A REFLECTION ON ALIENATION UNDER THE LAND USE ACT ISSUES AND

CHALLENGES

CHAPTER ONE

GENERAL INTRODUCTION

1.1. BACKGROUND TO THE STUDY

The significance of land to man on Earth throughout history cannot be overstated. Despite the

fact that land covers just around two-fifth of the earth's surface, it serves as a foundation for

man's activities. However, it is ironic that, as the world's population grows, the available land

appears to be shrinking. As a result, land is never regarded to be sufficient to meet man's needs in

a civilization. Land ownership is a prized possession that is closely guarded. To assert and

sustain land ownership, wars are fought and areas are acquired. As a result, in order for the

limited available land to be distributed equitably among the people and maximized utilization, a

good land policy must be implemented for effective control and management. The need for an

effective policy for Land administration led to the enactment of the Land Use Act in Nigeria.

There were Land Laws1 which governed land tenure systems in Nigeria before, during, and after

the colonial masters' arrival on March 29, 1978 2, when the Land Use Act was enacted. In the

southern sections of the country, customary land law was mostly in effect, whilst in the north,

statutes largely governed the land tenure system. There was no unified customary land law

1
The existing land laws include-customary, received English land laws and the Land Tenure
Law

2
The Land Use Act No. 6 March 29, Cap L5. LFN 2004

1
because different communities had their own laws and practices relating to land that were

acceptable and prevailing among the indigenous where the piece of land was located. In terms of

statutory land tenure, the many acts that governed land tenure prior to the enactment of the Land

Use Act may be found in both English and Nigerian law. 3 The Interpretation Act 19584

established the common law of England and its concepts under Received English Law. On the

1st of January 1900, Nigeria was governed by the Nigerian Code of Equity and General

Application Statutes. The English common law of property was made applicable to Nigeria

under that provision, where customary land law did not apply. Legislation of Fraud, Small

Tenement Act, Statutes of Distribution, Real Property Limitation, Land Transfer Act,

Conveyancing, Recovery of Premises Act, Wills Act, Vendor and Purchasers Act, and others are

examples of English statutes that are part of Nigerian land law concepts 5. Furthermore, the

Nigerian law of mortgages, leases, conveyance, and succession, all of which are part of land law,

is based on English law.6

These rules remained in effect until they were proved to be ineffective since, despite their

existence, Nigeria's land tenure problems persisted. One of the most critical of these issues was

the government's difficulty in securing land in major urban centers for national development due

to land speculation, racketeering, and the high cost of compensation 7 requested by land owners

3
Otubu, A “Private Property Rights and Compulsory Acquisition Process in Nigeria: The Past,
Present and Future” 2012. Acta Universitias Danubias Juridica, 8, 25-42.
4
Interpretation Act (1958). Laws of the Federation of Nigeria and Lagos.
5
Yakubu, M. G. Fundamentals of Nigerian Law in Nigerian Institute of Advanced Legal, Studies
(Law Series No. 2, 1989,p. 163).
6
Ibid.

7
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 197
2
whenever the government bought land to carry out its initiatives. 8It became critical for the

government to intervene through legislation to address the problems. Following the suggestions

of a minority report of a panel created by the Federal Military Government to advise on future

land policy, the Land Use Decree was promulgated on March 29, 1978. The Federal

Government established the Land Use Panel in 1977 9 with specific terms of reference in an effort

to unify property tenure, streamline, and simplify land ownership in Nigeria. This panel's

recommendations focused mostly on the land tenure system in the southern states. The Land Use

Act of 19785 was enacted after the recommendations were considered and implemented by the

government.10

The Land Use Act, 1978 was established as a mechanism of land acquisition not previously used

in native land tenure11. It entrusts all lands in each state's jurisdiction to the Governor, who is to

hold them in trust for all Nigerians. It therefore created a proprietary interest in land called right

of occupancy, which is different from ownership. The right of possession is limited in term and,

in some cases, revocable. The reversion in all lands has been vested in the state since the

adoption of the Land Use Act 12. The Land Use Act is primarily concerned with the effective and

long-term administration and control of land in Nigeria, specifically in a way that allows the

government sufficient authority over the acquisition, transfer, or other assignment of land and

8
Ojo, O. Effect of Land Use Act on the Institution of Customary Tenancy in the Land Use Act—
Twenty-Five Years after, 2003 (p. 330). Yaba: Department of Private and Property Law Faculty
of Law, University of Lagos.
9
The Land Use Panel set up on the 16th April 1977 headed by Justice Chike Idigbo
10
Ibid.
11
Otubu, A. “Private Property Rights and Compulsory Acquisition Process in Nigeria: The Past,
Present and Future” (2012). Acta Universitias Danubias Juridica, 8, 25-42.
12
Ibid.
3
land resources.13 The Nigerian Court of Appeal held in Savannah Bank Ltd v. Ajilo14, that the

Land Used Act's evil was the abrogation of absolute ownership or freehold interest by the

community, the family, and the individual. Ajilo's lawsuit reached the Supreme Court, it was

regarded as a "revolutionary statute" that aimed to revolutionize Nigeria's land management. 15

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 after 38 years

existence of the Land Use Act. It also points out the inherent problems of the Act which range

from interpretation to practical implementation of its provisions.

1.2 STATEMENT OF THE PROBLEM

At the time of its enactment, the Land Use Act was lauded as a game-changing measure that

would catapult Nigeria along the path of economic development. 16It effectively transferred

absolute ownership or freehold interests from the community, family, and individual to the

government, which would hold them in trust for all Nigerians. Unfortunately, the optimism that

heralded the Act gradually and steadily faded into disillusionment as its lofty aims turned out to

be defeated due to inherent defects and contradictions in the Act on the one hand, and

institutional failure and lack of political will to implement the Act firmly and equitably on the

other. Recognizing this disillusionment, Nigeria's Supreme Court encapsulated Nigerians'

13
Nwocha E. “impact of the Nigerian Land Use Act on Economic Development in the Country”
(2016). Acta Universitatis Danubius. Administratio.Vol 8(2),pp.43-26.
14
(1987)1 NWLR (pt. 413).
15
Reported in (1989)1 NWLR (pt. 97).
16
Matthew Enya Nwocha. “Impact of the Nigerian Land Use Act on Economic Development in
the Country”. Acta Universitatis Danubius. Administratio, (2016): Vol 8(2).

4
dissatisfaction when it was decided in the case of Ogunleye vs. Oni 17 that; the Land Use Act has

evolved from the magical wand it was portrayed as to become a destructive monster that

swallowed all land rights at once, allowing the Governor or local government to divest families

of their homes and agricultural lands overnight with the issuance of a piece of paper, with a

wealthy holder of a certificate of occupancy driving them out with bulldozers and cranes.

Arising from this background, this research intends to examine the Problems and Prospects of

the Land Use Act, 1978, 38 years after promulgation

RESEARCH QUESTIONS

The research questions to be tackled in this study include:

1) What were the legal framework for land acquisition in Nigeria prior to the
enactment of the Land Use Act, 1978?

2) What are the major factors that led to the enactment of the Land Use Act in
Nigeria?

3) What requirements and procedures are required in obtaining the Governor’s

consents as required by the Act with regards to land alienation in Nigeria?
4) What are the problems and controversies created by the consent
requirement as well as the hardship meted out by the interpretation of
sections 21 and 22 of the Land Use Act?.

1.5 AIMS AND OBJECTIVES OF THE STUDY

The general objective of this study is to carry out an appraisal of alienation under the land use

Act, concentrating on its issues and challenges. Other specific objectives include:

17
(1990)2 NWLR (pt. 135) 745.
5
 1) To examine the legal framework for land acquisition in Nigeria prior to the

enactment of the Land Use Act

2) To ascertain the reasons for the enactment of the Land Use Act in Nigeria

3) To analyze Governor’s consent under the Land Use Act,

4) To examine problems and controversies created by the consent

requirement as well as the hardship meted out by the interpretation of

sections 21 and 22 of the Land Use Act. .

5) To provide recommendations on how these challenges can be eliminated.

1.6 SIGNIFICANCE 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 Act.

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.

Finally, this research will serve as additional literature for further research in this area of study.

1.6 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
6
existence before the enactment of the Land Use Act in 1978. However, particular references will

be made to the Land Use Act, 1978 which is the primary legislation regulating Land ownership

in Nigeria. Also, decided cases relating to the provisions of the Land Use Act in Nigeria shall

form the scope of this study.

1.7 RESEARCH METHODOLOGY

This study adopted an analytical research method. The problems in the Land Use Act of 1978

will be examined and evaluated in order to satisfy the study's objectives. The information for

these publications came from both primary and secondary sources. Land Use Act No. 6 of 1978,

Land Tenure Law of 1962, Public Land Acquisition Act, and Nigerian Constitutions, among

others, are key primary sources in this regard. Secondary sources include things like the internet,

books, essays, journals, and articles on the subject, as well as court rulings and judicial decisions.

Many law chambers were also visited in order to gather information from the lawyers on staff.

1.8 LITERATURE REVIEW

Different writers and Jurist have commented on the importance and status of the Land Use Act in

Nigeria. A review of some of those writings and comments includes:

M.G. Yakubu18 believes that the Act has significantly unified Nigeria's land tenure rules.

According to him, the Act has largely eliminated the multiple state land laws that control the

country's land tenure system, making the job of a lawyer and a court in determining the

appropriate law easier.

18
Yakubu, M. G. Fundamentals of Nigerian Law in Nigerian Institute of Advanced Legal,
Studies (Law Series No. 2, 1989,p. 163).
7
Alegwu Ega19 pinpointed that the major goal of the Act is to allow rapid economic and social

progress in the country by maximizing land use efficiency. The immediate goals include

preventing land concentration in both the rural and urban sectors of our economy, controlling

land transactions, land prices, and land speculation, and facilitating state and private sector

access to land to eliminate a source of socio-economic inequality.

According to Anyanwu et al.,20 the Land Use Act was enacted to meet the need for larger areas

of land for agriculture and non-agricultural purposes; to end racketeering and never-ending

litigations in land transactions due to rising demand for land; to checkmate traditional land

ownership that had posed a barrier to national development programs; and to avoid a situation

where inheritance problems arose as a result of excessive subdivision of holdings upon the death

of a land occupier. The author’s went further to state that the Land Use Act established an

overarching goal It said in its prologue that it wishes to achieve the following goal:

 Whereas it is in the public interest that the rights of all Nigerians to the

land of Nigeria be asserted and preserved;

 And although it is also in the public interest for all Nigerians to use and

enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable

them to provide for the sustenance of themselves and their families to be assured,

protected, and preserved;

There have been constitutional judgements regarding the Act's constitutionality and other

constitutional features since its incorporation in section 274(5) of the 1979 Constitution (now

19
Alegwu E.L. “Land Tenure as a Constraint on Agricultural Development in Nigeria” 1985,pp.
229-239.
20
Anyanwu, J.C., Oyefusi, S.A., Oaikhenan, H. and Dimowo, F.A. “Structure of the Nigerian
Economy (1960-1997)” (JOANEE Educational Pub. Ltd., Onitsha),1997.
8
section 315(5) of the 1999 Constitution). The interpretation of this paragraph has sparked a great

deal of debate among authors and judges. While some have strongly contended that the Act is

merely an existing statute that is not a part of the Constitution, others have maintained that it is a

component of the Constitution. As a result, in the case of J.M. Aina & Co. Ltd v. Commissioner

for Lands and Housing21, Oyo State of Nigeria, Fakayode C.J. held that while the Land Use Act is

merely an existing law, it is an integral part of the Constitution and must be treated as such. In

that case, it was likewise decided that the Act had repealed itself by its own provisions and by

being incorporated into the 1979 Constitution rather than existing legislation.

The Supreme Court, however, clarified the position of the Act in Chief Nkwocha v. Governor of

Anambra State & Ors22, declaring that the Land Use Act is a part of the constitution, not just an

existing legislation.

Hassan Bala23 succeeded in emphasizing some of the governor's consent's laborious nature.

Despite this, he paid little attention to the issues that had surfaced. Omotola 24 also looked at

sections 21 and 22 of the law, which deal with the need for the governor's permission before a

right of occupation can be alienated. In all cases requiring transfer, he recommended governors to

invoke the provisions of section 22 (2). Hence, the people were able to continue doing things the

way they did before the Act while automatically giving prompt agreement when it was required.

However, he did not address the broader issue of differing interpretations of section 22.

21
(1983) 4 NCLR 643
22
(1984) 1 SCNLR 634 at 652.
23
Hassan B. “An Appraisal of Alienation of Right of Occupancy under the Nigerian Law: Issues
and Challenges. Master Thesis Submitted to the Faculty of Law, Ahmadu Bello University,
(2015).
24
Omotola J. A Essays on the Land Use Act. Lagos University Press, 1980.
9
The courts have also demonstrated some judicial activism in this area over the years. As a result,

Nigeria has a plethora of legal judgements on the subject of land alienation, including when to

alienate, how to alienate (the need for governor's consent), and so on. In the locus classicus case

of Savannah Bank Ltd. v. Ajilo, Chief F. R. Ajilo 25, the scope of the provision of S. 22 of the land

use Act was thus determined in that case, Williams (SAN) argued that the provisions of S. 22 of

the Act imply that any alienation made without the governor's consent is illegal, as is any

transaction conducted therein. Despite the grantor's (Ajilo's) inability to acquire governor's

consent, the court deemed the alienation to be invalid and the mortgage transaction to be illegal.

Taiwo, E.A. in his article titled; ‟The Effects of Failure to Obtain Consent to Alienate Rights

under the Land Use Act and the Emerging Equities 26brought out and analyzed the hardships

suffered by the mortgagees. But he has not emphasized on conflicting decisions of the court

which we submit are the causes of any hardships that people might suffer in land transactions.

Olawoye,27 discussed the right of a holder to alienate his right of occupancy and opined that such

right is hinged on governor’s consent. Though, he explained right of occupancy, alienation and

governor‟s consent, he however did not discuss the major problems with consent. And these

problems and controversies are what this research aims at achieving.

