PROPERTY ARTICLES

Land remains a gift of nature to man. It remains the most important factor of production. Land in its physical form is immoveable. Its products however can be moved from one part of the globe to another. It is part of our history that Nigeria, like some other countries in Africa and some other continents, was colonised. One thing the colonial masters could not do was to remove the land, the terra firma, from its location to their home country. Granted that they were able to exploit some of the natural resources on the land, the physical land remains. This historical anecdote has some psychological implications. While the psychological trauma of the memories of colonization remains, while it is also true that the relics or inheritances from colonisation in our land management matters remain, the writer of this piece aligns with the perspectives of the current American President, Barrack Obama that Africans cannot justifiably continue to heap the blame for and find the alibi for their woes on colonialism or their colonial masters. Colonization cannot continue to remain an alibi for underdevelopment. The logic is that countries with the same plight and experience of being colonized have surpassed many African countries in development in many facets of their lives. Countries that were at par with or less endowed than Nigeria in independence have surpassed Nigeria in developmental strides. Such countries include the Asian tigers- Malaysia, Thailand, Singapore, Indonesia, and South Korea. Those countries have mustered the courage to address or start to address fundamental issues in their nationhood. Because of its fixity and immobility, land remains a critical factor with the potential for unlocking wealth and boosting the productive and economic status of a vast majority of our people. This is in line with Hernando de Soto’s position on the hidden power of land. It is in this context it becomes imperative to suggest reforms that can help in the maximization to the state and individuals on the hidden potentials of land.

This write-up is, however, not the first on these issues. It is part of a continuing discourse on land management and reforms in Nigeria. As a matter of fact the writer acknowledges the contributions of leading lights and some of Nigeria’s fine brains in land matters in Nigeria. Examples of such are Professor Akin Mabogunje, Dr Modupe Omirin, Barrister Frank Iseh, and R. Udo. Furthermore, the author consulted the works of Ahmed Galal and Omar Razza, Chris Grant, Michael Roth and some others not mentioned here. The author acknowledges that their works have illuminated or in some ways guided the direction of this one. While the author may not necessarily align with the worldviews of these individuals, credit is hereby given to them for keeping the debate for land reforms alive. He has not however dithered to take a position on issues where judged necessary.

The topic ‘land reforms...’ implies an assumption that there are issues with the current land management system that need to be addressed in Nigeria. It is interesting that many authors and proponents have presented papers on the need for reforms. Some problems are creating momentum for change to positively bridge gaps in access to, and use of land in Nigeria. It thus raises the need to delve into the facts and exigencies of the current system.

It is a fact that one of the problems faced by some Nigerians urban or rural poor is that of landlessness. This is obviously tied to poverty or low economic status. Beyond landlessness even for those who ‘hold’ or ‘possess’ land is that many do not have secure rights to the land. Legal title to the land may not be available or forthcoming. In essence one problem of land management is the issue of rights to land or title to land. The scenario of problem of title to land has its roots in our colonial history. In some countries where they colonized, the whites distinguished between rural and urban land. In urban centers blacks were given temporary rights, which could be renewed.

Brief Historical And Contextual Antecedents

It is necessary to understand the antecedents that have led to the current state of land administration and the agitation for reforms. The formal British rule in Nigeria and the declaration of the Protectorate in 1900 led to the acquisition of Crown land (land formerly held by the Royal Niger Company) as well as the land, which the Fulanis had acquired, by conquest from the Hausas. The colonial government called the acquired lands public lands. The Crown lands were vested in the Governor in trust for Her Majesty. The public lands were held in trust for the people. In 1910 through the Land and Native Right Proclamation of 1910, the colonial government declared that all lands in Northern Protectorate became public lands and were vested in government in trust for the natives. Other subsequent amendments and legislations saw the emergence of the Land Tenure law of 1962. Consequently, in Northern Nigeria, the colonial administration vide the Land Tenure Law of 1962 vested the control of all lands in the North under the control of the Governor. The main provision of the law was that the whole land was vested in the Commissioner responsible for land matters who held the land in trust and administered it for the native people. Furthermore, there was no valid title to the use and occupation of such land except with the consent of the Governor. The Governor had powers to grant statutory or customary right of occupancy to land seekers. Statutory rights of occupancy could be granted to natives and non-natives alike. Customary rights of occupancy could only be given to natives, however.

The land tenure system met by the colonial masters in Southern Nigeria was the customary land tenure system. The system recognized the principle of extended family lineages and kinship of ownership of land. Land was ruled to belong to the community, village, and family and not to the individual. The head of the family or community, takes charge of the family land, and manages or exercises the power of ownership for and on behalf of the family or community.

