CRITICISM OF THE LAND USE ACT

Introduction

The Land Use Act (1978) has been one of the most controversial pieces of legislation in nearly two decades. However, inspite of the various calls for reform by the judiciary, lawyers, town planners and academics alike, no serious attempts has been made. Criticism

The title of the Act is misleading. The present title gives the impression that the Act is a unified federal code conveying all aspects of land usage within the federation of Nigeria and covering the utilization of land as governed by town planning authorities. The provision of the Act is to spell out the types of interest obtainable in land, mode of acquisition and quantum of rights exercisable therein. Section 1: The use of the words held in trust in this section raises the question whether the State Governor is a trustee within the meaning of the term under the received English law with the attendant rights and obligation as between the trustee and the que trust. With the use of the words all Nigerians , one wonders whether the vesting of land on the Governor is the best way. For instance, the Nigerians who are to use and enjoy land in Nigeria are not qualified in any way according to the State of origin of such Nigerians. As such, the only organ which can assume the equitable use

and enjoyment of land throughout Nigeria by the use of the word all Nigerians is the federal government in power. There is no doubt that States are working to promote the interest and welfare of the indigenes of the State, at least first and foremost. Some States in Nigeria are densely populated, while others are very sparely populated but individual land requirement is still virtually the same among Nigerians. If the federal government was controlling the use and enjoyment of land, it could have been possible to shift land requirements of Nigerians from densely populated States to the sparsely populated. The vesting of land in each State Governor of that State will make it likely in the near future that Nigerians will find it difficult to secure interest in land in States other than their own. Section 5: For almost six (6) years since the promulgation of the decree, no one could say, with any degree of certainty whether the Civilian Governor of a State was entitled to exercise the powers which the decree bestowed on the Military Governor. Section 5(2): This sub-section has been the subject of judicial interpretation in a number of cases; And it could therefore be seen that the Land Use Act is not a magic word, it is being portrayed to be a destructive monster that at once swallowed all rights on land and that the Governor or Local Government with a mere issuance of a piece of paper could divest families of their homes and agricultural lands outright of a certificate of occupancy driving them out with bulldozers and cranes .

This applies equally to customary tenants and licensees who through having possession of land are not the absolute owners thereof. The grant of a certificate of occupancy to this class of persons should not operate to extinguish the interest of their overlords. This sub-section could be expunged from the Act without deviating from the intents and spirit of the Act. Section 6(5): This sub-section is the first to indicate the major distinction between the holder and the occupier of a right of occupancy. Section 50 maintains the distinction but seems to create the impression that an occupier can exist in respect of a customary right of occupancy. Section 14 and 15 seem not to pay regard to the distinction, while Section 24 seems to indicate that an occupier can exist in respect of a statutory right of occupancy. Section 7: The age limitation in the power of the Governor to grant right of occupancy should be extended to the power of the local government to grant a customary right of occupancy under Section 6. This is so because under Section 50, a customary right of occupancy is a matter of personal law. What this ultimately means is that while persons under twenty-one years can be granted a statutory right of occupancy, he can hold a customary right of occupancy.

Section 8: This Section speaks only in the term of statutory right of occupancy which means that customary right of occupancy is in perpetuity. Section 9, 10 and 11: It is noticed here that all the provisions of these Sections applies only to a statutory right of occupancy granted by the Governor. All these powers should also be extended to the local government in the granting of customary right of occupancy. There is also an absence of a uniform code for implementation of the rights and powers reserved for the Governor in these Sections. Each State Governor has to impose its own conditions. Section 14 and 15: These two Sections should be harmonized Section 14 relates to the exclusive rights of the holder of a statutory right of occupancy conferred in the sole rights of the holder in Section 15. These Sections refer to only statutory rights of occupancy which means granted by the local government. Section 16 20: The whole Part III of the Act is devoted to rents payable in

respect of land comprised in a statutory right of occupancy granted by the Governor. If the local government is to have the right to fix and demand real in respect to a customary right of occupancy, then the provisions of these Sections could be extended to the local government. Section 21 22: The consent of the relevant authority under the Section should

be expressed to mean first had and obtained as in Section 22. So also for the purpose

of uniformity approved in Section 21(b) should read consent . This Section has shown that there is scarcely any dealing in land that can be affected within the law without the consent of the Governor. These consents relates more or less to rights which have been perfected by the grant by the Governor of a statutory right of occupancy, or by the local government of a customary right of occupancy. These sections are the dynamic areas in which the business world deals in land. If granting of consents is not properly handled, business life may be paralysed. Considering the work load of the Governor, it is glaring here that it is most advisable that the Governor should delegate to his commissioner. Here delay in processing an application could cause immerse loss to the business community. The most ideal situation, however, would be to exempt normal commercial transactions from these consents and transactions allowed to go on as a matter of course. Section 23: The reference made in this Section to sub-lease and subunderlease gives the impression that a right of occupancy is synonymous to a lease. All competent authorities seem to agree that the right of occupancy created under the Act is an interest sui generis hitherto unknown under the revered English law in Nigeria. Sub-grant or sub-undergrant will be preferred and should be explicitly defined in the definition section.

Section 24: This section should deal with the devolution of the rights of the holder of the right of occupancy and not of the occupier (if the distinction between a holder and an occupier must be maintained). In the normal course of events, the occupier will be in possession and occupation by virtue of a contract with or the benevolence of the holder of the right of occupancy. It is this agreement or indulgence which should determine the nature and quantum of the rights of the occupier. Section 28: This Section shows that no body or authority apart from the Governor and the local government has the power to revoke a right of occupancy, except under delegation specifically made by the Governor. Talking of revocation of rights of occupancy, it is curious that the local government is given powers that would in practice be more drastic than the revocation. In Section 6(3) there were provisions for entry, use and occupation of land for police purpose. What is not clear here is whether the entry, use and occupation authorized in Section 6(3) have come before or after a revocation. It is hoped that the local government is not empowered to take possession of land the right of occupancy of which has not been revoked. This is because the grounds upon which the local government may itself revoke customary right of occupancy are not spelt and anywhere in the Act. Provisions of those terms in Section 28(5), (6) and (7) could also seem desirable for the government.

