CHAPTER ONE
GENERAL INTRODUCTION
GENERAL INTRODUCTION
•
1:1 Background of the Study
•
1:2 Statement of the Problem
•
1:3 Research Questions
•
1:4 Objectives of Study
•
1:5 Methodology
•
1:6 Relevance of the Study
•
1:7 Delimitation or Scope of the Study
•
1.8 Limitations
1:1 Background
of the Study
•
Nigeria, with an
oil production capacity of about 2-million barrels per day, is the world’s
sixth producer and Africa’s leading oil
producing country with its oil reserves concentrated in the Niger Delta region
of the country, and accounting for over 80% of GDP, 95% of National Budget and
90% of foreign exchange earning.
•
The most
important oil-related legislations in Nigeria include; The Petroleum Act 1969
(now cap10 LFN 2004), Oil Pipelines Act 1956 (now cap. 07 LFN 2004), Oil in
Navigable Waters Act 1988 (now cap 06 LFN 2004), Federal Environmental
Protection Agency 1988, and the Land Use Act 1978 (now cap. L5 LFN 2004). By the Petroleum Act (continuing a colonial
policy) the entire property in petroleum (mineral oils) is vested in the
state. The result is that the Federal Government
has absolute right and control over oil resources in the country; it farms out
oil-mining rights to oil companies and receives rents and royalties from them
in return, whereas the Land Use Act vests all lands in any state of the
Federation in the Governor of such State.
•
The Niger Delta
region claims that 13% of the oil revenue allocated to the states, by the 1999
constitution is a slap on the face, and want as much as 50.
•
Secondly, there
is the problem of the state of the environment, Oil companies having no respect
for the environment and that has threatened the survival of the oil producing
communities.
•
Thirdly, is the
issue of compensation for land and improvement on it S.36 of schedule 1 to the Petroleum
Act 1969 provide for the payment of “fair” and “adequate” compensation,
which refer to surface right including and to specified plants.
•
Fourthly, is the
issue of conflict between the oil communities and State:
•
Revocation of
people’s right to their land
•
Deprivation of
owner’s choice as to who acquires his or her land.
•
Denying an owner
of land a choice of due compensation for the acquisition.
•
Owners living
under a perpetual likelihood of losing their land to government
•
Owners’ inability
to decide activities that should be carried out on his property or
neighbourhood.
•
The Governor may well acquire any resource rich
land for any “public purpose”.
1:2 Statement
of the Problem
•
The crisis over
ownership of oil and gas in Nigeria has been of tripodal imperative: between local communities and the government;
local communities and oil corporations on the other and between Federal and
State Government.
•
The question of
the position or place of the individual/community user of land, since the land
belongs to the State Government, and the resources beneath the land belong to
the Federal Government
•
the problem of
ownership of Land and natural resources between the federal government and the
state government in the light of the principle of quic quid plantatur solo,
solo cedit
1:3 Research
Questions
•
1:3 Research
Questions
•
Considering the
ownership position of Land in Nigeria and the principle of quic quid
plantatur solo, solo cedit, who is actually the owner of land for the
application of this principle?
•
If the state
government is the owner of land, what is the legal position of the holders of
the infrastructural interest having regard to the fact that the federal
government can move to expropriate mineral resources in those land.
1:4 Objectives
of Study
Accordingly, our objectives in this work will include:
•
To examine the
legal framework of ownership of petroleum in Nigeria and define some technical
terms
•
To assess the
adequacy of the existing provisions
•
To highlight
defects and shortcomings in the existing provision.
•
To proffer
solution to the resource control problem in Nigeria
•
To re-examine the
rights of the oil producing communities in Nigeria
•
To ensure that
suggestions are made geared towards ensuring that further improvement can be
made to enhance the country’s ownership right over her mineral resources.
•
To reposition the
role of the judiciary in settling oil dispute.
1:5 Methodology
•
The work is a
technical one; therefore our methodological approach will be primarily
analytical. In addition, we will also carry out a comparative analysis of
statutory enactments that are petroleum and land related.
•
However, we will
not lose sight of the non-legal factors that have influenced ownership of
petroleum resources in Nigeria.
1:6 Relevance
of the Study
The research exercise is relevant as it provides knowledge
on;
•
The evolution of
the statutory regime in the Nigerian oil industry.
•
A lasting solution
to the resource control problem in Nigeria.
•
The rights of the
oil producing communities vis-Ã -vis the right of ownership of petroleum by the
Federal Government and ownership of land by the State Government.
•
The determination
of what is ‘adequate’ and ‘fair’ compensation when disasters occur in the oil
industry.
•
The various
petroleum related enactments, pointing out their adequacies, shortcomings and
making suggestions for way forward.
1:7 Delimitation
or Scope of the Study
•
The main focus of
our consideration is the question of who owns ‘what’ and gets ‘what’ in the
Nigeria petroleum industry. To do this
efficiently, we employ the maxim quic quid plantatur solo, solo cedit, and
a critical examination of the various legislations affecting the oil industry
and land use in Nigeria.
1.8
Limitations
•
Fund to be able
to assess materials online and equally type the work.
•
Collections and
retrieval of documents from archives, libraries and even those of higher
institutions and courts turned out to be huge obstacles.
•
The cost of
traveling to obtain these materials limits the movement to some places.
CHAPTER TWO
LITERATURE REVIEW
LITERATURE REVIEW
•
2.1 Introduction
•
2.2 Relationship between Legal Regime of Ownership of Petroleum Resources
in Nigeria and Non- Participation
of the People of the Niger-Delta
Region in the Petroleum Industry
•
2.3 Relationship between Expropriation of Petroleum and Land
Resources and
Militancy in the Niger-Delta
•
2.4 The Land
Use Act and Expropriation of the Livelihood
of the People of the Niger Delta
•
2.5 Nature of
Surface Rights and Quantum of Compensation
for Oil Pollution
2.1 Introduction
In this chapter we shall examine:
•
The literature that discusses the legal regime
of ownership of petroleum and land use in Nigeria.;
•
How scholars have
treated the relationship between the legal regime of ownership of petroleum
resources in Nigeria and non-participation of the people of the Niger-Delta
region in the petroleum industry;
•
How the literature
treats the question of land expropriation under the Land Use Act and how this
affects the lives of the people of the Niger-Delta region;
•
Views of authors
on the nature of surface rights and quantum of compensation paid for breach of
such rights in Nigeria, especially in the Niger-Delta;
•
The causes of
militancy in the Niger-Delta.