Omotola28examined the provisions of sections 21 and 22 that deal with the requirement of

governor’s consent on alienation of right of occupancy. He recommended that governors should

adopt the provisions in section 22 (2) in all cases dealing with transfer of interest arising before

25
(1987)1 NWLR (pt. 413).
26
University of Ibadan Journal of Private and Business Law, Vol. 5 University of Ibadan Press. (2006) 171-185.
27
Olawoye, C. O. ‘’Statutory Shaping of Land Administration Up to the Land Use Act’’. In Olakanmi, J.
(ed.) Land Law Readings and Cases,1st edition, Law Lords Publications Abuja Nigeria (2009) at pp. 25-31
28
Omotola, J. A. ’’ The Certificate of Occupancy,’’ In Olakanmi, J. (ed.) Land Law Readings and Cases,1 edition, Law
Lords Publications Abuja Nigeria (2009) 52 - 58

10
the Act and permit the citizens to follow the old practice relating to their transfer while giving

prompt consent where required in an automatic manner. He however did not discuss the conflict

of interpretation of the provision of section 22 generally.

Babaji,29 made enormous contributions about this area of research. He highlighted the problems

created by the entire Land Use Act, namely it leads to underdevelopment of the economy, and the

issue of the “Half Hectare Rule” etc. Unfortunately, he made no attempt to analyze the problems

created by S. 22, more particularly the issue of conflicting interpretation of the provisions of

sections 21 and 22 of the Act.

The courts too have over the years demonstrated some level of judicial activism on this area.

Hence, there are various judicial pronouncements on the concept of alienation of land in Nigeria,

when to alienate, how to (the requirement of governor’s consent),30 etc.

Thus, in the locus classicus case of Savannah Bank Ltd. v. Ajilo31 the scope of the provision of

S. 22 of the land use Act (which is one of the most central issues of this research) came up for

determination. In that case, Chief F. R. A. Williams (SAN) contended that the provisions of S. 22

of the Act implies that, any alienation made without governors consent was unlawful and

consequently any transaction conducted therein was illegal going by the provision of S. 26 of the

same Act. The court held that the alienation was unlawfully made and the mortgage transaction

was illegal, notwithstanding the fault of the grantor (Ajilo) to secure governors consent.

29
Babaji H. Z. Alienation of Rights of Occupancy in A Developing Economy: A Critical Analysis of the
Provisions of the Land Use Act.
30
As In Savannah Bank Ltd. v. Ajilo (1978) 2 NWLR (pt. 57) p. 421, Awojugbagbe Light Industry
Ltd. v. Chinukwe (1995)4 NWLR (pt. 390) 379 S.C, Oil Field Supply Centre Ltd. v. Josph Lloyd
Johnson (1986) SC, 30 etc.
31
Supra

11
However, in Oil Feld Supply Centre Ltd. V. Joseph Lloyd Johnson.32 The same supreme court

held that certain equities will not permit the company to benefit from their own illegality”. 33 This

goes with the equitable maxim that says “he who comes to equity must come with clean hands”

Again, in Okunneye v. F. B. N. Plc 56 the court held that governor‟s consent is not required while

creating an equitable mortgage. This decision also contradicts the provision of section 51 of the

Land Use Act which defines mortgage to include equitable mortgage.

Recently, the Supreme Court in Union Bank of (Nig.) Plc & Anor v. Ayodire & Sons (Nig) Ltd 34

went back to its previous decision in Ajilo, notwithstanding the distinction of the facts of the two

cases and the effects of the decision on mortgagees who suffer for the wrongs they have not

committed.

Therefore, the above cases even though they highlighted the significant contributions of the

courts in the area of this research, yet, they ended up in confusing the practical application of

governor’s consent. For, some of the cases were decided in the opposite by one court.35

As such, the advertised motive of curbing land speculation and removal of the bottlenecks in land

alienation and tenure has been watered down by the event of difficulties brought about by the

consent provision of Land Use Act. Thus, the writer embarks on this research to identify the

causes and effects of these difficulties and itemize some recommendations that will help in

solving the problems associated with alienation of land in Nigeria.

32
Supra
33
Per Kayode Eso JSC (as he then was)
Supra. 56 (1996)6 NWLR (pt. 457) 749
CA
34
(2007) 12 NWLR (pt. 1052) 567
35
They were decisions of the Supreme Court.

12
In Okunneye v. F. B. N. Plc 36, the court also held that when establishing an equitable mortgage,

the governor's consent is not required. This decision also contradicts section 51 of the Land Use

Act, which defines a mortgage as including an equitable mortgage. Despite the fact that the two

cases had very different facts, the Supreme Court recently changed its previous decision in the

case of Ayodire & Sons (Nigeria) Ltd. v. Union Bank of (Nigeria) Plc and Anor 37 This, however,

has had little impact on the divergent interpretations of the consent requirement by our courts.

This emptiness, as well as the ramifications of the ruling for mortgagees who are penalised for

wrongdoings they did not commit, are what this decision is about.

As a result, while the preceding examples highlighted the courts' significant contributions to this

study, they also resulted in a practical misunderstanding of the governor's consent. Because in a

number of cases, one court decided against the plaintiff. As a result, the Land Use Act's approval

provision has weakened the declared purpose of minimizing property speculation and alleviating

bottlenecks in land acquisition and tenure.

1.9 DEFINITION OF TERMS

LAND

CONCEPTUAL DEFINITION OF LAND

Land is defined as the earth's surface stretching downward to the earth's center and upward to

infinity, including those objects permanently attached by nature, such as trees, water, and other

natural features. Land, often known as dry land, is the part of the Earth's surface that is not
36
(1996) NWLR (pt. 457) 749 CA
37
(2007) 12 NWLR

13
constantly covered by water. Throughout history, the great bulk of human activity has taken

place on land that supports agriculture, habitat, and diverse natural resources. Some life forms

(including terrestrial plants and animals) evolved from water-dwelling forerunners. Coastal

zones are defined as areas where land meets big quantities of water. To humans, the distinction

between land and water is a fundamental concept. The line between land and water might be

drawn differently depending on local jurisdiction and other circumstances. A political

demarcation can take many forms. One example is a maritime boundary. There are a number of

natural boundaries that help define where water meets land. Landforms made of solid rock

MEANING OF LAND AT COMMON LAW

In general, different scholars have varying definitions of what it means to own land in common

law. Niki Tobi, J.S.C38 provided one such definition, defining land to encompass not just the

earth's surface and subsoil, but also any appurtenances permanently linked to it. 1 As a result,

section 3 of the Interpretation Act corresponds to the aforementioned definition. Another

distinguished scholar and legal luminary, Bennett. J., defined Land as "not simply the earth's

surface, but down to the earth's core and up to the sky" in the case of Wilson V. Shorrock.39

MEANING OF LAND IN CUSTOMARY LAW

Nobody has yet to provide a clear – cut definition of land as regards to customary law, as Essien

acknowledged when he said, "none of the existing major books on Nigerian Land Law has

bothered about the meaning of Land under customary Law, and case law too offers little

assistance in this regard".40 However, it is safe to add that Land under customary Law, just like

38
Niki Tobi “Cases and Materials on Nigerian Land Law (Lagos; Mabrochu Books, 1977: P.1
39
(1938) 2 All E. R. 599 at 602 Re. Wilson Syndicate
40
Essien E.E. Law of Credit and Security in Nigeria. Golden Educational Publishers, Uyo
(2000).
14
its meaning under Common Law, includes things not only on the surface area, but also other

things on the Land, as the principles of customary law dictate.41

MEANING OF LAND UNDER THE STATUTES

Land is defined as "any building or other thing fixed to the earth or permanently fastened to

anything thus attached, but does not include minerals," according to the Interpretation Act of

1959 and 1999, Cap 192, which is now contained in Cap 123 Laws of the Federation.

Land ownership is a critical issue in the country; it is even a fundamental right, as stipulated in

Section 43642 of the Nigerian Constitution, which grants the right to purchase and own

immovable property wherever in Nigeria, and Section 44, which deals with forcible acquisition

of property. The Court concluded in Chiade V. Aggo 43 that section 44(1) of the Constitution

prohibits the transfer of movable property or any interest in immovable property. .

The Land Use Act of 1978 is a significant piece of legislation that alters Nigeria's land tenure

structure, addressing to some extent the discrepancies in land ownership between land owners

and tenants. Section 1 of the Land Use Act, on the other hand, entrusts the administration of land

to the governors of each state for the use and benefit of all Nigerians.44

LAND USE ACT

The Land Use Act (L.U.A.) is a statute enacted in 1978 by the military government of General

Olusegun Obasanjo to unify the country's land tenure systems. With effect from March 29, 1978,

it was promulgated as Land Use Decree No. 6 of 1978. It is an Act to vest all land compromised

41
Ezeani V Njidika (1964) 1 All N.L.R. p. 402.
42
1999 Constitution of the Federal Republic of Nigeria ((CFRN), as amended.
43
(2005) 1 N. W. L.. B (Pt. 907) p.319.
44
Section 1 of the Land Use Ac1978.FRN
15
in the territory of each State (except land vested in the Federal government or its agencies) solely

in the Governor of the State, who would hold such Land in trust for the people and would be

responsible for allocating land in all urban areas to individuals and organizations for residential,

agricultural, commercial, and other purposes, while similar powers will be exercised with respect

to non-urban areas.

REGISTRATION OF LAND

Land registration refers to the process of recording ownership, occupancy, and other rights in

land (typically with a government agency or department) in order to provide proof of title, ease

transactions, and prevent illegal disposal. The information that is recorded and the level of

security that is granted will differ depending on the jurisdiction.

PROBLEM

An unpleasant or harmful matter or circumstance that must be addressed and conquered. A

matter or situation regarded as unwelcome or harmful and needing to be dealt with and

overcome.

PROSPECT

The word "prospect" comes from the Latin word "prospectus," meaning "view or outlook." A

prospect is a way of anticipating positive things in the future, a potential that something

spectacular or extraordinary may occur. It's similar to potential in that it's something that could

be but isn't. There's always the chance that something horrible will happen, but the odds are

usually in your favor. A likelihood or chance of future success, especially as based on current

work or aptitude. The potential or possibility of something happening in the future.

16
1.10 CONCLUSION

From the writings in this chapter, it is clear that the Land Use Act of 1978 was enacted in a

conscious effort to unify property tenure and simplify land ownership in Nigeria, as evidenced

by what has been said so far. The Act gave the government of Nigeria control and administration

of land inside the state. Section 1 of the Act asserts State control and management of land,

vesting all lands in the territory of each State of the Federation in the Governor of that State. The

purpose of this chapter was to carry out an introductory review into the reasons for the

promulgation of the Land Use Act and its’ perceived benefits in Nigeria. The core of this chapter

will help facilitate the general purpose of this research which is to examine the problems and

prospects of the Land Use Act, 1978 in Nigeria.

CHAPTER TWO THE LAND USE ACT OF 1978: AN OVERVIEW

2.0 INTRODUCTION

This Chapter is carried out to examine the historical 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 after

38 years existence of the Land Use Act. It also points out the reasons for the formulation of the

Land Use Act while comparing to existing laws prior to it’s enactment.

2.1. HISTORICAL BACKGROUND OF THE LAND USE ACT

17
Nigerian land tenure was governed by a number of ineffective legal regimes from 1900 to 1978.

Customary law in the south, which emphasized communal land ownership among families and

social groupings; Islamic law and custom in the north; and two independent legal systems of the

colonial administration – common law private ownership in the south and crown ownership in

the north – were among them. between various legal systems, a lack of a uniform national land

law, and old customary and colonial-era laws, according to Nigerian authorities, were impeding

equitable land distribution among citizens and hence investment. The underlying denominator,

however, was that the laws governing the alienation of property and the conferral of lawful title

to purchasers were complex, unpredictable, and difficult to define precisely. 45 Another common

aspect of these systems was the emphasis on protecting land, whether for the group, as in

customary law, or for the locals, as in land tenure law. However, none of these approaches were

successful in providing land to the government or individuals for much-needed socioeconomic

and infrastructure development. These policies the bulk of which were couched in legal language

were for the most regional rather than national in scope.

There had been incoherent requests for a reform in Nigeria's land tenure structure for about a

decade before the Decree (Now Act) was promulgated. Many people believed that Nigeria's

underdevelopment was due to a lack of a competent land policy and the country's reliance on

mostly customary land tenure. Almost all government entities mentioned land acquisition

difficulties as the most significant issue delaying the implementation of their development plans.

The Federal Military Government decided it was necessary and wise to simplify land

distribution, particularly urban lands, in order to remove these hurdles and propel the country

ahead into full scale industrial and economic growth.

45
Oluyede, P.O; Legal Development in Nigeria since 1960: The Land Use Act 1978, Unilag
Publication, 1992.
18
As a result, it established four related committees to advise it on the idea, and their independent

recommendations all agreed on the need for the government to exercise effective land use

regulation. According to Igbozuruike 46 the four committees are:

 the anti-inflation task force, which was established in 1975;

 the rent tribunal, which was established in 1976;

 the rent tribunal, which was established in 1977; and

 The Panel on Land Use established in 1977

The Report of the Land Use Panel was later accepted in late 1977 47 with specific terms of

reference in an effort to unify property tenure, streamline, and simplify land ownership in

Nigeria. This panel's recommendations focused mostly on the land tenure system in the southern

states. The Land Use Act of 1978 was enacted after the recommendations were considered and

implemented by the government. It is a revolutionary law enacted in response to a number of

socio-economic factors preventing the conferral of valid land titles, the realization of use and

enjoyment of land in Nigeria for the sustenance of Nigerians, and the effective use of land by

private entrepreneurs and the government for development purposes. In a report delivered to the

federal government, the Panel emphasized the urgent need for land reform in Nigeria with the

following terms of reference:48

 To conduct a comprehensive analysis of the country's varied land tenure, land use,

and conservation methods and make recommendations for improvements.

