DEMOCRATIC LAND GOVERNANCE AND THE LAND USE ACT IN NIGERIA - NEED FOR REFORM.
Introduction
Land remains a highly complex and contentious issue, involving economic, social, political, cultural and often religious systems.1 It constitutes the foundation of the people,
city and all economic, social, cultural, physical and political activities.2 In fact, policies
about land are policies about the society, hence, access to land and land management have significant implication for development.3 Land being a source of wealth and a
platform for human activities, land governance is one of the central requirements for economic development.4 In modern times it is axiomatic for members of the public to
partake in the governance of the State in order to enjoy the full benefit of the membership of the society and realize the full potentials of their fundamental inalienable rights, including the right to property.5 In today’s world, the law needs to secure the habitual,
voluntary compliance of its subjects; it cannot rely entirely, or even primarily, upon the commanding power of a sovereign to compel obedience.6 There is a mutual interface
between the government and the governed bordering on participation of the governed in the affairs of government. With respect to land, members of the society ought to partake and in some way contribute to land administration and the implementation of land policy in the State. In fact, the consent of the governed should be the bases of validity of government, for those who seek the validation of their empowerment patently govern with the consent of the governed.7 The impact of the members of the public should be felt
1* Akintunde Otubu, LLB; BL, LLM, M.Phil, Doctoral Student, Obafemi Awolowo University, Ile Ife; Lecturer
Faculty of Law, University of Lagos, Akoka, Nigeria. Email: aotubu@unilag.edu.ng
Land Governance: Building Trust A Training programme on Transparency in Land Administration Organized by UN-HABITAT and the International Institute for Geo-Information Science and Earth Observation (ITC) in cooperation with Ardhi University (ARU) at Bagamoyo, Tanzania, 24-26 June 2008
2 Omotala, J. A. Law and Land Rights: Whither Nigeria: (1981). University of Lagos Press, Lagos, Nigeria. Udia,
C.M. Public Infrastructure Provision And Rights Of Way Acquisition In Nigeria
3 Udia, C. Good Governance in Land Administration. A paper presented at the MCPD Seminar organized by the
Cross River State Branch of the Nigerian Institution of Estate Surveyors and Valuers, (2010). Calabar
4 Silayo, E. Urban Land Policies for the Poor in East and Southern Africa. Paper presented at the World Bank
Conference on Land Governance in Support of the Millennium Development Goals (2009). Washington. D. C.
5 See: Chapters II & IV of the Constitution of Federal Republic of Nigeria 1999 as amended.
6Franck T.M: The Emerging Right To Democratic Governance. The American Journal of International Law, Vol. 86,
No. 1 (Jan., 1992), pp. 46-91
at the initiation, formulation, implementation and administration of land policies in order to give it a human face; public representation and wider acceptance.
However, the preceding scenario is usually not the case. There is mostly a divide between policy formation, implementation and administration on the one hand and the people on whose behalf the policy was put in place on the other. A commentary in the UNDP Land Policy and Governance studies8 identify the problem succinctly;
Where governance is linked to land policy, the tendency is to treat it as an ‘issue of efficient state administrative function’ – e.g. ‘cheaper land administration’, ‘affordable land mapping’, ‘cheaper conflict management mechanism’, and so on – evading the fundamental issues of political power, the political-economy of land and political change.
The current thesis is to see land policy and administration as an integral part of democratic governance and to be characterised by principles of universality of tenure security, equitable participation and adherence to the rule of law, sustainability, effectiveness and efficiency.9
In the light of the fore-going the paper examines the promulgation, implementation and administration of the Land Use Act and juxtaposes its core values vis-à-vis the principles of democratic land governance in order to rationalize its cogency or otherwise within the corpus of acceptable democratic milieu. The paper thus sets out seriatim.
Democratic Land Governance
Land remains core issue in the governance of any State. Many of the world today’s challenges, ranging from climate change, deforestation, rapid urbanization; increased demand for natural resources; food, water and energy insecurity; natural disasters; and violent conflict are land based. Many of these challenges have a clear land dimension.10
In the words of Deininger and Enemark,11
‘the key challenges of the new millennium12 have been clearly articulated. They
relate to climate change, food shortage, energy scarcity, urban growth, 8Borras M. etal: Land Policy And Governance: Gaps And Challenges In Policy Studies available at:
http://landportal.info/sites/default/files/landpolicybrief1.pdf accessed 20/05/2014. Also available in Journal of Agrarian Change 2010 Volume 10, Issue 1, p1
9 See: Palmer. D etal Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food
And Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
10 Ibid. p.1
11Deininger, K & Enemark, S: Land Governance and the Millennium Development Goals in Innovations In Land
environmental degradation, and natural disasters. These issues all relate to governance and management of land.’
It is thus clear that the place of land in modern day governance cannot be overemphasized. It touches the very fabric of the society. It is also trite that modern government in most part of the world thrives on the observance and adherence to democratic norm and tenets, including consultation, representation, and participation in governance.13
According to FAO report14 “land governance concerns the rules, processes and structures
through which decisions are made about access to land and its use, the manner in which the decisions are implemented and enforced, the way that competing interests in land are managed.” It is about the policies, processes and institutions by which land, property and natural resources are managed. This includes decisions about access to land, land rights, land use, and land development. Land governance is basically determining and implementing sustainable land policies.15
Democratic land governance by extension is therefore defined as a political process that is contested by multiple state and societal actors to control the nature, pace, extent and direction of access to, control over, and use of land resources. It is one that combines people’s mobilization ‘from below’ with state reformists’ initiatives ‘from above’. It is a mutually reinforcing interaction, a symbiotic relation, between state and societal actors who may have different and even conflicting motivations and agendas, but are both interested in pushing for pro-poor land policies and in democratizing the state and society more generally.16 Democratic land governance is thus the infusion of democratic
principles into land governance. It is a process which creates and encourages mutually
12 United Nations. “United Nations Millennium Declaration.”Millennium Summit, New York, 6-8 September 2000.
UN, New York. http://www.un.org/millennium/declaration/ares552e.pdf accessed 24/05/2014
13Tambuwal. W: The Rule of Law As Fundamental Condition For Democracy and Good Governance In Nigeria.