2.2 Relationship
between Legal Regime of Ownership
of Petroleum Resources in Nigeria and Non-Participation of the People of the Niger-Delta Region in the Petroleum Industry
•
According to
Kaniye Ebeku, prior to the enactment of the current expropriatory legal regime
on the ownership and exploration of crude oil in Nigeria, the people who live
in the region where the product is exploited, derived satisfaction in the level
of their participation in the industry through the rights over their lands in
the region. As such, oil companies that had obtained mining rights from the
federal government approached oil-bearing/land-owning communities for a right
of access to the land for its operations. This was a way by which the
communities had some sense of participation in oil operations, as they received
some compensation for granting access and for any damage to land and any
surface rights thereon.
•
It would appear
that this sense of participation has been lost since the unity of land rights
with oil rights in 1978
•
Under the 1999
Constitution of the Federal Republic of Nigeria, 13% of revenue accruing to the
federal government from oil resources derived from any state of the federation
is to be paid back to that state.
•
Ejibunu, observes
that this percentage has failed to satisfy the yearnings of the people of the
Niger Delta region, and has served to exacerbate insurrection and create the
violence, instability and conflict in the Niger Delta, as the youths are left
idle and alienated from the presence and impact of government and particularly,
participation in the oil industry.
2.3 Relationship
between Expropriation of Petroleum and
Land Resources and Militancy in the
Niger-Delta
•
Many writers
situate the remote causes of the violence and militancy in the context of the
expropriatory regime of oil legislation that tend to remove both oil and land
from the control of the people of the Niger-Delta, while the proximate causes
are related to the clamoring for resource control and convention of a sovereign
national conference.
•
Oyefusi did a
large survey of the Niger Delta Oil Communities and discovered that 5% of the
population felt satisfied with the status quo and an astonishing 36.23%
revealed a “willingness or propensity to take up arms against the state
•
Osaghae, notes that what is today considered
as militancy in the Niger-Delta started since the 1980s in a low key by youth
and other ethnic movements – and was subsequently captured by the southern
political classes from the oil producing states as means providing political
pressure on the revenue allocation process. Thus, the minority fears of the
1950s’s became minority grievances in the 1980s and minority militancy by the
1990s..
•
Gbomo Jomo (the
spokesman of MEND) made it clear that MEND had “no intention of dealing
directly with a government which “knows nothing about rights or justice”.
Resource control meant that the states would “directly manage” oil.
•
Ledum Mitte,
opines quite appositely that the Delta's problem is a crisis of frustration
•
According to Obi,
in more ways than one, the struggle for resource control by the Niger Delta is
fundamentally one over the ownership and control of natural resources within a
claimed political space, and in the context of the Niger Delta this also
significantly includes land that is rich in oil and gas – Nigeria’s chief
revenue earner(s)
•
2.4 The Land
Use Act and Expropriation of the Livelihood of the People of the Niger Delta
•
By virtue of
Section 1, LUA, the governors are to hold all lands in a state though on trust
for the use and common benefit of all Nigerians
•
section 28 of the
Act, which provides that land may be appropriated for “overriding public
interests”, has been defined to include, “the requirement of the land for
mining purposes or oil pipelines or for any purpose connected therewith. In
essence, the inhabilitants of the region may be dispossessed of their land
whenever their land is required for oil exploration, making them tenant-at-will
of the oil industry on the land they have owned and inhabited for centuries.
•
Omeje stated that
the Act in theory makes land a property of the state and vest its allocation
and administration in the state governor. And as a result of this oil
exploration, some people became landless and this affected their livelihood
negatively.
•
It was based on
all these deprivation, exploration and
exploitation of the Niger Delta land, which rises as a result of section 28 of
the Land Use Act, that the movement for the Emancipation of the Niger Delta
(MEND) stated thus: “we will fight for our land with the last drop of our blood
regardless of how many people the government of Nigeria and Oil Companies are
successful in bribing”.
•
2.5 Nature of
Surface Rights and Quantum of Compensation
for Oil Pollution
•
The term “surface
right” according to Black’s Law Dictionary, is also known as surface interest.
It is defined as every right in real property other than the mineral interest.
The surface right owner or surface interest owner is entitled to whatever
non-mineral substances that may be found in or under the soil.
•
Akanimo Sampson,
it observes that the main statutory liability under Section 11 (5) of Oil
Pipeline Act, is to pay compensation.
•
A.O. Ekpu, has asserted that there are three
strands under which victims of oil pollution may seek payment of compensation
from oil industry. These are the Statutes, the Common law and the rule of
international law.
•
The essence of
compensation as held by the court in the case of Rawyards v. Coal Co.,
is to restore the injured party to the position he or she was in, prior to the
harm or injury complained of.
•
Vincent
Okwechime, Jr, critically looked at impacted land and impacted water, in order
to determine the quantum of compensation. For impacted land, he said that,
where the damage is as a result of the spill on the land, it may lead to ‘a
loss of farming right’. Where this is the situation, it must be claimed and
proved.
•
He further stated
that in addition to payment of “ temporary loss of use”, due to the structures
have been affected, the polluter may be required to take care of the cost of
the temporary relocation until the spill has been properly clean up.
•
As regards to
impact on water, he stipulates that damage caused to fishing nets and other
fishing equipments and paraphernalia as a result of a spill must be made good
by way of monetary recompense; and in some cases, the damaged items may have to
be replaced. And the measure of compensation is the current market value of the
items.
•
If a fish pond is
a structure that is impacted, the potential number of fishes, and its income
generating capacity will be taken into account for compensation of
compensation. And where there is ‘loss of fishing right’ the size of the area
fished, the kind of fish in that area which form the daily catch, the number of
fisherman and women involved in the fishing and the income generating capacity
will be taken into consideration for compensation of compensation.
•
Finally, he
stipulates that when it has to do with “loss of water right” that the oil
producers Trade Section rates, provides
for the square nature of the affected body of water
•
According to
Uduehi ., payment of compensation by oil firm is procedural. In an event of a
spill resulting in damage to property, the first approach by the concerned
department of the oil firm is to initiate assessment or evaluation of the
extent of damage.
