INTRODUCTION
The Land Use Act of 1978, at the time of its enactment, was hailed as a revolutionary law that would propel Nigeria into the path of economic prosperity. It effectively abolished and abrogated absolute ownership or freehold interests by the community, the family and the individual and created the same in favour of government to hold in trust for the use and benefit of all Nigerians.
Unfortunately, the optimism that heralded the Act gradually and steadily faded into disillusionment as its lofty aims turned out to be defeated due to inherent defects and contradictions in the Act on one hand, and institutional failure and lack of political will to implement the Act firmly and equitably on the other.
Recognizing this disappointment, the Supreme Court of Nigeria captured the frustration of Nigerians when it held in Ogunleye v. Oni that:
“The Land Use Act has departed from the magic wand it has been portrayed, to become a destructive monster that at once swallowed all rights on land so that the Governor or local government with mere issuance of a piece of paper, could divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bull-dozers and cranes.”
This work analyzes the defects that has afflicted and plagued the Land Use Act rendering it impotent and ineffective, with a view to proffering solutions and recommendation which the National Assembly and the Government could implement in light of this challenging situation.
Keywords: land use act, defects, land reform, government.
The Defects of the Land Use Act
The Land Use Act itself, according to Uwakwe Abugu, contains seeds of self-destruction. These vices present a veritable obstacle to the implementation and realization of any credible land reform objectives.
In spite of the revolutionary provisions and the intended social benefits of the Act, the ordinary Nigerian appears to be frustrated by the regime of the Land Use Act. The clamour is that the cost of land for farming and housing is rising daily and out of the reach of the common man.
Land speculation has persisted and even such provisions to ensure sanity in land administration such as requirement of the governor’s consent for alienation of a right of occupancy and compensation has turned out to be the nightmare of Nigerians.
As far as many writers and commentators are concerned, the Act is a failed statute and a counterproductive project unleashed against the legitimate expectation of the people owing to its defects. The defects of the Land Use Act can thus be categorized into two, to wit:
The man-made/institutional defect, which may be conveniently called the problem of implementation.
The defects inherent in the Act.
The Institutional Defect/Problem of Implementation
The Land Use Act is not as bad as many would think it to be. Rather, the bulk of the problems leading to erosion of the lofty objectives of the Act are entirely man-made. In this regard, Umezulike has cautioned that “a statute which is good on its face and intentions could be impeached by proof of non-implementation, or proof of shoddy or corrupt implementation of it.”
The following are identifiable problems of implementing the Act
1. Abuse of Power by the Governor
The Land Use Act vests all the land comprised to the territory of each state of the Federation in the Governor of such State to hold same in trust and for the use and common benefits of Nigerians. This is certainly an enormous power conferred on the governor. Some Nigerian writers have argued that the justification of such vesting is on the ground that the Act proceeded on the assumption that the governor is a good man and is not capable of doing any wrong.
Some governors see the powers as a political instrument to be wielded against their political opponents. The result is that allocations made by past governors are revoked upon assumption of office of another governor sponsored by another political party. These “idiosyncratic revocations” have seriously eroded security of title which is the hallmark of any meaningful land administration regime.
Apart from revoking the rights of occupancies to satisfy selfish, clannish and political interest, many governors have shown clear disdain for the procedure for revocation set out by the Act. The most brazen abuse by governors is the procedure of revoking right of occupancy by publication in the newspapers or through television or radio announcements.
2. Incompetent Public Service and Bureaucracy
One of the essential pre-requisites for effective implementation of any land reform legislation is the existence of a competent, incorruptible and well-motivated bureaucracy and public service. This is because usually, the implementation of any drastic land reform involves stepping on some powerful toes.
Also, the public service which is supposed to midwife such implementation end up being the proverbial dog that eats the bones tied to its neck. Public servants in Nigeria trade freely on land which they are supposed to be custodians of in the interest of the public.
They have thus become “essentially the landed class or closely associated with the landed aristocracy”. This merger of rapacious acquisitive personal interest and that of a midwife of land reform is profoundly detrimental to the success of any drastic land reform legislation in Nigeria, and consequently a bad augury for land administration and control in Nigeria.
3. The Local Government
The Local Governments in Nigeria appear to be one of the bulls committed to the disruption of the effective implementation of the Act. Just as Section 51 of the Land Use Act gives the Governor the power to grant statutory right of occupancy for land in urban areas, Section 6 of the same Act, gives the local government the power to grant customary right of occupancy in respect of land in rural areas.