 To investigate and assess the country's implications of a unified land policy;

46
Igbozuruike U.M. Nigerian land policy: an analysis of the land use decree. Nsukka.
University of Nigeria Press (1980).
47
The Land Use Panel set up on the 16th April 1977 headed by Justice Chike Idigbo
48
Ibid.
19
  To investigate the feasibility of a national land policy, make necessary

recommendations, and propose implementation guidelines; and;

 To investigate and provide appropriate recommendations for limiting future land

usage as well as opening and developing new land for the government and Nigeria's

rising population in both urban and rural areas.

The majority of the panel's reports advised against land nationalization in Nigeria The panelists

advocated for more uniformity in land use and conservation methods, as well as comprehensive

improvements to planning and , registration rules, mining laws, and other areas. 49 The minority

report, on the other hand, unambiguously advocated for land nationalization throughout the

country. The panel's report was not the subject of a white paper. The Land Use Decree, based on

the minority report, was enacted by the federal military government on March 29, 1978.50

The Land Use Act might be interpreted as an attempt to integrate the country's many property

tenure systems and to eliminate the concept of individual land ownership in order to facilitate

development.51 Land is very important in Nigerian culture. However, with the arrival of British

authority, increased trade, commercial activity, and industrialization, private land ownership

became vital. Because of the advent of English ideals, individual ownership of land became

possible. It's also worth noting that the English land legislation didn't entirely eliminate Nigeria's

R
49
eport of the Land Use Panel, P. 61
Only one member of the panel, Prof. R.C. Udo, supported
50

nationalization of Land, and accordingly submitted a minority report

on the issue.
51
Ojo, O. Effect of Land Use Act on the Institution of Customary Tenancy in the Land Use Act
—Twenty-Five Years after, 2003 (p. 330). Yaba: Department of Private and Property Law
Faculty of Law, University of Lagos.
20
traditional land tenure structure.52 It merely streamlined the country's existing land tenure

structure and codified it into law to ensure its efficacy.

2.2 REASONS FOR THE PROMULGATION OF THE LAND USE ACT

In late 1977, the land use panel, the committee's final report, was given to the Federal Military

Government. For the first time in Nigeria's land policy history, the then-president took

meaningful steps in response to the panel's recommendations.

The Land Use Act was passed with the following goals in mind: 1. To curtail land speculators'

excesses in Nigeria.

 To harmonise Nigeria's land tenure systems.

 To reduce the number of lawsuits that existed before the Act was enacted.

 To make land acquisition for development projects easier for the government.

 To enable the country's land use planning to be more well-coordinated.

The preamble can be used to discern the overall objective of the act. This preamble states that:

“Whereas it is in the public interest that the rights of all Nigerian to the Land of Nigeria

be asserted and preserved by Law. And whereas it is also in the public interest that the

right of all Nigerians to use and enjoy Land in Nigeria and the natural fruits thereof in

sufficient quantity to enable them to provide for the sustenance of themselves and their

families should be assured, protected and preserved”53

52
Ibid.
53
Preamble to the Land Use Act, 1978.
21
In the case of Abioye V. Yakabu, Karibi-whyte54, J.S.C (as he was then) reaffirmed the

aforementioned aims, saying:

“… in construing a Law like the land use Act, it is always of considerable assistance to

consider the history and also purpose of the Law as enshrined in its preamble, and if

possible the social objectives… the intention of the Act as clearly stated is to assert and

preserve the rights of all Nigerians to the Land of Nigeria in the public interest. It is also

in the public interest that the right of all Nigerians to use and enjoy Land in Nigeria and

the natural fruits thereof to sustain themselves and their families should be assured,

protected and preserved”

Alegwu Ega55pinpointed that the major goal of the Act is to allow rapid economic and social

progress in the country by maximizing land use efficiency. The immediate goals include

preventing land concentration in both the rural and urban sectors of our economy, controlling

land transactions, land prices, and land speculation, and facilitating state and private sector

access to land to eliminate a source of socio-economic inequality.

According to Anyanwu et al.,56 the Land Use Act was enacted to meet the need for larger areas

of land for agriculture and non-agricultural purposes; to end racketeering and never-ending

litigations in land transactions due to rising demand for land; to checkmate traditional land

ownership that had posed a barrier to national development programs; and to avoid a situation

where inheritance problems arose as a result of excessive subdivision of holdings upon the death

(1991) All N.L.R. 1

54

55
Alegwu E.L. “Land Tenure as a Constraint on Agricultural Development in Nigeria” 1985,pp.
229-239.

56
Anyanwu, J.C., Oyefusi, S.A., Oaikhenan, H. and Dimowo, F.A. “Structure of the Nigerian
Economy (1960-1997)” (JOANEE Educational Pub. Ltd., Onitsha),1997.
22
of a land occupier. The author’s went further to state that the Land Use Act established an

overarching goal It said in its prologue that it wishes to achieve the following goal:

 Whereas it is in the public interest that the rights of all Nigerians to the land of

Nigeria be asserted and preserved;

 And although it is also in the public interest for all Nigerians to use and enjoy land

in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for

the sustenance of themselves and their families to be assured, protected, and preserved.

The most extreme element of this Act is the transfer to the Military Governor of each state of the

Federation of all individual interests in land within that state's jurisdiction previously owned by

people. Individuals' previously recognised bundles of permanent rights and interests were

extinguished by this provision, which was replaced by rights of occupancy (Section 1)

Section 2 (1a) gave military governors power and management of all lands in each state, with

the Land Use and Allocation Committee advising them. 57The local government chairmen have

jurisdiction to administer and control land situated in rural areas. The Land Use and Advisory

Committee is to advise them.58

The Act empowers military governors and local government chairmen to award people and

organisations statutory and customary rights of occupancy on land inside the state and rural

areas, respectively. However, it specified that without the agreement of the military Governor,

the chairman of local government shall not issue any customary right of occupancy to a person in

excess of 500 hectares for agricultural purposes and 5000 hectares for grazing purposes. 59 It
57
Section 2(1) a& b
58
See Sections 2 (1b) and 5
59
Section 5 & 6 of the Land Use Act
23
further stipulates that these governors' and chairmen's grants of statutory and customary rights of

occupancy shall be shown by the issuing of a certificate of occupancy, which shall contain the

terms of the grant, which must be religiously followed by the holder, or the right will be

revoked.60

The Act's Sections 21 and 22 prohibit the alienation of both customary and statutory rights of

occupancy in any way without the governor's or competent local government chairman's consent.

Furthermore, Section 36 (2) of the Act allows landowners in rural areas to keep their agricultural

land as if a customary right of occupancy had been given by the appropriate local authority.

Subsection 5 of this provision, on the other hand, makes it illegal to subdivide or transfer such

lands in any way.

We can deduce from this Provision that there are two forms of customary rights of occupancy

that individuals in rural areas can have over their lands. The first comes from a recent award

from the area's local government chairman. The granting of a standard certificate of occupancy

attests to this. The second arises from a right presumed to exist in the person in whose name land

in the rural region was vested previous to the Act's enactment. A customary certificate of

occupancy is issued as proof of this. The second arises from a right presumed to exist in the

person who was vested with land in the rural region prior to the Act's enactment. A certificate of

occupancy does not establish this entitlement. The considered customary right of possession has

an infinite tenure and no rent is given to the overlord, among other variations between the two

rights. This provision of the decree transforms pre-1978 customary tenancies in rural regions,

such as freehold and leasehold interests, to considered customary rights of occupancy.

60
See Section 9 and 10 of the Land Use Act
24
However, If the holder of a considered customary right of occupancy wishes to get a certificate

of occupancy, his right of unlimited duration will be reduced to a right of defined duration, with

all additional consequences associated with such a grant.

Section 28 allows for the revocation of occupancy rights in the event of an overriding public

interest or a breach of the certificate of occupancy's provisions. Section 29 stipulates that if a

right is revoked, it must be compensated. However, the compensation is restricted to the

improvements made to the land prior to the revocation date that have not yet been depleted. It

excludes revocation for any violation of the certificate of occupancy's terms.

It is claimed that the Act was passed to address issues such as uncontrolled urban speculation,

making land easily accessible to all Nigerians regardless of gender, unifying the country's tenure

system to ensure equity and justice in land allocation and distribution, and preventing

fragmentation of rural lands caused by the application of the traditional principle of inheritance,

among other things.

These are unquestionably commendable goals. The approval clause was introduced to enable the

governor to have effective supervisory authority over all land in his state's area and to verify that

all land transactions comply with the Act's provisions, according to the argument. However, later

in this paper, we'll look at whether the Act has met these goals in its 38 years of existence,

especially in light of the consent requirement.

According to Olayiwola and Adeleye61, the Act, however, contains the following flaws:

Olayimola, L. M., Adeleye, O., & Oduwaye, A. Spatial Variation in Residential Land Value
61

Determinants in Lagos Nigeria. In Proceedings in the 5th GIF Regional Conference, Accra,
Ghana (2006).
25
 It hasn't eliminated speculation, which is bad for urban land management, but it has

increased speculation behind the scenes.

 It is mostly a city-based law that solely addresses rural land tenure issues.

 The government's granting of a certificate of occupancy provides no guarantees. As a

result, it places a significant load on financial institutions that rely on it to provide loans.

 The requirement in sections 21,22,23, and 34(7) that the governor's consent be

sought and acquired prior to the transfer of any interest over land thwarts initiatives due

to the lengthy process required to get the consensus of Traditional landowners with

birthright claims to their property avoid it since it has exacerbated rather than alleviated

the uncertainty in land ownership

2.3 EFFECT OF THE LAND USE ACT ON THE PRE-EXISTING LAND LAWS IN

NIGERIA

2.3.1 THE LAND USE ACT AND CUSTOMARY LAND LAW AND TENURE

Land, in the most legalistic sense, belongs to man's creator, according to customary law. This is

the guiding principle that applies to all traditional land tenure systems in Nigeria. Land, in the

most legalistic sense, belongs to man's creator, according to customary law. This is the guiding

principle that applies to all traditional land tenure systems in Nigeria. Man only have access to it

for the sake of use and occupation, and any misuse requires propitiatory sacrifices. This right of

use is primarily for ancestors, but also for existing and future generations. 62 Depending on the

62
Adedipe, Olawoye & Okediran; Rural Communal tenure regimes and Private Landownership
in Western Nigeria available at www.fao.org/ed/ltdirect/LR972/w6728t14.htm, accessed on 18-
02-2022 .
26
type of Customary tenure structure, this differs from location to location. Some are

individualistic, while some are communal in nature (i.e. owned by families).

In customary land tenure, land belongs to the village, to the community or family, but seldom to

an individual. The decision of the Privy Council in Amodu Tijani V.Secretary of Southern

Nigeria,63 that land belongs to the community, tor family, and never to an individual was widely

considered as substantially true.

The above statement does not imply that all members own and use the land at the same time, for

the same purpose, and on a level playing field. According to the actual meaning, individual

members of these families or groups have special rights, claims, powers, privileges, and

immunities in and over the land. No member shall be denied the right to benefit from or

participate in the management of the land .. To put it clearly, Professor Oluyede points out that

the entire concept entails:

“group ownership in African context is an unrestricted right

of the individual in the group to what is held to be the

common asset Of land; the right of all in the group to

claim”64

Land is handed to the headman, chief, or traditional ruler as a community or family property (in

the event of communal property) and the head of the family (In the case of family land), the

person who manages and controls the land on behalf of the community or family. 65 Both can be

63
(1921) 2 A.C. 399.
64
P. Oluyede. Modern Nigeria Land Law. Evans Brothers Nigeria Publishers Ltd, Ibadan (1989)
P.12
65
Per viscount Haldane in Ahmodu Tijani .V. Secretary of Southern Nigeria (supra) P. 404.
27
managed using the same corporate land management theory. As a result, references to the family

head also apply to the community leader, and vice versa.

When exercising his powers, the village chief or headman is commonly referred to as a trustee,

but he is not strictly speaking a trustee in the English sense. This is owing to the fact that the

property's title does not belong to him, but to the entire community. In any case, as the

community's alter ego, the community's head or chief is the proper person to exercise the

community's ownership rights, subject to the members' individual rights. .66 In Solomon & Ors. v.

Mogaji67, the Supreme Court reaffirmed the position that the headman has the capacity and

authority to control the business of family property, whether referred to as a "manager,"

"director," "representative," "agent," "caretaker," or "fiduciary." He is a fiduciary to family

property in any of these situations. As a result, any outright land alienation by the family without

the active participation of the head is null and void, as the Ghanaian case of Agbole V. Sappor68

proved Likewise in the Nigerian case of Odekilekun V. Hassan69, where the Supreme Court held

that The sale of communal or family land by the community's leader without the approval of the

family's main members is voidable at the family's or community's request.

The court will rarely intervene with the family head's rights to manage the family's assets;

however, he must not abuse this authority.70 The powers are generally bestowed on him to

benefit both the family as a whole and himself. As a result, he is willfully misusing his powers if

66
Nwabyeze, B.O. Nigerian Land Law. (1982) Nwamife publishers P. 151
67
(1990) 4 NLR (Dt 144) 407.
68
(1947) 12 WACA 187 5
69
(1997) 12 NWLR (pt. 531) 56.
70
Ndukwe O. Comparative Analysis of Nigerian Customary Law. UNICAL Press, Calabar,
Nigeria, (1999). P. 75.
28
he considers the family property as his own property. Thus, in the case of Agara v. Agunbiade,71

the court stated that

“There’s no doubt, that the principle has been settled, to the effect that where the family finds

the head thereof misappropriating the family possession or property and squandering them, the

only remedy is to remove him . . .”

Although there is no unified system of customary law in Nigeria, there are as many systems of

customary law as ethnic groupings, and within an ethnic area, there may be modifications in

respect of the territory's specific localities, not in substance but in practice.

It's worth having a look at land tenure in Nigeria's northern states under the Maliki School of

Islamic law, which is now in practice in the country. Each individual has usufructuary rights to

land, which is considered a gift from Allah (God). Under Islamic land tenure law, occupied,

unoccupied, and common land are the three legal classifications of land in Nigeria.