•
Monday Effiong
Noah, however, has observed that the above method is ambiguous. The owner of
the impacted or impaired property is never consulted in the so-called
scientific evaluation to ascertain how much he has invested on the farm, pond
or land as the case may be.
•
The World Bank
revealed that based on annual rent of #5000 that the amount of compensation for
land should at least be #50,000 per hectare.
•
Aghalino states
that the right to be adequately compensated is also negated by the provision of
the Act. He specifically mentions Section 77 of the Minerals Act, which
provides that any person prospecting or mining shall: pay to the “holder or
occupier” of private land such sums as may be fair and reasonable compensation
for any disturbance of the surface rights of that owner or occupier and for any
damage done to the surface of the land upon which his prospecting or mining is
being or has been carried on, and shall compensate the owner for any crops,
economic trees, buildings or works damaged, removed or destroyed by him or by
his agents or servants.
CHAPTER THREE
LEGAL REGIME OF OWNERSHIP OF PETROLEUM AND LAND OWNERSHIP AND USE IN NIGERIA
LEGAL REGIME OF OWNERSHIP OF PETROLEUM AND LAND OWNERSHIP AND USE IN NIGERIA
•
3.1 Introduction
•
3.2 Legal Regime of Ownership of Petroleum
•
3.2.1 1999 Constitution of the Federal Republic
of Nigeria
•
3.2.2 The
Petroleum Act 1969
•
3.2.3. Oil
Mineral Act 1959
•
3.3 Legal Regime of Land Ownership and Use in
Nigeria
•
3.3.1 Land Use Act 1978
•
3.3.1.1 An
Appraisal of Right of Occupancy
•
3.3.1.2 Regime of Certificate or Occupancy
•
3.3.1.3 Revocation of Right of Occupancy
•
3.3.1.4 Grounds for Revocation of Right of
Occupancy
•
3.3.1.5 Compensation
for Revocation of Right of Occupancy
•
3.3.1.6 Effect of Revocation
•
3.3.1.7 Deemed Rights
3.1 Introduction
This chapter discusses:
•
Legislations dealing with ownership of
petroleum/land in Nigeria as same is entrapped in the land and cannot be
exploited without access to (or acquisition of) land.
•
Legal regime of
ownership and use of land in Nigeria that is provided for under the Land Use
Act of 1978 such as right of occupancy, certificate of occupancy and deemed
right of occupancy
3.2 Legal
Regime of Ownership of Petroleum
•
3.2.1 1999 Constitution of the Federal Republic
of Nigeria
•
Section 44(3) of
the 1999 Constitution of Nigeria provides: “Notwithstanding the foregoing
provision of this section the entire property in and control of all minerals,
mineral oils, natural gas in, under or upon any land in Nigeria or in, under or
upon the territorial waters and exclusive economic zone of Nigeria shall be
managed in such manner as may be prescribed by the national assembly.
3.2.2 The Petroleum Act 1969
•
Section 1 of the
PA states:
•
The entire
ownership and control of all petroleum in, upon any lands to which this section
applies shall be vested in the state.
•
This section
apples to all land (including land covered by water) which
•
Is in Nigeria, or
•
Is under the
territorial waters of Nigeria or
•
Forms part of the continental shelf
3.2.3. Oil Mineral Act 1959
•
The 1959 Act
maintained state ownership of oil mineral by enacting at section 3(1) that the
entire property and control of mineral oils on, under or upon any land in
Nigeria and of all rivers, streams and watercourses throughout Nigeria was to
be in the British crown. Surface right
such as to crops on the land were left subject to customary land tenure thereby
leaving such rights in the previous owners, i.e owners of the lands in which
oil was found.
•
Under section 77 of the Act, any
person prospecting or mining shall pay to the “owner or occupier” of private
land such sums as may be fair and reasonable competitions for any disturbance
of the surface rights of such owner or occupier and for any damage done to the
surface of the land upon which his prospecting or mining is being or has been
carried on and shall in addition pay to the owner of any crops, economic trees,
buildings or works damaged, removed or destroyed by him or by any agent or
servant of his compensation for such removal or destruction.
3.3 Legal
Regime of Land Ownership and Use in Nigeria
3.3.1 Land Use Act 1978
3.3.1 Land Use Act 1978
•
Before the Land
Use Act 1978, land was vested in families clans, villages and communities in
southern Nigeria. (now cap. L5 LFN 2004) Thereafter referred to as LUA
•
The major aim of
the LUA is to unify the nature of right to land in Nigeria. The Act ended up divesting the natives of
ownership of their land and has vested the management and control of all lands
in a state in the “military governor” of that state that holds such land in
trust for all Nigerians in the state.
3.3.1.1 An Appraisal of Right of Occupancy
•
The absolute
or maximal title: this now
vests in three categories of owners. Namely
•
(1) the federal government in respect of all
lands where ever located vested in it at the commencement of the Land Use
Act. The 1999 constitution, Part ii,
first schedule to CFRN, amplified this provision of LUA by providing expressly
that “The ownership of all land comprised in the federal capital territory
shall rest in the government of the Federal Republic of Nigeria”.
•
(2) Any Federal Government agency existing at the
commencement of the Act would hold the absolute or maximal title to any land
wherever located vested in the agency at the commencement of the LUA.
•
(3) The State Governor
3.3.1.2 Regime
of Certificate or Occupancy
•
A certificate of
occupancy is a document issued to a person entitled to a right of occupancy in
evidence of such a right.
•
Only the Governor
and the Head of the Federal Government can issues a certificate of occupancy.
•
During the term
of statutory right of occupancy, the holder has the sole right and absolute
possession of all improvements on the land. Likewise such protection ceases on
the expiration of the right of occupancy.
3.3.1.3 Revocation
of Right of Occupancy
•
The power of
revocation of both customary and statutory right of occupancy resides in the
governor, while section 50 LUA vest the same power in the Head of the
Federal Government in respect to land within the federal capital territory
Section 28
3.3.1.4 Grounds
for Revocation of Right of Occupancy
•
The Omnibus
ground for revocation is “ovIn connection with a statutory right of occupancy,
overriding public interest means:
•
The alienation of
the Land by the occupier contrary to the provision of the Act or any
regulations made there under.
