The Land Use Act Of 1978: Appraisal, Problems And Prospects

THE LAND USE ACT OF 1978: APPRAISAL, PROBLEMS
AND PROSPECTS

ABSTRACT
From time immemorial through the period of agriculture to the period of industrial
development, land has remained the most valuable property in the life of man and his
development. It is a source of wealth to those who have it and the mother of all
properties. In other words, virtually all the basic needs of human existence are land
dependent. In view of the importance and usefulness of land to man and his development
as well as the development of his society, every person generally desires to acquire and
own a portion of land to achieve the various ends for which the land is meant. Therefore,
to make land in Nigeria available to all and to ensure that land is acquired and put to a
proper use for the needed development, governments during and after colonial period
enacted laws to govern the use or administration of land in Nigeria.
Before the arrival of the colonial masters, there were customary laws which governed the
administration of land in Nigeria. These customary laws varied from one locality to
another because of the differences in customs of the people. This accounted for the
multiplicity of land laws in Nigeria prior to the promulgation of the Land Use Act of
1978. These laws were applied in each region to regulate land in the region.
Notwithstanding the existence of laws regulating land, the problems of land tenure and
land administration persisted both in the Northern and Southern Nigeria. There were new
problems such as land racketeering and speculations. Exorbitant compensations were
demanded by landowners whenever the government acquired land for development.
Thus, acquisition of land by government or individuals was becoming almost impossible
in Nigeria.
In fact, one of the major factors that was said to be a stumbling block against efficient
implementation of the Second Development Plan 1975-1980, was lack of land for
development project. To break this barrier and monopolies of landlords, the Federal
Military Government set up some panels to consider how best to solve the problems
iv
associated with land tenure and administration in Nigeria. The report of one of these
panels i.e., the Land Use Panel of 1977 eventually formed the basis of the Land Use Act
No. 6 of 1978.
The purpose of this essay therefore, is to critically examine the Land Use Act of 1978 to
see the extent to which it has enhanced the administration of land in Nigeria. In this
connection, reforms and innovations introduced by the Act to improve the administration
of land are critically examined. Bearing in mind that every being has its scar, the Act is
not without shortcomings. In this regard, this study further beams its search lights in
figuring out the inherent problems of the Act. Finally, this work makes recommendations
on how to improve the Act in view of the recent proposal by Government to review the
Act.
v
TABLE OF CONTENTS
COVER PAGE…………………………………………………………………………...i
CERTIFICATION PAGE……………………………..………………..………………ii
ABSTRACT……………………………………………………………………………..iii
TABLE OF CONTENTS……………………………….………………………………iv
DEDICATION……………………………………………………………………..…...vii
ACKNOWLEDGMENT…………………..…………………………………......……viii
TABLE OF CASES…………………………………….……………………………..…x
TABLE OF STATUTES…………………………………………………………..…...xii
LIST OF ABBREVIATIONS…………………………………...…………………….xiii
CHAPTER 1
GENERAL INTRODUCTION
1.0.0. INTRODUCTION………………………………………………………………...1
1.1.0. BACKGROUND TO THE STUDY………………………………………………1
1.2.0. OBJECTIVE OF THE STUDY…………………………………………………...3
1.3.0. FOCUS OF THE STUDY………………………………………………………...3
1.4.0. SCOPE OF THE STUDY……………………………………………………........3
1.5.0. METHODOLOGY……………………………………………………..................4
1.6.0. LITERATURE REVIEW……………………………………………………........5
1.7.0. DEFINATION OF TERMS……………………………………………………...15
1.8.0. CONCLUSION. ……………………………………………………....................18
vi
CHAPTER 2
THE NECESSITY OF THE LAND USE ACT OF 1978
2.0.0 INTRODUCTION…………………………………………………….................19
2.1.0 NATURE OF LAND HOLDING PRIOR TO THE PROMULGATION OF THE
ACT……………………………………………….....................................19
