CHAPTER THREE
Title to Land.
3.0 – The Modification of The Land Use Act, 1978.
Quite a number of title holdings existed under land acquisition prior to the promulgation of the Land Use Act. As we can see later, land can be acquired by an individual, family, group, community, et cetera. However, the Land Use Act did not abolish this system of title holding into to but rather, it strengthen it with the sole aim of eliminating land speculation which, hitherto, have been the product of land ownership and acquisition. Thus, the position of rights, authority, powers, use and the enjoyment of the customary land owners was never altered or abrogated by the Land Use Act[31]. The above cases and so many other cases are apposite to this effect. It, therefore, appear that the Land Use Act and land ownership have a lot in common. In other words, they are complementary to each other. Nothing has changed except that the Land Use Act fortified the customary tenure for better adaptation[32]. A look into the Objective of the Act will as well buttress this point.
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The four objectives of the Act includes:-
(a) To remove the bitter controversies, resulting at times in loss of lives and limbs which land is known to be generating.
(b) To streamline and simplify the management and ownership of land in the country;
(c) To assist the citizen, irrespective of his social status to realize his ambition and aspiration of owing the place where he and his family will live a secure and peaceful life; and
(d) To enable the government to bring under control the use to which land can be put in all parts of the country and thus facilitate planning & zoning programme for particular uses [33].
Furthermore, the Act in its Section 1 vested all land in the state on the Governor of the State, while land in the rural area were vested on the Local Government Chairman or Council[34]. The implication of this is that the control and management of land by family heads and 1 or Traditional Rurers has been modified by the Act which now vested those power on the Governor or Local Government as the case may be. The power and rights of the Governor or Local Government, as the case may be, to manage land received a strong statutory back – up in Section 47 of the LUA. According to this section, the provision of the Act prevails over any law or rule of law including the Constitution of the Federal Republic of Nigeria in case of any Conflict. And Courts shall not inquire into:
(a) Any question concerning or pertaining to the vesting of all land in the Governor in accordance with the provisions of this Act; or
(b) Any question concerning or pertaining to the right of the Governor to grant a statutory right of occupancy in accordance with the provisions of this Act, or
(c) Any question concerning or pertaining to the right of a local Government to grant a customary right of occupancy under this Act.[35]
It is of important, however, to note that any existing law, title to or transfer of same, or interest in land prior to the promulgation of the Land Use Act is modified in a manner which will bring it into conformity with the Act, or the general intendment of the Act[36]. The above provisions notwithstanding, the Act has at least succeeded in helping the customary system of Tenure so greatly that without it, individualism would have taken away the land by only very few wealthy members of the family who would dictate how to acquire, use, manage and enjoy land.
3.1 - Communal Land Tenure:-
The term “communal land” and “family land” raises a lot of controversy, hence, they are usually used interchangeably. Also, under land law, the community or family is personified by the Chief or head. Another issue is whether an individual member of the community has a separate right of ownership over either the whole land or an aliquot, undivided portion of it? The above question is answered on the negative. This is because the trite law is that under the customary law system, there is no member of a land owning community or family who has a separate individual title of ownership to the whole or any part of the communal land. In most cases, the constitution, laws, or customary practices of the people is always tailored towards this direction. Thus, in Kadiri Balogun v. Amanu Balogun[37], it has been emphasized that one of the characteristic of the communal land tenure as distinct from the English Counterpart is the descent to future generations. Also, as stated by Elesi Odegbolu before the West African Lands Commission in 1908, that land belongs to a vast family of which many are dead, few are living and countless members are still unborn.[38] It follows, therefore, that the interest of the dead and the unborn seems on this view to count more than that of the living members, to the extent indeed that it has even been said that if .. land can be said to be owned by anyone it is by the departed and the unborn[39]. It follows, therefore, that the interest of the dead and the unborn seems on this view to count more than that of the living members, to the extent indeed that it has even been said that if.. land
can be said to be owned by anyone it is by the departed and the unborn.[40]