•
The requirement
of the land by the Governor or Local Government or Federal Government for
public purpose.
•
The requirement
of the Land for mining purposes or oil pipelines.
•
In the case of a
customary right of occupancy, overriding public interest means:
•
a. The alienation
of the Land by occupier without the required
•
Consent or
approval.
•
b. The
requirement of the Land for mining purposes or oil pipelines
•
c. The
requirement of the Land by the Local Government or State
•
Government or Federal Government for
public purpose.
•
d. The
requirement of the Land for the extraction of building materials.
•
overriding public
interest
•
The Governor in
particular may also revoke a statutory right of occupancy or the head of the
government on the following additional grounds stipulated in section 28(5)
namely:
–
Reach of any of
the provisions implied in a certificate of occupancy under section 10
–
Breach of any
express term contained in a statutory certificate of occupancy or any special
contract made under section 8.
–
A refusal or
neglect to accept and pay for a certificate of occupancy issued in evidence of
the statutory right of occupancy. Any revocation made for reasons. Other than
those above is null and void.
3.3.1.5 Compensation for Revocation of Right of
Occupancy
•
Where a right of
occupancy is revoked on the grounds that the land is required for;
•
Public purpose
•
Extraction of
building material
•
Mining purpose
•
Oil pipeline
•
The basis of
compensation is the value at the date of the revocation of the unexhausted
improvements on the Land.
•
If any dispute arises as to the
amount of compensation payable for such unexhausted improvements, the matter is
referred to the Land Use and Allocation Committee for determination Section
29(1)
•
Where a right of
occupancy is revoked on the grounds that the land is required for;
•
Public purpose
•
Extraction of
building material
•
Mining purpose
•
Oil pipeline
•
The basis of
compensation in the case of grounds A and B above is the value at the date of
the revocation of the unexhausted improvements on the Land.
•
If any dispute arises as to the
amount of compensation payable for such unexhausted improvements, the matter is
referred to the Land Use and Allocation Committee for determination Section
29(1)
•
In the case of
revocation on grounds C and D above, compensation is paid in accordance with
the provision of the Mineral’s Act or the Mineral oil’s Act now called
petroleum Act. Upon the revocation
having been done, the Government or the Local Government has discretions to
re-settle persons displaced if the revocation affected developed land. Section
29
3.3.1.6 Effect
of Revocation
•
Revocation when
validly carried out operates to extinguish the title of the holder to the right
of occupancy revoked.
•
Revocation will
not extinguish any debt which the holder or occupier owes to the government in
respect of the right of occupancy revoked.
3.3.1.7 Deemed
Rights
•
Section 34 makes
provision in respect of Land in Urban area. The provision is to the effect that
any developed land in an urban area which was rested in a person, before the
commencement of the Act, shall continue to hold as if the holder is a holder of
statutory right of occupancy issued by the government or Head of the federal
Government as the case may be.
•
In respect of the
Land that is undeveloped immediately before the commencement of the Act, a plot
or portion of the Land not exceeding half of one hectare, shall continue to be
vested in holder as if a statutory right of occupancy have been issued to the
person.
•
No underdeveloped
land over which a person retains a right of occupancy shall further sub-divide
or lay out in plots, or be sold or be transferred in any other except with the
prior consent in writing of the Governor or president.
•
In respect to
land in a non-urban area section 36 provides that any occupier or holder
of such Land whether under customary right or otherwise howsoever is permitted
if he was using the Land for agricultural purposes to continue to be entitled
to possession of the Land for use for agricultural purposes if customary right
of occupancy has been granted to him by the appropriate Local Government. Section 34 (5&6)
CHAPTER FOUR
THE PRINCIPLE OF QUIC QUID PLANTATUR SOLO, SOLO CEDIT, THE LAND USE ACT AND OWNERSHIP OF PETROLEUM
THE PRINCIPLE OF QUIC QUID PLANTATUR SOLO, SOLO CEDIT, THE LAND USE ACT AND OWNERSHIP OF PETROLEUM
•
4.1
Introduction
•
4.2 Definition, Meaning and Nature of the Principle of Quic Quid Plantatur Solo
Solo Cedit
•
4.3 State Ownership of Land and Agitation for Resource Control in Nigeria
•
4.4 Individual Ownership of Land and Petroleum:
Comparison with other Jurisdictions
4.1 Introduction
•
Ownership and control
of Land and petroleum have been of great controversy in Nigeria.
•
In Nigeria, the
ownership of mineral resources is vested in the federal Government, while the
land is vested in the state governments. A lot of questions have risen over who
owns what.
•
Comparatively,
what are the methods of ownership of petroleum resources in other
jurisdictions.
4.2 Definition,
Meaning and Nature of the Principle of Quic Quid Plantatur Solo Solo Cedit
•
Two Latin maxims
are frequently employed to define “land”:
•
Quicquid plantatur solo solo cedit, and
•
Cuius est solum
eius est usque ad colum et ad iferos.
•
The former means
that “whatever is attached to the ground becomes part of it”.
•
The latter means “he who owns the land owns
every thing extending to the heavens and to the depth of the earth.”
•
Common law
conception of land is that it is made up of the following:
•
The surface of
the soil or the earth surface
•
Everything naturally growing or attached to
the surface of the soil
•
Everything inside
the sub-soil
•
The air space
above the soil.
•
Things
artificially attached for permanent purposes onto the soil
•
Two methods are
used to determine whether a chattel or object is a fixture or not. They are;
•
The degree of
annexation
•
The purpose of
annexation
•
The maxim “cuius
est solum eius est usque ad coelum et ad inferos” there is a
presumption that a landowner also owns all mineral on or beneath the surface of
that land.
•
The presumption
is subject to the exception of the Royal metals.
•
So, the
individual owner of land retains the ownership of mineral resource (e.g.
petroleum) under the common law doctrine (except the Royal metals)
•
This common law
principle has been adopted in Nigeria as part of received English Law by
section 3(3) of Interpretation Act 1945
•
Unfortunately,
against the spirit of common law, the section expressly excludes mineral from
the definition as it gave the ownership of all minerals (petroleum inclusive)
to the central government.