Occupied land is land that is in use, with the basic concept that the occupier is free to do as he

pleases with the property as long as he does not cause any harm to members of the public and as

long as the land is not acquired for a public purpose. As a result, he can sell, pledge, loan, and

enter into tenancy arrangements without the Emir's, ruler's, or any other authority's permission.

Unoccupied land, on the other hand, can be classified into two categories: land near the emirate

capital and/or other towns, and land remote from the capital and/or other towns. The major land

management is the Emir.72 As a result, no land in towns or their surrounding areas can be

(2013) All FWLR pt. 683 p. 1899 at 1919 para.

71

72
Ndukwe O. Comparative Analysis of Nigerian Customary Law. UNICAL Press, Calabar,
Nigeria, (1999). P. 75.

29
occupied without the Emir's permission. However, once it is allocated, the person receiving it

became the sole owner.73

This means that the occupant has a title against all people and can use it whatever he wants, but

he cannot alienate it to a total stranger without the Emir's permission. Land outside of town, on

the other hand, is open to everybody, or a no man's land, where anyone can obtain land by

clearing, farming, building, or planting economic trees, without the authorization of any

authority. Common land is a third land category that an Emir can declare as common or public

land, whether occupied or unoccupied territory. Land acquired by battle, cession, or negotiation

was largely excluded. They can be utilized for markets, praying sites, or other purposes.74

2.3.2 THE LAND USE ACT AND THE RECEIVED ENGLISH LAND LAW AND

TENURE

One of the effects of colonization was that it brought into the country the English common law,

equity theories, and general applicability statutes relating to property law that were in effect in

England on January 1, 1900.75 The Real Property Act of 1845, the Frauds Act of 1877, the Wills

Act of 1837, the Limitations Acts of 1833 and 1877, the Partition Act of 1868, the Conveyancing

Act of 1881, the Settled Land Act of 1882, and the Land Transfer Act of 1887 are only a few of

these acts. As a result, English common law principles governing tenures, real estate

dispositions, estates, inheritance, perpetuities, and a variety of other topics were made relevant in

Nigeria. The equity theory, which included the construction of wills, the institution and

settlement of land, legal and equitable estates and rights in land, and the doctrines of notice, may

73
Ibid
74

75
See S.45 Interpretation Act, cap 89, repealed by Act of 1964, No 1.
30
be said to be similar. In summary, colonization replaced the concept of land ownership with

terms such as rights, interest, possession, and occupation.76

The principles of tenure and estate underpin Received English Land Law. All land in England

belongs to the crown under the doctrine of tenure. The doctrine of estate, on the other hand,

grants a man the right of seisin, or what is commonly referred to as possession, over land that he

possesses either directly or indirectly as a tenant of the crown. It is divided into two categories:

freehold and non-freehold. Fee-simple estate, life estate, and fee-tail or estate-entail are the three

types of freehold estates. The fee-simple estate is the biggest potential stake in land recognized

by Nigerian law, but which does not imply absolute possession in English law. 77 It signifies

inheritance by any kind of successor, such as a brother or a wife, for as long as there are

descendants from generation to generation.78

Between 1900 and 1978, Nigeria faced the difficulty of applying two types of tenure to our land

system as a result of the implementation of accepted English Land Law in the country.

Nigerians, on the other hand, were able to choose which tenure to use when purchasing land. As

a result of this circumstance, property laws were enacted in Nigeria to manage land allocation

and use.

2.3.3 THE LAND USE ACT AND THE LAND TENURE LAW, 1962

76
Amiko and Amidu; Women and Land Rights Reforms in Nigeria, a paper presented at the 5 th
FIG Regional conference in Accra, Ghana, 2006; available at www. oauife.edu.ng/articles.
(accessed on 08-02-2022).
77
Ibid
78
Egwummuo, J.N; Principles and practice of Land Law , (1999) P. 82
31
Prior to colonisation, Land in the area that would later become known as Nigeria was controlled

exclusively by indigenous peoples.79 Individuals, families, and communities were given land,

with the family head or chiefs, obas, and emirs acting as trustees for the people's welfare. 80. As a

result, land transfer and sale were frowned upon. Land had a larger sentimental worth than

economic value, as it represented the ancestors' permanent habitation and provided comfortable

housing for shrines.81

The Land and Native Rights Proclamation No. 9 of 1910 was issued in response to a number of

issues relating to land legislation, administration, and control that the government was

experiencing.82 The Land and Native Rights Ordinance No.1 was extensively re-enacted in 1916.

This was likewise changed and re-enacted in Nigerian law. 83 The major provision of this

Ordinance was to vest the power, control and management of the land in the Northern

Protectorate to the governor for the common benefit of the natives. It is therefore worth noting

that all the above Ordinances and Acts provided for the requirement of High Commissioner’s or

governor’s consent before alienation84

However, the aforementioned Ordinance (Native Rights Ordinance) did not solve the

government's concerns, and in 1962, the Northern Legislative Assembly of Nigeria took pleasure

in resolving the country's land tenure problems.85 As a result, the Land Tenure Law of Northern

79
Abugu, U Land Use and Reform in Nigeria: Law and Practice. Immaculate Prints Publishers,
Abuja, 2012 p.187
80
Ibid.
81
Ibid
82
Sections 28 and 32 of the Land Tenure Law 1962 and section 11 of the Land and
Native Rights Act, 1916
83
Cap 105,1948.
84
Sections 28 and 32 of the Land Tenure Law 1962 and section 11 of the Land and
Native Rights Act, 1916
85
Aboki Y. An Introduction to Statutory Land Law. (Unpublished Class Material) (2013)p.4.
32
Nigeria, 1962 was enacted. The law accepted the Land and Native Rights Ordinance of 1948's

ideas, values, philosophies, ideologies, and ideals.86 The law's goal was to replace the Land and

Native Rights Ordinance with a new one that kept the basic ideals of the old one while also

making some revisions and improvements.

It's worth noting that the Land Use Act of 1978 is an offspring of the Northern Nigeria Land

Tenure Law of 1962, which had severe flaws and prompted the Land Use Act of 1978's passage.

As a result, we believe that the cause for the current Land Use Act's hardship and difficulty is not

unrelated to the Land Use Panel Committee's modification of the Land Tenure Law of 1962's

major provisions.

2.4 CONCLUSION

The Land Use Act, 1978 was established as a mechanism of land acquisition not previously used

in native land tenure.87 It entrusts all lands in each state's jurisdiction to the Governor, who is to

hold them in trust for all Nigerians. It therefore created a proprietary interest in land called right

of occupancy, which is different from ownership. The right of possession is limited in term and,

in some cases, revocable. The Land Use Act is primarily concerned with the effective and long-

term administration and control of land in Nigeria, specifically in a way that allows the

government sufficient authority over the acquisition, transfer, or other assignment of land and

land resources.

86
Ibid
87
Otubu, A. “Private Property Rights and Compulsory Acquisition Process in Nigeria: The Past,
Present and Future” (2012). Acta Universitias Danubias Juridica, 8, 25-42.

33
At the time of its enactment, the Land Use Act was lauded as a game-changing measure that

would catapult Nigeria along the path of economic development. It effectively transferred

absolute ownership or freehold interests from the community, family, and individual to the

government, which would hold them in trust for all. This chapter examined the major reasons for

the formulation of the Act and also made a comparison of the Act with existing laws prior to the

formation of the Land Use Act in 1978.

CHAPTER THREE: REFORMS & INNOVATIONS INTRODUCED BY THE LAND

USE ACT

3.0. INTRODUCTION

.Nigeria's independence in 1960 and the oil boom of the 1970s ushered in massive urbanization.

Due to the increasing growth of the population, land for residential and other economic purposes

has become extremely scarce. As a result of this demand, the government was unable to provide

land to the people. Land speculation exacerbated the problem even further. Holdings held

legitimately under state government titles and huge lands under customary tenure in the vicinity

of urban centres were among the speculative realms. While the former is caused by statutory land

distribution authorities' failure or refusal to identify real applicants who wish to develop the plots

promptly rather than speculate, the latter is caused by purchasing open land in the proximity of

States that is under customary ownership. This condition, which limits the amount of land that

the government can purchase for public use, has a direct impact on the amount of land available

for allocation and led to the formation of the Land Use Act in Nigeria. This chapter intends to

34
examine the reformative policies introduced by the Land Use Act as an hallmark tenure law in

Nigeria

3.1. POLICIES INTENDED BY THE ACT

3.1.1 UNIFORM LAND POLICY

The Land Use Act of 1978 was the first and only law that unified the country's land tenure

structure. Despite a number of land legislations before to the Act's promulgation in 1978, the

southern half of Nigeria, in particular, lacked a coordinated and institutionalized tenurial

organization. As a result, unending lawsuits slowed economic growth. Various laws relating to

land tenure in Nigeria that were in effect before to the Act's publication were consolidated into a

single law under the Act. As a result, a number of state laws have been repealed. One of the Act's

goals is to simplify the country's land tenure system by eliminating conflict zones. The goal was

to pass a single fundamental piece of law that gave the Governor of a state control over land.

This system made it easy for the government to take solid control of land, lowering the risk of

land speculators' actions. This change has also made it easier for lawyers and courts to determine

which land law is appropriate in a given situation.

This led Jakande111 to comment that It is the first time in this country that any administration

has conducted an intensive and comprehensive assessment of land policy in all of its

implications, and has produced clear-cut conclusions, laws, and regulations.

35
 According to Nwocha88, the Land Use Act intends to provide government with appropriate

authorities over the acquisition, transfer, or other assignment of land and land resources in

Nigeria. The Act intended to fulfil a variety of goals, which can be summarized for clarity's sake.

The Act was enacted to put a stop to land speculation, which was responsible for the

skyrocketing land prices, particularly in urban areas. Speculators would be put out of business

once property ownership was transferred to the government, and the value of land would be

stabilized. The purpose of vesting Land ownership on the government was to alleviate the

difficulty that the government had in purchasing land for public use. The Act aimed to integrate

tenure systems across the country, particularly in the south, where there was no coordinated and

institutionalized tenure system as there was in the north under the Land Tenure Law of 1962.

(Land Tenure Law, 1962). In most sections of the South, the situation resulted in numerous and

seemingly interminable lawsuits, which impeded economic progress, particularly when it came

to the location of industries, infrastructural projects such as hospitals and schools, and the

operation of mechanized agriculture. The Land Use Act was supposed to solve these and other

issues, or at the very least dramatically lessen them..

Land Use Act of 1978 was enacted as a result of the problem of land tenure systems in different

sections of the country. This was primarily a Nigerian problem in the south. Northern Nigeria

entrusted all of its land to the government in 1916, with the intention of keeping it in trust for the

people. As a result, Nigeria's land tenure system was brought together by the Land Use Act. The

Land Use Act's intent is summed up in its preambles, which state that "it is in the best public

interest that all Nigerians' rights to the land of Nigeria be asserted as preserved by law; and that it

is also in the public interest that all Nigerians' rights to use and enjoy land in Nigeria and the
88
Nwocha M.E “Impact of Nigerian Land Use Act on Economic Development in the Country”
Journal of Acta University Danubus Administration (2016),8(2),45-56.
36
natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of

themselves and their families be assured, protected, and guaranteed."89

It entrusts all lands in each state's jurisdiction to the Governor, who is to hold them in trust for all

Nigerians. It therefore created a proprietary interest in land called right of occupancy, which is

different from ownership. The right of possession is limited in term and, in some cases,

revocable. The reversion in all lands has been vested in the state since the adoption of the Land

Use Act90. The Land Use Act is primarily concerned with the effective and long-term

administration and control of land in Nigeria, specifically in a way that allows the government

sufficient authority over the acquisition, transfer, or other assignment of land and land

resources.91 The Nigerian Court of Appeal held in Savannah Bank Ltd v. Ajilo92, that the Land

Used Act's evil was the abrogation of absolute ownership or freehold interest by the community,

the family, and the individual. Ajilo's lawsuit reached the Supreme Court, it was regarded as a

"revolutionary statute" that aimed to revolutionize Nigeria's land management. 93

3.1.2 STATE OWNERSHIP, CONTROL AND TRUSTEESHIP POLICY

All land was placed under the government's jurisdiction in Section 1 of the Act. This means that

the Governor of each state now has the authority to control and administer land. The Governor,

on the other hand, has administrative control rather than proprietary power. This means that the

Governors are simply responsible for overseeing the day-to-day administration of the land in

89
Section 1 of the Land Use Act, 1978
90
Ibid.
91
Nwocha E. “impact of the Nigerian Land Use Act on Economic Development in the Country”
(2016). Acta Universitatis Danubius. Administratio.Vol 8(2),pp.43-26.
92
(1987)1 NWLR (pt. 413).
93
Reported in (1989)1 NWLR (pt. 97).
37
their respective states, not for owning it or having the authority to give part of it to another

person. The purpose of the law was to discourage speculation, limit land accumulation, and

remove unlawful land transactions. Because land is the foundation of all human activities,

entrusting it to the government would allow for proper management for the public good.. In most

cases, however, this is not the case. Governors have been accused of using their powers to target

political opponents.

In the case of urban land, Section 2(1a) states that the Governor of each state is responsible for

managing and controlling all land in the urban districts. The Governor shall form a Land Use

Allocation Committee to carry out this duty. According to subsection 2(a), b), and c), the

committee's role is to advise the Governor on all matters relating to land management in States,

resettlement of people whose rights of occupation have been revoked, and resolving disputes

over compensation payable under the Act.

Section 3 of the state constitution gives the governor the authority to classify portions of the

state's territory as urban. In this case, he may opt to declare the entire state to be urban, leaving

local governments with no land to administer.

Despite the fact that the governor oversees land, he cannot refuse to distribute land to anyone

who meets the criteria for land allocation if land is available.

According to Igbozuruike94, urban land acquisition is carried out in four (4) processes under the

Act:

 A government ministry buys a plot of land in the city and divides it into plots.

94
Umezulike, I. “ Does Land Use Act Appropriate” Another View (1986) 5 J.P.P.L. p.61
38
 It informs interested parties that they can apply for plot allocation by submitting an

application form along with a non-refundable fee and a tax clearance certificate for the three

years immediately preceding the application date.