Moreover, it has been held that the community is never a legal personality in law even though that it is made up of the collection of persons with a common interest in land, all of whom are jointly, severally and liable for debts properly incurred on behalf of the land.[41] In the traditional Igbo society the common practice is that a child in the family becomes automatically entitled to the co-ownership of the communal land by virtue of its membership thereof, and not by way of inheritance from its father.[42] One vital issue worthy of note is that the Western system of land tenure is unknown to our customary land practice by way of received English law and it is non-suit to our local circumstances. According to Meek, “Land belongs to God. Its use belongs to the people who occupy the land. And so we find members of unrelated groups farming together without any feeling of appropriation of the land. This is true only to the extent that while each community has its own land which is owned and occupied exclusively by its constituent villages, families or individual members, there are a few cases where the boundary between the territories of two neighbouring communities is unspecified and covers an area of land which is common to the two; in such a case, the two communities are entitled to use the land together and one cannot sue the other for trespass or for an injunction in respect of the common borderland unless it can prove exclusive ownership to it.[43] The case of Okorie v. Udom supports this position.[44] And also Ezeokeke v. Uga.[45]
In the case of Amodu Tijani (supra) it was held that “The next fact which is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family never to individual. All the members of the community, village or family have an equal right to the land, but in every case, the Chief or headman of the community or village or head of the family has charge of the land… He has control fit and any member, who wants a piece to cultivate or build upon, goes to him for it. But the land so given still remains to the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community and their consent must in all cases be given before a grant can be made to a stranger. The notion of a stranger in the use and management of land is against the spirit of the Land Use Act. According to Prof. Allot, “Land tenure in most African societies title to individual right in land depends directly or indirectly on membership of one or more appropriate land controlling groups. An individual may have to belong to a local territorial community… before he is entitled to use land within the control of such group for his own benefits”[46]. Of important to note as well is that ownership of land may be communal but never the use thereof.[47] Thus, the right of occupancy by communal system of allocation is transmissible from one generation to another or from one successor to another see Adewokyin V. Adeyeye (1963) 1 ALL NLR 52; and Oragbade v. Onitiji (1962) 1 ALL NLR 32, 37.
3.2 Management of Communal Land.
The Chief (ruler) of the Community is the custodian of all his community land or land belonging to his community as a trustee. He wield the power over all the community land such as the right to pledge, mortgage and allocate a portion to his subjects or even to a stranger for agricultural purposes. The Chief normally receive from such allocate some token in form of tribute. The Chief (ruler) of the community, in the exercise of his power over the land can eject any occupier or allocate or revoke the right previously granted to him as a result of his failure or refusal to pay his tribute or render any required customary service. In the case of any such ejection or revocation, it follows that the land reverts back to the Chief. In other words, the Chief has the right of reversion on community land. However, the Chief is expected or mandated to manage the Community land bonafidely for the good and benefit of all the (majority) members of the community in question. Thus, in Onisowo V.A.G Southern Nigeria,[48] it was held that, “the only right or title of the Chief was “merely seigniorial right giving the holder the ordinary right of control and management of land, in accordance with the well known principles of native law and custom, including the rights to receive payment of the nominal rent or tribute payable by the occupiers”. And in the case of Omagbemi v. Numa,[49] it was held that, the Chief never held the land as an individual owner. The Land belonged to the Community and the Olu or Chief was merely a trustee and therefore, the Children could not have title to the land.” In the words of Wabber .J., “Now the Olu never owned Jekri land as an individual. The land belonged to the community and Olu was a trustee. In him as trustee was vested the land.
It follows that the consent of the principal members of the community is required before a valid disposition of community land can take place. To do otherwise by the Chief tantamount a breach or violation of the trusteeship and the purported disposition is void or rather voidable to that extent.[50]. In some traditional Igbo societies, a disposition of community land by the Chief without the consent of the principal members can result to his dethronement or even the banishment of the chief from the community. Be that as it may, it is our submission that all the above position of the management of the community land by the Chief (Ruler) has been abrogated by the Land Use Act. The Act by its provision in S. I and 2 pierced on the power of the Chief over their community land and vested same on the Governors or Local Administrators as the case may be. In other words, the management and control of community land is now at the control of the local Government Chairman or Chairperson except where the community in question is in the Urban area. In the later case, it becomes incumbent on the state Governor to manage and control such Land.
