Review Paper an Appraisal of the Land Use a of Tenure In

Continental J. Arts and Humanities 7 (1): 30 - 39, 2015 ISSN: 2141 - 4092 © Wilolud Journals, 2015 http://www.wiloludjournal.com Printed in Nigeria doi:10.5707/cjah.2015.7.1.30.39

REVIEW PAPER

AN APPRAISAL OF THE LAND USE ACT, 1978 AND THE CUSTOMARY SYSTEM OF TENURE IN IKA SOUTH LOCAL GOVERNMENT AREA OF DELTA STATE, NIGERIA

Ajabor, Ifeanyi1 and Uwagboi ChukS2 1Directorate of General Studies, Delta State Polytechnic, Ozoro. 2General Studies Department, Delta State Polytechnic, Ogwashi-uku.

ABSTRACT Before the introduction of the Land Use Act, 1978, Land tenure system in Ika South Local Government Area involved in a situation where land was owned, governed and administered by the community, village or family but never owned by an individual. However The Land Use Act, 1978 came up with different rules vesting the ownership of land in the urban areas to the Governor and the non-urban areas to the chairman of the local government council. How can this new development be reconciled with the notion by the communities that land cannot be owned by an individual? What then happens to the existing rights in land after the promulgation of the Act? This work seeks to examine the constraints, if any, of The Land Use Act, 1978 as it affects customary land tenure. It concludes by recommending interalia that the Act should be reviewed taking into consideration the culture and values of the people.

Keywords: Land Use Act, Land Tenure System, Culture, Value, People, Constraints

Received for Publication: 11/04/15 Accepted for Publication: 16/06/15

INTRODUCTION In a developing country such as Nigeria, the need for a good land tenure system cannot be over- emphasized; if there is to be any meaningful economic development. Economic and social activities of a nation are based on land. It is true that no society exist without some sought of regulation of its land, rights and use. In Ika South Local Government Area, rules of customary

30 Ajabor and Uwagboi: Continental J. Arts and Humanities 7 (1): 30 - 39, 2015 law vested ownership of land in the community, village or family. This rule of customary law created problems to various governments and companies which needed land for their projects, since they had to go to the communities, village or families that owned the land for negotiation before land could be obtained. The concept of inalienability of land was established one among the traditional societies. Land was regarded by the traditional societies as belonging to the past, present and future generation.

Alienation of land was regarded as the greatest disservice not only to the corporate group but also to posterity. Consequently, the communities or families that owned land were rarely willing to alienate them. As a result of this, government and companies that may want to construct hospitals, ports, industries, etc. may be frustrated due to the failure to secure land for such project.

Having been aware of the importance of land in her economic development and the problems encountered before land could be obtained, the federal military government promulgated in 1978 the Land Use Act. The Act vests ownership of land in Governors. For it was thought that by so doing, the problems occasioned by the customary land tenure system could be averted.

Background of Ika South Local Government Area The area called Ika South Local Government Area of Delta-State is bounded in the west by Orhionwan Local Government Area of Edo State, in the East by Ika North East Local Government Area, in the south by Aniocha South Local Government Area and the North by Ndokwa West Local Government Area. It is inhabited by Ika speaking people living west of River Niger. It has the administrative headquarters at Agbor.

The Ika people operate a monarchical system of government. Absolute power rests in the Obis in Ika land. The Obi is the head of the political organization. The economic mainstay of the Ika people is farming. This is manifested from the fact that God blessed them with a very fertile geographical local.

Definition of Concepts Land “Land” belongs to that realm of property classification generally covered by the term reality. To the layman “land” means nothing other than the land surface upon which they trek daily. But to a lawyer, land means more than this. It includes, interest and right in land. Generally, land includes not only the surface of the earth and the subsoil but also the air space above it as well as all appurtenances attaches to it, there include building, pods, trees, stream etc.Section 18 of the Interpretation Act 1964 and corresponding provision in regional laws, states that immovable property or land include land and everything attached to the earth.