 Successful applicants are notified subsequently and asked to pay rental payments ranging

from hundreds to thousands of naira.

 Their ownership rights are transferred

The state's ultimate control and ownership of land in Nigeria is one of the policies proposed by

the Act in terms of land tenure and administration in Nigeria. The goal is to nationalise land so

that the government, rather than communities, families, or individuals, has complete ownership

and control of the property in Nigeria. Section 1 of the Act establishes this policy by vesting in

the Governor all land within the borders of each state in the federation, to be held in trust and

administered for the use and benefit of all Nigerians. The idea of a national state trusteeship is to

prevent an individualistic view of property from taking root.

The ownership idea was simplified as a result of the Act. In terms of content, the Act vests the

radical title in land in the Governor as trustee and the people with the right of occupancy. The

court agreed in Abioye v. Yakubu and Ogunola v. Eiyekole (supra).95. The ownership structure

has been radically transformed since the Land Use Act of 1978, according to the author. He went

on to say that while the Governor holds the radical title to land inside a state's jurisdiction in

Nigeria, what Nigerians enjoy are rights of occupancy, and that the ownership idea in land in

Nigeria today can be understood in terms of a right of occupancy.

95
(1990) 4 NWLR (pt. 146) 632 at 647
39
In its core objectives, the Land Use Act differs from the paternalistic one. While paternalism (as

practised in Northern Nigeria) aimed to ensure the use and occupation of land for members of

ethnic groups while allowing discrimination against members of other ethnic groups,

'Trusteeship' aims to ensure the implementation of fundamental national policy objectives while

prohibiting discrimination in land matters. The state's land, save for federal holdings, was vested

to achieve these goals.96

This policy makes it easier for the government to get land for development initiatives. As a

result, Makeri v. Kafinta97, It was held that under the Act, a legal notice that the entire land has

been acquired by the government for public purposes without further assurance would obviate

the need for any certificate of title, particularly now that all lands in the state's territory have been

vested in the (Military) Governor by section 1 of the Land Use Act of 1978.

Speculations in land, which accounted for much of the meteoric growth in the value of land,

particularly in metropolitan areas, were eliminated by governmental ownership and control of

land, as well as the trusteeship arrangement. Land value has stabilised as speculators have found

new outlets for their capital and business abilities. As a result, the cost of government projects

has remained stable, particularly in the country's urban areas.

More importantly, by making land available to both the federal and state governments, they have

been able to fulfil their obligations to public sector housing, infrastructure development, and

conservation programmes to a larger extent. This programme has also ensured that every

96
See section 49 of the Land Use Act, 1978.
97
(1990) 7NWLR (pt. 163) 411 at 419

40
Nigerian has access to a piece of land within his financial means. Land disputes have also

decreased in frequency. Of fact, the aforementioned is one of the policy's overarching goals.

3.1.3 PLANNED DEVELOPMENT AND ENVIRONMENTAL PROTECTION

According to Elegwu Aga98 the Act's main goal is to promote rapid economic and social progress

in the country by maximizing land use efficiency. The immediate goals include preventing land

concentration in both the rural and urban sectors of our economy, controlling land transactions,

land prices, and land speculation, and facilitating state and private sector access to land, so

removing a source of socioeconomic disparity. The Land Use Act was designed to address the

need for more land for agricultural and non-agricultural purposes, as well as to put an end to

land-dealing racketeering and never-ending litigation.

The governor is in charge of allocating land in all urban areas to individuals or organizations for

residential, agricultural, commercial, and other purposes under the Land Use Act, while the

Local Government is in charge of allocating land in non-urban regions. The Act also empowers

the Local Government to grant Customary Right of Occupancy to any person or organization for

agricultural purposes or other ancillary agricultural purposes such as grazing, residential, and

other purposes on land held and occupied for agricultural purposes but not in an urban area, the

holder became entitled to continue to hold the land after 1978 as if the Local Government had

granted him the customary right of occupancy.99

98
Alegwu E.L. “Land Tenure as a Constraint on Agricultural Development in Nigeria” 1985,pp.
229-239.

99
Section 6 of the Land Use Act
41
People utilized land and built on it without adequate planning prior to the 1978 introduction of

the Land Use Act. This, however, altered once the Act was passed. Despite the fact that town

planning is not specifically referenced in the Act, a close examination of its provisions reveals

that it contains certain physical planning terminology. Land use, urban areas, and so forth are

examples of this. Persons whose rights of occupancy have been revoked must be resettled. Land

that has been developed, land that has not been developed, land that has been developed, land

that has been developed, land that has been developed, land that has been developed, land that

has been developed, land that has been developed, land that has been developed,

Contravention100

Section 34(1-9) created particular provisions for persons who owned land in urban areas before

the Act went into effect. Those who built land in the urban area prior to the Act's implementation

will have their land vested in them as though they had a Statutory Right of Occupancy. For the

issuing of a Certificate of Occupancy, he just needs to apply to the Governor.

However, if the land is not developed, the holder will be entitled to one plot or section of land

not exceeding 0.5 hectares if he does not own any other undeveloped land in the state. If he

already has one, he will not be able to obtain another. All of the others will be taken by the

government. If the plots are dispersed over the state's urban regions, they will be combined into

one huge plot, with one plot granted to the person or a fraction not exceeding 0.5 hectares, and

the remainder taken over by the government.101

100
See generally sections 1, 2, 3, 43, 2(2) (b), 33, 34(2) 36(4) 34(6) of the Act

101
Section 34 of the Land Use Act.
42
Section 34's provisions have caused a great deal of debate. It is best defined as a jumble of

ambiguity and legislative thievery. However, the issue becomes obvious when this Section 34 is

read in conjunction with or apart from the provisions of Section 50. Section 50 defines developed

land as land with any physical improvement, services, water, power, drainage, building structure,

or other enhancements that could increase the value of the land for industrial, agricultural, or

residential purposes. Improvement, according to Section 50, is "something of quality

permanently connected to the land, directly resulting from the investment of capital or labour by

an occupier or any person acting on his behalf, and increasing the productive capacity, utility, or

amenity thereof." Buildings, long-lived crop or tree plantations, fencing, wells, roads and

irrigation, and reclamation works are all examples of land, but it does not contain the result of

conventional farming other than growing products.

3.1.5 RIGHT OF OCCUPANCY OR LEASEHOLD POLICY

The Land Use Act established a new and standard system for the entire country called Right of

Occupancy102, which grants a holder the right to possess land. The Act does not define a right of

occupancy, but some authors and judicial decisions103 compare it to a lease. The Land Use Act

of Nigeria provides for "right of occupancy" in order to make the policy of nationalizing land in

Nigeria effective. The right of occupancy merely grants the bearer the right to possession rather

than ownership.104 As a result, there are two types of occupancy provided by the act which

include:: Statutory Right of Occupancy (SRO) given by the State Government 105and Customary

102Ibid.e”
However, the Land Tenure Law of 1962 first introduced the right of occupancy system,
though applicable only to northern Nigeria then.
103
Director of Lands v. Sohan (1952)1 TLR 631, Henvinchsorft v. Dodd (1960) EAR 631
104
Ibid,210-211
105
Section 5(1)
43
 106
Rights of Occupancy (CRO) given by the Local Government . The second classification is the

statutory right of occupancy given by the state governor 107 and the customary right of occupancy

given by the local government.108 In both cases, there exist an actual grant as and deemed grant.

An actual grant is given by the governor of a state or by a local government, while a deemed

grant comes by the operation of law.109

The holder of a Statutory or Customary Right of Occupancy has the power of disposal of his
110
interest in his land or other improvement therein by Assignment, mortgage, transfer of

possession, sublease, or otherwise disposal of Right of Occupancy by assignment, mortgage,

sale, etc. However, Sections 21 and 22 of the Act limit this right.111

Section 51 of the Act defines Statutory Right of Occupancy as a right of occupancy granted by

the Governor under the Act. Again Section 5(1) (a) provides that “it shall be lawful for the state

Governor in respect of land, whether or not in an urban area to grant statutory rights of

occupancy to any person for all purposes”. However, this right is not absolute in that it is subject

to some stipulations and conditions.112 Thus, Section 8 of the Act provides that:

106
Ibid, section 6(1)(a)
107
section 34(2) Land Use Act
108
section 36(2) Land Use Act
109
See the case of Savannah Bank v. Ajilo (1987)1 NWLR
110
Babaji, H. Z. Alienation of Right of Occupancy in Developing Economy:A Critical Analysis of
the Provision of Land Use Act, No. 6 of 1978. An LL.M. Dissertation (unpublished) Department
of Private Law, Faculty of Law, ABU, Zaria (2008) p. 29
111
For instance, Section 21 makes it mandatory for any transaction relating to land to be done
with Governor‟s consent even though there are provisions under paragraph (a), (b) and (c) which
provide exceptions to the general rule, e.g. paragraph (a) provides that consent is not required in
case of equitable mortgage
112
Section 8, ibid
44
 Statutory Right of Occupancy granted under the provisions of Section 5(1) (a) of this Act

shall be for a definite term and may be granted subject to terms of any contract which

may be made by the Governor and the holder not being inconsistent with the provisions

of the Act.113

The implication of the above section is that right occupancy has a life spam (99 years) and that

once a holder does anything which is inconsistent with the provisions of the Land Use Act, his

right may be revoked

However, by the provisions of Section 5, it can be deduced that the power of the Governor to

grant Statutory Rights of Occupancy is not limited to land in an urban area; he may also grant

land in non-urban area.114 It is submitted that the determining factor in this case is not the

location of the land (urban and non-urban), but the status of the person who grants the right of

occupancy i.e. either the Governor or the Local Government as the case may be.115

The Act, states that those rights granted to holders can only be alienated with the governor's

consent.116 Failure to obtain that consent could declare any transaction or alienation void. 117 As a

result of the aforementioned provisons of the Land Use Act, land transactions are extremely

difficult, and grants are extremely complicated. The insufficiency of the law governing land

113
See also Olong, A. M. D. Land Law in Nigeria 2 Edition, Malt house Press Ltd, Lagos
(2011) p. 215
114
Taiwo, A. Nigerian Land Law, Ababa Press Ltd, Ibadan, Nigeria (2011) p. 209
115
Ibid see also the cases of Olagunju v. Adesoye (2009) 9 NWLR (pt 1146) 225 (a) 265 (SC)
Teniola v. Oluhankan (1999) 5 NWLR (PT 602) 280
116
See generally Section 22 of the Land Use Act
117
Ibid, S. 26
45
transactions (Land Use Act), on the one hand, and the conflict of interpretation of the

requirement of Governor's assent, on the other, are among the causes of these issues.118

Under the Land Use Act, an occupier's right of occupancy is limited to possession, use, or

alienation with the governor's permission. However, the researcher has a problem with Section

5(2) of the Land Use Act, which states that "upon the grant of a Statutory Right of Occupancy

under Subsection (1) of section 5, all existing rights to the use and occupation of the land which

is the subject of the Statutory Right of Occupancy shall be extinguished," making it appear as if a

certificate of occupancy contains many rights under various statutes."

Omotola 119argued that a Right of Occupancy was a mix between a personal and a proprietary

right. He, on the other hand, had no problem with the right becoming a new type of right because

the categories of land and property rights do not have to be closed.120

Justice I. A. Umezululike defined a right of occupancy. 121 as the right to use and occupy land

within the terms and tenure established by the state in line with the Act's requirements. The Land

Use Act, in particular, gave the Nigerian government authority and control over land purchase.

As a result, the Act's first section states:

“Subject to the provisions of this Act, all land comprised in the territory of each state in

the federation are hereby vested in the governor of that state and such land shall be held

118
SS. 22 and 26 Ibid
119
Omotola J. Cases on the Land Use Act. (Lagos University Press, 1983,p..133)
120
Ibid
121
Umezululike, I. A. The Land use Act, More Than Two Decades After, And Problems of
Adaptive Strategies of Implementation. Snapp Press Ltd Enugu (2004) p.45
46
 in trust and administered for the use and common benefit of all Nigerians in accordance

with the provisions of this Act”.122

From the foregoing, it can be argued that the right of occupancy is subject to the control and

supervision of the government, whether Federal or state government, as stated in the preceding

articles of the Act.123

3.1.6 CERTIFICATE OF OCCUPANCY

The issuance of certificates of occupancy is another major Land Use Act reform. Sections 9(1)

(a)-(c) of the Land Use Act, which are analogous to sections 10(1)(a)-(c) of the Land Tenure

Law of 1962. The importance of a certificate of occupancy, as defined in section 9, is that it

evidences title rather than conferring ownership when issued under the Governor's hand. The

Land Utilize Act has the effect of preventing anyone from owning it, as opposed to the right to

use land. This situation necessitates the creation of a document that specifies the quantity of

rights that a grantee has over a piece of land.

A certificate of occupancy is a title document that documents the granting of a statutory or

customary right of occupation. The Governor's seal serves as proof of title. From the provisions

of the Act it is clear that only the Governor has the express power to issue a certificate of

occupancy. Where power to issue it has been delegated to the state commissioner, such

certificate shall be expressed to be granted on behalf of the Governor 124. Even a grantee of a

122
See generally Section 1 of the Land use Act
cap L5 L.F.N 2004.
123
Sections 1(2), 5 and 6 ibid
124
Section 45 of the Act
47
customary right of occupancy has to apply to the Governor for the issuance of certificate of

occupancy.

When a right of occupancy is awarded, the holder is given a certificate of occupancy that

outlines his responsibilities and responsibilities. A Certificate of Occupancy is a legal document

that comprises an agreement under which the holder accepts a grant from the grantor, who is

usually a State Governor.125 As a result, it is a contract requiring the grantor to refrain from

performing specified acts on the parcel of land covered by his Certificate of Occupancy. 126 In

addition, Section 10 of the Act specifies the contents of a certificate of occupancy, stating:

"Every certificate of occupancy shall be deemed to contain provisions to the effect that (a) the

holder binds himself to pay the Governor the amount fixed to be payable in respect of any

unexhausted improvements existing on the land at the date of his entering into occupation." (b)

that the holder agrees to pay the Governor the amount fixed by the Governor, as well as any

other amount that may be agreed upon or established on review in accordance with Section 16 of

this Act.