The Act does not state the form either of the rights of occupancy should take. However, in practice, both are signified by a letter of allocation or what is called in general parlance “Official Letter”.
The practice all over the federation is that local governments issue what they call Customary Certificate of Occupancy. This is a legal aberration and a clear usurpation of the power of the governor under the Act. The result is that such illegally issued certificates are flying all over the place as one can obtain even ten of them in respect of one plot of land. Strangely enough even the courts are also deceived by this corrupt practice and stratagem.
4. Lack of Political Will
Land reform is a unique type of reform. It is different in its concept and impact on the people, from political or economic reform. While the former is the basis of people’s existence and thus its impact on the people is a matter of life and death, the latter does not generate much tension in the policy. Accordingly, a government considering a land reform must first muster sufficient political will to absorb potential opposition and obstacles to its implementation. The most virulent of such oppositions come from the landed gentry and the elite.
For over thirty years that the Act has held sway, the government either at Federal level or at State level has not demonstrated sufficient political will towards its implementation. For instance, the problem of implementation of the Act with regard to the prolonged length and cost of securing consent of the governor to alienation of right of occupancy and the nagging issues in the assessment of compensation could have been effectively averted or streamlined by the National Council of States if it were alert to its responsibility.
The absence of political will in the implementation of the Act is even more visible at the State level. Some governors who see the lands in the State as personal properties have either rendered the Land Use and Allocation Committee their rubber stamp or effectively emasculated its operation. In many States, the committee is entirely not in existence.
Also, after the Act expropriated undeveloped lands in the urban areas in excess of half a hectare in favour of the governor under Section 34(5), one expected an immediate action on the part of the governors to comprehensively access the amount of lands involved, the number of plots, and other particulars of such lands and publish them as lands forfeited by previous owners in favour of the governor.
This would have assisted the governors in allocating such lands to the applicants in need. But on the contrary, nothing has been done about claiming such lands.
Rather the position is that most of such lands have been effectively built-up by the previous owners who enjoy right of occupancy granted by the governor and other approvals from land office. This is in spite of the fact that the Act criminalizes any development of such lands after the commencement of the Act.
DEFECTS INHERENT IN THE ACT
As earlier noted, the defects of the Land Use Act can also be categorized into defects inherent in the Act, as the Act itself has been inflicted with a virus of defects that serves as an impediment to the implementation of land reforms.
The defects inherent in the Act include but is not limited to the following:
1. Ouster of Court’s Jurisdiction
Section 47 of the Act ousts the jurisdiction of the courts from inquiring into any question concerning or pertaining to the vesting of all land in the State in the governor or his power to grant a right of occupancy. The same thing applies to the powers of all local government or any question concerning the amount or adequacy of compensation payable under the Act.
Although these provisions are automatically amended by reason of being inconsistent with the provisions of the 1999 Constitution such a relic of military heritage should not continue to adorn our statute books.
2. Inadequacy of the Compensation Provision
The compensation provision of the Act does not represent the economic reality of the land taken away upon revocation of a right of occupancy. The regime of compensation for land under the Act is nil-value for land. In other words, compensation is payable only for unexhausted improvement.
It is submitted that compensation should in addition to unexhausted improvement, be paid for loss for use of such land. Thus, while the owner of a vast virgin wasteland may not be paid the replacement cost less depreciation, he will not also be compensated for the loss of use of the land for the unexpired residue of his right of occupancy, Surely, such a person would need to acquire another site for the factory or process another allocation.
3. The Age of the Act
The Act came into effect on 29th March, 1978. The age of the Act in a rapidly changing society like Nigeria recommends it for a comprehensive overhauling. Certainly, the foreign and local economic objectives of Nigeria upon its inception more than thirty years ago cannot be same more than a decade into the 21st Century.
The preamble of the Act shows that it is only intended to secure land rights in order to provide common subsistence or sustenance of Nigerians and their families.
It is therefore clear that the Act did not set out with deliberate policy to transform land from mere means of sustenance to a convertible capital with ease of mobility and certainty of tenure transactions therein. Our land reform objective can only be achieved through efficient and transparent land administration, application of modern technology and a competent and well-motivated public service.
PROPOSED REFORMS AND RECOMMENDATIONS
The intentions and objectives of the Land Use Act are no doubt lofty and well-intentioned but the Act turned out to be defective in many respects. Shackled with institutional failure, dearth of political will and inherent defects, the law could not achieve most of its set objectives.
Notwithstanding, the desire for economic development through effective, fair and equitable utilization of land and land resources, the objectives could be attained if the law is holistically amended to overturn certain anachronistic and antithetical provisions and replaced with realistic and effective policies that would put Nigeria on the path of economic progress.