31 Ajabor and Uwagboi: Continental J. Arts and Humanities 7 (1): 30 - 39, 2015

The Land Use Act No. 6 of 1978 The land use Act of 1978 came into force on the 29th of March, 1978. This was the result of studies carried out by three different panels. The Anti-inflation Task Force and the Rent Panel were set up by the Federal Government in 1975 and 1976 respectively to carry out certain studies which were both directly and remotely linked to land. They recommended that all land should be vested in the state. The Government white paper on the report of the Rent Panel accepted this recommendation in principle, but called for a further study of its practical implications. The Federal Government in 1977 inaugurated the Land Use Panel to formulate a land policy for the country. The result of these studies was the Land Use Act 1978.

The object or purpose of the Act is implicit from the various public statements and other writings of some of the architects1 of the Act, during and after its enactment and also from the preamble which expressed the view that the land is “owned” by all Nigerians. All these sources considered, it may be safely concluded that the Land Use Act was intended interalia to (1) provide a uniform land tenure system in the country.(2) Make land easily and cheaply available to all Nigerians and the government for development purposes.(3) Check the practice of land speculation whereby some wealthy individuals took trade in land as their calling. In all, these objectives were to ensure an egalitarian system in Nigeria.

Customary Land Tenure in Ika South Local Government Area before the Introduction of the Land Use Act, 1978 Under customary law generally, the notion of individual ownership of land was not recognised. Land was either family owned or communally owned. The dictum of Lord Viscount Haldane in the celebrated case of Amodu Tijani V Secretary, Southern Nigeria2emphasized the characteristics of customary law.

According to the learned Lord “….The notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual…..”When land is communally or family owned, then it is vested in the chief or family head respectively that holds as trustee. They cannot purport to alienate or otherwise deal with the land as their own property. Individual acquired land either by allotment, sale or partition.

1Speech of the Chief of Staff, Supreme Headquarter, Brig. Shehu Yar Adua while inaugurating the Land Use Act. See page 5 of the report of the panel; the broadcast by the Head of state, Gen. Olusegun Obasanjo While introducing the Act to the Nation (see Daily Times of March 29, 1978) 2 1921 AC 399 P. 404

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The Role of the Chief vis-à-vis Community Land The position of the Chief vis-à-vis community land is again discernable from the celebrated dictum of Haldane in Amodu Tijani V Secretary Southern Nigeria3 where he averred that “……… the chief or headman of the family has charge of the land, and in loose mode of speech is sometime called the owner. He is some extent in the position of a trustee, and as such holds the land for use of the community or family. He has control of it and members who want a piece of it to cultivate or build upon go to him for it…….”

From the learned Lord’s dictum ore can inter that the chief had administrative or management power of the land on behalf of the community. However it is not uncommon for chiefs to claim beneficial rights over the land of his domain. Some chiefs were known to have sold or leased community’s land to business concern or refused to account to the native treasury to their people. The argument of such rulers was not based on a claim of outright ownership of the land, but on the ground that as they are the embodiment of the political society itself, they are entitled to any income or benefit coming to the society as an entity. This however is completely dishonest. No doubt an Oba or Obi is vested with authority over the land, but is on the understanding that because of his pre-eminence and customary reverence in which he is held, he is in the better position to administer the land for the benefit of all.

Individuals Right in Community Land The rights which an individual may hold over the community land which he occupies vary from place to place, but such common feature is the distinction drawn in all the known system between the position of members of the community and that of a ‘stranger’. A “stranger” in this context is a person who is not a member of the community in question but who has been allowed to settle there.

With regards to the right of members, about three patterns are discernable. In some areas, an individual may acquire permanent right in community land which is equivalent to ownership. In Ika area it is a common practice for example in Agbor-Obi and Emuhu community. This practice is also common in some Yoruba communities. In Adewoyin V Adedeye,4 the Ooni of Ife testified that once an Ooni had allocated a portion of communal land to a native of Ife for farming, the allocatee enjoyed ownership rights to the exclusion of the community. Where permanent rights are recognized, they are not only held by the man for his life time but passed on his death to his children as family land.