Holders of a certificate of occupancy have the following responsibilities:

 The holder agrees to pay the rent as set forth in the Act from time to time. 127 This clause

is more of a principle, as you will rarely find a holder who precisely adheres to it in practise.

125
Section 10 of the Act
126
Aboki, Y. Introduction to Statutory Land Law In Nigeria (Unpublished class material)
(20113) p. 11

127
Section 10(b) of the Land Use Act
48
 Payment of incidental expenditures if the Certificate of Occupancy is withdrawn owing to

non-payment of rent or unwillingness to accept a certificate that has been granted after it has

been issued.128

 Payment for unutilized improvements.129

 The holder must permit the Governor or his agent to enter his land for inspection

whenever it is necessary, but only during daylight hours.130 This provision, in our humble

opinion, breaches the right to privacy guaranteed by the Constitution.131

 The holder must keep all beacons or other land markings that identify the boundaries of

the territory covered by the Certificate of Occupancy in good and substantial repair at all

times.132 However, if he fails to maintain beacons or other land signs, he should be held

accountable for the Governor's expenses in building a beacon. 133 This provision seems useless

since a holder who refuses or fails to maintain the beacon or other equipment will only be

required to pay for the costs spent. As a result, the Governor became a lender, while the holder

became a borrower.

 When the Governor consents to an assignment, mortgage, or sublease, the holder may be

required to provide to the Governor for examination instruments executed in evidence of the

easement, mortgage, or sublease.134

128
Section 9(3), Ibid
129
Section 10(a), Ibid
130
Section 11, Ibid
131
Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (2011) as amended.
132
Section 13(1), Ibid
133
Section 13(2), Ibid
134
Section 22(2), Ibid
49
 A certificate of occupancy may not be transfferredewithout the permission of the

Governor or, in some cases, the local government. 135 This provision seems like a cliche; as

section 22 of the Act already addresses consent-related issues, the researcher sees no reason to

repeat it.

A holder of a Certificate of Occupancy has the following rights as provided under the Act.

 He has exclusive rights to the land, which are protected by a Right of Occupancy against

all but the Governor or the State in which the land is located.136

 In accordance with the Act, he has the right to transfer, assign, and mortgage any

improvement on the land.137

 The exclusive right of absolute possession of any improvements on the land belongs to

the occupier.138

 If his certificate of occupation is revoked in the public interest, he is entitled to

compensation.139

 The Governor should inform the holder of the new rent on a regular basis.140

 A holder's right to quiet and undisturbed possession as a lessee is contingent on good

behaviour.141
135
Sections 22 and 21, Ibid
136
Section 14, Ibid
137
Section 15(b), ibid
138
Section 15(a), ibid
139
Section 29(1), ibid
140
Section 19(3),ibid.
141
Aboki Y. An Introduction to Statutory Land Law. (Unpublished Class Material) (2013)p.4.
50
 After the revocation, a holder is entitled to charges for structures, installation, or

improvement.142

On the specific nature of the interest created by Right of Occupancy, there are differing

viewpoints. Some authors, on the other hand, do not consider it a simple price. 143 They claim that

Section 1 of the Land Use Act, which grants the federal government jurisdiction and control over

all land in the country, is incompatible with the common law idea of fee simple estate. The fee

simple interest is the highest type of interest that a property owner can have (radical title).

Several parts of the Act, once again, tend to imply that the Right of Occupancy generates a lease-

like interest.144

The Supreme Court's ruling in the case of Ezeanah v. Attah.145where Niki Tobi JSC (as then he

was) held that:

A holder of Certificate of Occupancy holds the title to the property and subject only to

the conditions stipulated in the Land Use Act. A Certificate of Occupancy creates a term

of years absolute or a lease for a number of years stated therein. The greatest legal estate

that can now subsist under the Land Use Act is a term of years. The grant of term of years

under a Certificate of Occupancy is in substance a lease.

142
S.29(4) (b) of the Act
143
Oshomiri , U. J. Application for Certificate of Occupancy: Practice and Procedure: In (1991)
Jus, Lagos, p.11, Ezejiofor, G. “Land Use Decree: A Critical Review in Nigerian Judicial
Review (No. 2) 1997.
144
See Section 22 of the Land Use Act which provides that it shall not be lawful for the holder of
a Statutory Right of Occupancy granted by the Government to alienate his Right of Occupancy
or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise
however without the consent of the Governor first had and obtained.
145
(2004)7 NWLR (Pt. 873) 468 (a) 500-501 paras A-H
51
As a result, a Certificate of Occupancy is just proof that a grantee possesses a customary or

statutory Right of Occupancy. This position was affirmed in the case of Orlu v. Gogo Abite146 ,

where the Supreme Court held that a Certificate of Statutory or Customary Right of Occupancy

granted under the Land Use Act 1978 does not provide conclusive evidence of the grantee's right,

interest, or legitimate title to land.147

Section 5(2) provides that all existing rights to the use and occupation of the land that is the

subject of the Statutory Right of Occupancy are extinguished when a Statutory Right of

Occupancy is granted under the provisions of Subsection (1) of this section. Before the year

2003, the courts came to differing judicial conclusions when it came to interpreting the preceding

section.148 The Supreme Court in so many cases has held that Section 5(2) of the Act cannot be

interpreted to suggest that once a Statutory Right of Occupancy is conferred, existing rights of

particular interest are extinguished.149

The Supreme Court in its recent decision in Omiyale v Macaulay150 determined that the absence

of a legitimate title of another person with a legal interest in the same land at the time the

Certificate of Occupancy was given is a requirement for a lawful grant of a Certificate of

Occupancy. In other words, a statutory or customary owner of the land in issue or dispute who

was not divested of his legal interest in the land previous to the gift must not have existed at the

time the certificate was given. Thus, where one of two claimants has proven a better title (as the
146
(2010) 8 NWLR (Pt.1196) 307 SC
147
See also Boye Ind. Ltd v. v. Sowemino (2010) AAL FWLR (Part 521) p. 1642
148
Madaki, A. M. ‟The Relevance Or Otherwise of Section 5 (2) of the Land Use
Act Examined‟ Journal of Private and Property Law, University of Benin (2011) p.
185
149
Dantsho v. Muhammed (2003) 6 NWLR (Pt. 817) p. 457
150
(2009) 7 NWLR (pt.1141) pp 605-607

52
appellant in this case), a Certificate of Occupancy must be judged faulty, having been given or

issued erroneously, and must be revoked. This is because the impact of section 34 of the Land

Use Act in respect of the title of a person who had title to land prior to the Act's entry into force

is that vested rights cannot be overridden by applying sections 1 and 5 of the Act. As a result, if

it is established through evidence that someone other than the grantee of a Certificate of

Occupancy has a better claim to the land to which the grant relates, a court will have no choice

but to set aside or otherwise reject the grant as invalid..68

A certificate of occupancy is a title document that documents the granting of a statutory or

customary right of occupation. The Governor is thus empowered to provide a certificate of

occupancy to any person under the circumstances set forth in section 9(1) (a) – (c) previously

mentioned as evidence of title.

3.1.7 ALIENABILITY OF A RIGHT OF OCCUPANCY

The transfer of property and possession of lands, tenements, or other objects from one person to

another is defined by the Black's Law Dictionary as alienation. The word is most commonly used

in the context of absolute real-estate conveyance.151 Parting with possession, in which a new

occupier assumes ownership of the land, is the most easily recognized kind of alienation. As a

result, temporary alienation is defined as a transfer such as a mortgage, lease, sublease, or sub

under lease, whereas permanent alienation is defined as a transfer such as a sale, assignment, or

gift. However, any alienation transferring any interest on any person without the agreement of

the Governor or the Local Government, as the case may be, is null and illegal under the

requirements of Sections 21 and 22 combined with the effect of Section 26 of the Land Use Act.

151
Black, H.C.M.A Black‟s Law Dictionary 6th St. Paul, Minn West Publishing Co. U.S.A 1990
53
In Ofodile v. Anambra State152 Alienation was defined as the transfer of a right or the

development of an estate interest for the benefit of another person by the holder. To put it

another way, the power of a property owner (such as a landowner) to freely transfer or dispose of

his stake in the property to another person is referred to as alienation of land. Land alienation has

been legal since before the Land Use Act was created, whatever the case may be. The Act simply

grants sole authority and management of land to the Governor or the local government, as the

case may be.

One of the complaints levelled regarding pre-Act customary land law was that it prohibited

alienation of a complete stranger. This was considered as a significant impediment to the value

and merchantability of native-owned land. One of the goals of the Land Use Act's introduction

was to make property transfers simple, with the ultimate goal of increasing land value. As a

result, the goal of transferring land from one hand to another is secured by the combined effect of

sections 21, 22, 23, 24, 26, and 34(7) of the Act. However, such alienation must be done with the

Governor’s consent. Many Nigerians believe that the Act prohibits the absolute transfer or

alienation of a right of occupancy, whether on developed or undeveloped land. As a result, the

Act permits the holder of a right of occupation to alienate or transfer all or part of his interest in

the right after obtaining the necessary approval. Thus, in the case of Bank of Nigeria Ltd v.

Adedeji138, For an effective and lawful alienation on both real and presumed grants, the court

decided that the required consent is essential.

By virtue of section 15(a) (b) of the Act, a right holder who has sole and absolute possession of

an improvement on the land may dispose of it with the Governor's assent. In the case that a

152
(2001) 1 NWLR (pt.699) p.164
54
statutory right of occupancy is revoked, the holder of the right is entitled to compensation as

well.

A person in whom a land is vested by section 34(2) of the Land Use Act is considered to be a

holder of statutory right of occupancy delivered by the governor under the Land Use Act 153.

Section 5(2) of the LUA stipulates that once a statutory right of occupancy in section 5(1) is

given all existing rights to the land is terminated or extinguished. The Supreme Court, on the

other hand, has ruled that the rights that would be extinguished are just a licence or usufruct, not

rights that can be alienated in law. 154. Furthermore, when a statutory right of occupancy already

exists, the grant of a new statutory right of occupancy over the same area is null and void. The

supreme court also held in the case of Ilona v. Idakwo155 that where there is a subsisting statutory

right of occupancy, the giving of another statutory right of occupancy over the land is invalid.

The court went further to assert that A governor has inherent powers to revoke or cancel a right

of occupancy if granted in error.156

The Land Use Act, as well as other pieces of legislation, place restrictions on land alienation and

transfer. As previously stated, any alienation of Right of Occupancy without the prior consent of

the Governor is null and void, according to Section 22 of the Act. This, however, is the general

rule, with the following exceptions allowed under paragraphs (a)-(c) of the same section:

 The execution of a legal mortgage over a statutory right of occupancy in favour of a

person for whom an equitable mortgage over the right of occupancy has previously been created

with the Governor's agreement is not needed. This section is controversial because it exempts
153
Teniola v. Olohinkin (1999) 5 NWLR (pt.602) at 280.
154
See the case of Mohammed v. Ibrahim (2003) 6 NWLR (pt.817) 615 at 663.
155
(2003) JELR 44812 SC
156
Ibid
55
equitable mortgage from the sequence of transactions that require governor's assent, despite the

fact that section 51 of the same Act includes equitable mortgage in its definition of mortgage.

This is a major conflict that causes courts to make erroneous decisions.157.

 A mortgagee's reconveyance or release to a holder or occupier of a statutory right of

occupancy that that holder or occupier has mortgaged to that mortgagee with the Governor's

consent shall not be needed.

 A person under the age of twenty-one (21) years old cannot be granted a statutory right of

possession by a state governor.158 The Governor may give or consent to the alienation of a

statutory right of occupation to a guardian or trustee for a person under the aforementioned age

who has been lawfully designated for such reason. 159 Furthermore, the proviso states that a

person under the age of 21 who inherits a statutory right of occupancy following the death of the

holder bears the same liabilities and obligations as if he were of full age, despite the fact that no

guardian or trustee has been designated for him. 160 However, we believe that this restriction

perpetuates an obsolete Common Law viewpoint, as our legal system has since established legal

competence at the age of eighteen. Thus, contractual capacity, voting capacity, and so forth are

all 18 years old.161

157
As in Okuneye v. F.B.N PLC (1996) 6 NWLR (pt.547) 749, where the Supreme
Court without considering the comprehensive definition of mortgage under
section 51 of the Act (which includes equitable mortgage) decided that consent of
the Governor is not required in equitable mortgage.
158
Section 7,Land Use Act.
159
Section 7(a), Ibid.
160
Section 7(b), Ibid.
161
Section 1(b), Electoral (Amendment) Act (No.2), 2011.
56
 A person who is not a Nigerian citizen cannot be granted right of occupancy or have a

right of occupancy transferred to him unless the National Council of States agrees.

3.1.8 REVOCATION OF A RIGHT OF OCCUPANCY UNDER THE ACT

Every Nigerian citizen has the right to acquire and own immoveable property anywhere in the

country.162 However, like any other right, the right to own immovable property is conditional. All

land in the territory of each Nigerian state is vested in the governor of that state, who is

responsible for holding it in trust and administering it for the use and benefit of all Nigerians.

Every Nigerian's right to possess land in any area of the country is thus subject to the Governor's

interests, and it is illegal for a holder of a statutory right of occupancy issued by the Governor to

assign his right of occupancy or any part thereof without obtaining the consent of the Governor163

That is, where private interest over land conflicts with public interest, the latter must override

the former.