2.1.1 CUSTOMARY SYSTEM OF LAND TENURE………………………………...20
2.1.2 NON CUSTOMARY SYSTEM OF LAND TENURE………………………….23
2.1.3 THE SPECIAL LAND TENURE SYSTEM IN THE FORMER NORTHERN
NIGERIA………………………………………………………………………...26
2.2.0 HISTORICAL BACKGROUND OF THE LAND USE ACT…………………..28
2.3.0 IDEOLOGICAL AND PHILOSOPHICAL BASIS FOR THE
PROMULGATION OF THE LAND USE ACT…………………………….......33
2.4.0 EFFECT OF THE LAND USE ACT ON THE PRE-EXISTING LAND LAWS
IN NIGERIA……..……………………………………………………................34
2.4.1 THE LAND USE ACT AND CUSTOMARY LAND LAW AND TENURE…..34
2.4.2 THE LAND USE ACT AND THE RECEIVED ENGLISH LAND LAW AND
TENURE. ……………………………………………………..............................36
2.4.3 THE LAND USE ACT AND THE LAND TENURE LAW, 1962……………...37
2.5.0 CONCLUSION. ……………………………………………………....................38
CHAPTER 3
THE LAND USE ACT: REFORMS & INNOVATIONS
3.0.0. INTRODUCTION…………………………………………………….................39
3.1.0. POLICIES INTENDED BY THE ACT…………………………………………39
3.1.1 UNIFORM LAND POLICY…………………………………………………….40
3.1.2 STATE OWNERSHIP, CONTROL AND TRUSTEESHIP POLICY………….41
3.1.3 PLANNED DEVELOPMENT AND ENVIRONMENTAL PROTECTION
POLICY. ……………………………………………………...................................45
vii
3.1.4 LAND USE POLICY……………………………………………………............48
3.1.5 RIGHT OF OCCUPANCY OR LEASEHOLD POLICY…………………….…49
3.1.6 CERTIFICATE OF OCCUPANCY……………………………………………..52
3.1.7 REDISTRIBUTION AND EQUITABLE POLICY……………………………..55
3.1.8 ALIENABILITY OF A RIGHT OF OCCUPANCY……………………………56
3.1.9 PROSCRIPTION OF DISCRIMINATION AGAINST FELLOW
NIGERIANS.……………………………………………………........................58
3.1.10 REVOCATION OF A RIGHT OF OCCUPANCY UNDER THE ACT………..59
3.1.11 THE ACT, A SOURCE OF GOVERNMENT REVENUE…………………..…61
3.2.0 CONCLUSION…………………………………………………….................62
CHAPTER 4
THE LAND USE ACT, PROBLEMS AND PROSPECTS
4.0.0 INTRODUCTION…………………………………………………….................63
4.1.0 PROBLEMS OF THE ACT……………………………………………………..63
4.1.1 PROBLEMS IN RESPECT OF TRUST CONCEPT INTODUCED BY THE
ACT……………………………………………....................................................64
4.1.2 PROBLEM IN RESPECT OF POWER CONTROL AND MANAGEMENT BY
THE STATE……………………………………………......................................65
4.1.3 THE ATTITUDE OF FORMER LAND OWNERS TO THE ACT…………….66
4.1.4 CONSENT REQUIREMENT AND ITS ATTENDANT PROBLEMS………...68
4.1.5 THE GOVERNOR’S UNFETTERED POWER TO DESIGNATE CERTAIN
AREAS AS URBAN LAND. ……………………………………......................70
4.1.6 THE HALF HECTARE RULE BY THE ACT IS CONFISCATORY…………72.
4.1.7 FINALITY OF DECISION OF THE LAND USE AND ALLOCATION
COMMITTEE. ……………………………………..............................................72
4.1.8 THE GOVERNOR CONCURRENT POSSESSION WITH THE OCCUPIER’S
RIGHT, A BAR TO ACTIONABLE TRESPASS………………………………74
viii
4.1.9 THE GOVERNOR’S EXCLUSIVE POWER OF REVOCATION UNDER THE
ACT…………………………………....................................................................76
4.1.10 THE DISCRMINATORY AND RESTRICTIVE NATURE OF THE ACT……77
4.1.11 THE ACT AND THE CONSTITUTION…………………………………..........79
4.2.0 CONCLUSION…………………………………..................................................82
CHAPTER 5
CONCLUSION AND RECOMMENDATION
5.0.0. CONCLUSION ………………………………….................................................83
5.1.0. RECOMMENDATION …………………………………...................................86.
BIBILOGRAPHY…………………………………..............................................91
ix
DEDICATION
This work is dedicated to God, the Father of my Lord Jesus Christ, my Saviour and my
very hope of existence. The Father of mercy and God of all sufficient, sustaining and
encouraging grace in whom I live, move and have my being.
x
ACKNOWLEDGMENT
I deeply appreciate the Lord, my King and my Redeemer for His faithfulness, love,
strength, protection, provisions and sustaining grace over me which have kept me secured
and seen me through these years of my academic sojourn. Through the thicks and thins in
these years that the soul went in search of knowledge, God indeed has been all in all and
most sufficient to me. His banner over me has been love. I will ever be grateful to Him who
ever cares for me-spirit, soul and body, and who alone has made me what I am today.