4.3 State
Ownership of Land and Agitation for Resource Control in Nigeria
•
The general law
governing the title and use of land in Nigeria today in the Land Use Act 1978
which makes the governor of the state, for the benefit of all Nigerians, hold
all land within the territory of each state of the federation in trust. As
such, the trustee has the right to manage, control and use the trust property
against all persons except the beneficiaries. It equally means that the right
of ownership is rested on him, not as owner or but on behalf of the owner.
•
The Land is
vested in state governors, while, the mineral resources vests in the federal
government. section 1 of the LUA together with section
44 (3) of the 1999 Constitution
•
Prof. Angaye opined; The Logic that one owns the
Land and another owns the oil extracted from beneath the Land is Nigerian Logic
or illogic propounded by parochial logicians.
•
It follows that
if the state government is vested with land, it equally should be vested with that
beneath the Land. This has led to a fight between the federal government and
the state government over the control of natural resource in Nigeria that is
known as ‘resource control.’
•
According to
Sagay resource control involves three major components:
•
The power and
rights of a community or state to raise fund by way of tax on persons, matters,
services and materials within its territory.
•
The exclusive
right to the ownership and control of resources, both natural and created
within its territory.
•
The right to
customs duties on goods destined for its territory and excise duties on goods
manufactured in its territory.
•
The federating
units of Nigeria have been calling for a method of resource control that is
human and equally based on the principle of Federalism.
•
A fundamental
principle of federalism is that the governments of the federal union are
allowed to take their destiny into their own hands in the management of their
respective administrative autonomy and natural resources within an aggress
sovereign competence ceded to the federation for their mutually beneficial
purposes.
4.4
Individual Ownership of Land and Petroleum:
Comparison with other Jurisdictions
Comparison with other Jurisdictions
•
The LUA does not
vest land in the government as an owner but rather as a trustee, so
who then is the real owner of land or who is the beneficiary of this trust
property land?
•
To determine the
true owner of land, we critically examine the clause“….such land shall be
held in trust and administered for the use and common benefit of all
Nigerians…” This shows that the government is only a trustee for all
Nigerians. By this, it is therefore
meant that Nigerians are the beneficiaries of the trust. Since they are the
beneficiaries of the trust, they are therefore the true owners of land.
•
Trusteeship, we
want to submit, has totally failed since the aims of the trust relationship has
not been realised even after 32 years. The LUA has failed to meet the human
security needs of Nigerians, and without security, defined in the terms of
food, shelter and clothing, there can be no freedom
•
Isaiah Berlin
puts it well when he said that: “Men who live in conditions where there is no
sufficient food, warmth, shelter and the minimum degree of scarcity can
scarcely be expected to concern themselves with freedom of contacts
or of the press.”
•
With a stroke of
the military pen, this callous and arm-twisting law snatched from individuals,
families, villages, and ethnic nationalities their inalienable right to
property and source of livelihood and turned them into beggar. With bowls in their hands, as all beggars do,
Nigerians now go to the governor or the appropriate officer to obtain “crumbs”
of lands for housing, Agricultural or other developmental purposes. Nsongurua J. Udombana said that this is not
just a pity it is a danger.
•
As already
alluded to, resource control is a legal incidence of ownership of natural
resources whoever owns a thing of value manages it.
Comparison with other Jurisdiction
•
There are three
modes of ownership of natural resource in the world today.
•
The first is
absolute state ownership. This pattern
seems to be dominant. It is practiced by
countries like Venezuela, Mexico, Norway, Russia, Zambia, Botswana, Namibia,
Argentina, United Kingdom and of course Nigeria
•
The second pattern of ownership is individual ownership of natural
resources, which is found under, in or upon his land. This is operated in the states of Texas,
Tennessee, Mississippi and Ohio of the USA. This method of ownership is
predicated upon the maximum quic quid plantator solo solo cedit.
•
The third pattern is a hybrid of
absolute state ownership and individual ownership rights in the natural
resources. The USA states of
Pennsylvania and California have one form of qualified ownership arrangement or
the other.
•
Against this
background, the people of Niger Delta are crying for the control of their land
and minerals buried there under.
Resource control is therefore the hearth cry of people, who have
suffered grave injustice, inequities, environmental devastation, brutal
killing, hunger, marginalization and pains beyond words for justice
•
As Chukwuemerie
noted some countries such as the USA and Canada operate private ownership or a
combination of state and private ownership because such an arrangement has been
found fitting for their environment. Nigeria, like they, reserves the right to
adopt private ownership or a hybrid of the two if that is what will mostly suit
the country.
•
The important
thing is that, the country and indeed any country ought to enthrone a legal
framework that would work justice on all sides
CHAPTER FIVE
GOVERNMENT EXPROPRIATION OF OIL MINERAL RESOURCES AND LAND IN NIGERIA AND LEGAL POSITION OF LANDHOLDERS
GOVERNMENT EXPROPRIATION OF OIL MINERAL RESOURCES AND LAND IN NIGERIA AND LEGAL POSITION OF LANDHOLDERS
•
5.1 Introduction
•
5.2 Federal
Management and Control of Oil Mineral Resource and Processes of Exploitation of
Oil in Nigeria
•
5.2.1.1 Issuance of Licences to Oil
Companies
•
5.2.2 Right of
Way Granted to Oil Companies
•
5.3 Legal positions of Land Holders
•
5.3.1 Compensation for Loss of Earning and grant of
Right of Way to Oil Companies.
•
5.3.1.1 Land per se
•
5.3.1.2 Items that Exist Naturally or as a
Result of Man-Made Improvements
•
5.3.2
Compensation for Pollution and Danger to
•
Livelihood
•
5.3.3 Effects of Oil Pollution on the Niger Delta
Environment
5.1 Introduction
•
Crude oil, as of
now, is Nigeria’s highest income earner; hence the need for proper monitoring
of activities in the petroleum sector of the economy. This means that in
Nigeria, mining concessions in the oil drilling field are very serious business
•
Here, we shall
discuss the various ways in which the Federal Government manages and controls
its oils mineral resources and the processes of exploitation of oil in
Nigeria. Emphasis would be laid on
issuance of various licences and the Right of way granted to the International
Oil Companies (IOC). Secondly, an attempt would be made to examine the legal
position of landholders vis a vis the right granted to the oil companies.