Being a Paper Presented by the Speaker, House Of Representatives, Federal Republic Of Nigeria, at the Annual Aminu Kano Memorial Lecture, The Sa’adu Zungur Auditorium, Aminu Kano Centre For Democratic Research And Training, Kano On Wednesday, 17th April, 2013.
14 Palmer. D etal: Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food And
Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
15Deininger, K & Enemark, S: Land Governance and the Millennium Development Goals in Innovations In Land
Rights Recognition, Administration, And Governance Proceedings From The Annual Conference On Land Policy And Administration (World Bank) April 2010 p.2
beneficial interface between the State and other public stakeholders with reference to land administration and management. It provides opportunity for public consultation and participation in land administration, which process engenders transparency, consensus building and peaceful resolution of conflicts that promotes efficient and effective service delivery.
According to the proponents of this school17 ‘democratic land governance’ is a process
that involves three basic components. None of these three components alone is sufficient; each is in itself a challenge to achieve; yet in the end all three are necessary to produce democratic land governance. They are: people’s autonomous pro-reform mobilizations ‘from below’, independent state reformist initiatives ‘from above’, and mutually reinforcing interactions between these two streams that are embedded in democratic values.
Borrowing and adapting the FAO standard of good governance,18 democratic land
governance should at the minimal level exhibit the following characteristics;
Sustainable and locally responsive: It balances the economic, social, and environmental needs of present and future generations, and locates its service provision at the closest level to citizens.
Legitimate and equitable: It has been endorsed by society through democratic processes and deals fairly and impartially with individuals and groups providing non-discriminatory access to services.
Efficient, effective and competent: It formulates policy and implements it efficiently by delivering services of high quality
Transparent, accountable and predictable: It is open and demonstrates stewardship by responding to questioning and providing decisions in accordance with rules and regulations.
17 Ibid.
18 FAO. “Good Governance in Land Tenure and Administration”.FAO Land Tenure Series no 9. Rome. 2007.
Available at: ftp://ftp.fao.org/docrep/fao/010/a1179e/a1179e00.pdf accessed 24/05/2014.
See also Bell, K. C. Good governance in Land Administration. (2007). Available at:
Participatory and providing security and stability: It enables citizens to participate in government and provides security of livelihoods, freedom from crime and intolerance.
Dedicated to integrity: Officials perform their duties without bribe and give independent advice and judgments, and respect confidentiality. There is a clear separation between private interests of officials and politicians and the affairs of government.
The above stated characteristics of good land governance has been further streamlined into 7 core principles of good land governance by Palmer19 to include equitable
accessibility to land; Security of tenure; secured land and property rights of women; adherence to the rule of law; decentralized Land administration; efficiency and sustainability.
The relative importance of democratic land governance to the overall wellbeing of the system and psyche of the people is measured by its outcomes which are evident in peaceful and seamless land administration indices and economic development. Borras20
points out that the symbiotic interaction between autonomous societal groups from below and strategically placed state reformists from above provides the most promising strategy to offset strong anti-reform resistance to pro-poor land policies, facilitating state redistribution of contested lands to landless and near-landless working poor. It gives the ordinary citizens a larger and legally-supported role in managing their own land rights.21
Arguably, sound land governance is the key to achieving sustainable development and to supporting the global agenda of the MDGs for it is assumed that the nearer that administration and management may be located to landholders, the more accessible, useable and used, cheaper, speedier and generally more efficient the system will be.22
In fact, by building popular participation and transparency into land governance, the government will become more responsive to citizens desires and more effective at service delivery. When land governance is effective, equitable access to land and security of tenure can contribute to improvements in social, economic and environmental conditions. 19 Note 15
20 ibid
21 Alden Wily, L., Governance and Land Relations: A Review Of Decentralisation Of Land Administration and
Management In Africa.International Institute for Environment and Development, London. 2003. P. 1
With good governance, benefits from land and natural resources are responsibly managed and the benefits are equitably distributed. In cities, effective land management reduces social tensions and promotes economic growth and poverty reduction. When democratic land governance exists, decision-making is more transparent and participatory, the rule of law is applied equally to all, and most disputes are resolved before they degenerate into conflict. Improved governance can result in land administration being simplified and made more accessible and effective.23
Attaining democratic land governance status is not easy. Policy reforms to strengthen governance require the political will to overcome opposition from those who benefit from non-transparent decision-making and corruption. Improving governance demands the strong commitment of the people involved, and the development of capacity in order to make changes possible. It requires an articulate citizenry, enlightened and proactive non-governmental organisations and civil societies group; change oriented government and consensus building among various stakeholders.
In the present day, information technology on the E-platform is being deployed to fast-track and complements the traditional and conventional methods of democratizing governance, including land governance.24 It exposes the impact of information and
communication technologies in government beyond the scope of provision of e-services by the government to the citizen and other members of the public and encompasses such area as the extent to which members of the public using the ICT participate and influence government actions and inactions. It touches on voting, democracy and e-representation and includes the digital interface between the government and the governed generally.25 The E-platform is useful through the entire process of governance
including initiation, formulation, implementation and administration of government
23 Palmer. D etal Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food And
Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
24See generally: Alawadhi, S. & Morris, A. Factors Influencing the Adoption of E-government Services. (2009)
Journal of Software, 4; Altameem, T., Zairi, M. & Alshawi, S. Critical Success Factors of E-Government: A Proposed Model for E-Government Implementation. Innovations in Information Technology, 2006, 1-5; Riley. T: E-government Vs E-governance: Examining the Differences in a changing public sector climate. International Tracking Survey report 3 No.4 prepared under the auspices of the commonwealth secretariat and Government Telecommunications and Information Services Canada May 2003 available at http://www.electronigov.net. accessed on 19/05/2014
25 Otubu. A.K, E-Government and Land Administration In Nigeria – A Recipe For Lagos State (2009) 26 JPPL
policies. The use of these telecommunication devises towards achieving democratic land governance cannot be overemphasized in modern day government.26
These normative standards of democratic land governance has been put in place to a degree of success in many countries27 including Tanzania,28 Botswana29 and United
Kingdom30 where members of the public are given a say in the administration of land in
the state. In these countries tenure security is assured and the conflict resolution process is strengthened to empower the public and build public confidence in the system. Outstanding example is the Land Board system of Botswana31 and Uganda.32 In the UK
the level of public participation in land administration has been heightened with the introduction of the 2002 Registration Act,33 which Act also influences the positive change
in public administration transparency indices.34
The Land Use Act.