Section 29: This section provides for payment of compensation upon a revocation of right of occupancy other than as a penal measure. However, all that the holder is entitled to as compensation upon revocation is the value of the unexhausted improvement on the land. He is not entitled to compensation for the land per se. Thus, if there are no improvements on the land, the holder of the right of occupancy gets nothing when the right is revoked. It is anomalous that the Act recognises the existing rights in land, which includes rights in undeveloped land, and yet it denies compensation for such rights in undeveloped land when the land is forcibly taken away, on the pretext that no improvements exist on the land. This is contrary to Section 44 of the 1999 Nigerian Constitution which guarantees right to compensation in respect of right to or interest in property compulsorily acquired in any part of Nigeria. In the light of the foregoing, it is recommended that since the right of every citizen of Nigeria is a basic right under Section 43 of the Constitution, land whether developed or undeveloped is a property right and if the right is revoked or taken away compulsorily without any default by the holder, prompt and adequate compensation should be paid therefore. Section 29(4): The improvements on the land for which compensation is payable upon revocation are itemized in Section 29(4) of the Act to include buildings, installations and the like, reclamation works and crops. Section 44(1) of the 1999 Constitution contains no qualifying adjective to the expression compensation (e.g.

adequate or fair ) to show quantum. Section 44(1) uses only the word prompt to emphasize urgency. Compensation has been interpreted to mean the money value into which property might be converted in the open market . This Section has resulted in many a right of occupancy becoming an illusionary security for the purpose of mortgage and credit transactions, while an equitable mortgage cannot be described as a holder or occupier with the meaning of the Act, the right of compensation should take cognisance of and be subject to the rights of an encumbrance on the land. This will entitle a mortgagee reach the proceeds of any compensation payable on the revocation of a right of occupancy. Section 32: This provision should be extended to cover a debt due to the local government in respect of a revoked customary right of occupancy. Section 34(5) and (6): The provision of these sub-sections are confiscatory. Though socialist and popularist in effect, they are the most repugnant in our society. The ineffectiveness of these provisions have been made manifest in the past 13 yrs. There is no period known to us within the period of the Act s operation where any owner of undeveloped land is an urban area has fortified his excess to his half hectare holding to the State Government. And no State Government has invoked the provisions to take possession of any land.

It is suggested that these two sub-sections be expunged from the Act and in their place a power should be reserved for the State Governor to revoke for public purposes any undeveloped piece of land in urban areas where the person in whom it is vested already has up to one hectare of land is that particular urban area. Section 36(2): The sub-section has raised the question of who as between a holder and an occupier has a superior title to a right of occupancy. Under customary law, the customary tenant who actually occupiers and uses the land for agricultural purposes has an interest in the land. Thus, interest is subject to the title of the overlord. The distinction between holder and occupier is to be maintained, the occupier s interest must be made subject to that of the holder in whom title to the land is properly vested. Section 36(5) and (6): The prohibition of the alienation of land subject to a deemed customary right of occupancy appears indefensible. If the development being urged in the rural areas is to be achieved, non-urban land must alienable. The provisions of the two sub-sections should be amended to allow alienation subject to the consent of the local government. Section 46: It is suggested that as part of the review exercise, the Law Reform Commission should formulate a set of standard regulations for uniform application in

all States of the Federation. A power could be reserved to the National Council of States to modify and in varying the rules. The absence of National Council of States Regulation on the application of the provisions of the Act has created a situation where State Governors make regulations on matters not contemplated by Section 46(2) of the Act. Section 50(1): A right of occupancy should be defined. A cue could be taken from the land tenure law which it is a title to the use and occupation of land and includes a customary right of occupancy and statutory right of occupancy . Alienation in Section 21 and 22 should be defined to include an irrevocable power of attorney exchanged for valuable consideration. A definition is preferred thus; Alienation means any act of disposition, transfer of title, property or other right to another and includes an irrevocable power of attorney over the control and management of land or any interest therein exchanged for valuable consideration . An occupier should be defined as the person who actually occupies and uses the land subject to either a statutory right of occupancy or a customary right of occupancy. Section 50 of the Land Use Act defines a mortgage to include a second and subsequent mortgage and equitable mortgage . The effect of Section 21 and 22 of the Act is that the consent of the Governor must be first hand and obtained before the

creation of a legal or equitable mortgage. This has been virtually destroyed by all modes of creating equitable mortgage under the reserved English law. Even the creation of legal mortgages have been further circumscribed by the provision of Section 36(5) which strictly prohibits the mortgage of land subject to a deemed customary right of occupancy. It has earlier been suggested that this sub-section be amended to allow alienation including mortgages subject to Governor s consent.

Conclusion

Before the Land Use Act right to land in the northern and southern parts of Nigeria was controlled by different systems of law: the Land Tenure Law in the northern part of Nigeria and traditional communal ownership in the south. The Land Use Act can be justifiably created with unifying the law in this regard. The Act was the first national effort at reforming of the land tenure in Nigeria. It is a complete code regulating the rights of the people in respect of land, which the Governor of the State holds in trust. Despite the short-comings which have been pointed out above, there can be no argument that the Act is an indispensible catalyst for development. Apart from the reforms which have been suggested which is also much needed is honestly and transparency in implementation.