3.3 Members Rights in Communal Land:-
The starting point here is that all the members of any community in question are co-owners of the communal land and are also entitled to the benefit accrue to the land. The above right extends to even the newly born babies in the community. This is true because it is our submission that the newly born babies are entitled over family lands and it is the family that make up the community. It is expedient under this head that we highlight three inalienable rights of members of the community over communal land:
a. The right to a portion of the land for agriculture;
b. The right to a share of income derived from the land; and
c. The right to participate in the management of the land.
1 – The right to a portion of the land – it follows that a member of the community is entitled to be allocated a portion of the community land. Such an allocation is mainly for agricultural purposes. In case of such an allocation, the holder or allocate exercise a right of possession over the land and never the right of ownership. Thus, it had been held in Adewoyin v. Adeyeye (supra) that, once an Oni had allocated a portion of communal land to a native of Ife for farming, the allocate enjoyed ownership rights to the exclusion of the community. The above decision in our humble submission is against or contrary to the trite law on the effect that the allocatee is under obligation to pay tribute or rent to the chief. Again, we wish to bring to your notice that an owner of a thing as quoted earlier has the absolute right on the way or the use he may make of his property. If such is the case, it seems that the position of the Court in the above case needs a hard look.
2 – The right to a share of income derived from the Land – Every “eligible’ member of the community is entitled to a share of income derived from the community land. The use of the word “eligible” denotes that not all the members of the community that can ask for a benefit from the income accrue to the community but only the principal members or simply the elderly male flock. Women and little Children and not to be counted in the sharing of such a proceed. The above formular is, however, by our submission discriminatory and offends the spirit of the law.[51] Though the Land Use Act provided that a minor could not be entitled for the rant of a right of occupancy, except through a guardian, subject, however, to a minor upon whom a statutory right of occupancy devolves.[52] In any case, it is important to note that the members of a community are entitled to ask for an account on how their community land is being managed by the Chief whenever there is a reasonable ground to make such a demand. Thus, in Odusi v. Bolaji[53], It was held that, “the claim of an account of the management of communal land against the chief succeeded. And also in Osuro v. Anyorin[54], it was held that a member has a right not only to a share of an income derived from the community land but to demand for a reasonable account of it when he has a reason to suspect that there is something dubious. The trite law being that the Chief is under obligation to keep an account of how he manages the communal land.
3 – The right to participate in the management of the Land – it has been an indispensable requirement that the consent of the principal members of the community is needed before any valid disposition of the community land can be done by the Chief. This is as a matter of law and obligatory and not just a matter of convenience or subjective. Thus, in Archibong v. Archibong[55], the Court held that the requirement of consultation is a requirement of law and not just a matter of convenience by the Chief or elders to be observed or disregarded.
3.4 - Family Rights:-
There have been a divergent view point on the meaning of the term “family”. According to the Black’s Law Dictionary, family means a group of person connected by blood, by affinity, or by law, especially within two or three generations. Or a group of persons who live together and have a share commitment to a domestic relationship [56]. Thus, in the case of Chinweze v. Masi,[57] it was held, Oputa, that “a man’s family normally consists of the man, his wife or wives and the children born to him by such wife or wives. In their Alienation of Family Property in Southern Nigeria, James and Kaswnu observed that, “for certain purposes the term (family) is confined to the immediate family i.e, the person whose family is in issue. However, for other purposes, the term is given an extended meaning and it then refers to descendants of a common ancestor.[58] Therefore, the title of family land vests in the members of the family as a corporate group. It always requires the consent of the principal members before alienation can be validly made of a family land or property. In many respects, the eldest son is normally appointed as the head or custodian of the family Land. And as W.A.C.A observed in Balogun v. Balogun,[59] it implies certain duties and obligations on the eldest son over such a family land. In the words of the Court, “The head of the family is in charge and control of the family property; he collects the revenue of family property; he has to make certain disbursement out of family revenue for family purposes, up keep of the family property, funeral, marriage and baptism ceremonial expenses of members of the family often involving the entertainment of strangers, litigations on behalf of the family , maintenance of indigent members of the family, education of children and so on”.[60] To be observed is that the family has a separate identify which is not affected by the demise of existing members or the arrival of new ones. The right of the members of the family do not exist independently of, but derive from, the family’s ownership.[61] However, it follows that in many respects, a testator sometimes includes a clause making it practically impossible for family land to be a subject of alienation upon drafting of his will.[62] As Prof. Umezulike rightly observed, “under customary law practice, adverse possession is inapplicable and the doctrine of Caveat Emptor applies in that respect.[63]