I also acknowledge my uncle and his wife, Mr. & Mrs. Sunday John with whom I stay ever
since I found myself in Ilorin. You have really taken care of me. The pages of this work
will not be enough to express my gratitude for all that God has used you to do for me both
in kind and in cash. May you never lose your reward. The Lord will promote you in all
ramifications and take your children to the height he desires for them in life in Jesus name!
To my Aunt, Mummy Debo (Mrs. Daodu), you are just too wonderful to me. Your timely
encouragements, prayers and gifts have ministered strength to me in the course of this
academic pursuit. You and your family are highly blessed!
My grandma (Mama Alice John), you are really a role model of an affectionate mother that
any grandson will love to have for a grandmother. You have not only told me you love and
care for me, but I have seen you demonstrated it through untiring love, care and generosity.
You have been a great encouragement to me during those years of my academic pursuit. I
am proud to have you for a grandma. You will fulfill your days in health and sound
relationship with the Lord Jesus. Amen!
Mum, (I call you by your maiden name: Iyabo!) really, there is no one like you to me. I
bless God for bringing me into the world through you. I have confirmed it to my soul in the
course of my academic pursuit that you really cherish and care for your only son. I deeply
appreciate your motherly love over me and all that you have contributed to my
xi
academic success. Blessed ever!
To all my friends: Segun, Dan, Olumide, Biodun, Yemisi, etc, who prayed for me,
encouraged me and extended generosity to me, I really appreciate all of you. To all the
New Testament Christian Mission Campus Fellowship (NTCMCF) and Christian Law
Students Fellowship of Nigeria Ilorin Chapter (CLASFON) members, I acknowledge you
all. I really felt the impacts of your prayers. Greater strength for the fellowships in Jesus
name!
To my parents in the Lord, I am really grateful for your timely prayers, words of
encouragements, counsels and gifts. May the Lord reward you all abundantly. To you all
my academic friends: Fatai, Kaseem, Ayo, James, Seyi, Nike, Toyin, Foluso (All – D -
Laws), I appreciate your imparting companies. You are all great achievers in Jesus name!
I also say big thanks to all my lecturers in the great Faculty of Law who taught me from
level 100 up to level 500 and those with whom I have had cause to interact with
academically. Without your efforts over me, I wouldn’t be what I am today. I am indeed
obliged!
Finally, my appreciation goes to my amiable supervisor. Of course, this acknowledgement
would not be complete if I fail to mention her name. She is Mrs. M.B. Jaiyeola. She is that
woman under whose supervision this beautiful work was carried out. The diligence and
painstaking, with which you read through this work, removed the immaterials and added
the materials have added more color to this work. I am highly obliged ma. The Lord will
continue to strengthen you, take you and your family to the height He desires for you.
Amen! To all of you who have contributed to my academic success one way or the other
whose names have not entered these pages, I remain grateful. May you never lose your
reward both here on earth and heaven above.
xii
TABLES OF CASES
• Abioye v. Yakubu (1991) 5 NWLR(pt 190) p.30
• A.G of Lagos State v. N.E.P.A Suit No. LD/372/81 delivered on 5/7/82
• A.G of Ogun State v. A.G.F(1982) 3 NCLR pp. 193-194
• A.G of Southern Nigeria v. John Holt(1910) 2 NLR 1
• Akpan Sam Adua v. Akpan Udo Essien (2010) 8ALL FWLR(pt. 535) p.361
• Amodu Tijani v. Secretary of Southern Nigeria(1921) AC 399 at 404
• Animashaun v. Sufiami Suit No. LD 19/77 dated 10/6/08
• Chief Christopher I. Monkom & Ors v. Augustine Odili (2010) 9 ALL FWLR (pt.
536) p.552
• Chief R. Nkwocha v. Governor Anambra State & Ors (1983)4 NCLR 719
• Davies v. Ilo Suit No. Ik/3/73
• Eze v. Igiliegbe & Ors 14 WACA 61
• J.M. Aina & Co. Ltd v. Commissioner for Lands and Housing, Oyo State of
Nigeria (1983)4 NCLR 643
• Madam Safuratu Salami & Ors v. Eniola Oke (1987) 9-11 SC 43
• Makeri v. Kafinta (1990) 7NWLR 158
• National Bank of Nig. Ltd v. Adedeji (1989) 1NWLR (pt. 76) 212
• Oduntan Osiniwo v. A.G of Southern Province (1912) 2NWLR p.77
• Ogunche v. Iliyasu (1974) NNLR (1972) 2 UILR (pt. iv) 424
• Ogunleye v. Oni (1990) 2NWLR (pt.135) 745
• Ogunola v. Eiyekole (1990) 4NWLR (pt.146) 632 at 647
• Okunola v. Oluwo (1987) 4NWLR (pt.64) p.141
xiii
• Otunba Bola Adewumi v. Mile ogunbowale & Ors. Suit No ID/115/81, High
Court Ikeja, 28/05/82.
