AN COMPARATIVE ANALYSIS OF THE POWER OF A STATE GOVERNOR UNDER THE LAND USE ACT, 1978

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AN COMPARATIVE ANALYSIS OF THE POWER OF A STATE GOVERNOR UNDER THE LAND USE ACT, 1978

CHAPTER ONE INTRODUCTION

1.1 Background of the study

Ownership of landed property is critical to local people and communities across Nigerian societies, where about eighty percent Nigerian population engages in farming activities.[1] Starting from the time the Land Use Act (LUA) was promulgated in 1978 when the population of Nigeria was over seventy million.[2] Several years later, the population of Nigeria rose above more than one hundred and ninety million.[3] The rise in population over the years has increasingly influenced the ownership of land; however, land security is tantamount to population increase in Nigeria. Economically, the socio-economic values of every human society depend on the nature. Different policies on land administration in a country either positively or negatively now depends on how effectively the policies are implemented.[4]

The promulgation of LUA in 1978 was enhanced by the needed requirement by Nigerians to have access to land; prevention of land speculators; streamlining as well as simplifying land administration “and ownership of land; making land available to governments at all levels for development; and provide a system of government administration of rights that would improve tenure security”.[5] LUA puts all the land in the country to be trusted and administered and to be used for the general benefit of all Nigerians under the authority of state governors throughout the country according to the Land Use Act provisions.[6] According to section three of LUA, the rudiment in controlling and managing land ownership by state governors or local councils, its determination must be guided by the ”designation of Urban Land under state government control, and confining the undesignated areas known as rural land to the control of the local governments”.[7]

Accordingly, in section 2 of the Land Use Act, which authorizes governors to manage as well as control land inside urbanised areas, where local councils are encouraged by LUA to control land beyond some specified urbanised locations. Therefore, it is important for state governors in managing and controlling of states’ land, decorated and referred to as “territory called urban area clearly spelt out in a gazette”. In spite of classified certain area as urban, the power of governors to control and manage land in the state do not regarded as urbanised location by LUA.[8]

Regrettably, there have been no nationally approved standard for this demarcation as envisaged by the Act. Additionally, the constitutionally recognised council of Nigerian states is empowered to create laws in that direction. Critically, the qualification of every area to be urbanised, through confused as experienced in the management of land industry in the country. As observed by Ofogba, “the absence of clear criteria for qualifying any area as urban breeds the problem of uncertainty as to extent of land under the governor’s control; appropriateness of certificate to be issued; jurisdiction of courts in the adjudication of land matters; confused land identification processes and administrative conflicts between the governor and the local government amongst others, in the land management sector of the nation”.[9]

As noted by Amokaye,[10] LUA never abolished community rights to own land as well as additionally acknowledged that the Act ought to be separated out of the Nigerian Constitution of 1999 for the purpose of achieving the two-dimensional purposes of distributing land equitably, effectively and efficiently. Further, Atilola[11] maintained that LUA enables more discrepancies upon ownership of land for private farmers. According the human rights-based approach (HRBA), “the beneficiaries as stakeholders or rights-holders, and compels states to fulfill their duties towards citizens, while citizens must also respect the rights of others”.[12]

1.2 Statement of the problem

According to most of the LUA provisions, it was established to effectively serve every Nigerian citizen and for land to be adequately nationalised in order to be owned and controlled properly by states for development. In the time past, the enforcement of the Act over several decades ago has regressively clogged into antisocio-economic development and growth across Nigeria.  One of the major challenges of the Act is the process of owning land that has been limiting the nationals to own, use, purchase, lease, cultivate and develop “without obtaining the consent and approval of their Governors as provided in Sections 21 and 22 of Nigeria’s Land Use Act is anti-people and oppressive and cannot enhance sustainable development in any egalitarian society”.

