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11 Jan

LAND LAW 1.6 THE LAND USE ACT (SOME PROVISIONS)

The cession of Lagos in 1861, trade and development coupled with population boom led to the increase in demand for land. Land became scarce and unavailable for industrial, agricultural and public purposes. Land became expensive and was held for commercial purposes rather than for development.

The Land Tenure Law was enacted in the North to guarantee title to land unless the government found a better public use to put the land to.

The Land Use Act was promulgated by the Military government in 1978 to unify the existing laws and ensure availability of (and access to) land. Section 48 preserves existing laws subject to modifications that would bring it in consonance with the LUAct.

Upon transition to Civilian rule the following arguments have been put up.

  • Whether a civilian governor can exercise powers vested in the military governor by the Land Use Act. Nkwocha V Governor of Anambra State answered this question in the affirmative.
  • That since land has always been a matter within the residual legislative competence of the State, the validity of the Land Use Act can be challenged on the basis that it was enacted by the Federal Government.

These arguments are weighty but, Section 315(5 and 6) of the 1999 constitution ensures the validity of the Land Use Act being an “existing law”. This means that the Land Use Act can only be amended or repealed in accordance with the amendment procedure provided in Section 9 of the constitution.

In essence, the LUA is still valid. The best is to suggest that the legislature goes through the rigorous process of amending Section 315 of the constitution to deny the LUA its legitimation.

Notwithstanding that the LUA is protected by the constitution, its provisions would have to submit to that of the constitution in the event of inconsistency by virtue of Section 1 of the 1999 constituton.

The provisions of the LUA shall now be examined.

:: Section 1 of the Land Use Act vests ownership of lands in a State in the governor of the State. However:

  • This Section 1 is subject to the other provisions of the LUA and subject to the provisions of other legislations: “subject to” was used in Section 1. The Section does not apply to FCT lands, FG lands, lands with mines and mineral resources, and so on. See Section 1 Minerals Act, Petroleum Act… The president steps into the shoes of the governor in respect of such lands-section 49 and 50 LUA.
  • Only nominal ownership is vested in the governor as he holds it in trust for the benefit of Nigerians[1].

As such, the position of the court in Nkwocha V Governor of Anambra State that Section 1 entails Nationalisation of all lands in the governor is mistaken. The true position is that existing interests in land are not extinguished but only reduced to right of occupancyAbioye V Yakubu.

:: Section 2 of the LUA vests the governor with control over lands situate in urban area, the LG shall control others in non-urban area.

:: Section 3 provides that “urban area” is that area which the governor declares to be urban area.

RIGHT OF OCCUPANCY.

A right of occupancy may be statutory or customary. Each may be express or deemed.

STATUTORY RIGHT OF OCCUPANCY.

May be express or deemed. The statutory right of occupancy may or may not be granted for free-section 17.

Express/Actual Grant of Statutory Right of Occupancy:

Essentially:

  • It can be granted by the governor in respect of both urban and non-urban areas- Section 5(1).
  • At his discretion.
  • For a specified period and with terms consistent with the LUAct.
  • Although Section 47 tries to make this power unquestionable, by virtue of Section 279 and Section 6(6b) of the 1999 constitution which provides for the wide powers of the High Court and the accessibility to courts respectively… the exercise of the power can be challenged in deserving circumstances. Same point has been noted in Nkwocha V Governor of Anambra State and Lemboye V Ogunsiji.

Deemed Statutory Right of Occupancy:

By virtue of Section 34, where:

  • A land situate in urban area had been vested in any person, prior to the commencement of the Land Use Act…He shall continue to hold such land as though a statutory right of occupancy had been granted to him by the governor.
  • If the land is undeveloped, he shall be entitled to a portion of the land (or a cumulative of all the lands) not exceeding half hectare.

A developed land is one that has physical improvements enhancing its value for industrial or agricultural purposes-section 51.

CUSTOMARY RIGHT OF OCCUPANCY.

May be express or deemed.