5.2 Federal Management and Control of Oil Mineral
Resource and Processes of Exploitation of Oil in Nigeria
•
The right to
manage and control oil mineral resources in Nigeria is vested in the federal
government. This right is claimed to be derived from the UN General Assembly
Declaration in Resolution 1803 (xvii) of 14 December, 1962, which provided
for states sovereignty over their natural resources Ibid
•
Before the
Petroleum Act, the early concessions granted were lopsided in favour of the
IOCs, at the expense of the HC, because the HC knew little or nothing about the
possibilities of the resources, and were too easily satisfied with the little
loyalties received.
•
According to
S.K.B. Asante “The concessions granted were instruments of blatant exploitation
•
Now with the
Petroleum Act, we shall examine the various licences and contractual agreement
that Nigeria has either with these IOCs, and secondly the right of way (ROW)
granted to the IOCs.
5.2.1.1 Issuance
of Licenses to Oil Companies
•
Under the Act, the
minister of petroleum resources is vested with the power to grant licences for
oil exploration, oil prospecting and oil mining lease, to explore, prospect,
search for, win, work, carry away and dispose of petroleum. However, it is only
a Nigeria or a company registered in Nigeria under Company and Allied matter
Act (CAMA) or any corresponding law that can be granted license or lease.
The various mining concessions in Nigeria include the
following:
•
(I) Oil Exploration Licence (O.E.L)
•
(II) Oil Prospecting Licence (O.P.L)
•
(III) Oil Mining Leases (O.M.L)
The contractual agreements in Nigeria include:
•
(1) Joint Venture Agreement/Joint Operating
Agreement (JOA)
•
(II) Service Contracts
•
(III) The Production Sharing Contract
•
(IV) Technical Assistance Agreements (TAA)
5.2.2 Right of Way Granted to Oil Companies
•
Right of Way
(ROW) is the right granted by the Federal Government to an IOC through
legislations, to prospect, explore or mine for oil that belongs to the Federal
Government without encroaching on the land (as oil is entrapped in land and
cannot be exploited without access to land), so as to shield them from the
hostility of landowners. Regulation 15(1) of the Petroleum (Drilling and
Production) Regulations.
•
Section 15(2) provides that the licensee or lessee may exercise any
of his rights or powers through agents or independent contractors, but shall be
responsible for all the actions of the agents and contractors in question
5.3 Legal
positions of Land Holders
5.3.1 Compensation for Loss of Earning and grant of Right of Way to Oil Companies.
5.3.1 Compensation for Loss of Earning and grant of Right of Way to Oil Companies.
•
The granting of
license or a lease to an IOC gives the IOC the power over oil within the
subsoil. However, for the IOCs to
exercise this right, they need to acquire rights over the surface of the parcel
of land and around the immediate geographical area in which it proposes to
drill a well
•
The paragraph 36
of the First Schedule to the Petroleum Act gives the people in lawful
occupation or the owner of the land right to demand adequate compensation for
the disturbance of surface rights
5.3.1.1 Land
per se
•
Before the coming
of the LUA, payment for compensation was made to the individual or community
owner or occupier of Land that is to be acquired for oil operation. Compensation was in the form of annual rent
or a one-time compounded payment made in respect of various terrains Paragraph
36 of the First Schedule to the Petroleum Act
•
With the LUA,
•
Where the land is
acquired, occupied and developed by the lessee prior to the LUA’s effective
date, compensation therefore, which may be by way of annual rent would continue
to be paid to the parties from whom the land was originally occupied. The reasons being that their rights were not
extinguished by the LUA.
•
Where the land is
acquired by the lessee after the commencement of the LUA; compensation is
payable to the person in whom the land is vested by the Act;
5.3.1.2 Items
that Exist Naturally or as a Result of Man-Made Improvements:
(a) Items Naturally Found on the Land (Fructus Naturales)
(a) Items Naturally Found on the Land (Fructus Naturales)
•
These are those
items that mainly grow naturally on the land without cultivation, and include
protected trees.
•
These trees can
only be cut or taken away by the lessee with the consent of the state authority
that established the forest reserve by law.
Productive trees like raffia palms, palm trees, mangrove trees etc that
can grow without cultivation are also included in the naturales.
(b) Man-made
Improvement (Fructus Industriales)
•
These are those
improvements on the Land, which were made by man. Such improvements include;
cultivated crops; animal traps and fences; damned locks and canals; farm
wells; fish basket fences; poles; stakes; traps and fishing gear; houses and
huts, shrines, sacred bushes, forests and venerated objects, machinery and
plants, yam stakes etc.
•
Compensation for this man-made
improvement is paid to the individual occupier or owner of such land. Payments are also made to communities where a
community’s shrine, juju tree or venerated object or bush is involved.
5.3.2 Compensation for Pollution and Danger to Livelihood
•
Oil pollution is
that pollution that comes from oil and gas operation. To contend with the
situation, Nigeria under her Petroleum Act 1969 generally empowers the minister
to make regulation for the prevention of pollution of watercourse and the
atmosphere that is a clear environmental protection provision.
•
Regulations 38
and 39 enjoin operators to use approved methods and practices for the
production of oil and gas, and for confining petroleum respectively. merely
requiring the operator or licensees “to take prompt steps to control, and if
possible end the pollution” shows that these provisions have very low legal
strength.
•
However, on the
issue of compensation, existing statutory provisions, legal or extra legal, do
not adequately cater for individual victims of oil pollution.
•
A person whose
property, farm or fish pond is destroyed or damaged as a result of the
activities of the oil industry undergoes a lot before he can obtain legal
redress. Compensation is the next available right the individual has in the oil
pollution cases. This remedy has been
trivialized by the fact that oil operators are quite aware of the fact that it
is highly unimaginable for the courts to grant an injunction against oil
companies to stop oil activities. People have usually relied on Regulations 36,
21 and 23 which provides that on the occurrence pollution, that the operator
should pay fair and adequate compensation to the victims.
•
What does “fair
and adequate compensation” mean? Who determines what “fair and adequate
compensation” is
•
Nigeria is yet to
evolve an adequate compensation regime along with feasible regulation on
petroleum waste management and control.