Seriously, LUA has effectively restricted the functionality and efficiency of marketing landed properties in Nigeria. Virtually, according to the Section one of Land Use Act 1978, land ownership by people can never be interest-free in the country land tenure system. Nigerian citizens have access to grants of rights of occupancy maximally for ninety nine years subjected to paying the rent to the state as approved by the executive governor. This process has limited personal ownership of land in Nigeria to be insecure.  Also, LUA has hindered marketing procedure for properties. Purposefully, occupancy’s right is only for lease. Consequently, land ownership and its marketing status in the country have ignorantly traded off as well transferred properties’ obligations among ordinary and experts similarly continuing freely interest-trade land that provided for by the Land Use Act 1978. Therefore, this study will analyse the power of a state governor under the Land Use Act 1978.

1.3 Aim and objectives of the study

The aim of this study is to analyse the power of a state governor under the Land Use Act 1978 while the following are the objectives of the study:

  1. To critically analyse the framework for legal and institutions on administration of land in Nigeria
  2. To investigate governor’s power under Land Use Act 1978
  3. To analyse the Land Use Act 1978 in Nigeria

1.4 Scope and limitations of the study

The study is interested in analysing the power of a state governor under the Land Use Act 1978. The study will also be embarking on legal and institutional framework for land administration in Nigeria with different concept of land laws in Nigeria. However, there are many limitations in the course of the study such as:

  • Not enough literature on the subject matter
  • Lack of activism on the part of the judiciary in calling out the problem
  • Failure of the federal and state legislature to address the problem

1.5 Significance of the study

Land is very critical to every economic development for personal and public use through-out the world. In Nigeria, there are few issues and challenges surrounding land administration, ownership and security among local farmers, merchandise farmers and government. As a result, it is important to seek for ways by which these issues can be adequately addressed within the purview of legal framework within Nigerian state.

Lastly, there are many land Laws and different customary beliefs across different Nigerian societies that ensure effective proceedings during land administration and ownership issue that can be applied to enhance adequate accessibility to land for different economic developmental issues. Also, in recent times, innocent farmers and herdsmen have been having issues resulting from desertification leading to herders encroaching on farmlands. This study will attempt to address some of the issues surrounding the governor’s power under the land Use Act 1978 in Nigeria.

1.6 Research methodology

The study will lay emphasis on the power of the state governor under the Land Use Act 1978 and will adopt desktop research method. According to this method of research, a systematic analysis will be carried out on relevant concepts in the study regarding the power of state governor under the Land Use Act 1978, identification of areas of difficulty and make recommendations for future developmental studies which will also be deduced. Literature to be reviewed are selected and analysed on the basis of authority and hierarchy. The research is therefore based on primarily based on authorities, namely legislation, government reports, local and international treaties, regulations and official reports. Also, secondary sources such as textbooks, scholars’ articles and journals, published and unpublished thesis, verifiable newspapers and objective internet sources will be used. Doctrinal and Qualitative Analysis will be used with quantitative data.

1.7 Literature review

This section of the study presents different studies conducted by different authors, scholars and legal writers in Nigeria and across the world. Most of these reviews are collected from textbooks, published as well as PhD Dissertation, online journals, governmental documents and reports and Constitution of Federal republic of Nigeria, 1999 (as amended) amongst other related literature in legal field. These literature and reviews are more insightful and related to this research. Also, many of the literature to be reviewed under this part of the study will assist the study in achieving the aim and objectives of the study.

One major reason for LUA promulgation in 1978 was to pass a law where land would be vested under the control and management of a state governor in order to enhance landed related development and national growth. In consequence of this aim and other LUA objectives, the section one of the Act maintains that:

“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 in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act”.

The forgoing section and other provisions of the Act have engendered serious controversies both at the academic circle and in practice. While some writers and court’s interpretations of this provision have battered the Act with virulent criticisms, others have to a greater extent commended the Act. The former opinion towards the Act is informed by inelegant drafting that characterized the Act and its Military antecedent.