• Provost of Lagos State college of Education & Ors v. Dr Kolawole Edun & Ors
(2004) 6NWLR (pt.870) 476 at 509.
• Queen v. The Minister for Land and Survey Exparte, the Bank of the North
(1963) NWLR 58
• Savannah Bank (Nig) Ltd Plc v. Ajilo (1989)NWLR (pt.97) p.35
• Tijani Akinloye v. Chief Oyejide Suit No. HC3/9A/83 of 17/9/8
• Umar Ali & Co. (Nig) Ltd v. Commissioner for LandsS and Survey & Ors (1983)
4 NCLR 571
• Upper Benue River Basin Development Authority v. Auta Alka & (1998)
2NWL. (pt.537) 328
xiv
TABLE OF STATUTES
STATUTE:
*The Constitution of the Federation 1963 No.20
*The Constitution of the Federal Republic of Nigeria 1979
*The Constitution of the Federal Republic of Nigeria (Promulgation) 1999 Cap.24 LFN
2004
*The Land and Native Rights of Proclamation, 1910
*The Land and Native Rights of Ordinance, 1916
*The Land Use Act No.6 March 29, 1978 Cap L5 LFN 2004
*The Public Land (Miscellaneous) Decree, 1976
*The Public Land Acquisition (Miscellaneous Provisions) Act Cap 167, 1976
LAWS
*The High Court Law Cap 61 Laws of Eastern Nigeria, 1963
*The Land Tenure Law No.25 April 22 of 1962, Cap 59 Laws of Northern Nigeria 1963
TREATY
*Treaty of cession 1861
xv
LIST OF ABBREVIATIONS
ABU……………………………………………………….……...Amadu Bello University
AG…………..…………………………………………………….……...Attorney General
AGF………………………………………...............…Attorney General of the Federation
ALL FWLR……….………………………………………...…All Federation Law Report
LFN……………………………………………………..Laws of the Federation of Nigeria
NEPA……………………………...............................National Electrical Power Authority
NCLR……………………………………………….….Nigerian Constitution Law Report
NLR………………………...…….…………………………………… Nigeria Law report
NNLR………………………………………………….…... Northern Nigeria Law Report
NRNLR………………………….……….……....Northern Region of Nigeria Law Report
NWLR……………………………………………………....Nigerian Weekly Law Report
SC………………………………………...…………………...……………Supreme Cases
UI…………………………………………...……………..………….University of Ibadan
UILR………………….....…………………………………...University of Ife Law Report
UNIFE………………………...…………………………………….....University of Ile-Ife
UNILAG…………………………………..………….…………….....University of Lagos
WACA……………………………………………………...West African Court of Appeal
1
CHAPTER 1
GENERAL INTRODUCTION
1.1.0 BACKGROUND TO THE STUDY
The importance of land to man on earth through all ages can hardly be overemphasized.
Land, though represents only about two-fifth of the earth’s surface, it provides a platform
on which man’s activities are predicated. It is however ironical that while the world
population increases, the land in supply appears to be receding. Hence land is never
thought to be sufficiently available to meet the need of man in a society. The ownership
of land is jealously guarded against. Wars are fought, territories conquered to assert and
preserve the ownership of land. The rift between Nigeria and Cameroon over Bakassi
Peninsula, wars between Ife and Modakeke and that between Erinle and Offa attest to the
above claim.
For few available land to be equitably administered among the people and be maximally
utilized there is need for a good land policy to be put in place for effective control and
management of land in order to witness the desired development in the society.
Prior to 29th March, 19781 when the Land Use Act was enacted, there were land laws2
which governed land tenure systems in Nigeria before, during and after the advent of the
1 The Land Use Act No. 6 March 29, Cap L5. LFN 2004
2 These pre-existing land laws include-customary, received English land laws and the Land Tenure Law
2
colonial masters. These laws continued to be in operation until they were found to be
defective because despite their existence, the problems of land tenure persisted in
Nigeria. One the most serious of these problems was the difficulty in acquiring land by
the government in major urban centres for national development because of land
speculations, racketeering and high cost of compensation3 usually demanded by the land
owners whenever government acquired land to execute its projects.
