Valentine Ofogba, writes on what he considers misconceptions and true positions of the Land Use Act.Since the Land Use Act was passed in 1978, there have been several commentaries on the contents of the law, the effects on the people and the clamour for its repeal or amendment.It is possible to state, that in Nigeria today, no particular piece of legislation has been more vilified by commentators for several reasons than the Act.The general perception of the people today is that:- All lands in Nigeria are now public land- All occupiers of land have no more than leasehold interest on their land- The Land Use Act makes the governor the owner of all lands in a state- The governor of a state can acquire all lands in a state- The Statutory Right of Occupancy is superior to the Customary Right of Occupancy- The governor can make all regulations on land in a state- A governor can make regulations for the condition of grant consent for all transaction- All interest in land are extinguished and reduced to mere rights of occupancyIt is most curious that since the passing of the law in 1978, there are very few judicial pronouncements on the about 50 Sections of the law, in spite of its strategic importance to the development of the nation.This paper, like most other commentaries remains the views and interpretation of the writer and is subject to the evaluation of the reader.From the listed general perceptions, the writer proposes to examine in detail the truth or otherwise of the notions in line with provisions of the Land Use Act.Nationalisation of all Nigerian landIt is the perception of many today that there are no more private lands in Nigeria since the making of the Land Use Act. Some even believe that the Act has nationalised all lands in Nigeria. It is assumed in some quarters that the Act is a product of socialists, non- capitalist agenda to take over all private interests in land to vest same in the state.This notion seems to be supported by the reading of only one of the subsections to Section 1 of the Act. This impression is reinforced when one reads the real body of Section 1, without regard to the opening phrase Subject to the Provisions of this Act.The omission of this opening phrase in Section (1) will leave no one in doubt and all will conclude that all lands in a state is vested in the governor. It will even be then appropriate to conclude that all lands have been nationalised.Unfortunately, however, not all lands in a state are vested in the governor by the express provision of the main body of Section 1 of the Land Use Act.The category of land not vested in a governor of a state are expressly and by implication, stated in the Land Use Act. The first indication that not all land in a state is vested in the governor of a state is the simple phrase, SUBJECT TO THE PROVISIONS OF THE ACT in the same Section 1 which vests lands in the governor.If Section 1 is regarded as confusing, Section 34, 36, and 49 are certainly not confusing.Section 49 clearly states that all lands already vested in the Federal Government or its agencies is excluded from that vested in the state governorSection 34 and 36 asserts the existing rights of the holders of land prior to the Land Use Act.Section 2 confirms the right of owners to have their rights devolve according to laws; customary or personal or by Will among others.It is amazing that Section 34 (5) is the only section that prescribes the circumstances where the existing right of a person over land can be extinguished and that is in a case of owner of existing rights to undeveloped land in an urban area where the land is in excess of half hectare. In this case, the right to the remainder of the land in excess of half hectare is declared specifically to be extinguished.In all other situations the owners of interests to land do not have their rights extinguished.Nowhere in the Land Use Act, besides Section 34 (5) is any persons existing interest over land declared to be extinguished.In fact, since the provisions of the Act clearly stipulate in Sections 28, the mode for acquiring/revoking land by a governor, it will be most ridiculous to suggest that the governor, who already owns land will again be required to revoke or acquire the same for any purpose.The Land Use Act and the Constitution of the Federal Republic of Nigeria recognise the right of government to acquire property. See Sections 28, 29 and 35, which clearly state that the revocation (or acquisition) be for public purpose, with express definition of the meaning of public purpose provided in the Act.The general notions that (1) All lands are vested in the governor, (2) There is no private land in Nigeria, (3) Land Use Act has effectively nationalised all land in Nigeria, are therefore not supported by the provisions of the Land Use Act. They may be classified as myths borne out by some people who have, as is often the case, not read or fully comprehended the provisions of the Land Use Act.Are all Nigerians reduced to leaseholders of land by the grant of Certificates of OccupancyToday, it is the usual trend to find specified in every certificate of occupancy issued either by the governor or local government, limiting tenure to no more than 99 years at best.Many commentators have in accepting this practice concluded that a grant of a certificate of occupancy therefore limits a persons interest to no more than the term contained in the certificate and this term limitation equates a persons interest to no more than a leasehold.This view remains true only to the extent that this term limitation is backed by the law.It is however most interesting to note that the only provision that limits a right of occupancy to a definite term is Section 8.The section however without prescribing a particular time limit, refers only to STATUTORY RIGHTS OF OCCUPANCY issued by the governor.In effect, the section does not apply to customary rights of occupancy issued by the local government. It is even debatable if this applies to statutory rights of occupancy issued by the federal government or its agencies.If Section 8 does not limit terms of customary right of occupancy owners who constitute the bulk of land owners in Nigeria today, where is the authority for defining or limiting the tenure to any period'The obvious position is that states by some curious interpretation of the Land Use Act, possibly of Section 8 passed some regulations like was done in 1981 by Lagos State Government, to limit the term of both statutory and customary rights of occupancy to no more than 99 years.However this regulation and that of any other state, where they exists, are illegal and beyond (ultra vires) the legislative ability of the state and especially contrary to Section 46(1) of the same Land Use Act.By the provisions of Section 46 (1), it is only the National Council of States that can make the regulations on the term limits of STATUTORY RIGHTS OF OCCUPANCY, throughout Nigeria and not the state.It is therefore correct that notwithstanding the current practice of limiting all certificates of occupancy to a term limit of not more than 99 years, the practice though real is, in fact, based on some myths and not based on the exact position of the law, since (1) the National Council of States has since 1978 made no regulation to limit a term of statutory right of occupancy and (2) No provision of the Land Use Act limits the tenure of a customary of right of occupancy and not even the National Council of States can legitimately make a regulation to limit the tenure of a customary right of occupancy.The position of term limit of a customary right of occupancy is therefore a practice based on a complete myth.Powers of state governorsThe general notion today is that the governor of a state is empowered to (a) own all lands in the state, (b) acquire all lands in a state, (c) make regulations over all land in a state, (d) prescribe regulations for the conditions of grant of consent or other conditions of a certificate of occupancy, and (e) Not subordinate to anyone over matters of land in a state.This notion is believed by the generality of the people as it has been assumed that the governor has all lands in a state vested in him.It is conceded that a state governor has been vested with all lands in a state subject to the provisions of the Land Use Act.The lands vested in the governor as explained earlier does not include those vested or owned by persons before the Land Use Act, see Sections 34 and 35 and those belonging to Federal Government or its agencies see Section 49. - Valentine Ofogba, member of the Presidential Technical Committee on Land Reform, writes from Ilupeju, Lagos.
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