Land is the essence of human self-definition, economic and cultural survival; its destruction is considered as a threat to the society. It is an intrinsic part of the social, economic, political and spiritual survival of any society. We look to it for housing, agricultural, industrial, transportation, spiritual, medicinal and social-economics needs. Professor Jelili Omotola in Law and Land Rights: Whither Nigeria (1988), notes: “every person requires land for his support, preservation and self actualization within the general ideals of the society … Man lives on land during his life and upon his demise, his remains are kept in it permanently.” Given the intrinsic nature of land, it is not to be abused or degraded, but a material element to be cherished, preserved and responsibly enjoyed by the present and future generations.
Because all life depends on land and the supply of which is limited, there is the need for proper planning to secure optimal utilization of land for the benefit of the beneficiaries. An efficient land use regulatory system is expected to solve complex public policy problems of urbanization, housing needs, internally-generated revenue of the State, environmental degradation and developmental needs.
However, despite governmental recognition of the importance of land to human survival, access to land for industrial, agricultural and other economic uses remains problematic due to poor planning and implementation constraints which produces sub-optimal performance. The effect of inefficient and lax land use policy and administration within the State is profound and regressive. It denies State government much needed revenue from land-related transactions and tax revenue. Secondly, it promotes land speculations and uneven development. It further engenders communal land clashes and litigation. It frustrates the promotion of optimal use of productive land in urban and rural areas and sustainable development through the development and implementation of improved land management practices that deals comprehensively with potential competing land requirements for agriculture, industry, transport, urban development, green space, protected areas and other vital needs hence the need for a pragmatic rethink.
Land tenure system before Land Use Act
Prior to the enactment of the Land Use Act in 1978, there are diverse systems of land tenure and administration in Nigeria. The land tenure systems varied from one geographical area of the country to another. Land tenure system, especially in Southern western Nigeria, is governed mainly by indigenous customary rules although some legislation was passed which impacted on the system of land holding. Some of those statutes are Compulsory Acquisition Law, Town and Country Planning Law, Registration of Instruments Law, Registration of Title Law and Lands and Native Rights Law. Absolute ownership of land and consequent power of management are vested in the traditional owners namely communities or families depending on the applicable customary law prevailing an area. In land owned by the communities, the ownership power is exercised by the Oba or Chief assisted by the Chief in Council. But where the land is owned by the family, managerial powers are vested in the Family Head in conjunction with the principal members of the family. The major problem associated with this land system is the problem of accessibility to land by government and cost of acquisition. Secondly, there are various litigations on land in our Courts all of which culminated in the enactment of the Land Use Act.
The Land Use Act
The Federal Government in its White Paper on the Report and Recommendation of the Land Use Panel in 1978 had this to say on the justification and doctrinal philosophy underpinning the enactment of the Land Use Act vis-à-vis the customary land tenurial system to wit: “(A)ll Nigerians are collectively owners of all land in the country and the rights of all Nigerians to use and enjoy the land of the country and the natural fruits thereof in sufficient quantity to enable them provide for the sustenance of themselves and their families should be ensured, protected and preserved. Ownership of land per se is irrelevant. What is important is the use to which land is put and no Government should abdicate its responsibility in respect of a proper planning of land use within its territory.”
Consequently, the Act vests all lands in every state of the Federation in the Governor of the State who holds same in trust and is enjoined to administer them for the use and common benefit of all Nigerians in accordance with the provisions of the Act (Section 1.). For purposes of proper management all lands in a State are divided into urban and non urban areas. Urban lands, the extent to which is to be specified by the Governor (Section3) are to be controlled by him on the advice of the Land Use and Allocation Committee. In particular, the latter shall advise the Governor on any matter connected with the settlement of persons affected by the revocation of rights of occupancy on the ground of over-riding public interest under the Act. It is also the function to settle disputes arising from claims for compensation for improvement on land. The Committee shall consist of persons appointed by the Governor provided it includes at least two persons qualified to be appointed estate surveyors and land officers who have been so qualified for at least five years and a legal practitioner.
Non-urban lands are to be managed by the Local Government within whose jurisdiction they are situated on the advice of the Land Allocation Advisory Committee. The latter shall be made up of such persons as the Governor may determine after the consultations with the relevant Local Government.