3.5 Effect of S. 36(S) of The Land Use Act, 1978.
In other to x-ray the effect of S.36(s) of the Act it is apposite that we look into the provision of Sub (1) of S. 36 which provided thus: (1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person. That is to say, land that situated in rural area. Then, according to S.36(5), “No land to which this section applies shall be sub-divided or land out in plots and no such land shall be transferred to any person by the person in whom the land was vested as afore said”. It therefore appears that the effect of S.36(5) of the Act prohibited as well as invalidated the sell of, division of, mortgaging of, the pleading of or simply
the alienation of any land in the rural or non-urban area. The Act went further to render any purported alienation or transaction over such land null and void and of no legal effect by its provision in S.26 thus: “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act Shall be null and void.” However, considering the import or effect of S.36(5) of the Land Use Act, it appears that the sub-section will badly affect the economic development of the rural areas. More especially now there is a land hunger or scarcity of land in the urban region for industrial and other commercial purposes. And once that is the case, the national income of the country will be drastically reduced to the barest minimal. Another noted effect of S.36(5) allied to the above is that it does not encourage the development of the rural areas. This is true since land cannot be alienated in those areas either by sell, mortgage, pledge or laid out in plots or be transferred by whatever means, by the occupier, one then wonders how companies and industries can penetrate those rural areas for development purposes. The above point having been noted, we humbly submit that S.36(5) of the Land Use Act should be revisited through amendment.
3.6 - Negative Effect on Gross National Product:-
It goes without saying that the system of land holding, nay, land tenure system poses a great negative impact to the economic activities in the country. Hence, the economic activities is highly jeopardized, it leaves no one in doubt that the Gross National product (GNP) of the country when calculated during the computation of the country’s national income in a fiscal year must, as a matter of fact, be negatively affected. What then is the meaning of Gross National Product (GNP)? By way of definition, it means the total market value of all final goods and services produced in the country in the economy in one year.[64] The production of these goods and services in any country depends largely on the availability of Land as the Chief actor of production. And just as we noted in the preceding topic, there is a strong bottleneck in our society as a result of various restrictions on land alienation or transfer. The above problems, as a result, create a negative import on the quantity of goods and services to be produced in our country in every fiscal year. This problem, it is noted, negatively affects the Gross National Product of the Country annually. By and large, land tenure system which is the system of land holding has been identified as the principal motivator of our Country’s drastic economic meltdown. This reasoning gains credence from the reports of the various Panel of inquiry Set-up prior to the promulgation of the Land Use Act.[65]
3.7 -Negative Effect on Community: –
By no doubt, land tenure system under the communal holding is bound to bring about economic growth rather than economic development. An economy is said to be growing when a few individuals are menacing wealth while the majority are wallowing in an abject poverty. Economic development on the other hand, is the process whereby the resources of any society is being utilized in a manner that favours the mass. Here, every section benefits from the produce of the land. Having this in mind, it is, however, our contention that under Land tenure system, the Chief or headman exploits as well as appropriate wealth at the expense of the entire community. In addition, the few influential and/or principal members of the community will as well benefit while the vast majority suffers under hardship. Moreover, it is never uncommon for the Chief