Express/Actual Customary right of occupancy: essentially,

  • It is granted when land is located in non-urban area and is used for agriculture and land grazing purposes.
  • It is granted over an area not exceeding 500 or 5000 hectares in respect of lands for agricultural or grazing purposes respectively except with prior consent of the governor.

Deemed Customary Right of Occupancy. Section 36.

  • Granted in respect of lands located in non-urban area.
  • Where the land is developed, the claimant must show that the land was vested in him before the commencement of the Act.
  • Where the land is agricultural, the claimant must show that he was in occupation of the land before the commencement of the act-Abioye V Yakubu and that the land was being used for agricultural purposes.

What happens where the governor makes and inconsistent grant? Maybe he grants a statutory right of occupancy over land that already has an existing interest.

Section 5(2) is literally to the effect that when a governor grants a statutory right of occupancy, all rights existing in the land are extinguished-Saude V Abdullahi. However in Dantosho V Mohammed, the courts considered Section 28 and 29[2] of the Land Use Act and Section 44(1) of the 1999 constitution[3] and held that no legally vested right/proprietary interest can be extinguished except through proper revocation in accordance with Section 28 and 29. Same position was maintained in Ibrahim V Mohammed. Thus, existing rights still remain and an affected person can challenge an inconsistent grant by the governor.

NATURE AND INCIDENTS OF RIGHTS OF OCCUPANCY.

By Section 51 LUA, a statutory right of occupancy is a right of occupancy granted by the governor while a customary right of occupancy is the right of a person or community lawfully using or occupying land in accordance with customary law and includes customary right of occupancy granted by the LG.

Is the Right of Occupancy a Lease?

A school of thought posits that a right of occupancy is NOT a lease because (unlike a lease):

  • Right of occupancy possesses some feature of proprietorship which is absent in a lease.
  • There is no exclusive possession as the holder cannot exclude the governor who can enter and inspect his land-section 11 and 14. While a lease has exclusive possession.
  • A right of occupancy can be revoked.
  • There is nothing like penal rent between landlord and tenant but penal rent can be imposed under the Land Use Act in certain circumstances-section 19.

Professor Omotola J.A in Essays on the Land Use Act has classified a right of occupancy as “sui generis” because it is higher than a personal interest but lesser than a proprietary interest so it is in-between.

Professor I.O Smith on the other hand has noted that the distinction between a right of occupancy and a lease does not hold water on the following grounds amongst others:

  • The landlord just like the governor can inspect the premises.
  • The landlord can bring the tenancy to an end by due process. The end result being the same as a revocation of a right of occupancy.
  • Both a right of occupancy and a lease have a prescribed duration-Osho V Foreign Finance Corporation.

What is certain is that the right of occupancy is the right to use and occupy the land.

Is there a distinction between legal and equitable interest in a right of occupancy?

The court in Kachalla V Banki, maintained that the LUA does not distinguish between legal and equitable interest. This position is mistaken as the LUA actually recognizes the distinction between legal and equitable interest-Ogunbambi V Abowaba. For example, Section 51 in defining mortgage notes that it includes “equitable mortgage”.

Note that a minor[4] cannot be granted or assigned a statutory right of occupancy except a guardian acts on his behalf-Section 7.

The holder of a statutory right of occupancy has sole right to and absolute possession of all improvement on the land-Section 15. He can transfer same with the consent of the governor-Section 21 and 22.

THE POWER OF THE GOVERNOR TO GRANT CERTAIN LICENCES.

By Section 12, the governor can grant licences over any land which is not a subject of statutory right of occupancy, mining lease, exclusive prospecting licence or the like granted under the Minerals Act.

  • Such grant must be made for the purpose of extracting building materials or its raw materials.
  • Over an area not exceeding 400 hectares.
  • For a specified period and under certain terms.
  • The grantee cannot transfer such land without the consent of the governor.

 

[1] Nigerians used here has been defined as citizens of Nigeria only.

[2] Providing for revocation and compensation respectively.

[3] Which frowns upon compulsory acquisition of land.

[4] A person below 21 years.

Isochukwu

Quite eccentric really

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