The Land Use Act is the primary law on land use in Nigeria. The Act is made up of fifty-two sections arranged into 8 parts. Part one treats vesting of all lands in the State; control and management of land by advisory bodies; designation of urban areas and the applicable law for the interim management of land. Part two, deals with the principles of land tenure; powers of the government and rights of occupiers. Part three is devoted to the principles to be observed in fixing and revising rents; powers of the Governor to grant 26 Ibid p.65
27See generally: Wily, A. L., Governance and Land Relations: A Review of Decentralization of Land Administration
and Management In Africa. International Institute for Environment and Development, London. 2003
28Village Land Act 1999 under which community based local government elected Village Council act as Trustee Land Manager of land within village area and adjudication Committee members are elected.
29 See: Tribal Land Act, 1968. Implementation developed over 30+ years with incremental changes. Primary law for
rural land administration through autonomous land boards.Adams, M: Land tenure policy and practice in Botswana; Governance lessons for southern Africa. Available at:
http://www.mokoro.co.uk/files/13/file/lria/land_tenure_policy_and_practice_botswana.pdf accessed 08/08/2014 30 Straughton, E. Common Land Governance:The evidence of commoners’ and stintholders’ association minute books, c.1800-1985. Contested Common Land Symposium 2: 7-8 September 2009 Newcastle University. Available at: http://commons.ncl.ac.uk/wp-content/uploads/files/StraughtonSymposiumPaper.pdf accessed 08/08/2014
31Where Autonomous legal body of mainly nominated members administer lands under Customary law as embedded
in statute (Tribal Land Act 1968 Cap 32:02) See: Mathuba, B. Land Tenure Issues in Botswana. Paper presented to a workshop on Land Rights and Sustainable Development in Sub-Saharan Africa sponsored by DFID at Sunningdale, UK February 1999.
32 Uganda’s1995 National Constitution adopted a similar approach, elaborated in the 1998 Land Act. see: Rugadya,
M. & Busingye. H (eds.). Gender Perspectives in the Land Reform Process in Uganda. 2002
33 Land Registration Act 2002 (UK)
34 Martin R.W: The Threat to Indefeasibility of Title under the Land Registration Act 2002 vol.2 Southampton
rights of occupancy free of rent or at a reduced rent; acceptance of rent not to operate as a waiver of forfeiture; penal rent and additional penal rent for unlawful alienation. In part four, the Act discusses alienation and surrender of right of occupancy and part five treats revocation of right of occupancy and compensation thereof. Part six contains transitional and other relative provisions and part seven highlights the jurisdiction of the High Courts and other Courts. The last part, part eight treats a variety of issues ranging from notices, delegation of powers, power to make regulations, exclusion of certain proceedings, modification of existing laws, exemption with respect to federal government lands, validity of laws, interpretations and citation.35
The Act addresses four important issues arising from the former land tenure systems in Nigeria: the problem of lack of uniformity in the laws governing land-use and ownership; the issue of uncontrolled speculation in urban land; the question of access to land rights by Nigerians on equal legal basis; and the issue of fragmentation of rural lands arising from either the application of traditional principles of inheritance and/or population growth and the consequent pressure on land. It approaches these issues via three related strategies: the vesting of proprietary rights in land in the State; the granting of
usufructuary rights in land to individuals; and the use of an administrative system rather than market forces in the allocation of rights in land.
Though the exclusive legislation on land rights of the citizen; one wonders how far the Act has comply with the essentials of democratic land governance in its initiation, formulation, promulgation implementation and administration. What are the short-comings of the Act in this regard and what reform initiatives are necessary to update the Act to the level required by the principle of democratic land governance? The remaining part of the paper is devoted to these and other issues engendered by the promulgation of the Act. The discussion on these issues is divided into three subheads as follows; initiation, formulation and promulgation of the Act; implementation and administration of the Act; other issues. What follows is the seriatim discussion of the issues.
Initiation, Formulation and Promulgation of the Act
The Land Use Act is a product of the recommendation of the Land Use Panel set up by the government in 1977. The need to set up the Land Use Panel was fallout of the recommendation of the Rent Panel set up the government to address the concerns of the urban wage earners in the aftermath of the cessation of the civil war and the oil boom in the country. The Rent Panel identified land tenure to be a major constraint to the successful implementation of many developmental programmes in the country.36 It thus
recommended the establishment of a Land Reform Commission.37
This recommendation formed the fulcrum of the term of reference of Land Use Panel subsequently set up by the government.38 The 12 members Land Use Panel advertised its
terms of reference in the national dailies and called for memoranda from members of the public. The panel also engaged in field tours and consultations with members of the public.39 According to the records of the panel40 an estimated 100,000 citizens attended
the various sittings where the panel listened to oral presentations and entertained questions from the members of the public.
Two reports resulted from the sittings of the panel: the main report and the minority report. The main report advised against nationalisation of lands in the country and the extension of the 1962 Land Tenure Law of the Northern States to the Southern States. It recommended a limited reform whereat both the Customary and the English land tenure systems will operate side by side; the introduction of compulsory registration of lands in urban centers of the country and the abolition of customary tenancy regimes. On the other
36 Ashamu E. O.; Land Ownership and Tenure – Landlords and Tenants: Paper Presented to the NISER Conference
on Land policy in Nigeria, September 1976. See also: Udo R. K .“The Land Use Decree and its Antecedents” University of Ibadan Lecture Series 1985.