Section 28(1) of the Land Use Act emboldens the Governor to revoke a right of occupancy in the

public interest, while section 5(2) extinguishes any previous rights to the use and occupation of

land subject to a statutory right of occupancy. In the event of a statutory right of occupancy, the

requirement of the land by the State Government or a Local Government within the State is

162
Section 44 of the Land Use Act
163
Ibid, section 22 of the Land Use Act
57
referred to as the overriding public interest. In either situation, the land is required for public

reasons inside the State, or by the Federal Government for federal purposes; the land is required

for farming purposes, the laying of oil pipelines, or any other purpose related thereto.164

The Land Use Act expressly laid down the procedure for a valid revocation and they include:165

1) the revocation is to be signed by an officer authorized for the purpose by the governor166

2) notice shall be issued stating the purpose of revocation that is either for public purpose or for

breach of conditions of grant. A revocation for any purpose outside those pre-scribed can be

declared void167

3) notice is required to be served on the holder 168. As regards mode of serving the notice, section

44 of the Land Use Act stipulates that:

a) by giving it to the person to be served or;

b) by leaving it at the usual or last residence of that person;

c) by sending a letter to the person’s residence;

d) if it is a company by delivering it to clerk or secretary;

e) If not feasible after inquiry about the address of a possessor or holder to be served

if no identifiable person in the premises the notice can be affixed in some visible place of

the property.

4) notice must be proved to have come to the knowledge of the person concerned i.e. there must

be proof of receipt of such Notice.169

164
See Section 51 of the Land Use
165
29(1) and (2) Land use Act)
166
Section 28(6)
167
Ereku v. Military Governor of Mid-Western State (1974) LCN/1867 SC
168
Section 28(6) of the Land Use Act
169
Attorney General of Lagos State v. Sowande (1992) 8 NWLR (pt 261) 589 at 601-602.
58
5) the holder’s title only becomes extinguished on the receipt of the Notice or on other date in the

Notice.170

6) where the revocation is for public purpose as against penal revocation under section 28(5) of

the Land Use Act, the holder or possessor or the occupier would be compensated for the value at

the land for unexhausted improvements or under any relevant legislation171.

The Governor's authority under the Act to revoke a right of occupation is utilized in the public

interest. Section 28 of the Land Act guarantees you this power. The freedom to purchase and

own immovable property wherever in the country is, nonetheless, a fundamental right. Because

this right is respected, the government only uses compulsory acquisition when it is absolutely

necessary. Sections 28(1)-(3) of the Act give the Governor the authority to cancel a right of

occupancy for a variety of reasons, including overriding public interest. Revocation is indeed

mandatory at the moment. The Act is highly precise on the procedure for revocation, which

must be properly followed in order to protect individuals' fundamental property rights.

In practise, it has been decided in many cases that a right of occupation revocation should be

null and void if the overriding public purpose for which it was revoked failed if the processes

for revocation were not strictly followed. Thus, in J.M Aina & Co. Ltd v. Commissioner for

Land and Housing, Oyo State of Nigeria & Ors172, where the notice of revocation of a right of

occupancy was not served on the plaintiff and it was published only in the newspapers and not

in the Gazette as required by the law, the court held that this omission rendered the revocation

null and void. Similarly, in Umar Ali & Co Nig Ltd v. Commissioner for Land & Survey &

170
Section 28(6) &(7) of the Land Use Act
171
29(1) and (2) Land use Act)
172
Ibid

59
Ors173, it was held that the public purposes for which the land in dispute was required which led

to the purported revocation had failed. And upon failure of these purposes for which the plot

was required, the plot should by operation of law revert to the plaintiff. Aside from overriding

public interest, the Governor may revoke a right of occupancy for a violation of any of the

provisions contained in a certificate of occupancy; a violation of any term contained in the

certificate of occupancy or any special contract made; or a refusal or neglect to accept payment

for a certificate that was issued in evidence of a right of occupancy but has been revoked by the

Governor174.

Compensation is an important aspect of the compulsory land acquisition procedure in Nigeria. Its

significance cannot be overstated, as failure to recompense the occupant will render the

acquisition null and void. Both statutes and court rulings require rapid payment of

compensation175. When a right of occupancy is revoked in accordance with existing law, the

occupier or holder is entitled to prompt payment of compensation, and the law grants anyone

seeking such compensation access to a court, tribunal, or body with jurisdiction to determine his

interest in the property and the amount of compensation due. The government has a legal

obligation to follow the land acquisition procedure.

Failure to comply with the legal conditions for revocation of existing rights to land, as a result of

the foregoing, renders any subsequent certificate of occupancy on such land null and void under

the age-old principle of nemo dat quod non habet.

Also, the holder of a statutory right of Occupancy given by the Governor is prohibited by Section

22 of the Land Use Act from alienating his right of occupancy or a portion of it without first

173
Ibid
174
See Section 28 of the Land Use Act
175
See Section 29 of the Land Use Act
60
obtaining the Governor's consent. Section 26 of the Land Use Act provides that "any transaction

or instrument that claims to transfer or vest any interest or right over Land other than in

compliance with the provisions of this Act shall be null and void,"

More importantly, the cumulative repercussions of the actions was stated in the case of Savana

Bank v. Ajilo176Union Bank of Nigeria Plc & Anor V. Ayodire & Son Ltd 177 and Phametic

Industrial Project Ltd v. Trade Bank Nig. Plc & Ors.178 Any alienation of a land interest without

the consent of the Governor is null and void from the start.

A holder who alienates or transfers his right of occupation without obtaining the necessary

approval is subject to imprisonment or a fine, according to the Act 179. As a result, Section 28(7)

of the Land Use Act states that "no land possessed by any person that is subject to subsection (5)

(a) or (6) of this Section shall be transferred to any person except with the Governor's prior

written consent."

The Land Registration Laws of the various States of the Federation prohibit the registration of

any instrument transferring any title or interest in land without prior obtaining the Governor’s

consent.180 However, there are several exceptions to this general rule, since the court may decline

to deem a transaction illegal due to a lack of consent in some circumstances.

Hence, Ogundare, JSC on his part went further to add that:

176
(1987) 2 NWLR (pt.57) 421
177
(2007) 16 NWLR (pt 1059) 99
178
(2009) 13 NWLR (pt. 1159) 577.
179
Section 26(8)
180
See. Section 11, Oyo State Land Registration Law, Cap.56 (1978) and Section 14 of the Land
Registration Act of 1925

61
 “… It was the duty of the plaintiff, as mortgagor to seek the consent of the Governor for
him to mortgage his property to the defendant. This is what the law says: See sections 21
and 22 of the Land Use Act. For him to turn round years after executing the mortgage
deed (and when as a result of his default, the mortgagee, that is the defendant, sought to
exercise its right under the mortgage deed) to assert that the mortgage deed was null and
void for lack of Governor‟s consent is to say the least, rather fraudulent and
unconscionable. It has become a vague these days for mortgagors in similar
circumstances to fall upon the decision of this court in Savannah Bank Ltd. v. Ajilo
(1989) I NWLR (Pt. 97), 305 as a vehicle to escape from liability under the mortgage
deed they have entered into. I think that this is an unfortunate development and I do not
think that case, that is, Savannah Bank V. Ajilo (Supra) decides such a thing… his
liability on the ground of his failure to do that which the law enjoins him to do will only
result in paralysis of economic activities in this country. This court, I dare say, will not
allow such situation to arise.181 “

It's worth mentioning that the aforementioned judgement has prompted a shift in judicial

interpretations of the adage "extur pi causa non oritu actio." (On an illegal foundation, no action

can be taken.) The courts have been more forceful in following cases regarding the maxim's

applicability.

While the preceding case state the law, we feel that events have overridden those judgements.

This is because any alienation made without the Governor's consent is null and void under

current law.182

3.2.CONCLUSION
181
Savannah Bank Ltd. v. Ajilo (1989) I NWLR (Pt. 97), 305
182
In Union Bank of Nigeria Plc & Anor v. Ayodire & Sons Ltd (2007) 12 NWLR (pt. 1052) p.
567 and Phametic Industrial Project Ltd v. Trade Bank Nig. Plc. & Ors (2009) 13 NWLR (pt.
1159) 577. In these cases, requisite consent were sought and obtained but only obtained from
persons not delegated by the Hon. Commissioner for land and the court held that the mortgage
transactions were void and illegal and that notwithstanding the fault of the mths who obtained
the said consent from wrong persons, they (the mortgagors) can benefit from their own wrongful
conducts.
62
This section looked at the reformative policies introduced by the Land Use Act in order to curb

the emerging challenges resulting from excessive sand for Land in Nigeria prior to it’s

enactment. The next chapter will focus on the constraints and failings of the Land Use Act in

solving the problem of Land Tenure in Nigeria.

CHAPTER FOUR: THE LAND USE ACT, PROBLEMS AND PROSPECTS

4.0 INTRODUCTION

The Land Use Act is one of Nigeria's most problematic pieces of law. For many years, the Land

Use Act has governed land administration, acquisition, and enjoyment in Nigeria. For all those

directly involved in the Act throughout the years, the correct interpretation has proven to be a

difficult matter.

The Land Use Act has arguably sparked more debate than the constitution about the true

meaning and intent of its provisions. The seeming inelegance that defined its draftsmanship, as

well as its military precedent, are two important aspects that have sparked such debate. This

chapter critically assesses the Act's intrinsic flaws, which span from its interpretation to its

practical application.

4.1.0 PROBLEMS OF THE ACT

The Land Use Act, on the other hand, is not without its drawbacks, as it comes with a slew of

issues. Any law or Act must be free of loopholes and simple to follow by the average citizen in

order to have a full impact on the public. As a result, it is necessary for the government and

lawmakers to examine the Land Use Act critically and remedy any flaws identified.

The goal of this section is to highlight the flaws in the Act that have received little or no

attention, rather than to replicate previous works or writings on this topic.

63
4.1.1 PROBLEMS IN RESPECT OF TRUST CONCEPT INTODUCED BY THE ACT

Section 1 of the Act states, among other things, that all land shall be held in trust and

administered by the Governor of a state for the use and common benefit of all Nigerians. 183 The

preceding provision establishes a Global Trust over land, in which the Governor of a state serves

as the trustee, holding land in trust for all Nigerians. Unfortunately, the Act makes no attempt to

sketch out, even in broad strokes, the principles under which this trust will be administered and

discharged. In a traditional trust, for example, the trustee is entrusted with a number of onerous

responsibilities regarding the trust's assets. These responsibilities include the obligation to act

unanimously, not to delegate, and to account to the beneficiary, among others.

In highlighting the inherent problems in the above provisions of the Land Use Act, Balogun J. in

the case of Otunba Bola Adewumi v. Mike Ogunbowale & Ors184, remarked as follows:

The concept of trusteeship is used in section 1 of the Land Use

Act, as enacted, in a loose sense. It is not intended to confer upon

every citizen of Nigeria the benefit which the beneficiary has

against a trustee under the common Law. No Nigerian citizen can

under that section… claim against the Military Governor an

account for any benefit accruing from the land held by him under

the Act in trust and administered by him for the common benefit

of all Nigerians.

183
Section 1 of the Land Use Act
184
Suit No. ID/115/81, High Court of Ikeja,
28/5/82
64
As a result, when trust in its true sense is compared to the concept of trust created by the Act, it

is clear that the latter's position does not reflect the true meaning of normal trust. The implication

is that the beneficiaries of this global trust, i.e. Nigerians, are denied many of the benefits they

should have received in relation to the trust property, i.e. land, under the Act.

4.1.2 PROBLEM IN RESPECT OF POWER CONTROL AND MANAGEMENT BY THE

STATE

Section 1 of the Act vests lands in the Governor of that state, who is to hold them in trust and

administer them for the common good of all Nigerians. Section 1 of the Act 185 has

fundamentally changed the current land laws, notably in the south of the country: it has usurped

the authority of control and management of land that was previously vested in families, villages,

and communities. It has also taken land ownership away from corporations, families, and chiefs,

and replaced it with state governors. Because the Governor, who sometimes lives far away in the

state capital, is too far away from the bulk of the people for whom the Governor is said to hold

land in trust, this takeover of authority of control and administration from the original owners has

put land out of reach of the indigenous. It may be argued that this has made land purchase, use,

and pleasure more difficult for ordinary Nigerians.

As a result, the Act's aims have not been implemented to a greater level at this time since land is

located far away from people. In fact, it is arguable that acquiring land by a person is more

difficult now than it was prior to the Act's introduction, especially given the lengthy procedure of

gaining the Governor's assent for a legal grant.

185
The Land Use Act No. 6 March 29, Cap L5. LFN 2004

65
One of the most significant characteristics of any legislation is its popularity among the people it

is intended to serve. Individuals, communities, particularly in rural regions, and even the Bench

and Bar do not seem to accept the Land Use Act as much as they should. Sections 34 and 36 of

the Act, in general, protect citizens' existing land rights. The practical outcome is that citizens'

attitudes about land have remained unchanged, as has the amount of land disputes. The

Landlords continue to move to court to seek the deprivation of the typical tenant's right. Families

continue to sue for a declaration of title in the same way.

In fact, notwithstanding the promulgation of the Act, land disputes continue to perpetuate

4.1.3 THE ATTITUDE OF FORMER LAND OWNERS TO THE ACT

The court in Animashaun v. Sufiami186 and Davies v. Ilo187 remarked that observed that refusal

to pay tribute would amount to denial of the overlord’s title which will incur forfeiture clearly

shows that the ownership of land remains unaltered. In some cases, a revocation order made by

the Governor could not be implemented because of stiff resistance by group owners. Hence, Niki

Tobi188 observed that

A more fundamental issue is the attitude of landowners prior to the Act's promulgation.

Despite the Act's provisions and notices sent to previous land owners to evaluate the land

for the purposes of survey, they generally refuse to cooperate with surveyors. This can

lead to physical altercations or legal action in some cases. Previous land owners' lack of

186
Suit No Ld/19/77
187
Suit No IK/3/73
188
James R. W. Land Use Act: Policy and Principles. (Unife Press Ltd. 1987) p.15.

66
 cooperation has also resulted in some practical difficulties in developing master plans

that have a significant impact on the physical development of the land.

The fact that refusing to pay tribute would imply a denial of the overlord's title, which would

result in forfeiture, demonstrates that land ownership has not changed. Because of strong

opposition from group owners, a revocation order issued by the Governor in some situations

could not be implemented.

4.1.4 CONSENT REQUIREMENT AND ITS ATTENDANT PROBLEMS

One of the goals of the Land Use Act is to make land transfers as simple as possible. Any

alienation made without the Governor's or Local Government's consent is, nevertheless, illegal.

