has prevented the vesting of the entire land Comprised in the
state in the Governor of the state.
1.3 Research
Questions
The
following are questions are what this study aims to give answers
i. What
is the reason behind federal government monopoly of mineral and solid deposits?
ii. Does
the federal government own mineral and solid deposits in Nigeria?
ii. What
is the revenue accruing to the federal government and the state endowed with
mineral and solid deposits.
iv. Whether
the compensation paid to the state endowed with mineral and solid deposit is
enough to take of the mines?
v. Who
has the monopoly of mineral oil and solid deposit under the Land Use Act?
vi. What
is the implication of the expropriation of mineral and solid deposit by the
federal government of the Land Use Act?
vii. What is
the way forward?
1.4 Objectives
of the Study
The Objectives of this study is to
critically analyze the expropriation of mineral and mineral deposits by the
federal Government and implications on the Land Use Act in Nigeria and to
specifically do the following:
(i) Determined
the idea behind the federal government monopoly of mineral and solid mineral deposits
in Nigeria.
(ii) Determine who owns mineral and solid
mineral deposit in Nigeria
(iii) Determine
the revenue accusing to the federation account and to that of states endowed
with these minerals and solid mineral deposits in Nigeria
(iv) Ascertain
if the compensation paid to the state or community question is adequate enough
to take care of the damages caused by exploration of minerals and solid mineral
deposits.
(v) Determine
who has the monopoly of the expropriation of minerals and solid mineral deposits
under the Land Use Act in Nigeria
(vi) Determine
the implication of the expropriation of mineral and solid mineral deposits by
the federal government on the Land Use Act in Nigeria.
(vii) Suggest the way forward in this area.
1.5 Research
Methodology
The expropriation of mineral and
solid mineral deposits by the federal government is statute based. Hence, in
writing this work, much reliance will be placed on primary source of data in
sourcing information. Such of data include. Statute, delegated legislatives and
decided case or judicial authorities.
Also, in order to clarify some
knotty issues reference will be made to secondary source of data. However, in
this age of information technology (IT), we can do nothing but exploit the
opportunist presented by the internet in order to achieve the objectives of
this study and also to ascertain the position of law in order jurisdictions in
this area of law.
1.6 The
Significance of the Study
A critical analysis of the
expropriation of mineral and solid mineral deposits by the federal government
and implications on the Land Use Act has been a controversial area in law, over
the years. In respect of resources control, this writer has critically examined
and resolved the issues raised in this area of land to serve as a guide to the
general public.
However, this study will be of
immense help to the following institution and people.
(a) Government: The Government (both at the
state and federal level) will find this study as a useful guide in policy
formation and implementation. Since this area has been the subject of debate,
the new approach adopted in this work will be of immense help especially of the
issue of compensation.
(b) States/communities endowed with natural
resources: Those states and
communities endowed with mineral and solid mineral deposits will find this
study handy as a guide whenever they are demanding for resources control. It
will also help them to understand the reason of federal government monopoly of
mineral oil in Nigeria if they adopt the new approach in this study the
controversy in this area will be a history.
(c) Student and Researcher: As stated earlier in this work, the expropriation of
mineral and solid mineral deposit by the federal government is controversial
area, so, students and subsequent researchers will find this work as a useful
guide whenever they are faced with a problem in this area. This is because this
study has been designed in such a way that it will resolve the problems
associated with this area of law and problems associated with this area of law
and this aimed at contributing to scholarship.
1.7 The
Scope of the Study:
The expropriation of mineral and solid deposits by
national government of any country is a fact, but for a better understanding of
the expropriation of mineral and solid mineral deposit by the federal
government and implication on the land Use Act. We shall restrict the scope of
this work in Nigeria in order to achieve its objectives.
Also, much emphasis will be place on
those states that are richly endowed with mineral and solid mineral deposits in
generally and particularly to their respective communities. This is because not
every state in Nigeria is endowed with these mineral and solid mineral deposits
1.8 Limitations
of the Study
A critical analysis of the
expropriation of mineral and solid mineral deposits by the federal government
and implication on the land Use Act in Nigeria like any other discussion on law
and humanity has its own interest limitations for instance, such exploration is
not usually channeled towards the development of the communities endowed with
such natural resources.
However, in writing this work, the
following constituted limitation.
Time: The time given for the completion of this work is short. This is
coupled with the fact that the writer is combining this research with his other
class assignments which is also consuming part of the short time available. The
writer also lack time to do enough research with respect to this topic.
Lack of Material: In writing this work, the researcher lacked materials
in this area of law. This is coupled with fact that the writer was unable to go
beyond the vicinity of this university to embark on voyage of discovery in
search of materials also, the issue of subsidy removal has not been favorable
due to high cost of transportation and materials.
Finance: The writer also lack finance in the course of writing
this work. This includes the money to conduct research, typing of the work
printing photocopying and indeed binding both the soft and hard copy of this
work. However, in all thank the Almighty God.
[1] C. IRpatt and N.H. Ibanga: Nigeria’s Mineral Resources; A case
for resource Control, 2003. WWW.nigerdeltCongress.Com visited on 18/06/2012.
[2] The 1999 constitution which is the highest
law of the Land. The supreme source of
Laws, which guess validity to any other law of the present government. See Hans
Kolsins Hierarchy of law in
Jurisprudence
[3]This day marks the day democratic
dispensation came into existence
[4] The states living along the coastal region
are known as the litoral state
[5] The international market as
regulated by OPEC was instituted in Bughad meeting of Sept. 10-14, 1960
[6] South-South is one of the
six geo- political zone in Nigeria.
The country is divided for political and administrative convenience.
[7] Section 44(3) of the 1999
constitution (as amended).
[8] Section
(1) of the Land Use Act, Cap L5, LFN 2004; Nkwocha V Anambara State
Government
[9] 1997 Land Law, Law of the Federation of Nigeria Cap.
202.
[10] (2002)
FWLR (P+ 102) second edition
[11] Section
162 of the 1999 constitution (as amended)