3 Supra

1. 4(1963) 1 All NLR 52

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In some areas, the individual may acquire permanent but only occupational rights. In such cases, the communities hold rights to reversion which is exercisable upon abandonment. The position of such a member is analogous to that of a customary tenant of the community except that he is not required to pay rent. In some the right acquired upon allocation is usually of limited duration say, for a season as in the case in many Ibo villages.5 The chief may not revoke the allocation made to a member of the community unless the land is required for a public purpose by the community6nor can be make an inconsistent grant of it to someone else.

The role of family head vis-à-vis family property The institution of family property is one of the cornerstones of Customary Land Law, while it is not possible to make a blanket statement as to the nature of land holding in Nigeria Customary Law. One can boldly say that family lands predominate. This assertion is not made intuitively, but empirically, reliance being placed on the number of cases that are brought before our courts for hearing and determination. The rights and duties of the family head are as in those of the chief in land matter. The head of the family like the chief is a trustee-beneficiary of family land. 7 Action concerning family land is, as in the case of the chief in respect of community land brought by the family heads as legal representative and trustee beneficiary. However, if the headman cannot or refuses to bring an action, a member of the family can do so. Like the chief, the family head had the right to revoke and eject a grantee of family land who committed any misconduct. He was also entitled to the reversion of the land.

Individual ownership of land A feature of ownership under customary law is the communal character. In Amodu Tijani V Secretary of Southern Nigeria8 the Privy Council adopted the view that “the notion of individual ownership is quite foreign to native idea. Land belongs to the community, the village or the family not to the individual”. However, as a result of the early association with the Europeans the advent of money and the rapid cultural and economic development, the notion of inalienability of land became considerably eroded.

As Mbanefo F. S. succinctly put it in Oloto V Bawudu9 “if the family is the absolute owner of land,there is nothing to stop the family, if the head and all the members agree to transfer the totality of their interest in it”.

5 Per. Taylor, F. J. in Eze v Owuzoh (1962) 1 All NLR 619

6In which event a new site would be allocated for compensation.

7 Bassey V Cobham & Ors (1924) 5 NLR 90

8 Supra

2. 9(1904) 1 N.L.R 58

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In effect, individual ownership of land as pronounced in Amodu Tinaji’s case will not apply where it is established by evidence that personal ownership of land is permitted in a particular area by the relevant native law and custom. 10 Individual can acquire land either by allotment, sale, partition, deforestation etc.

The nature and the intended objective of the Act. Before the promulgation of the Act, Land tenure in Nigeria varied with region. The promulgation of the Act was an exercise to redirect the general philosophies of pre-existing land tenure system in our society through the application of a uniform statutory regulation of ownership and control of land, and to stimulate easier access to land for greater economic development as well as promote national social cohesion. Section 1 of the Act provides thus: subject to the provision of the Decree, all land comprised in the territory of each state in the Federation are hereby vestedin the military governor of the state and each land shall be held in trust and administered for use and common benefit of all Nigerian in accordance with the provision of the decree.

Status of the Land Use Act The status of the Land Use Act has for sometimes remained unclear and this confusion has not helped the conflicting judicial opinions expressed in the matter. The controversy arose because of the provision of Section 274 of the 1979 constitution now Section 315 of the 1999 constitution providing as follows subsection 5 nothing in this constitution shall invalidate the following enactment that is to say (a)……(b)…….(c)……..(d) The Land Use Act Decree 1978 and the provision of those enactment shall continue to apply and have full effect in accordance with their tenor and to the extent as to any other provision forming part of this constitution and shall not be altered or repealed except in accordance with the provision of Section 9(2) of the constitution. Subsection 6 – without prejudice to subsection 5 of this constitution the enactment mentioned in this subsection shall continue to have effect thereafter as federal enactment and as if they related to such matters included in the exclusive list set out in part 1 of the second schedule to this constitution.