Areas of the Act Requiring Legislative Intervention
The Act is overdue for a holistic reform. The following are suggested areas and sections calling for immediate attention and amendments by the National Assembly:
1. Amendment of Section 1.
Section 1 of the Act should be amended to divest the Governor of his present power and vest all the land in Nigeria in a statutory commission to be created. The Governor and the local government may continue with their various powers but under the supervision of the commission. The land should also be held for the use and common benefit of all persons according to need.
2. Granting express statutory or customary right of occupancy.
first provisionally for certain number of years, to allow for development or clear evidence of use and to be confirmed upon satisfaction of the condition of use or development, otherwise the grants should lapse by effluxion of time. This would solve the problem of land hoarding and speculation.
3. Amendment of Section 8.
Section 8 of the Act should be amended to make the grant of a statutory or customary right of occupancy permanent. This would guarantee the security and stability of economic interests and improvements on land, the subject matter of a right of occupancy. As the experience in operating the law has shown, when a certificate of occupancy is issued for a short duration of time, it amounts to economic risk to invest on the land, which is the subject matter.
4. Amendment of Section 22.
Section 22 of the Act should be amended to eliminate the requirement of obtaining the consent of the Governor before a holder can alienate his right whether by assignment, mortgage, transfer of possession, sublease or otherwise. This provision makes it cumbersome for landowners to obtain credit facilities from financial institutions needed for projects, businesses and other ventures. Asides other negative influences, obtaining Governor’s consent can cause prolonged delay in economic transactions.
Again, Section 28 of the Act should be amended to limit the grounds upon which the Governor can exercise his power to revoke a right of occupancy for overriding public interest. Such grounds specifically should not include alienation by a landowner of his interest in the land.
5. Amendment of Section 29.
To make compensation payable not only for unexhausted improvements on the land, but also for loss of the land itself as a store of value together with the improvements. Compensation should also be commensurate with the market value of the land and the improvements therein. Other ancillary provisions of the law should be amended to give effect to the above recommendations. When these amendments have been made, the government should muster the requisite political will to implement the law effectively, fairly and equitably. It should also eschew any tendencies to apply the law as a weapon of political vendetta where the Governor can use his power to revoke the certificates of political opponents and re-assign such lands to their cronies as was the case in Administrators/Executors of the Estate of General Sani Abacha v. Eke-Spiff.
6. particularly, the consent, revocation and compensation provisions. A governor may be tried for such offences after leaving office.
7. Excising the Act from the constitution.
Government Efforts so Far on the Proposed Reforms
Regrettably, neither the legislative or executive branches of government have demonstrated the requisite commitment to reform the Land Use Act, thereby thwarting its transformative potential and intended objectives.
The Executive (at both federal, state and local levels), has failed to exhibit the necessary political will to address the man-made implementation challenges hindering the Act’s effectiveness.
This lack of resolve has prevented the realization of the Act’s full potential.
Conversely, the Legislature has not taken sufficient steps to amend the Act, rectify its inherent flaws, and adapt it to contemporary realities. This inaction has denied the Act a much-needed “human face” and hindered Nigeria’s progress toward economic development.
The combined inaction of both branches of government has resulted in a missed opportunity to harness the Act’s revolutionary potential, perpetuating a stagnation in land reform and hindering Nigeria’s economic advancement.
CONCLUSION
The Land Use Act, though initially hailed as a revolutionary law that would propel Nigeria into the path of economic prosperity has failed to meet up to its lofty goals and objectives, owing to its inherent defects and contradictions in the Act on the one hand, and institutional failure and lack of political will to implement the Act firmly and equitably on the other.
To ameliorate the situation, it is recommended that certain unfair provisions of the Act such as sections 5, 6, 22, 28 and 29 be amended to give the Act a human face and restore prosperity to the people while securing an equitable access to land in the country. The Executive should exercise the political will and set up a working institutional framework to implement the Act and give full effect to the intended objectives of the Act.
About the Author
Emmanuel Uzodinma, is a 400 level law student of the University of Calabar, with a keen interest and passion in Advocacy, legal research and writing, and has a number of legal publications to his credit. He has served in various significant leadership capacities
including:
– LAWSAN State Director of Programs, Policies and Projects, Cross River State,
– National Publicity Secretary, Christian Law Students Fellowship Of Nigeria (CLASFON),
– Campus Director of Legal Ideas Forum (LIFIN) at UNICAL Chapter, etc.