or headman of the community to exercise his power to allocate land based on his personal whims and caprices. In other words, some members of the community may be denied their rights of allocation due to their social statutes or base on economic or political consideration. Again, the consent of the principal members of the community before a valid disposition of land could be made may be difficult if not impossible due to one problem or the other bedeviling the entire community in question. The above case is too rampant in our country where a number of community crises or war is reported on daily bases, the problem becomes more hectic in a community where there is a strong controversy on the selection or election of the successor of their diseased Chief or headman. In such a community, there may be an inducement of adverse possession even from neighbouring communities due to the anarchical situation of that community in question. Such a community may be likely exposes to the danger of lashes and I or acquiescence for lack of effective control on their land. In most cases, communal crises brings about loss of social and infrastructural amenities in the warring community and this factor in turn hinders the rate of economic development of the community in particular and the country’s national income in general. As we will see later, it also results, to mass unemployment which stimulates a constant rural-urabn migration that led to the congestion of urban areas by a number of job-seekers. On the long run, the over – crowding of the urban centre by the unemployed men (especially the youths) gives birth to a lot of evil in the Country and as well hampered the nation’s national income. There have been a number of breaches of peace by the youths who protested over or against the alienation of community land without the proper consent of the principal members. Sometimes it led to loss of lives and limb and as well as the destruction of any structure already putted in place by the mortgagee, pledge or buyer as the case may be. This type of situation occasions a waste in the national income as a result. All these are the result of land tenure system
3. 8 – Negative Effect on Individual:-
There is no gain saying that what affects the entire community (nation) would likewise affect an individual living in such societies. The well-being of an individual in any society (country) hinges on the effective utilization of resources. As we observed earlier, land is the pivot of every economic activity in any society, Nigeria not excluded. Land tenure system, as we noted, impeded the effective utilization of our economy. In most cases, a number of individuals suffer hardship resulting from the under-utilization of the natural resources which land generates. Ironically, quite a number of individuals are under slavery or servitude and some have been forced into performing all sorts of labour against their conscience due to threaten from hunger. The rate of crime such as prostitution, robbery, rape, murder, et-cetra against individual persons increases on daily bases. It goes without saying that joblessness has been a cankerworm that makes the death rate to be in an increasing. Moreover, there are yet, some wealthy individuals who may have the interest to establish some companies or industries in a particular are but are deterred as a result of land tenure system. This is witnessed in some areas where there is a strong bottleneck in land disposition or transfer. The resultant effect is that investment is being hindered and employment opportunity missed, thereby creating a negative impact in the Country’s national income. Furthermore, majority of individuals resides in the urban town for centuries due to lack of land for the m to build houses in their rural area while as there are hectrers of land that remains untouched say since the end of the Nigeria Civil war. Sadly, the life and property of some individuals have been claimed by Boko haram insurgency in the Northern part of the Country for lack of the place to run to in their communities or home town as a result of land holding. Majority of them were orphans while some were from poor backgrounds that were denied the right of allocation or allotment for them to build a house thereon.