Two questions arose from this provision, whether The Land Use Act is a part of the constitution and secondly whether The Land Use Act should prevail in case of conflict. On the first questions, it was suggested in some cases that The Land Use Act was not an existing legislation but a part and parcel of the constitution. 11The Court of Appeal also pronounced to the effect that……….”it is sometimes forgotten by us that the Land Use Act is not an ordinary piece of legislation. It is part of the 1979 constitution of Nigeria, it is a constitutional clause whose provision are part of

10The Chukwuemeke V Nwankwo (1995) 2 NWLR (Pt.6) 198 11 Umar Ali & Co. V Commissioner for Land & Survey & Ors (1983) 4 MCLR 571

35 Ajabor and Uwagboi: Continental J. Arts and Humanities 7 (1): 30 - 39, 2015 the constitution of Nigeria. 12 But the Supreme Court in Nkwocha V Governor of Anambra State13 held that the Land Use Act form an integral part of the constitution and further that it only acquired extra ordinary status by virtue of its entrenchment in the constitution and the amendment processes provided therein.

In the words of Eso J.S.C who read the lead judgement “For if the Act has been made a part of the constitution, it would not have been necessary to insert in subsection 5 of Section 274 now Subsection 5 of Section 315 1999 Constitution the word “Nothing in this constitution shall invalidate as the draftsman of the constitution cannot make the constitution to invalidate part of itself”. While it may be said as to the controversy as to whether the Land Use Act is a part of the constitution seem to have been resolved in Nwokocha’s case, the same cannot be said for the question of primacy between the Act and the constitution. Whereas the 1999 constitution guaranteed and protected property rights against compulsory acquisition 14 the Land Use Act not only endorses compulsory acquisition for public purposes, but also empowers confiscation of land which are in excess of hectares prescribed by the Act.15 Other possible areas of conflict between the constitution and the Act include access to courts guaranteed by the constitution 16 and ouster of jurisdiction clauses contained in the Act. 17 Both in Nwokocha’s case and Dada V Governor of Kaduna State. 18 The Supreme Court declined to answer the question whether the Land Use Act could be declared void when it is found to beinconsistent to the constitution stating that the question in both cases was purely academics. However a Court of Appeal has in Kanada v Governor of Kaduna State19 held that the Land Use Act was subordinate to the constitution and therefore in case of conflict the constitution will prevail. This conclusion would appear to a natural consequence of the decision that the Land Use Act is not an integral part of the constitution but an existing law. By virtue of Sec 315 (1) of the 1999 constitution, an existing law shall have effect with such modification as may be necessary to bring into conformity with the provision of the constitution. Furthermore, the constitution is the supreme law of the land and any interpretation that will have the effect of subordinating this organic law of the land to any other enactment would offend the fundamental principle of supremacy of the constitution.

Findings The Act has in theory had considerable impact on the land law of Nigeria. Although, it may be said that the Act had, in Ika South Local Government what may be described as a revolutionary

12L. S. D. P V Foreign Finance Corp (1987) 1 WWLR (Pt. 50) 413 at P. 445 13(1984) 6S.C 362 14See Sec 44 (1) of the 1999 constitution 15Sec 28 (2),(3) & (4) the Land Use Act, 1978

16Sec. 6 (6) and Sec. 46 1999 Constitution 17Sec 47 (2) of the Act 18(1988) NWLR (Pt. 25) P. 687 19(1986) 4 NWLR (Pt. 35) 361, See also Ebiteh V Obiku (1992) 5 NWLR (Pt. 243) P. 599

36 Ajabor and Uwagboi: Continental J. Arts and Humanities 7 (1): 30 - 39, 2015 effect, the practical effect has not been as it ought to be. The following were noted to be the practice: 1. The system of right of occupancy is unpopular, as opposed to outright ownership formerly enjoyed by the people; 2. Communities, villages, families and individuals still lay claims to ownership of land. These overlords still even go to court to claim tribute or ask for forfeiture of title of land; 3. The alienation of land still goes on as if the Act does not exist; 4. The Act has not achieved its aims of making land easily available to people in this direction; all it has achieved is to make land available to the government; The Chiefs, family head or traditional rulers still exercise much influence in the management and control of land. They allocate and assent to all forms of alienations as if the Act had not been promulgated.