37 With powers to; Study our varied land tenure systems and to recommend steps to be taken to streamline them;
Take stock of the land situation in the country and establish order of priorities; Control future uses and open new land for the needs of Nigeria’s growing population especially in urban areas;
38 See Annual Budget speech by the Head of State, General Olusegun Obasanjo, Christened “Anti-inflation Budget”
delivered on 31st day of March 1976
39The panel visited more than 53 towns scattered throughout the then 19 states of the federation, conducting town
hall meetings and engaging the traditional authorities and stakeholders in the towns visited. See: Udo R. K. The Land Use Decree and its Antecedents. University of Ibadan Lecture Series 1985 p. 40
hand the minority report in the main recommended full41 or partial42 nationalisation of all
lands in the country.
The government white paper on the report of the panel did much discredit to the main report though not expressly endorsing the recommendations of the minority report. Subsequently, the Land Use Act was promulgated by Military fiat vesting all lands within the state in the governor of the state and replacing the erstwhile unfettered title of the citizens to a limited right of right of occupancy. The provisions of the Land Use Act are comparable to the provisions of the Land Tenure law of Northern Nigeria 1962. In essence the government of the day jettisoned the recommendation in the majority report in favour of the minority report. To further subvert the will of the majority at repealing the Act the Military government made it part of the constitution of the Federal Republic of Nigeria and tied its amendment to the arduous constitutional provisions.
The foregoing reveals that the Military government, though not elected representatives of the people, was aware of the need not to rely entirely, or even primarily, upon the commanding power of a sovereign to compel obedience to law. It employed the principle of democratic land governance by consulting the relevant stakeholders and members of the public at the initiation of the Act. It sought and obtained the participation and inputs of members of the public. Unfortunately, contrary and in opposition to known the tenets of democratic land governance, the same government did not abide by and/or implement the decision of the majority in the promulgation of the Act. According to a member of the land Use Panel; ‘the reaction of the people in most of the places that the panel visited was that government should not interfere with their land.’43 This position was reflected in the
main report of the panel but was unfortunately decreed against by the Land Use Act. To this extent the Act is undemocratic, unrepresentative and anti-people; there is a need for reform of the Act in line with democratic tenets.
Implementation and Administration of the Act
41 Ibid. The federal government will pronounce by Decree that all lands in the Federal Republic of Nigeria is
nationalized and henceforth transferred to the State.
42 Ibid. This essentially involves the application throughout the country of the Land Tenure Law 1962 of Northern
Nigeria subject to some few alterations proposed by the Land Use Panel.
The Land Use Act having vested all lands in the state in the governor44 provides for 3
pronged but uncoordinated regulatory institutions under the Act. Whilst section 46(1) of the Act empowers the National Council of States to make regulations for the purpose of carrying the Act into effect in some broad respect; subsection(2) of the same section invest the Governor with the powers, subject to subsection (1) to make regulations on other matters. Meanwhile, section 2 of the Act envisages the division of land in the State for administrative purposes between the State Governor and the local government assisted by advisory administrative committees set up by the authority.
From the set out, it is obvious from these provisions of the Act that there is dichotomy in the land administrative set up under the Act. It is devoid of any uniformity, consistency and certainty. Each state is empowered to set up its own administrative structure on land administration. There is in Nigeria today as many disparate land administration systems as there are States in Nigeria.45 Where there is no administrative structure, the applicable
land administrative system will depend whether the land is in the North, the South of Nigeria or whether the land belong to the Federal government or its agencies.
Fundamentally too, whilst the land vested in the governor is to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act; the federal government has no such obligation imposed on it in respect of all lands vested in it by law. Thus, while the governor has a caveat placed on him in respect of his management powers46 under the Act; the president can, to a large
extent, deal with the land under its care as his personal property.47 In fact there is no
administrative structure in place to guide the management of all federal lands, except the provisions of the Act indirectly extending the administrative structure under the Act to Federal Capital Territory Abuja.48 Contrary to good land governance initiatives, the Act
44 This excludes all lands belonging to the federal government and its agencies under section 49 of the Act
45 Ukaejiofo A.N. Perspectives in Land Administration Reforms In Nigeria. Journal of the Environment, Vol. 2(1):
43-50, 2008.
46 It is conceded that this restriction on the powers of the governor is more superficial than real, but at least there is a
potential bench-mark against which the governor’s performance can be measured.
47 This probably account for the unwholesome and unfettered exercise of brute power by land administrators in
Abuja in respect of alleged distortion of Abuja master plan. Recently the Minister of Federal Capital Territory (FTC) ordered the demolition of houses in Abuja on independence day 1st October, 2013.
48 Section 51(2) of the Land Use Act provides that the powers of Governor under this Act shall, in respect of land
provides no administrative structure to support the exercise of these powers vested in the president or his nominees.
It is thus clear at the outset that the administrative regime and structure bequeathed by the Act is not likely to advance the pristine objectives of land administration as set out in the preamble to the Act or accord with the norm of democratic land governance. The justification or otherwise of this position becomes obvious after a dispassionate examination and analysis of the provisions of the Act on the topic to which we now turn.
1. The National Council of States.
Under the Act49 the National Council of States may make regulations for the purpose of
carrying this Act into effect and particularly with regard to the transfer by assignment or otherwise howsoever of any rights of occupancy, including the conditions applicable to the transfer of such rights to persons who are not Nigerians. The Council may also make regulations relating to the terms and conditions upon which special contracts may be made under section 8 of this Act; the grant of certificates or occupancy under section 9 of this Act; the grant of temporary rights of occupancy and the method of assessment of compensation for the purposes of section 29 of this Act.
In the first instance, the Act by virtue of section 46(2) vests regulatory powers in National Council of States, a body that has no management powers over the subject matter. It is on record that no parcel of land is vested in the National Council of States by the Act. Furthermore, though the National Council of States never made any regulations in furtherance of this provision, the provision empowers a National body to make regulations for State (Land) matters in a federation where land management falls within the residual legislative lists; the exclusive legislative jurisdiction of the State.50 This raises
fundamental democratic and constitutional questions. The authenticity and enforceability of any regulations made under this provision by the council will always be suspect and liable to be contested, particularly where such regulation is at variance with the State land management objectives.
