land use act • Helar

Q549. Is it true that the enactment and coming into operation of the Land Use Act (LUA) in 1978 had the radical effect of taking land ownership rights away from citizens, leaving them to be recognized only as ‘Occupiers’ of land belonging to the Governor of their States?

That initially appeared to be so with Section 1 of the law vesting the right of control and management in the Governor of the State to hold, manage and control the entire land in the State as the Trustee of the people of the State in that respect, and in Sections 5, 6 and 17 – powers of government to grant land and collect rent, S. 12 – powers to grant licenses for taking of building materials; Ss. 21 and 22 invalidating any conveyance without the Governor’s Consent; S. 28 – powers to revoke and compulsorily acquire any land for overriding Public interest, etc. etc. all made it look as if the law completely abolished all of the allodial or radical right of the individual to own and use his land as he pleased, at least, to the extent it was under the previous laws. See Nkwocha V. Governor, Anambra State (1984) 6 S.C. 362 @ 404 That notion or statement of the law having such radical effect can no longer hold water now that it has become clear that the law did not intend to provide for expropriation of people’s land, as harshly thought of initially. This is because the Courts have come to interpret the provisions of the law more strictly, showing not only that the strict conditions and requirements under S. 28, along with those of Ss. 29, and 44 of the LUA and S.44 of the CFRN, 1999 (as amended), relating to the requisite statutory Notices and duly computed and prompt Compensation payment to owners of the land must be strictly observed to the letter. This protective position of the law was made clear in such landmark cases as Ibrahim V. Mohammed (2003) 6 NWLR (Pt. 817 615, Orianzi V. A.G. Rivers State (2017) 2 S.C. (Pt. 1) 104, and several other cases wherein it has been held by the Apex Court that any revocation of right of occupancy that is not in strict keeping with the strict meaning of public interest which it says does not include taking from one private citizen to give to another person,, and the requirements of issuance of notices and prompt payment of compensation, cannot stand. The last vestiges of the harsh notion of the LUA sweeping away the people’s ownership rights were laid to rest with the Supreme Court judgments in Ibrahim v. Obaje (2019) 3 NWLR (Pt. 16600 389 @ 412 where it held that private individuals’ dealings in the land would not need the Governor’s Consent for legal validity, as the issue of Governor’s Consent recedes to only land transactions that involve government or where it will be required strictly for the overriding interest of the public. This is quantum leap forward from what the position was in Savannah Bank (Nig.) Ltd V. Armel O. Ajilo (1989) ANLR 26 where it was strictly that without the Governor’s consent no legal estate can be created. All of these actually only gave judicial biting teeth to Section 26 of the LUA – any transaction in land otherwise than provided under the law shall be null and void.

Q550. Is it correct to hold that according to Section 5(1) of the LUA, once the State Governor grants any person a Certificate of Occupancy over any land in the State, that whatever rights held by any other person over that land, would under subsection (2) of this Section, be totally extinguished notwithstanding how and for what reason the Governor made the grant?

The initial superficial and isolated reading of Section 5(1) and (2) of the LUA threw up such decisions as in Teniola V. Oluhunkun (1999) 5 NWLR (Pt. 602) 296 @ 297. But the state or position of the law has since changed to be that if a grant is made by the Governor over any piece of land or landed property without properly, and in line with the provisions of the LUA and the CFRN, 1999 (as amended) extinguishing the existing rights over that piece or parcel of land, the grant of C of O by the Governor cannot stand as you cannot put something on nothing. See Ilora V. Idakwo (2003) 5 S.C.N.J 330. Until the Governor first, properly acquires any piece or parcel of land, he cannot have anything to give to another. This is the basis of the oft referred to SC cases of Ibrahim V. Mohammed (2003) 6 NWLR (Pt. 817 615, Orianzi V. A.G. Rivers State (2017) 2 S.C. (Pt. 1) 104, and a long line of Supreme Court authorities on this issue. Giwa V Anzaku (2019) HELAR ratio 7 and 8

Q551. Did the LUA, under the provision of Section 5(2) destroy all pre-existing rights, such as under the incidence or notion of Customary land holding or tenancy thereunder?

No, it did not. There were the transitional provisions under the law, like under Ss. 34 and 36 that preserved the pre-existing rights of people resulting from various kinds of transactions and relationships relating to land. See Akinlagun V. Oshoboja (2006) All FWLR (Pt.325) 53 @ 86.

Q552. Can it truly be said that the LUA did drastically diminish land ownership as it was previously known, especially customary land holding, which was the more prevalent form of land ownership before the LUA came into operation?