RECOMMENDATIONS Since the promulgation of the Act, many individuals and interest groups have called for its abrogation because of one reason or the other. Instead of joining these people to advocate the abrogation of the Act, the study suggests that it should be reviewed. A call for a complete jettisoning of the Act is to disregard the factors that called for its promulgation. To this end, the following recommendations are made for more functional Land Use Act as it affects customary system of Tenure. 1. The Act should be reviewed taking into consideration the culture or values of the people. It is an understatement that the Act undermines the positions of the chiefs, family head or traditional rulers who played prominent roles vis-à-vis their people and are regarded under custom, as trustee of land. These traditional rulers should be made to play the role akin to that played by them before the promulgation of the Act. This could be done by making them chairmen/members of the Land Use Allocation Committee in their respective area. 2. The Government should devise ways of educating the people in the rural areas about the Act. The provisions of the Act should be translated into Ika language and other major languages in Nigeria for easy understanding by the people. The officers that will aid in carrying the message of the Act to the rural areas, however, need to be trained for that purpose. 3. The real effect of a certificate of occupancy should be clearly stated as it is not readily clear whether it is a conducive evidence of the existence of the right of occupancy. 4. The power of the Governor to revoke the right of occupancy should be reviewed. It is said that power corrupt and absolute power corrupts absolutely. In fact, it is becoming a routine for Governors to use this revocatory power to oppress their opponents, especially during the civilian era. 5. Section 47(2), of the Act which makes the decision of the Land Allocation Committee final and oust the jurisdiction of the court should be reviewed. To make the decision of the committee final is contrary to the fundamental principle of natural justice which

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advocated that a person shall not be a judge in his own cause. The members of the committee cannot be taken as different from the Governor since they are appointed by him.

CONCLUSION The land use Act cannot exist in isolation. It must bear relevance to the society, to the people to their institution and to the aspiration, economic and social development of the people. In this regard, it is submitted that it is in the best interest of the development of the country and in Ika South Local Government Area in particular to revisit the Act. There is therefore need for reform of the Act along the recommendations suggested above.

REFERENCES Books Elias, T. O.Nigeria Land Law (4th Edu.)(Sweet and Maxwell, 1971)

Yar’Adua, Shehu (1978). “Speech of the Chief of Staff, Supreme Headquarter, Brig. Shehu Yar Adua while inaugurating the Land Use Act”. See page 5 of the report of the panel

Obasanjo, Olusegun (1978). The Broadcast by the Head of State, Gen. Olusegun Obasanjo While introducing the Act to the Nation. Daily Times, March 29

Omotola, J. A. Essay on the Land Use Act, 1978(Lagos University Press, 1980)

Umeh, J.A. Compulsory Acquisition of Land and compensation in Nigeria. London (Sweet and Maxwell, 1973)

Cases Cited Adewonyi v Adedeye (1963) 1 All NLR 52

Bassey V Cobham & Ors (1924) 5 NLR 90

Chukwueneke V Nwakwo (1995) 2 NWLR (Pt.6) 198

Dada V. Governor of Kaduna State (1988) NWLR (Pt.25) 687

Ebiteh V Obiki (1992) 5NWLR (Pt. 243) P. 599

Eze V Owuzoh (1962) 1 All NLR 619

Kanada V Governor of Kaduna State (1986) NWLR (Pt.35) 361

38 Ajabor and Uwagboi: Continental J. Arts and Humanities 7 (1): 30 - 39, 2015

L.S.D.P V Foreign Finance Corp (1987) 1 NWLR (Pt. 50) 413

Nkwocha v Governor of Kaduna State (1988) NWLR (Pt. 25) 687

Oloto V Dawudu (1904) 1 N.L.R 58

Tijani V Secretary, Southern Nigeria (1921) AC 399

Umar Ali Co. V Commissioner for Land & Survey & Ors. (1983) 4 M.C.L.R 571

Statutes Constitution of the Federal Republic of Nigeria 1979

Constitution of the Federal Republic of Nigeria 1999

Interpretation Act, 1964

Land Use Act No. 6 1978