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11 Jan

LAND LAW 1.5 SOME EFFECTS OF THE LAND USE ACT

THE EFFECT OF THE LAND USE ACT ON CUSTOMARY LAND TENURE.

Section 1 of the LUA introduced a sweeping transformation by converting hitherto existing unlimited interests over land to right of occupancy.

Does customary land tenure system still exist?

Various land transactions like customary pledge, tenancy, and family property are preserved by Section 34(4), 35 and 24 LUA respectively. Customary land tenure has been recognized in various cases like; Ogunleye V Oni, Ogunola V Eiyekole, Abioye V Yakubu and a host of other cases. Section 28 and 29 LUA also recognises that compensation is payable to holder[1] and occupier of “customary” right of occupancy for unexhausted improvement on land at the date of revocation based on their respective interests. Where land was being used for agricultural purpose, the landowner shall be entitled to an alternative land for the same purpose. In essence, customary transactions still exists.

Note however that certain provisions of the Land Use Act shall affect the customary land transaction.

By Section 34 where land situate in urban area was vested in the “holder” before the commencement of the LUAct, he is entitled to a statutory right of occupancy.

By Section 36(2 and 3) the holder or occupier of land under customary land tenure shall be deemed to have customary right of occupancy (deemed grant) if before the commencement of the act:

  • The land is situate in non-urban area.
  • The land was used for agricultural purposes or developed

The act provides that the “occupier” or “holder” may then apply to the Local Government to register that he is the deemed grantee (i.e. the person deemed to have customary right of occupancy over the land).

This Section is problematic. Why would an “occupier” be entitled to apply to be registered? Doesn’t that seem to suggest that he is being enabled to obtain a higher title than the holder? In Onwuka V Ediala, the court noted that the Act did not purport to make the occupier an overlord by mere fact of occupation. In essence, although the annoying use of the word “holder or occupier” in Section 36 gives rise to ambiguity, the superior position of the overlord is maintained notwithstanding the fact that an occupier may have been registered as a deemed grantee. It is however recommended that the law should clearly state the position.

In summary, the following effects of the Land Use Act should be noted:

  • All radical title in land has been converted into right of occupancy by virtue of Section 2 Land Use Act… vesting control in the governor and LG-Abioye V Yakubu, Salami V Oke.
  • The Half-Hectare rule: The holder of undeveloped land in Urban area shall only be entitled to half hectare of the total land(s). The rest (i.e. the remaining part of the land(s) in excess of half hectare) shall be forfeited to the governor to be administered in accordance with the Act-section 34(5). This prevents people from having very large areas of land. To make lands available for others.
  • Where land in non-urban area is being used for agricultural or grazing purpose, the holder is entitled to only 500 or 5000 hectares respectively… and by 36(5) such lands cannot be fragmented and sold. Imprisonments and fines are imposed. Some have argued that this Section prevents anything relating to sale of the land. Other have argued that if there should be sale, the whole land should be sold rather than parts of the land being fragmented and sold in bits.
  • In addition to the necessary consents (like family head and principal members in the case of family property)… Before a valid alienation of land (whether in urban or non-urban area) can be effected, the consent of the governor or LG as the case may be must be sought and obtained in accordance with Section 21 and 22. Savannah Bank V Ajiloh.
  • By the force of Section 48, the quic quid plantatur solo solo cedit rule that applies to customary pledge may be voided. Thus a pledgee may be entitled to compensation for unexhausted improvement on the land in accordance with Section 29 of the act. Since he is an “occupier”.

In effect, the major effect of the Land Use Act is to transfer allodial title to the governor. The rest being a right of occupancy contemplating the holder to be a tenant subject to the provisions of the Act. There are certain vexatious and unclear provisions of this act. Notwithstanding, it is what we have to make do with for the mean time.

 

[1] By the interpretation of Section 51, a holder is a customary landowner while an occupier is a person in possession of the land through the landowner.

Isochukwu

Quite eccentric really

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