As a result of the provisions of sections 21, 22, 23, 26, and 34(7) of the Act, no lawful alienation

or transfer of any interest in land can be made unless the required consent is acquired.

Consent is required for both actual and presumed grants in the case of alienation. Thus in the

case of Savannah Bank Ltd v. Ajilo189, When the subject of consent was first seriously explored,

the Supreme Court decided that under the overall tenor of the Act, both actual and presumed

grants have the same effect, and that both types of grants require the requisite permission for

effective and lawful alienation.

The issue of consent has been blamed for the delays that both a potential vendor and purchaser

typically experience in such transactions. As it stands presently, obtaining a Governor's assent to

alienation takes anywhere from six to three years, making alienation of land considerably more

onerous than it was before the Act. This is a significant impediment to someone looking to sell or
189
(1989) NWLR (pt 97) 305.

67
buy land for industrial, residential, or agricultural uses. As a result, some text writers have

referred to the permission requirement as a stumbling block to Nigeria's economic development.

This will clearly have a negative impact on the country's economic and corporate activity. In

Savannah Bank Ltd v. Ajilo (supra)190, Obaseki J.S.C. expressed concern about the negative

impact of these consent requirements on the business life of the country, saying:

`In my view and I agree with Chief Williams expression of anxiety over the

implementation or consequences of the implementation of the consent provisions or

clauses in the Act. It is bound to have a suffocating effect on the commercial life of the

land and house owning class of the society who use their properties to raise loans and

advances from Banks… These areas of the Land Use Act need urgent review to remove

their problem nature

It is worth noting that the Act has no provision for permission being withheld without

justification. And, as may be seen from the phrasing of the passages relating to permission, an

occupier seeking to transfer his right of occupancy cannot expect the Governor's consent as a

right. There is nothing the aggrieved party can do if the Governor refuses to give his consent.

4.1.5 THE GOVERNOR’S EXCLUSIVE POWER OF REVOCATION UNDER THE ACT

Section 28(4) of the Act requires the Governor to revoke a right of occupancy if the President

issues a notice declaring that the land is needed for government purposes. The State

Government's cooperation is required for the Federal Government to acquire land for its own use

under this provision. As a result, the Federal Government's needs are subjected to the politics and

bureaucracy of the appropriate state government.

190
Ibid

68
The Act contains no authority for the Federal Government to revoke rights of possession in any

case. Thus, in the event that the Governor refuses to revoke a right of occupancy following the

Federal Government's notice, the best the Federal Government can do is enter into negotiations

with the holders or occupiers affected by the acquisition so that such holders or occupiers can

voluntarily surrender their rights and be compensated by the Federal Government. There is little

question that the Federal Government will pay more than the compensations suggested by the

Act or the state's Committee in such a circumstance. If the Federal Government refuses to pay

more, private owners or occupiers may opt to join the State Government in refusing to work with

the Federal Government.

As a result, projects will continue to be harmed until the Federal Government obtains a court

order ordering the Governor to withdraw the current rights of occupation. The Act's sad

condition in relation to the Federal Government's right to acquire land for public purposes, which

is only exercisable at the Governor's discretion, is once again highlighted.

THE DISCRMINATORY AND RESTRICTIVE NATURE OF THE ACT

The Governor owns the land for the benefit of "all Nigerians," according to Section 1 of the Act.

Given the rule of statutory interpretation – interpreting the general words 'any person' as used in

sections 5(1)(a), 6(1)(a), and 36(s) must be done in accordance with the express provision of and

in a way consistent with the spirit of section 1 above, then 'all Nigerians' will mean Nigerians

simpliciter and no more. As a result, the Act prejudices foreigners. That is, they are not among

those for whom the Governor retains the property for the general good.

69
The lack of mention of "foreigners" in section 1 or any other relevant provisions of the Act, as

well as the inability to specify the procedure for foreigners acquiring land in Nigeria, leads one

to ask whether foreigners are entitled to or have access to a right of occupation in Nigeria. The

court in In interpreting section 1 of the Act, Ogunola v. Eiyekole191 Foreigners are not allowed to

apply for a certificate of statutory right of occupancy; only Nigerians are allowed to do so.

Similarly, the Governor is forbidden from providing a statutory right of residence to anyone

under the age of 21 in section 7 of the Act unless there is an express provision for customary

right of possession. Niki Tobi192 asserted that according to this provision, a number of concerns

arose: What is the justification for the age restriction? Is there a reason why the age limit is set at

21? The Act appears to be silent on these issues.

Yakubu193 also argues that many Nigerians under the age of 21 are rich enough to buy vast farms

and purchase land for residential and industrial uses, according to the report. As a result, it is

argued that there is no need for the Act's age restriction to be set at 21, given that under English

law, a person under the age of 21 is allowed to own land. As a result, the provision is

discriminatory, and the age restriction is unjustified. This is also unachievable and contradicts

the entire legislation's objective (which is to ensure that every Nigerian has the right to a piece of

land for his or her own use and enjoyment).

4.2. CONCLUSION

The Land Use Act of 1978, despite being implemented on the basis of excellent policies intended

by the government for the people of Nigeria, has caused a slew of issues, according to the
191
(1990) 4 NWLR (pt. 146) 632 at 647
192
James R. W. “Land Use Act: Policy and Principles (Unife Press Ltd. 1987) p.15.
193
Yakubu M.G. Nigerian Land Law (Macmillan, London, 1985).

70
analysis presented in this chapter. These issues, which vary from interpretation to actual

application of the Act's provisions, arise in the context of the Act's and its military antecedent's

draftsmanship's inelegance. As a result of the issues identified, land transactions have slowed,

land management has become ineffective, and Nigeria's overall development has slowed.

CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATION

5.0. CONCLUSION

The Land Use Act of 1978: Appraisal, Problems, and Prospects has been thoroughly

investigated in this book. The issues with pre-Act land laws and tenure forced the passage of the

Land Use Act in 1978, as the context of this study clearly demonstrates. Land tenure regulations

prior to the Act were unsatisfactory because of associated issues such as title insecurity, land

litigation, holdings fragmentation, difficulties in acquiring and alienating land, and so on. All of

these factors contributed to Nigeria's housing shortages, slum development, and general lack of

infrastructure. With the Act in place, these numerous pre-Act land laws and land tenure policies

were generally repealed, but the principles of those pre-Act laws that were incompatible with

the Act's spirit and general intent were preserved.194

It was revealed that the Act unified land policy, introduced the principle of effective utilization

to our land tenure system, ensured equitable redistribution of land among citizens without

discrimination based on state of origin, and facilitated both governments and private
194
Section 48 of the Land Use Act. See also section 4 of the Act

71
industrialists' quick access to land required for development. Additionally, the Act has increased

the government's revenue. The Act was deemed to be commendable in this regard by this study.

Despite the Act's previously stated good effects, the study has focused its attention on

identifying the Act's underlying flaws. The circumstances surrounding the Decree's

promulgation were taken into account in this analysis. The erstwhile federal military government

rushed to prepare and proclaim the Act (previously known as Decree) without the appropriate

consultations. As a result, the Decree's writing was marked by sloppiness. All of the Act's

interpretation and implementation challenges have been attributed to the Act's inelegant and

military antecedents. As a result, any criticism of the Act, or any difficulty caused by it, must

acknowledge these two reasons as the source of the problem.

It was determined in this analysis that there are gaps between the Act's expectations and its

accomplishments. In this regard, several of the issues previously noted with pre-Act land laws

and tenure policies, which the Act purports to address, have been exacerbated. For example, the

Governor owns all of the state's land 195 has made land purchase more challenging, particularly

for individuals. Compensations due under the Act are even more costly 196in comparison to what

was paid under the Land Tenure Law, these amounts are extremely inadequate. In addition, the

consent provisions in the Act197 and the lengthy procedures and delays typically associated with

getting it, land transactions in the country have slowed, and it has therefore become a thorn in

the side of progress. The Governor is once again hesitant to use his sole authority of

revocation198 in favour of Federal Government can lead to development projects being stalled
195
Ibid,section 1
196
See section 29 of the Land Use Act. Also, section 35(1) Land Tenure Law further provided
compensation for inconveniences.
197
See sections 21,22,24, 26, 34(7) of the
198
See section 28 of the Act.
72
Furthermore, the courts' jurisdictions, which are required to enforce and give effect to the Act's

provisions, have been severely weakened.199

5.1 CONCLUSION

Land has remained the most valuable possession in man's life and progress since time

immemorial, from the earliest days of agriculture to the modern era of industrialization. It is the

mother of all properties and a source of riches for those who own it. To put it another way,

almost all of humanity's basic requirements are reliant on land. Because of the relevance and use

of land to man's development as well as the development of his society, nearly everyone want to

purchase and possess a piece of land in order to attain the numerous goals for which it was

created. As a result, during and after the colonial period, governments developed laws to govern

the use or administration of land in Nigeria in order to make land available to all and to ensure

that land is purchased and put to an appropriate use for the desired development. There were

customary laws that governed land administration in Nigeria prior to the entrance of the colonial

authorities. Because of the diversity in the people's customs, these customary laws changed from

one place to another. This explains why, prior to the passage of the Land Use Act of 1978,

Nigeria had a plethora of land laws. These laws were used to regulate the land in each region.

Land tenure and land administration issues remained in both Northern and Southern Nigeria,

despite the existence of land-related laws. Land racketeering and speculations were among the

emerging issues. When the government acquired land for development, landowners wanted

astronomical compensation. As a result, whether by the government or by private individuals,

land acquisition is a common occurrence. In reality, a lack of land for development projects was

199
See sections 30, 47 of the Act

73
cited as one of the key stumbling blocks to the efficient implementation of the Second

Development Plan (1975-1980). The Federal Government intervened to break down this barrier

and landlord monopolies.

The Nigerian Military Government convened a series of groups to investigate how to best

address the issues of land tenure and administration. The Land Use Panel's 1977 study finally

became the basis for the Land Use Act No. 6 of 1978. As a result, the goal of this thesis is to

critically investigate the Land Use Act of 1978 to see how well it has improved land

administration in Nigeria. In this regard, the reforms and innovations made by the Act to better

land administration are scrutinized. Taking into account that everyone has a scar, the Act is not

without flaws. In this regard, the study's searchlights are focused on identifying the Act's

intrinsic flaws.

The findings of the study revealed that the Act, among other things, unified land policy,

introduced the principle of effective utilization to our land tenure system, ensured equitable

redistribution of land among citizens without discrimination based on state of origin, and made it

easier for governments and private industrialists to obtain land needed for development.

Furthermore, the Act has raised revenue for the government. In this regard, this analysis found

the Act to be commendable.

However, the positive impact of the Land Use Act has been overshadowed with legislative and

practical shortcomings. The Supreme Court while espousing Nigerians' dissatisfaction with the

Land Use Act stated in the case of Ogunleye vs. Oni200 that; the Land Use Act has evolved from

the magical wand it was portrayed as to become a destructive monster that swallowed all land

200
(1990)2 NWLR (pt. 135) 745.
74
rights at once, allowing the Governor or local government to divest families of their homes and

agricultural lands overnight with the issuance of a piece of paper, with a wealthy holder of a

certificate of occupancy driving them out with bulldozers and cranes.

5.2 RECOMMENDATION

From the conversations thus far, it is clear that there is much in the Land Use Act that needs to

be reconsidered. A review of the Act is critical. As a result, the Federal Government should

move quickly to complete the Act's review. The Act's policy goals are ambitious and yet relevant

today. As a result, rather than repealing the Act, as some writers have suggested, these policy

goals should be strengthened by a review and necessary amendments to the Act's provisions.

This is because, as is customary in Nigeria, it will take years for the National Assembly to

draught an entirely new land statute to control this crucial area of our life if the Act is repealed in

its entirety.

The following recommendations are made::

 Section 3 of the Act gives the Governor the discretionary power to declare a portion of

state land as urban land without specifying how this power should be exercised. i.e.,

where in the state should urban land be declared and where it should not. As a result, all

land in the state is now indiscriminately designated as urban land. The Act is also vague

on what constitutes 'other land.' As a result, it is proposed that the Act establish a criteria

to guide the Governor in the designation of urban land. Similarly, given the complexity

involved in giving government rights of occupancy, it is urged that the Act be more

assertive in defining other lands. In this regard, closer-to-the-people local governments

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 should be given the authority to designate additional lands as non-urban land, allowing

them to use their land management and control powers.

 Under no circumstances does the Act allow the Federal Government to revoke the rights

of occupancy for its urgent use. As a result, it is proposed that the Act include a clause

allowing the federal government to buy land for public purposes in any area of the

country without having to go through the state governor.

 The Act makes no attempt to lay out, even in broad strokes, the principles under which

the trust established under section 1 of the Act will be administered and discharged. It is

thought that the Federal Government should include in the Act the standard of practice

that each trustee (i.e., the Governor) should follow when administering land for the

common good of all Nigerians. In the case of land under his trust, for example, the

Governor should be answerable to all Nigerians (i.e., the beneficiaries), as is customary

in normal trusts. As a result of this provision, the trustees (Governors) in each state will

be more aware of the onerous responsibilities that they owe to their state's residents and

Nigerians as a whole.

 The Act gives the Governor so many powers that an overzealous Governor could abuse

them for political or personal gain. To limit the Governor's numerous powers, the Act

should include administrative remedies available to people who have a certificate of

occupancy proving their right to the land.

 The Act should require the Governor to grant his consent without undue delay in order to

avoid the usual delays in obtaining consent and the hardship that this causes. It should

also include a section stating that "such consent, if asked, should not be withdrawn

unreasonably."

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  Compensation provisioning is woefully inadequate. The National Assembly should work

hard to enhance the current system. The bodies should be guided in their efforts by

Section 35 of the Land Tenure Law of 1962, which also allowed compensation for

disturbances.

 The Act should be completely removed from the constitution to make amendments

easier. After all, the Act is just like any other piece of legislation, and there's no reason to

elevate it to the position of ultimate law.

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