49 Section 46(1) Land Use Act
50 Land Tenure and Management is not listed in either the Exclusive or the Concurrent Legislative List of the
The section also empowers the National Council of States to make regulations particularly with regard to the transfer by assignment or otherwise howsoever of any rights of occupancy, including the conditions applicable to the transfer of such rights to persons who are not Nigerians. The exercise of this powers may conflict with the provisions of the Acquisition of Land by Aliens Laws51 of the various states in the
federation particularly where the regulations is at variance with the provisions of these legislations. The mute point is whether the provisions of a regulation can override the express provisions of an enactment. The exercise of such regulatory powers, even when necessary, should be made subject to the provisions of existing legislation on the subject. Contrary to the trite principles of democratic land governance, the Land Use Act thus created a veritable avenue for dichotomy, conflict and confusion in land administration in the country. This provision of the Act calls for reform in order to nip in the bud the potential constitutional crisis that the application of this provision of the Act may engender. It is therefore suggested that land matters should be moved from the current residual legislative list to concurrent legislative list in order to give it the National outlook, uniformity and consistency it deserves in policy formation and in tandem with Fundamental Objectives and directive Principles of State Policy enshrined in the Nigerian constitution. Land is a natural resource and the ultimate denominator of national life which administration and management touches on the life of all citizens in the country. It is therefore incumbent for the country as a unit to be involved in the policy directions of all lands in the country. Whilst land policy may be set at the national level based on fundamental objectives and directive principles of the Nation, management of land should be invested in the federating units in line with the tenets of true federalism. The power to make regulations vested in the National Council of States should therefore be repealed and same be vested in the states of the federation.
2 The State Governor.
The Act vests all land comprised in the territory of each State in the Federation in the Governor of that State in trust to be administered for the use and common benefit of all
Nigerians in accordance with the provisions of the Act.52 In section 3 the Governor,
subject to such general conditions as may be specified in that behalf by the National Council of States, may for the purposes of this Act by order published in the State
Gazette designate the parts of the area of the territory of the State constituting land in an urban area. The basis of the control and management of land by the Governor or the local government is determined by the designation of land as urban area and confining the undesignated areas to the control of the Local governments.53 Unfortunately there has
been no nationally approved standard for this demarcation as envisaged by the Act. In the absence of clear criteria for qualifying any area as urban, manifest confusion is being experienced in the land management sector of the nation.54 In the absence of any
regulatory standard, states resort to the provisions of section 4 of the Act55 and impose
different standards and regulations in respect of the designation of areas of the state as urban and non urban lands.56.
The Act also invests the Governor with enormous management and administrative powers including the power to grant and revoke right of occupancies; power to issue certificate of occupancy and impose rents on land; power to give and or withhold consent to subsequent transactions under the Act amongst others. To assist the governor in the exercise of these powers, the Act mandated the governor to empanel a Land Use and Allocation Committee.
52 Section 1 Land Use Act
53 Ofogba, V: Understanding The Land Use Act Lawsprings & Co available at: http://lawsprings.com/index.php
accessed 24/12/2013
54 Ibid. According to the commentator, the absence of clear criteria for qualifying any area as urban breeds the
following confusion in the land management sector of the nation. 1) The authority of the Governor to control land will not be ascertainable. 2) The appropriate certificates to be issued will not be known.
3) Location of land becomes questionable and land identification impossible.
4) Adjudication process will be hampered; High Court and Customary Court jurisdictions confused resulting in congestion as evidenced in Lagos state.
5) Land management seriously hampered as the Registry becomes confused – Two types of Certificates of Occupancy – SRO and CRO.
6) Revenue generation status to states muddled up with that of local government.
7) In the absence of clear definitions of Urban Areas then other factors come to play. .e.g. states equating urban Area with Local Government Headquarters or others determined by distance to the Emir’s palace, and in other cases at the pleasure of the Governor.
55 The provisions of the section permits adoption of different laws based on Land Tenure Law of the former Northern
Nigeria or the various individual states Land Law.
56 In Lagos State the Governor by a 1981 regulation declared almost all the lands in Lagos State as urban lands
3. Land Use and Allocation Committee
Section 2(2) of the Act mandated the Governor to empanel a Land Use and Allocation Committee to perform various functions.57 The appointment, composition and the modus
operandi of the committee is at the exclusive discretion of the Governor.58 The committee
shall consist of such number of persons as the Governor may determine, but shall include in its membership at least not less than two persons possessing qualifications approved as estate surveyors or land officers and who have had such qualification for not less than five years; and a legal practitioner.59 The Governor is thus the unquestionable personage
in the overall administration of land in the state. In practice the composition, quality and tenure of the committee has tended to vary over time depending on the government in power and the disposition of the governor.60 Commenting on the composition and
relevancy of the committee, Omotola61 observed that
‘it is doubtful whether from the composition and mode of appointment of members of the committees whether any person can ever obtain a satisfactory compensation even for improvements on land compulsorily acquired by government. Since the committee cannot be an independent and impartial tribunal, the provision is not only retrograde but also conflicts with the fundamental principles of natural justice which requires that a person shall not be a judge in his own cause.’
The Act is undemocratic in its provision and unrepresentative in its administration. Members of the public and other segments of the society are not represented as of right in the committee as the law provides no criteria for the appointment into the committee. Furthermore there is no certainty of tenure or duration for members of the committee as
57 (a) advising the Governor on any matter connected with the management of land in urban areas; (b) advising the
Governor on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest under the Act; and (c) determining disputes as to the amount of compensation payable under this Act for improvements on land
58 The Land Use and Allocation Committee shall be presided over by such one of its members as may be designated
by the Governor and, subject to such directions as may be given in that regard by the Governor, shall have power to regulate its proceedings.