Powers of the Governor
The powers vested in the Governor under the Act for purpose of administration and management of the land in the territory of any State are enormous and if effectively utilized can enhance the internally generated revenue of the State and promote sustainable and enduring development within the State. The Governor may grant statutory right of occupancy over urban and non-urban lands to any person for any purpose for a definite term. Such grant may subject to the terms of any contract between the Governor and the grantee, provided that such contract is not inconsistent with the provisions of the Act.
The Governor may also grant easement appurtenant to such rights, demand rent for the grant and revise the same as specified intervals or at any time during the term, impose penal rent of the breach of any covenants requiring the holder to develop or effect improvements on the land subject to the grant, or for breach of any conditions, express or implied, which precludes the holder from alienating the land by sale, mortgage, transfer of possession, sublease, bequest or otherwise without the prior consent of the Governor. He may waive wholly or partially, all or any of the covenants and conditions to which the right of occupancy is subject if the circumstances are such that compliance therewith would be impossible or would impose great hardship upon the holder; extend the time for performing any of the conditions on such terms and conditions he deems fit. The only limitation on the power of the Governor in this regard is that he cannot grant a statutory right of occupancy or consent to assignment or subletting of such right to a minor.
The Governor or a public officer authorized by him has power to enter upon and inspect the land comprised in any statutory right of occupancy or any improvements effected thereon at any reasonable hour in the day time and the occupier shall permit and give free access to him. He may grant a licence to any persons for such periods and subject to such conditions as he thinks proper, to enter upon any land which is not subject of a statutory right of occupancy or any mining lease, mining rights or exclusive prospective licence granted under the Mineral Act or any other enactment and remove or extract there-from any stone, gravel, clay, sand or other similar substances that may be required for building or for the manufacture of building materials.
The Governor may issue a Certificate of Occupancy under his hand to the grantee of a statutory right of occupancy or a person in occupation of land under a customary right of occupancy who applies in the prescribed manner or a person who is entitled to a statutory right of occupancy as evidence of such rights. The person in whose name the certificate is issued shall pay any fee that may be prescribed and if he refuses or neglects without lawful excuse to accept and pay for the certificate the Governor may cancel it and recover incidental expenses from him. If the certificate is in connection with a statutory right of occupancy he may revoke it. It shall be implied in every certificate of occupancy that the holder binds himself to pay the Governor the amount found to be payable for unexhausted improvement existing on the land at the date of entering into occupation and that the holder bind himself to pay to the Governor the rent fixed by him and that which may be agreed or fixed in revision.
The power of the Governor to grant or withhold consent to any alienation, transfer or mortgage of land is another means by which the internally-generated revenue (IGR) of the State can be enhanced. Section 22 of the Act imposes a duty on a holder of right of occupancy to obtain the Governor’s consent before mortgaging, assigning or transferring possession, subleasing of the right to another person. In order to increase the revenue from land related transactions, the approach in other state is to tie many fees which many individual would not have ordinarily intended to pay or escape into consent fees. Such fee include PAYE tax by the vendor and purchaser or mortgagors and mortgagees, tenement rates, property rates and levies, stamp duties, capital gain tax, neighborhood improvement rate, development levy, educational levy among other things. Provided the consent is granted within a reasonable period of time usually 30 days and devoid of corrupt tendency, consent seekers generally comply with and built some of these fees into the cost of the transaction before granting loan.
Section 28 of the Act empowers the Governor to revoke a right of occupancy, statutory or customary, for overriding public interest which in the case of a statutory right of occupancy means (1) alienation by the occupier by assignment, mortgage, transfer of possession, sublease of the right contrary to the provision of the Act or any regulations made there-under; (ii) requirement of the land by the Government of the State, Local or the Federation for public purpose; (iii) the requirement of land for mining purposes for oil pipelines or any purposes connected therewith. In the case of customary right of occupancy over riding public interest means (1) alienation by the occupier by assignment, mortgage, transfer of possession, sublease of the right contrary to the provision of the Act or any regulations made there-under; (ii) requirement of the land by the Government of the State, Local or the Federation for public purpose; (iii) the requirement of land for mining purposes for oil pipelines or any purposes connected therewith and (iv) the requirement of the land for the extraction of building materials.