Yakubu[13] asserted that LUA has generally joined the laws associating with land tenure system across Nigerian societies. As a result of his study, LUA has to a larger extent overtook many state land laws managing the system of land tenure in Nigeria, hence, determining application of laws by lawyers and the courts adequately possible. Nweke[14] maintained that “….the Land Use Decree is a landmark in the history of land tenure in the country”. Similarly, former President Shehu Shagari strongly stated that “the Act has harmonised the tenure system in the country and also eased access of Government to land to execute its projects”.15 Further, in Nkwocha v. Governor of Anambra State & Ors,16 the Justice of the Supreme [15] [16] Court, Irekefe, concluded that LUA is greatly one of the critical laws that are impacting positively according to the system of land tenure in Nigeria since independence.

Hence, the section one of the Act coined the term “vest” and thus, implying that “the vesting of the ownership of all lands in the Governor which has the effect of divesting all previous owners of land of the ownership of their lands”. Many of these individuals are local people, households, groups of people and societies. Lipede,[17] Abioro and Adeyemi,[18] refer LUA to an appalling Act. These scholars, however, called for a review on the Act because of its deprivation of citizens’ right to own lands. Omotola[19] and Nnamani[20] affirmed that LUA has confused the process of administering land in the country. Specifically, it can be observed that the assertion of these scholars does not in any way support the provisions of Land Use Act 1978 and its objectives.

On the otherhand, Adigun[21] countered the previous submissions that “even with the Act “there are no landless Nigerians and that the Governor of a State is no more than a replacement of the trusteeship of say the Oba of Benin or the head of the family or community”. In addition, according to the section one of the LUA by Oretuyi,[22] “the Governor becomes the legal owner of the land even though the ownership is not absolute since the land is held in trust for the use and common benefit of all Nigerians”. In the same vein, Smith’s[23] opinion on the section one of the Act “vests the radical title on the land in every State in the Governor of that State subject to the provision of the Act”.

Moreover, section 1 of LUA has generated many controversies in several groups of legal practitioners and justices. Whereas, many have emphatically argued that LUA lacks constitutional backing while several others are claiming that LUA is critical part of the Nigerian Constitution of 1999 (as amended). In the case of Aina & Co. Ltd v. Commissioner for Lands and Housing, Oyo State of Nigeria,24 the Chief Judge, Fakayode maintained that LUA [24] is not an established, but however a connected component of the Nigerian Constitution while its existence does not belong to the Nigerian Constitution but must be addressed with many relevant interests and intentions. From different indications according to findings, the Act was part of the Nigeria Constitution of 1979 where it counters its provisions and conditions rather than maintaining its lawful established status.

Moreso, in the case of Umar Ali & Co (Nig) Ltd v. Commissioner for Lands and Survey & Ors,[25] Chief Justice Anya similarly supported that due to certain justifications. Thus, in the case of Chief Nkwocha v. Governor of Anambra State & Ors,[26] it was concluded by the highest court of the country, the Supreme Court that LUA was an established law and critically formed its connection with the Constitution of Nigeria. Also, “on the succession of the Civilian Governor to the position and power of the former Military

Governor as contained in section 276(1) of the 1979 Constitution (now section 317 (1) of the 1999 Constitution)”.[27] However, it was interpreted that this Constitution provision has similarly created numerous arguments in legal profession and within judiciary framework.

Due to this, according to the judgement in J.M. Aina & Co Ltd v. Commissioner

Land and Housing, Oyo State & 2 Ors,[28] A.G. of Ogun State v. AGF[29] and AG of Lagos

State v. NEPA[30] and the provisions of “section 276 of the 1979 Constitution (now 317 of the 1999)”, state governors can lawfully “succeed to such property, right, privilege, liability or obligation as was held by the Military Governor which immediately before the date when the Constitution came into force was vested in or exercisable by or against the former authority and it cannot be a sheer inadvertence that the power is omitted”.[31] In addition, these powers and rights during Military era regarding land ownership across Nigerian states can never be succeeded by democratic elected governors due to the fact that land ownership in that system was created to allow the people to be land beneficiaries.