•
It is laughable
that the fine for failure to install oil pollution prevention equipment and for
discharge of oil in Nigerian waters is not to exceed N2000. Breach of duty to keep record of pollution
or oil spillage is at the fine of N1000. Failure to place oil reception
facilities as demanded by law attracts a fine not exceeding N200 for each day
during which the default continues. Section 10, places a fine not
exceeding N400 on failure to report discharging of oil into waters of a
harbour. Commenting on this issue, Yinka
Omorogbe had this to say: “A fine of N100 is laughable and can only deter
the very poor members of the population and certainly not oil corporation….
Even “high” fines of N20,000 cannot be said to be deterrent to oil companies.”
5.3.3 Effects
of Oil Pollution on the Niger Delta Environment.
•
The tragedy of
oil pollution lies in the fact that land generally should be protected to
sustain both the current generation and the generation yet unborn. The devastation of the land leaves no legacy
for the future generation that would be saddled with sterile land, lakes and
rivers. The rejuvenation of the land
normally will take a very long process and the possibility of restoration of
the land to its natural state would be almost impossible. There is no gainsaying the fact that oil
spillage constitutes hazards on the environment and utmost care must be taken
to curtail to the barest minimum the incessant and frequent oil spills.
•
This phenomenon
has led to the near collapse of the traditional economy and the people
displaced from their traditional occupations, which included fishing, farming
and palm oil production and canoe construction.
•
The
socio-economic symptoms of the situation are many and varied. They include the
ugly scenes of infrastructural decay, massive unemployment, youth restiveness,
violent anti-social behaviour, high crime rate, inter-ethnic conflicts and
investment hostile environment in the Niger Delta region.
CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS
CONCLUSION AND RECOMMENDATIONS
•
6.1
Observation
•
6.2 Recommendations
•
5:3
Contributions to Knowledge
6.1
Observation
•
If land is vested
in the State Governor the vesting of ownership of resources on another person
or body is contrary to the maxim quic quid plantatur solo, solo cedit.
•
The ownership of
natural resources is vested in the Federal Government, yet oil is entrapped in
land and cannot be exploited without access to land, which is vested in the
State Governor. This has resulted in a
crisis tagged resource control, which calls for a fair, just, equitable and
manageable natural resources sharing policy that shall be favourable to all
Nigerian stakeholders.
•
The Petroleum Act
and the constitution vested in the Federal Government ownership of mineral
resources leaving surface rights to the individual landowners. The Act also provided for just and reasonable
compensation without a benchmark and which in the long run has proved to be
unjust compensation, since there are no clear-cut provisions as to compensation
payable.
•
The advent of the
Land Use Act brought about a radical change by vesting land in the state
thereby removing the surface rights; which has the following implications in
the communities interest:
•
Revocation of
people’s right to their land
•
Deprivation of
owner’s choice as to who acquires his or her land.
•
Denying an owner
of a choice of due compensation of acquisition of land
•
Owner living
under perpetual likelihood of losing their land to government.
•
Owners’ inability
to decide activities that should be carried out on his property or
neigbourhood.
•
The law
invariably vests the government with all the resources on the owner’s
land. The government may well acquire
any resource rich-land for any public purpose.
•
Finally, on the
crisis between the people and the oil companies, which have been on the
maintenance of a healthy environment.
Over 50 years of exploration and production, oil companies have left
large parts of the Niger Delta uncultivable, due to frequent oil spills.
Leakages and the effect of gas flaring or other accidents. Militants in the region demand that oil
companies operate in an environmental friendly manner, the same demand by
Saro-Wiwa.
•
The judiciary in
most cases has failed to play their role as the last hope of the common man,
thereby, turning themselves into the “Lost hope of the common man”; this has
caused people in the Niger Delta to resort to all kinds of self-help.
Recommendations
•
In view of the
fore-going legal problems that require detailed attention, we make the
following recommendations .
•
That two cannot
work together unless they agree. There
has not been a people oriented constitution since the colonial rule. Therefore, we call for a Sovereign National
Conference wherein the people will gather and re-define their federalism.
•
That in the light
of the state of the Nation discussed above, legislation has a very big role to
play in the settlement of some of the issues raised. We therefore recommend that some of the
current law be repealed, some amended, some enacted and some others must be
enforced.
•
Laws to be
repealed: The Land Use Act has been
one piece of legislation transverse with many controversies. Its negative consequences out-weigh its
positive consequences on a balance. The
Land use Act should be repealed and land vested in the former owners; this will
mark the beginning of serious effects towards a better life for Nigerians and
of disentanglement of the country from the web and snare of dictatorial past.
•
Laws to be
amended: We call for the amendment of the Petroleum Act
1969 and its Regulations, so that it would
•
Define the term
‘fair and adequate compensation’
•
Define the phrase
‘good oilfield practice’
•
Review the fine
for polluters, what is now obtainable cannot even deter an ordinary man let
alone an oil company
•
That pollution
offence in the oil sector be a strict liability offence, so as to save the
people from proving the scientific technicalities that they cannot comprehend.
•
Secondly, the petroleum Act, the
Excusive Economic Zone Act, The Mineral and Mines Act, The section 44(3) of
1999 constitution and indeed the Land Use Act, which have repressive
provisions, should be amended to
•
Grant owners and
the communities full capacity to improve their status using their God given
resources.
•
Vest all title
upon land to the former owners.
•
Allow people to
negotiate their interest on their land.
•
Laws to be
enacted:
•
We adopt
Ogbuigwe’s recommendation on laws to be enacted. These laws she said will be based on a true
federalist system of government, unrestrained access to justice and the
protection of environmental right. These laws should be aimed at achieving the
following for all Nigerians:
–
Full ownership of
individual/ communities of their natural resources.
–
Partnership in
the exploitation and exploration of such resources.
–
Technological
development and advancement in the exploration and exploitation of resources.
–
Establishment of
viable and conscientious institutions for the conservation of the resources and
the protection of the environment.
–
Development and
marketability of local skills and the heritage of the people.
–
Enactment of
specific laws for biodiversity protection and conservation.
–
Encouragement of
other forms of economic activity other than oil exploration.
–
Implementation of
international treaties and conventions on the environment rights of indigenous
peoples and control of natural resources.
•
That the mode of
ownership of petroleum be reviewed. Since we have deductively arrived at the
conclusion that the Land belongs to the people, the natural resource should
equally belong to them. However,
considering our level of development and the technicalities involved in oil
exploitation, we recommend that the federal government should continue to hold
natural resources, this time, not as owners, but as trustees of the people.