Not exactly. It should be accepted that the law did slightly diminish the allodial or radical plenitude of the notion of individual land ownership from what it used to be, but actually only to the extent that compulsorily take whatever land it required for its development for public benefit, and that individuals required the Governor’ consent before they can legally and validly convey or assign their rights over their land to another. (But that has always been there even under the Land Tenure Law, 1963). In the current situation where the requirement of the Governor’s consent has been so whittled down to mean only when the Government is directly involved in the land transaction, or doing so for the overriding interest of the public, taking the position that the individual has nothing in his land other the right to occupy is no longer tenable. See Ogunlola V. Eiyekola (1990) 4 NWLR (Pt. 146) 632 @ 648; Ogunleye V. Oni (1990) 4 NWLR (Pt. 135) 745 @ 772; Izevbigie V. Olobor (2005) All FWLR (Pt. 290) 1546 @ 1559-60.

The matter of absolute denial of the allodial of rights of the citizens was laid rest in the case of Abioye V. Yakubu (1991) 5 NWLR (Pt. 190) 130, @ 217, 225, 240 where it was held that the law has no such expropriatory intendment that people were crediting it with. That it did not abolish the contractual relationship, for example, between a customary owner and his tenant. Note the special reference to “...in accordance with the customary law of the locality concerned, allowed to lie fallow for the purpose of recuperation of the soil” under S. 36 (2) of the LUA.

Q553. In the face of the fact that the law vests the entire land comprised in any State territory in the State Governor, reserving his powers to allocate and grant rights and revoke same as under the law, does it mean that anybody who has not applied and get granted a right of occupancy has no title or interest over his land?

No, it is not so. Pre-LUA owners of land do have their rights over their lands preserved and secured as provided under Ss. 34 and 36. Those who have not had any need or seen reason to make a formal application to the Governor are “Deemed” to have their rights of occupancy still intact. Those who have applied and got granted have their actual grant of the right of occupancy expressed in a ‘Certificate’ called Certificate of Occupancy. The ‘deemed’ right is by operation of the law preserved, while the granted right is by the activities and powers given to the Governor under the law. See Savannah Bank of Nig. Ltd V. Ajilo (2001) FWLR (Pt. 75) 513 @ 531; Union Bank of Nig. Plc V. Ishola (2001) FWLR (Pt. 81) 1868 @ 1896.

Q554. As it stands now, are there other laws that regulate the issues and matters of land ownership in Nigeria other than the LUA?

There is no other Federal principal law in regulating matters of land ownership in Nigeria except the LUA. Land matters are under the Concurrent jurisdiction of the Constitution of the Federal Republic of Nigeria, 1999,(as amended) by which both the State and Federal Governments’ have legislative powers. Any State law on land will operate under the shadows of the LUA in the normal acceptance of the superiority of Federal law, and under the principle of ‘covering the field’ by which rule it is that any contradicting differences between them, the State law will bow to the Federal law and be void to the extent of its contradiction with the Federal law, the LUA. See Okafor V. Okonkwo (2003) FWLR (Pt. 176) 715 @ 736.

Q555. What then is the legal meaning of the phrase ‘public interest’ or ‘overriding public interest’?

Concerning Statutory Right of Occupancy, these phrases are simply stated in S. 28(2)(a) – the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulation made thereunder. That is what it is under sub-section (2)(a) except to know that the interpretation now will incorporate the decisions of the Supreme Court on the requirement of the Governor’s Consent in Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1660) 389 @ 412 where it held that private individuals’ dealings in the land would not need the Governor’s Consent for legal validity, as the issue of Governor’s Consent pushed and shrunken to only land transactions that involve government or where it will be required strictly for the overriding interest of the public.. The next thing in understanding those phrases will be, in interpreting sub-section (2)(b) that the definition given to public interest or overriding public interest means just what the SC said it means in the cases of Ibrahim V. Mohammed (supra) the SC said that “the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for purpose of vesting it in another”. In Osho V. Foeign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 the Apex Court of Nigeria said “When the public purpose is stated to be the ground for revocation of a right of occupancy, if the land is later discovered to be in use for other purposes, the revocation of the right of occupancy is vitiated and the order becomes unlawful” See also CSS Bookshop Ltd V. Registered Trustees of Muslim Community in Rivers State (2006) 11NWLR (Pt. 992) 530 @ 577; Orianzi V. A.G. Rivers State (supra); Ibafon Co. Ltd. V. NPA Plc (2000) 6 NWLR (Pt. 667) 86.