However, it is important to note that the procedure for revocation must be strictly complied with otherwise the revocation can be challenged for non compliance and finally set aside at the court. One problematic area of revocation is where a Governor grants a statutory right of occupancy over a land previously subjected to a customary right of occupancy relying on the provision of Section 5(2). The current position as stated by the Supreme Court as stated in Damatasho v. Ibrahim is that for any latter grant of statutory right of occupancy to be valid, it must comply with the revocation procedure under section 28.
He may also revoke a statutory right of occupancy on the ground of a breach of any of the provisions implied in a certificate of occupancy or any term contained therein or in any special contract made under Section 8. Revocation operates to extinguish the title of the holder of the right of occupancy but it shall not extinguish any debt due to the Government form the holder or occupier in respect of such right of occupancy.
Revocation power can be exercised by the Governor to acquire large portion of land for overriding public interests or public purposes such as agriculture, industrial, housing and educational purposes. Here land could be acquired and allocated to estate developers at higher cost and with imposition of conditions including planning obligation requiring the estate developers to provide basic infrastructure well connected to the public mains. The general practice is for government to acquire land, lay them in plots, provide infrastructure or basic amenities and subsequently sell the land to interested persons at a higher cost. We can reverse the trend by acquiring land and selling them to private estate developers at our terms as opposed to situation where land speculators acquire lands from the villagers at cheaper cost and hold on the land for a long time for speculative purposes rather than developing them. The Sagamu-Mowoe-Papalanto axle is a clear example. It is doubtful whether the income generated by the State in respect of mass acquisition of land by private developers in this axle is sufficient giving the massive development that may take place in that axle in years to come.
To reverse this ugly incident, the State Government could declare the entire land along this axle and other areas in the State having the same tendency as urban area and deny the issuance of Certificate of Occupancy and planning approval to greedy and speculative private estate developers to checkmate the sprawling development within the axle or such other areas. Alternatively, the customary right of occupancy could be revoked and same vested in the Government of the State to enable the state redesign the land along the path and character of development it intends to achieve for the overall benefits of the State and citizens of the State.
The argument that the land in this axle is owned by the community could be faulted on several legal grounds. Firstly, section 36 of the Act which deals with the lands in non-urban areas respects the right of the occupier to continual usage and possessory rights provided it is used for agricultural purposes only. Any change in use from agriculture to large scale housing is neither permitted nor envisaged by the Act. Secondly, the Act prohibits any transfer or alienation of land subject to customary right of occupancy and used for agricultural to any third person as such transaction is null and void. (s.36(6). Thirdly, it a criminal offence and every party to any such instrument shall be guilty of an offence and shall on conviction be liable to fine of N5,000 or an imprisonment of one year (s.36(6). Consequently, the present practice whereby the Land Registry requires the vendor of land to affix his consent to a transfer of land in non-urban area for the grant of a statutory right of occupancy to avert future litigation or dispute as to transfer in a separate form is not envisaged by the Act and should be jettisoned.
In some cases compensation is payable on the revocation of a right of occupancy. If the revocation is effected following the requirement of the land by the Governments for public purposes or for extraction of building materials, the holder of the right of occupancy and the occupier of the land are entitled to be compensated for their unexhausted improvement.
There is the urgent need for a clear-cut State policy and regulation on land use aimed basically at improving internally-generated revenue from land transactions. This will involve the standardization of practice and procedure for accessibility to land and revocation of title to land, consent approval, compensation and for resettlement of displaced persons, assessment and valuation of land-related fees, levies and rates and registration of title to land.
Also, a system of compulsory land registration by title includes total land coverage, systematic definition of every parcel of land relating to maps and record of each and every interest in every parcel of land should be introduced in the State. Further, the practice of automation of land registries to facilitate on-line investigation and processing of titles should be introduced.
Finally, the urban and regional planning law of the state that had been overhauled should complement the land use policy in order to create a cost-effective, efficient and responsive management of physical developments that is taking place in the State. It will not be out of place for the Government to set up a standing committee to take a holistic approach to the land management and administration in the State with a view to recommend a viable, cost-effective and efficient policies, measures and regulation for optimal utilization of land resources within the State.