1.8 Synopsis of the study

This study will add to the existing knowledge of the power of a state governor under the Land Use act 1978 in Nigeria. The synopsis of the study is as follows: the chapter 2 of the study will provide analysis on analysis of the of land laws administration in Nigeria with different sub-topics such as Historical background of Nigerian land laws, the nature of land laws in Nigeria, ownership of land in Nigeria and effect and the provisions of the Land Use Act 1978.

The chapter 3 of the study will examine different framework for legal and institutions on administration in Nigeria with different related relevant literature. The study will first examine the legal framework on land administration in Nigeria, institutional framework for land administration under the Land Use Act 1978, the Nigerian democratic Council of States, state governors’ power under Land Use Act 1978, allocation of rights of occupancy by governors, and revocation of certificate of occupancy by a state governor.

In chapter 4, the study will extend to examine Land Use Act 1978, Land Use Act

1978 and the customary ownership of land, the compensation provisions under the Land Use

Act 1978, objectives of the Land Use Act 1978 in Nigeria and Economic impact of Land Use Act 1978 in Nigeria. While chapter 5 of study will also be on the summary, recommendation and conclusion of the study.

[1] Babalola           et      al.      2015      ISPRS      Annals      156;      USAID      date      <unknownhttps://www.landlinks.org/wp-

content/uploads/2016/09/USAID_Land_Tenure_Nigeria_Profile>.pdf accessed 16 June 2021

[2] IndexMundi 2017 <https://www.indexmundi.com/facts/nigeria/population> 2

[3] NBS 2016 https://nigerianstat.gov.ng/download/491 1

[4] Okafor and Nwike 2016 BJES 1

[5] See Section 1 Land Use Act 1978

[6] Ibid

[7] Ibid

[8] Valentine Ofogba, “Understanding the Land Use Act” (Lawsprings & Co) <http:/ /lawsprings.com/index.php> accessed 16 June 2021.

[9] ibid

[10] Amokaye “Impact of the Land Use Act upon Land Rights in Nigeria” 66-67.

[11] Ibid footnote 12

[12] Franco “Framework for Analyzing the Question of Pro-poor Policy Reforms” 18-19

[13] Yakubu, M.G., Notes on the Land Use Act pp. 9-12

[14] Ibid foot note 18

[15] Daily Times May 12 , 1988th

[16] (1983) 4 NCLR 719

[17] Sunday punch 18 August 1980th

[18] The National Concord, 20 August, 1980 cit, in Hakeem Ijaya’s Land Use Act A critical Analysis in the Jurist, an Annual publication of the Law Students’ society of Nigeria University of Ilorin vol. 11 2006th

[19] Omotola J.A., Law and Rights: Whither Nigeria? Being inaugural lecture lecture delivered at the University of Lagos on Wednesday June 29th 1988 Lagos.

[20] Nnamani, the Land Use Act II years after GRBPL, May 1989 p.31 cit. in Hakeem Ijaya

[21] Adigun O, ‘The Equity of the Land Use Act in Report of National Work Held at Lagos University on 25th – 28th May 1981 University (Press 1982)’

[22] Oretuyi, S.A., ‘Public Take over of Land-Federal and State Government Rights The Land Use Act: Ibid Report foot note 33

[23] Smith I.O., Ibid foot note 20 check previous notes

[24] (1983) 4 N.C.L.R. 643

[25] (1983) 4 N.C.C.R. 571

[26] (1983) 4 N.C.L.R. 719

[27] See the Constitutions of the Federal Republic of Nigeria: 1979, sections 276(1); 1999, sections 317(2)

[28] See the Constitutions of the Federal Republic of Nigeria: 1979, sections 276(1); 1999, sections 317(1)

[29] Ibid foot note 48

[30] (1982) 3 NCLR 193-194

[31] Ibid

AN COMPARATIVE ANALYSIS OF THE POWER OF A STATE GOVERNOR UNDER THE LAND USE ACT, 1978

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