Josephine Ogundeji writes on the rising clamour for Land Use Act amendment and the implications of its poor implementation and retention
Globally, land is an invaluable resource, and in Nigeria, its ownership, occupation or transfer is guided by the Land Use Act of 1978. As much as the law organises the land ownership system and seeks to make land available for development purposes, there is a growing clamour for its amendment or repeal.
Section 1 of the Act vests land ownership in every state on the governor – save for those vested in the Federal Government and its agencies and those in non-urban areas vested in the local governments. It is arguably one of the provisions that have consistently been debated by stakeholders, including lawyers, surveyors, economists and different professionals in the built industry.
The section states, “Subject to the provisions of this decree, all land comprised in the territory of each state in the federation are hereby vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.”
However, the calls for its review are becoming louder.
Some real estate professionals who spoke with our correspondent stressed that one of the shortcomings of the Act was that the powers vested in the governors were devoid of checks and balances.
A Senior Advocate of Nigeria, Isiaka Olagunju, recalled that the Act was enacted to ease land administration in Nigeria, ensure equitable access to land, streamline and simplify the management and ownership of land, make land available to government at all levels for development, and improve tenure security.
Olagunju said, “The Act gives enormous powers to the governor of the state in land administration in his territory. The power of the governor is better appreciated by a community reading of sections 5(1) and (2), 22, and 28 of the Act.
“Section 5(1) gives the governor the legal authority to grant statutory rights of occupancy to any person for all purposes. Section 22 makes it unlawful for any holder of a statutory right of occupancy granted by the governor to alienate such right or any part thereof by assignment, mortgage, transfer of possession, sub-lease, or otherwise without the consent of the governor first had and obtained.
“Section 28(1), on the other hand, empowers the governor to revoke a right of occupancy for overriding public interest while section 5(2) extinguishes all hitherto existing rights to the use and occupation of land, which is the subject of statutory right of occupancy (Land Use Act, 1978).
“With these powers, the governor is more or less a totalitarian when it comes to the administration of land in his territory.”
Apart from the powers vested in the person of the governor, Olagunju noted that the Land Use and Allocation Committee, which Section 2 of the Act says must be established, was also an extension of the governor’s authority because the governor determined the number of persons in the committee and those who would be members.
The committee is expected to advise the governor on any matter connected with land management, resettlement of persons affected by the revocation of rights of occupancy on the grounds of overriding public interest, and determining disputes as to the amount to be paid as compensation, among other functions.
However, the governor is not the administrator of the committee but is equally saddled with the responsibility of appointing which of the committee members would preside over its affairs.
Olagunju noted, “The constitution and mode of operation of the committee is at the pleasure and exclusive discretion of the governor. Hence, there are no checks and balances in the powers of the governor to administer land in his territory.”
He further said that the administrative structure put in place under the Land Use Act was inconsistent and devoid of clarity of functions and purpose.
Impact on investment
One area of concern is the cumbersome procedure in obtaining a Certificate of Occupancy or Governor’s Consent, a necessary approval before alienating one’s statutory right of occupancy in the land. This has not only hampered developmental efforts by private concerns, but has also created a lucrative platform for extortion.
Speaking to the impact on businesses, the senior advocate stated, “Acquisition of land by individuals and corporate bodies for commercial and economic development purposes has been difficult as a result of the requirement for Governor’s Consent before a statutory right of occupancy can be obtained or alienated.
“The inefficient public service and too much bureaucracy in getting the governor’s approval amongst other reasons result in delay and makes land accessible to an average Nigerian.”
Towards improved compensation
He also noted that the provisions for compensation on land whose Certificate of Occupancy had been revoked, captured under Sections 29 to 33, were unfair and oppressive.
Olagunju stated, “The provisions limit compensation to only improvements on the land and ground rent paid in the year of acquisition. Invariably, someone who buys a piece of land in a choice area for millions of naira and is yet to build on it will only be entitled to compensation for only the ground rent paid in the year of acquisition if such land is acquired for public purposes.
“The status of the Certificate of Occupancy is controversial. Is it a title to land or mere evidence of occupation of the land as the name suggests? Courts have held that a Certificate of Occupancy is not conclusive proof of title to land.”
In the view of a land surveyor, Damola Isaacs, the Land Use Act, like every other law, was not perfect and should be reviewed regularly to accommodate the growing urbanisation of the country and allow for proper land administration in the states.
In an interview with The PUNCH, he said, “The Land Use Act was written with a military mindset, whereas input from land administrators and other stakeholders is important to have a law that is encompassing.
“Absolute power, they say, corrupts absolutely. I want to agree with those who are of the opinion that governors have been arrogated so much power under the Act. However, let us not forget that the number one person in any state is the state, so who else should administer land matters in the state if not the governor of that state.“
Speaking on the issue, the founding partner, the Law Suite legal practitioners, Prince Nwafuru, said like most laws enacted in Nigeria prior to and during the military era, the Land Use Act of 1978 might have served some purposes since its enactment, but it had shortcomings. He said there was a need for a holistic review of the Act.
He noted, “The policy objective that informed the Act is to improve economic development by ensuring effective and equitable utilisation of land and land resources in the country. The thinking was that the land tenure system that existed before the Act inhibited economic growth and there was a need to centralise the administration of land in the hands of state governors.
“To understand the mechanism of the Act in relation to power sharing among the different organs of government, one may need to look at its provisions and the realities of the Nigerian political system.
“Section 1 thereof vests in the governor all land comprised in the territory of each state of the federation which shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.”
He noted that the power of the governor under the Act was not meant to be absolute, going by the provisions of the Act and the constitution, but that the governors seemed to have arrogated more powers to themselves.
Nwafuru stated, “First, the land that is vested in the Federal Government and its agencies is not within the governor’s control. Second, the constitution has vested the entire property in and control of all minerals, mineral oils, and natural gas in, under, or upon any land in Nigeria on the Federal Government.
“It follows that any such land falls within the control of the Federal Government irrespective of the provision of the Land Use Act. Third, the Land Use Act provides that all non-urban areas shall be under the control and management of the local government. These provisions are meant to checkmate the powers of the governor.
“That said, the governors appear to have assumed the entire power over land in the states as we do not have any functional and independent local government system in Nigeria. Thus, there is a need to checkmate the powers of the governor under the Act, which have been abused and used to achieve political objectives in recent times.
“For instance, we have seen instances of Certificate of Occupancy held by political opponents of governors being revoked in some states in Nigeria. This is clearly against the spirit of the Land Use Act.”
According to Nwafuru, the challenge was not the lack of good laws but implementation.
Real estate sector
“However, there is indeed some obvious lacuna with the existing Act that should be revisited. There is a need to address the delay encountered in processing Governor’s Consent which has acted as a clog in real estate development in Nigeria,” he said.
“The powers of the governors and those of local governments should be clearly defined. There should also be a clear guideline on the designation of an urban area. There is a need for a clear provision to checkmate the abuse of powers by the governors, particularly as it relates to the power to revoke the right of occupancy as well as the issue of compensation and consent.”
He noted that calls for the amendment of the Act had persisted and there were ongoing debates on whether or not the Act should be repealed and re-enacted.
An estate surveyor and former Vice Chairman of the Estate Surveyors and Valuers Registration Board of Nigeria, Adamu Kasimu, said at the recent seminar of the Nigerian Institution of Estate Surveyors and Valuers, Abuja Branch, that a complete reform would effectively resolve land administration issues in Nigeria.
Kasimu, who is also a former chairman of NIESV, Federal Capital Territory chapter, stated, “The basic challenge is the implementation of the Land Use Act because the Act has not been fully implemented.