•
The Section
162(2) of the 1999 constitution should be amended to give the oil deriving
state 50% of the revenue derived from the natural resource within the state 25%
of such allocation should be directed to the individual or community that owns
such land, for development and emancipation of the people since their means of
livelihood have been scattered. The
Federal Government should set-up a petroleum trusteeship committee – made – up
of the owners of the land (or their representatives) and the government
representative that will see to the proper disbursement of the allocation. The royalty and rent for land acquisition and
use should be directly paid to the communities, the government should only
impose tax on such royalties or rent.
The Federal and State Government would of course still owe their
traditional duties to those communities with respect to development and welfare
outside the communities’ share of the proceeds of their natural resources. We suppose that this will be the hallmark of
our federalism. By this agreement, the
Federal and State governments will have no option but to revitalise other
sectors of the economy and stop over
•
reliance on oil.
–
That for the
government to quell the restiveness of the youths, in the area, that the government
should partner with the oil companies and provide employment and scholarship
for the youths in tertiary and other levels of education. We commend the amnesty granted to the Niger
Delta militants and the creation of the Federal Ministry of Niger Delta
Affairs. To further build confidence and
consolidate the amnesty gains, the Federal Government as a matter of urgency
should commence the rehabilitation programme for the ex-militants. The Niger Delta people are not a conquered
people and should therefore not be treated as such in the implementation of the
post Amnesty Programme. Massive
Development of the Niger Delta to provide urgently needed infrastructural
development and employment should commence forthwith, as this is the only way
to sustain and ensure the irreversibility of the current peace gains.
–
The onshore –
offshore dichotomy legislation 2004 should continue to exist with amendments
thereby extending derivation rights of littoral states to 200 nautical miles
into the sea. The offshore revenue
should be the shared on the ratio of 75:25.
The Federal Government 75, the States 25, this is because, the sea
actually belong to the state of Nigeria.
–
We recommend that
the Nigerian judiciary require extensive awareness, sensitisation on the
current judicial trend in the area of environmental protection in other
countries, and an appreciation of the environment and its problem. The judiciary must be empowered through
effective training and sensitisation to become relevant in the national and
international community in vindicating environmental concerns, and
strengthening the endeavours to safeguard the environment by all stakeholders.
Judges should be guided by the rule of law, protect and enforce it
without fear or favour and resist any encroachment by government or political
parties on their independence as judges.
The Nigeria judiciary should not relax in tackling emerging problems of
environmental degradation and the need to check the wide spread abuse of
nature.
–
The government
should also organise periodic meeting with the chiefs and elders of the various
tribes in the region. This will inform
the people of the region that their culture is also respected just like Yoruba,
Igbo and Hausa cultures. Local
government should be strengthened. Local
representation in the political process should be encouraged. At the same time, the government will be
working to gain the trust of the people.
–
That oil
pollution cases should fall under Fundamental Rights (Enforcement Procedure)
Rules, 2009. This is because; right to
life under section 33 of the 1999 Constitution entitles principally breathing;
and breathing pure air. The oil
pollution like gas flaring, river pollution, food pollution would gradually
lead to deprivation of right to life. This is because, section 46(1) provides
that any persons whose right is “… .. likely to be contravened in any state on
relation to him may apply to a High Court in
that state for redress.” We equally recommend that the people can also
enforce their right to dignity of human person.
This is because it is inhuman and degrading to subject the people
helplessly to polluted water, food and environment.
5:3 Contributions to Knowledge
•
This dissertation
deductively traced the actual owner of land and the resources entrapped
therein, from the Federal Government to the ordinary individual land
occupier. The revelation of this
dissertation, by tracing the ownership of petroleum and land to the individual
and community landowners, the issue of who ‘owns’ and ‘who control what’ is as
good as settled
•
The dissertation
also examined the importance and significance of land to both the individual
and community owners of land vis-Ã -vis it’s economic relevance, socio-cultural
and metaphysical attachment of the people to their land.
•
The dissertation
equally examined environmental impact assessment of the Nigerian Niger Delta
region. So far, the means through which
people obtain remedy in court for oil pollution matters, have been through the
Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulation 1969,
enabled by Section 9 of the Petroleum Act.
•
The dissertation
equally examined environmental impact assessment of the Nigerian Niger Delta
region. So far, the means through which
people obtain remedy in court for oil pollution matters, have been through the
Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulation
1969, enabled by Section 9 of the Petroleum Act. the dissertation also examined
the importance and significance of land to both the individual and community
owners of land vis-Ã -vis it’s economic relevance, socio-cultural and
metaphysical attachment of the people to their land.
•
this work, suggests
that we proceed through Fundamental Right (Enforcement Procedure) Rule 2009
which is much liberal. This is because
the 2009 Constitution of the Federal Republic of Nigeria guarantees every one’s
right to life and dignity of human person in sections 33 and 34
respectively. The constitution in section 46(1), and Order II Rule I of the
Fundamental Right (enforcement procedure) Rules 2009 state that any person who
alleges that any of his right “has been, is being, or is likely to be
infringed, may apply to the Court in state where the infringement occurs of is likely
to occur for redress.”
•
We therefore submit that oil
pollution; spillage and gas flaring are of such a nature as to likely
infringe on a person’s right to life.
•
Secondly, when
people living in the Niger Delta Islands and rural communities are subjected to
drink polluted water, eat polluted food, breathe polluted air and are exposed
to diseases, their right to life is infringed. The total picture is one of
complete degradation of their humanity and total loss of individual’s dignity
as a human person.
•
Therefore, people
can approach the court under Fundamental Rights enforcement procedure Rule 2009
in oil pollution and gas flaring cases because they are of such a nature that
they infringe on people’s right to life and dignity of human person.
•
The law itself
should provide adequate and efficient remedies for the abuse or misuse of power
from whatever quarter it may come. No
matter who it is – who is guilty of the abuse or misuse. Be it Governor,
national or local. Be it trade unions,
be it the press. Be it management. Be it
labour. Whoever it may be, no matter how powerful, the law should provide a
remedy for the abuse or misuse of power.
Or else the oppressed will get to the point when they will stand it no
longer. They will find their own
remedy. There will be anarchy.
BIBLIOGRAPHY
BOOKS
BOOKS