59 Section 2(3) Land Use Act
60 Datong, P.Z. the Role of state government in the implementation of the land use act in Adigun, O (ed.) The Land
Use Act: Administration and policy Implication; Proceedings of Third National Workshop. University of Lagos Press 1991 p 64
they hold their position in the committee at the pleasure of the Governor. Unfortunately, the state legislature is powerless to curtail the excesses of the Governor in this regard since they lack the power to amend and or review the Land Use Act, being a Federal legislation. The power of the Governor in the composition, powers and operations of the committee must be reviewed to capture the present nature of governance in civil society. In furtherance of the foregoing it is recommended that the Act be amended in the following respect.
1. All lands in the state should not be vested in the Governor but in a corporate body to be called the State Land Use and Allocation Board to be held and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.
2. The Board shall have responsibility for any matter connected with the management of land in the State and on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest under this Act.
3. Membership of the Board shall include the Governor as the Chairman, members of the State Traditional Chiefs; Experienced Lawyers, Estate Valuers, Surveyors, all nominated through their professional associations; selected relevant state commissioners; members representing the Community Development Association (CDAs) nominated from among the members of the State CDAs; four other members representing the general public appointed by the governor on the recommendation of the simple majority of the members of the state Assembly; and the executive secretary of the Board appointed by the governor on the recommendation of the simple majority of the members of the state Assembly. 4. Members of the board, except the Governor and the state commissioners, shall
With such broad based membership and statutory powers of the board, the hitherto excessive powers of the Governor will be curtailed. Land management in the state will come to resemble the wishes and aspirations of the members of the public as it will infuse more public participation in land administration in the state. Such recommendation will also ensure a constant feedback and a crisscross of opinion on land administration between the government and the governed and thus lessen issues of conflicts with respect to land matters.
Other issues
1. Adjudicatory powers.
Under the Land Use Act, the Governor is endowed not only with executive powers, but also with legislative and judicial powers. He is the main character in the implementation and execution of the policy of the Act. He is also empowered to make rules and regulation under the Act, thus exercising quasi-legislative powers. The Governor also exercises quasi-judicial powers as he sits on the head of the Land Use and Allocation Committee to resolve disputes on adequacy of compensation payable to the victims of revocation of land rights.
Section 2(2) of the Land Use Act sets up the “the Land Use and Allocation Committee” which shall have responsibility for advising the Governor on any matter connected with the management of urban lands. Some of the functions of the committee include advising the Governor on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest under Act and determining disputes as to the amount of compensation payable under the Act for improvements on land.62 This latter function is carried out irrespective of whether the
land is in urban area or not, including lands under the care of the local government.63 It is
being performed along with their primary duty of advising the Governor with respect to land in urban areas.
Theoretically, the committee is independent as it is presided over by one of its members, but the Governor determines the composition, membership, tenure of the committee and regulates its proceedings.64 Furthermore, the committee is only advisory and its
recommendation is not binding on the Governor. The Governor thus has the final say in any matter put forward by the committee. Also, the committee/Governor’s decision on the quantum of compensation payable for improvement on land under the Act is final. No court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under the Act.65
The import of these provisions is that the Governor combines all the functions of the 3 arms of government under his control and management. He carries out executive, legislative and judicial functions with respect to the administration of the Act. This position is contrary to the fundamental tenets of democratic government as espoused in the principles of separation of powers and the rule of law.66 Though the Act conceded the
power to determine whether a party is entitled to a declaration of a right of occupancy to the courts;67 the courts are precluded from investigating into any question concerning or
pertaining to the vesting of all land in the Governor or any question concerning or pertaining to the right of the Governor to grant a statutory right of occupancy in accordance with the provisions of this Act.68
In a democratic setting, the adjudicatory powers of the Governor in the implementation of the Act cannot withstand judiciary scrutiny, particularly the finality of the Committee/Governor’s decision on the matter. The inviolability of the provision has been tested in courts but the ouster clause in the Act has prevented the reformation of the provision through judicial process.69 It is however gratifying to note that the court of
Appeal in Kanada V Governor of Kaduna State and Another,70 declared section 47(2)
void for being inconsistent with the provision of section 40(1) of the 1979 Constitution of the Federal Republic of Nigeria,71 for it denies persons claiming compensation for
65 Section 47(2)
66 See generally: Verkuil P.R, Separation of Powers, The Rule of Law and the Idea of Independence, 30 Wm. & Mary
L. Rev. 301 (1989), available at: http://scholarship.law.wm.edu/wmlr/vol30/iss2/8 accessed 24/12/2012
67 Section 39 68 Section 47
69 See Fawehinmi, G. ‘Ouster of court’s jurisdiction by statutes’ in Olarinde, E.S et al (eds.) Contemporary issues in
the Nigerian legal system (1997) 67; Oba, A.A. The African Charter on Human and Peoples’ Rights and ouster clauses under the military regimes in Nigeria: Before and after September 11 (2004) 4 African Human Rights Law Journal p 275-302. Smith, I.O "Effect of ouster clauses on the Application of African Charter on Human and people’s Rights under a Military Regime: The Nigerian experience”. Review of the African Commission on Human and Peoples’ Rights vol. 9 Part 2 (2000) pp. 192-205.
70 (1986) 4 NWLR (Pt 35) 361
compulsory acquisition of his property access to court of law or tribunal or body having jurisdiction in Nigeria.
Whilst the courts may be striving to align the provisions of the Act to modern day reality of governance, it is trite that judicial reformation of the law is not only tortuous but labourious. The process, like the common law, may take centuries to materialize and it a fact that judge made laws can be as imprecise as the vagaries of the mind. There is the need for legislative intervention to remedy all the lapses in the Act by way of review of its provisions, particularly the provision on denial of judicial access to redress any perceived wrongs occasioned by the Act. A review of the provisions of the Act will promote and enhance the growth of democratic land governance in the country. Therefore the provision giving the Governor the exclusive power to adjudicate on any matter including compensation matters should be deleted from the provisions of the Act.