Against this background, the Federal Government in a deliberate effort to unify land
tenure, streamline and simplify ownership of land in Nigeria, set up the Land Use Panel
in 19774 with certain terms of reference. The recommendations of this panel were
particularly related to the land tenure system in the Southern States. The
recommendations were studied and adopted by government which promulgated the Land
Use Act, 19785.
This study is carried out against the background of the Land Use Act to evaluate it in the
light of its laudable objectives to see whether land is better managed and controlled under
the Act. It also points out the inherent problems of the Act which range from
interpretation to practical implementation of its provisions. This essay also considers the
3 The Public Land (Miscellaneous) Decree, 1976 which provided for the amount of compensation
throughout the whole country. But it has been repealed by the Land Use Act 1978
4 The Land Use Panel set up on the 16th April 1977 headed by Justice Chike Idigbo
5 Ibid
3
prospects of the Act.
1.2.0 OBJECTIVE OF THE STUDY
The importance of land to man, its immense contributions to national development and
the yearning for efficacious land legislation has led to a careful and deliberate choice of
this topic with the following objectives in view: Firstly, to assess the effectiveness or
otherwise of the management of land under the Land Use Act6. Secondly, to make useful
recommendations on how to improve upon the Act, particularly its provisions that seem
most unclear and controversial. Thirdly, to make substantial contributions to our
knowledge of land law in general and the Land Use Act in particular.
1.3.0 FOCUS OF THE STUDY
The study particularly appraises the Land Use Act of 1978, concentrating on its problems
and prospects. Therefore, a holistic study of this Act is done.
1.4.0 SCOPE OF THE STUDY
The enormity of the subject matter has led to the selection of some aspects of our land
laws in Nigeria. In general, reference is made to virtually all our land and property laws
which were in existence before the enactment of the Act in 1978. However, particular
6 Ibid
4
attention is given to the Land Use Act, 19787.
1.5.0 METHODOLOGY
The study is more analytical than descriptive. An analysis of the evaluation of the
problems of the Act are embarked upon in order to achieve the objectives of this study.
The information relied on for these works are sourced from primary and secondary
sources. In this connection, the Land Use Act No. 6 of 19788, Land Tenure Law of 19629,
Public Land Acquisition Act10, the Nigerian Constitutions11 among others serve as major
primary source. The secondary source include-materials on the internet, books, essays,
journals and articles published on the subject matter together with the opinions of the
courts in judicial decisions. Information is also sourced from the libraries of other
institutions like the University Of Ibadan, Nigeria Institute of Advanced Legal Studies,
University of Lagos. Many law chambers were also visited to gather information through
personal interaction with Lawyers in those chambers.
1.6.0 LITERATURE REVIEW
7 Ibid
8Ibid
9 The Land Tenure Law NO. 25, April 22, 1962. Cap 59 Laws of Northern States 1963
10 Cap 167 Public Land Acquisition (Miscellaneous Provisions) Act, 1976
11 The Constitution of the Federation 1963; See also the Constitutions of the Federal republic of Nigeria:
1979, 1999
5
As earlier noted, many treatises have been published on this subject matter, few of which
are worthy of mention here. They include: ‘Cases on the Land Use Act’12 by Omotola
J.A., ‘Essay on the Land Use Act 1978’13 by Omotola J.A., ‘Handbook on the Land Use
Act’14 by Niki Tobi, ‘Nigerian Land Use Act: Policy and Principles’15 by James R.W,
‘Modern Nigerian Land Law’16 by P.O.A Oluyede, ‘Principles of the Land Use Act’17 by
Uwakwe Abugu, ‘The Land Use Decree 1978: A Critical Analysis’18 by Nweke O.
Umezuruike. ‘The Law of Real Property in Nigeria’19 by Smith I. O, ‘Nigerian Land
Law’20 by Elias, ‘Nigerian Law of Real Property’21 by Utuama A.A.
The opinions of those writers and that of the courts about the Act are subject to critical
review with a view to bringing out the areas of controversies and also to reconciling
them. Our position on these are stated.
The idea behind the promulgation of the Land Use Act, 1978 was to enact one basic
12 (Lagos University Press 1985)
13 (Lagos University Press 1984)
14 (ABU Press Ltd., Zaria 1989)
15 (Unife Press Ltd. 1987)
16 (Evans Bros (Nig) Ltd 1989, Ibadan)
17 (Joyce Graphic Printers & Publisher 2008. Kaduna)
18 (Fab Anieh (Nig) Ltd. 1989 Jos)
19 (Law Center Lagos State University 1995)
20 (London Sweet and Maxwell 1971)
21 (Sheneson C.I. Ltd 1990.)