3.9 – Negative Effect on Politics:-
The corrupt nature in the country’s field of politics is nothing to write home about. A number of cases is witnessed in the country whereby the executive be it the Governor or the local government Chairman or administrator exercises the power of revocation based purely on political consideration. Abuse of power has become too rampant among the executives. Nepotism, favoritism and infact partisanship among our executives have in no small way befoul or rather tarnished the spirit behind the power of revocation as vested on the Governor[66]
Thus, in a number of case, the Court have taken the position that the executive must as a matter of law observe the constitutional provision of fair having while exercising the power of revocation of the rith5 of occupancy[67]
of revocation, Obaseki J. (as he then was) said and noted in the case of Ereku v. The Military Governor of Mid-Western State & Anor,[68] thus: “ it would be necessary in future for notice of Acquisition in the Mid-Western State to contain the immediate specific purpose for which the acquisition is required so as to avoid the allegations leveled against the Government in this matter, that while public purposes absolutely’ was the expressed purpose the real purpose was far from it”. To be noted is that the above decision is in support of the constitutional provision.[69] It is of great important to recall that the Act made it clear the ground or purpose for the revocation of the right of occupancy. But unfortunately, some times the Governor may purportedly revoke someone else right of occupation only to allocate or re-grant same to another. This is too common in today political Nigeria. In some notable case, the Court have pronounced such wrongful revocation an act of trespass and also awarded damages to the occupiers.[70] It is very unfortunate that the Governor or any person exercising the power of revocation should over look the wordings of Section 28 of the Act. Note also that the Act went further in section 51 of it to provide a clear definition of the phrase “public purposes” as used in S.28. it is our submission in this respect that “overriding public interest” as used in the Act, is never what the Governor(s) conceive(s) it to be, but what S. 28 and S. 5 prescribes it to be[71]. Moreover, there have been some cases whereby the abuse of the power of revocation have rendered people homeless, thus, violating their right to private and family life. The resent case of Maroko V. Lagos State Government is very apposite to this point. Our record shows that a lot of houses and property were demolished by the Government of Logos State in the above case. In many respect, it is the Government that would extort the citizens by granting them such piece of land to build on who will in turn eject the occupiers even without compensation. Even where compensation is paid, the corrupt system or practice of our society makes such a compensation seem inadequate. This, as a matter of fact, is purely an injustice against the affected citizens. Regrettably, the Court which is the hop of the common man is stopped from inquiring into such compensation.
In Sub-section (2) of S.47 the Act provided thus: “No court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act.”[72] Thus, it has been common phenomenons among politicians that land (even public owned land) has become a thing used for the settlement of political God fathers or loyalist. All these and so many other cases, it is one submission, are acts of mismanagement as well as under – utilization of land as the mainstay of the Country’s economy, which in turn affects negatively the national income of the nation.
3.10 – Negative Effect on Employment:-
A part from material resources, human resources the subject of employment – needs to be properly or efficiently utilized for the betterment of a country’s national income. Therefore, it follows that every citizen who is eligible, or qualified or rather capable to work and who is also ready to work has to be employed. In the case of the incapable or unqualified ones, the law still required that Government should provide for them means of lively hood. That is to say that idleness should be discouraged to a large extent so as to reduce the number of dependent population during the computation of national income. This will help in no small way the increase in the rate or figure of the Gross National product of the Country and will as well boost the well-being of the citizenry. A Country like ours with a large number of dependent population such as the disabled, the minors the aged and the like, demands that the working population should be effectively and efficiently utilized through the provision of employment opportunities. Unfortunately, the record of unemployment situation in this country and its attendant problem or negative effect, is nothing to write home about. Millions of Nigerian youths were job seekers and thousands do graduate every year without a corresponding creation of job opportunities. Our research discloses that those who acquired basic education only, and those who were holders of school certificate, outweighed the number of graduates in our country. The worst situation is that even those who were ready to be self employed were faced with land hunger, the product of land tenure system.
With all due respect, it have been submitted with approval in this research that the economic meltdown bedeviling this country is traceable to its adoption of land tenure system. As a result, suffice it to say that the negative effect of unemployment in any country is better imagining than felt, Nigeria not excluded. The constant report of armed robbery, rape, kidnapping, abortion, drug abuse, to mention but these, are all the result of joblessness in our polity. The proposition that an idle mind is the devil’s workshop cannot be rebutted in this research. It is never a thing of joy to witness a scene whereby a qualified Agric or Chemical Engineering student is being apprehended and /or convicted for some of the above mentioned crimes. For instance, there are some graduates who were ready to take up poultry keeping or even crop production but could not make it for lack of land. Whereas a large number of virgin land remains untouched for centuries ago in the name of land tenure system. Be that as it may, it is our submission in this research that land acquisition in this research that land acquisition is a factor behind the mass unemployment among both the graduates and the under graduates in this country. our final submission under this head is that unless and until the system of land use, management or control is looked into, the effort (if any) made by the government to curb or eradicate unemployment situation in this our country, Nigeria will be an idle exercise just like an Alice – in – wonderland