2. Penal revocation.
The Act, under certain circumstances confers powers on the Governor to revoke or compulsorily acquire land and land rights without compensation. All these are referred to as penal revocation and includes where the occupier/holder alienates the right of occupancy without the requisite consent;72 where there is a breach of any of the
provisions deemed to be contained in the certificate of occupancy;73 where there is a
breach of any terms in the certificate of occupancy or special contract made by the Governor;74and where a person to whom a certificate of occupancy is issued refuses or
neglects to accept and pay for such certificate.75 Each of the instances is treated seriatim.
a. Revocation on grounds of alienation without requisite consent:
One of the instances under which there can be compulsory acquisition of private interest in land without provision for compensation under the Act is where the holder of either a statutory right of occupancy or a customary right of occupancy alienates the whole or part of such right either by assignment, mortgage, transfer of possession, sublease or by any other means without the requisite Governor’s consent or approval. The Act prohibits76 and
72 see section 28(2) (a) and (3) (d) of the Act. 73 see section 28(5) (a).
makes it unlawful for any person granted a right of occupancy by the Governor to alienate his right of occupancy or any part thereof without the consent of the Governor first had and obtained. Any purported transfer of possession without the requisite consent is null and void.77 In addition, the holder of the right stands to forfeit his right by outright
revocation without any compensation. In Savannah Bank v. Ajilo,78 the court extended the
application of the foregoing provisions to include a deemed grant of a right of occupancy. The application of this provision imposes double jeopardy on the parties to the transaction. The parties would not only have incurred losses on the account of the transaction being declared void for lack of requisite consent of the Governor; but will also forfeit the land and the development thereon to the State without any corresponding obligation to pay compensation. This is a case of double kill, deterrent not reformative; it does not allow the parties to remedy their wrongs by reapplying for the Governor’s consent. It is unfair, inequitable and contrary to the tenets of democratic land governance. It is enough for the law to invalidate the transaction without the parties suffering the loss of their property without compensation. This will give the parties the opportunity to retrace their steps and comply with the provisions of the Act by applying properly for the requisite consent of the Governor.
b. Revocation on grounds of breach of the provisions contained in the right of occupancy:
By virtue of section 28(5) (a) of the Act, the Governor may revoke a statutory right of occupancy if there is a breach of the provisions which by virtue of section 10 of the Act, the certificate is deemed to contain. Section 10 provides as
follows-“Every certificate of occupancy shall be deemed to contain provisions to the following
effect:-(a) that the holder binds himself to pay to the Governor the amount found 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 binds himself to pay to the Governor the rent fixed by the Governor and any rent which may be agreed or fixed on revision in accordance with the provisions of section 16 of this Act.”
77 see section 22 (2).
Accordingly, where the holder fails to pay any amount required of him to be paid for any un-exhausted improvements on the land at the date of his entering into occupation or fails to pay the fixed or revised rent on the land covered by the certificate, the holder stands the risks of revocation without compensation.
The provision of this section portends a risk of executive and government circumvention of private property rights. The power granted under this section can be used for political ends by the Governor. He has exclusive powers to fix and review rents and may revoke the right of occupancy for failure to pay the imposed rents. This makes the Governor the law giver and enforcer at all times. This is equivalent to executive judgement which is contrary to the tenets of separation of powers and the rule of law. It is one of the incidences of insecurity of title and tenure under the Act as it leaves the holder of the right of occupancy at the mercy of the Governor.
To ensure fairness and equity in the exercise of this power, the court should be saddled with the responsibility to revoke or otherwise order the judicial sale of the right of occupancy on the application of the Governor. Where sale is ordered, the State should deduct its accrued rents and any net profit should be returned to the right holder. Such process as recommended above will afford justice to all parties concerned rather than the current exercise which unjustly enriches the State at the expense of the citizenry.
c. Revocation on grounds of breach of the terms of the certificate of occupancy or special contract made under the Act:
Another instance of expropriation without compensation under the Act is where there is a breach of any of the terms contained in the certificate of occupancy or in any special contract made by the Governor and the holder of the certificate, as long as the terms are not inconsistence with the provisions of the Act.79 Accordingly where the holder of a
certificate of occupancy fails to comply with the terms of the grant or commits a breach of its terms or the terms of a special contract entered into by him and the Governor regarding the land, he stands the risk of revocation of his rights without any right to be compensated.
draconian, it is undemocratic. Why will the Governor revoke a right of occupancy for failure of the holder to comply with the terms of unknown special contract or even terms of certificate of occupancy imposed on him without his consent? The provision gives no room for service of notice of breach and request to rectify the breach before the exercise of the powers of revocation by the Governor. No opportunity is afforded the holder to be heard and or make amends the alleged breach.
d. Revocation on grounds of refusal or neglect to accept and pay for a certificate issued in evidence of a right of occupancy.
The Governor may also compulsorily acquire or expropriate land without the payment of compensation where the holder refuses or neglects to accept and pay for a certificate which was issued in evidence of a right of occupancy.80 Thus where the Governor, after
confirming the existence of a right of occupancy of a holder, proceeds to issue a certificate evidencing that right, the Act provides that if the holder of the said right of occupancy fails to accept and pay for the certificate issued in respect of that right, such a holder will not only loose his right by revocation at the instance of the Governor but will also not be entitled to be compensated for the revoked right.81
This is another autocratic provision of the Act that alienates it from the members of the society. If the offence of the holder is failure to collect and pay for the already issued certificate, it is an overkill to revoke his right of occupancy for such flimsy infraction. The Governor could at best exercise a right of lien on the property to the extent of the expense incurred in the process and probably with interest at current bank rates.
The provisions of the Act on revocation of rights of occupancy and its implementation breeds inequity, discord and vagaries in land administration in Nigeria. The law does not provide for uniformity in the justification for public takeover of private land and interest therein, resulting in divergent approaches to the appreciation of the subject. While some revocation merits compensation, others do not. The Act does not provide for pre-acquisition notices82 to be issued and or served on the affected citizens, thus engendering
80 Section 9 (3) provides as follows:
“If the person in whose name a certificate of occupancy is issued, without lawful excuse, refuses or neglects to accept and pay for the certificate, the Governor may cancel the certificate and recover from such person any expenses incidental thereto, and in the case of a certificate evidencing a statutory right of occupancy to be granted under paragraph (a) of subsection (1) the Governor may revoke the statutory right of occupancy.”
81 Section 28(5)c Land Use Act
82 In Osho V Foreign Finance and Another, (1991) 4 NWLR (Pt. 184) 157 the Supreme Court held that the notice of
ambushing tactics, executive tyranny and surprise conducts on the part of the acquiring authority to the detriment of the populace. The current regime does not encourage public participation in the acquisition process; the exercise is shrouded in secrecy and devoid of any iota of transparency and public accountability; and prohibits recourse to courts for the determination of adequacy or otherwise of the compensation payable or paid.83 The
Act gives much discretionary powers in the Governor and state officials involved in the acquisition process particularly in relation to power of revocation and compensation payable to victims of revocation.
3. Power to fix and revise rents.
The Governor is empowered under Part III of the Act to determine and collect rents on rights of occupancy granted under the Act. It is to be noted that this power is exercisable both on statutory right of occupancy granted by the Governor and any other right of occupancy once covered by a certificate of occupancy. In fact the obligation to pay rent is inherent in the certificate of occupancy since section 10 of the Act provides that every certificate of occupancy shall be deemed to contain provisions to that effect.84 Given the
provisions of this section it is surprising to read in section 17 of the Act that the Governor may grant a statutory right of occupancy85 free of rent or at a reduced rent in any case in which he is satisfied that it would be in the public interest to do so. The implication of this provision is to further the dual administration and dichotomy in property rights under the Act as only parties with a grant of statutory right of occupancy can benefit from the exercise of the governor’s discretion to the exclusion of others, particularly holders of customary rights and deemed grantees. Where lies the equity and fairness of this provision?
Also, save for the provisions of section 16 on guidelines on rent fixation and review, the Governor is given unfettered right to manipulate the chargeable rents and the period for review. He has power to impose and collect penal rents on certificate of occupancy, waive rents and revoke rights of occupancy for failure to pay penal rents.86 Under section 20(3)
must give the holder an opportunity to challenge the rightfulness or otherwise of the revocation in accord with fair hearing provisions in section 33 of the 1979 constitution of federal republic of Nigeria
83 s. 47(2)
84 Section 10(2) Land Use Act 85 For emphasis
the acceptance by or on behalf of the Governor of any such additional and penal rent shall not operate as a waiver by the Governor of any breach of section 22 or 23 of this Act which may continue after the date up to and in respect of which such additional and penal rent has been paid or is due and owing and the Governor shall accordingly be entitled to exercise in respect of any such continuing breach all or any of the powers conferred upon him by this Act. The holder of the right of occupancy in this instance may be subject to double jeopardy of paying the imposed penal rent and also losing his land to the governor’s revocation of his right for failure to obtain consent before alienation.87
To buttress the argument of dual administration under the Act, there is no provision for the payment and or review of rents in respect of lands covered by customary rights of occupancy or other lands not covered by a certificate of occupancy; there is no concrete administrative and enforcement structure in respect of such lands in the least. In essence the greater parts of the lands in the state are not covered by this rent requirement. In fact, the Act seems to be more interested in lands in the urban areas, specifically land covered by certificate of occupancy in so far as the rent provisions does not capture other lands in the state. Unfortunately, this is a drain on the revenue profile of the state and unfair taxation on the part of parties caught by the provisions. It is therefore recommended that there should be a uniform policy on rent for the use of land in the country. The current scenario is not only unjust but it is also discriminatory and unconstitutional. The current legislation in Lagos state88 on rents on land which covers all lands in the state irrespective
of whether the land is covered by certificate of occupancy or not is commendable and it is hereby recommended to other states of the federation as a model and rectification of the lacunae created by the Land Use Act in this respect.
5. Management of Deemed Grant Lands
The Land Use Act created a right of occupancy as the primary proprietary interest in land in Nigeria. The rights of occupancy created are of 2 variants: statutory right of occupancy and customary right of occupancy. Both rights of occupancy may be acquired by actual grant from the Governor or the local Government, or be deemed granted by the
87 See also section 18 Land Use Act
appropriate authorities.89 The management and control of actual grant of right of
occupancy is well laid out in several sections of the Act as such grant is usually evidenced by a certificate of occupancy issued by the Governor. Actual grantee of a right of occupancy has a fixed tenure, liable to pay rents, subject to penal revocation of his right and subject to Governor’s consent on subsequent transactions amongst other obligations. A deemed grantee of right of occupancy on the other hand is not so well managed under the Act. Save for the provisions on the need for Governor’s consent to subsequent transactions and the prohibition of alienation under section 36 of the Act, a deemed grantee is ordinarily free from the stringent and strangulating control of his rights under the Act.90
Conclusion
The adoption and application of democratic land governance into management of land is the beginning of a seamless and enduring land administration in any given society. Attaining the democratic land governance status may be herculean and tasking but its outcomes are unassailable; transparency, equity, participatory, effective and efficient. In Nigeria the operative legislation on land management, the Land Use Act is bereft of the lofty ideals of democratic land governance. Except for the initial consultation of members of the public at the initiation of the Act through the activities of the Land Use Panel, the Act failed all the essential tests of democratic land governance. It is inequitable and discriminatory in its application, inefficient in its administration and non participatory in its implementation. This posture of the Act is not unconnected to its military antecedent of its promulgators and the era of its promulgation. The Act can however be rectified by the adoption of the recommendations highlighted in the paper to bring it into conformity with the tenets of democratic land governance.
89The actual grants are found in section 5(1) and section 6(1) of the Act respectively, whilst the deemed grants are
covered by the provisions of section 34 and section 36 of the Act.
90 The Land Use Act in sections 34 & 36 however provides a window through which the right of a deemed grantee