Still for Southern Nigeria, the colonial government enacted the Native Land Acquisition Proclamation law in 1900 which law prohibited an alien from acquiring an interest in land from native or from an alien without the Governor’s written approval. The Land Acquisition ordinance (No 9) of 1917, which was amended by the 1958 Act, empowered the government to acquire lands compulsorily for public purposes. In 1928, the Lagos Town Planning Ordinance, 1928 was enacted to restrict or control land use for town planning purposes.

In essence, before the advent of the Land Use Act in 1978, the control and administration of land in Northern Nigeria was governed by the Nigerian Land Tenure Law 1962. A different scenario unfolded in Southern Nigeria. Certain features characterized the period before the advent of the Land Use Act. They included increased demand for land, subsequent increase in land prices, emergence of land speculators with several malpractices, land fragmentation encouraged by the customary land inheritance where land devolves to beneficiaries on the demise of the former owner or holder, prohibitive costs of land acquisition affecting government developmental projects, multiple and dubious sale of the same land to different people resulting in litigations. The Federal Government promulgated in 1976 the Public Lands Acquisition (Miscellaneous Provisions) Decree to provide a cheaper basis for acquiring land for public purposes. Even though the government was able to acquire land for public purposes such acquisition could not be easily done at reasonable prices. Land litigations, disputes and communal clashes continued.

The perceived or experienced inadequacy of the land administration prompted the then Federal Military Government to set up a Land Use Panel, which came up with some recommendations. The land Use Act of 1978 eventually came into being. The act principally nationalizes the control of lands all over the Federation. It assigns the power of control over land in the Governor of the State. The principal aim of the Act was to make land more accessible for private and public use. The act vests overall control of lands in the state governor. Communities and individuals have only rights of use. The act vests all lands in the territory of the state in the governor to be held in trust and administered for the use and common benefit of all Nigerians. Section 34(5) of the act empowers state governments to dissolve private rights in individual undeveloped land holdings in excess of 0.5 hectares and take them over without compensation for public purposes.

Meanwhile, it has been posited that land is seen as a status symbol and also a repository of capital accumulated from other economic activities. Furthermore the UN-Habitat conference of 1976 recommended public land management as the surest way of ensuring efficient and equitable distribution of land resources. The public land management aims at guaranteeing equitable distribution of land rights on the basis of non-commercial criteria, empowering government to ensure a more judicious, orderly and healthy development of urban areas, enhancing cheaper and easier access to land for both public and private land development, curbing speculation with attendant escalating land prices.

The Land Use Act Of 1978: A Critique

There were laudable goals and objectives for the enacting of the Land Use Act of 1978. The objectives included the facilitation of the planning, co-ordination and general development of the country. Other objectives of the Act were to: make land more affordable to every Nigerian at affordable prices; do away with land speculation; streamline and simplify the management and ownership of land in the country; facilitate the desire of every Nigerian, irrespective of his social status to realize his ambition and aspiration of owning a place where he and his family will live a secure and peaceful life; accrue development funds to government land allocation and processing; and make land more readily available to the federal, state and local governments for developmental purposes including infrastructural and public housing development.

An examination of these objectives shows how laudable they are. It is doubtful if any other form of reform would depart radically from these goals other than unlocking the hidden capital in the land for individuals and corporate persons to enhance their economic well being. How far these objectives have been realized since the enactment of the Land Use Act remains debatable. A post mortem from experience with the Act has led to an avalanche of criticisms. This piece dwells on a few of such criticisms and perceived/experienced drawbacks.

A major drawback of the Act is that even where a certificate of occupancy (C of O) has been obtained, any subsequent transfer or transactions on the land covered by the C of O still requires the consent of the governor. The insistence on governor’s consent before validly assigning or mortgaging property has been a great impediment to secure development of the land market with its attendant negative implications. Other criticisms are: bureaucracy and delay in issuance of C of O, unwarranted or costly processing fees, leading to many staying in the informal and secure markets. Because of the lack of detailed cadastration, the accuracy and appropriateness of boundaries, where individuals survey land themselves and take it for charting, is suspect. It has even been argued that the possession of a C of O is not a cure-all to all defaults on the land title. There have been instances of multiple C of Os having been issued fraudulently on the same land. Meanwhile, land tenure security has been broken into three dimensions- breath of rights (including use, transfer and exclusion of rights), duration (length of time these rights are held) and assurance (certainty of rights). Secure land ownership should thus be a goal of any land reforms. Tim Roth sees secure land ownership as a full set of use and transfer rights, being able to enforce those rights against the claim of others, having ownership over a sufficiently long period of time to recoup the benefits of labour and capital invested in the land and having assurance that these benefits can be obtained with minimal risk of loss.

Moreover, the Land Use Act divested not only private landowners of their freehold rights but also stripped traditional land management institutions and community leaders of their benefit of control over family and communal land. Extensive powers of control were granted the Governors but these powers seem ineffective and are for the most part inappropriately applied.

Furthermore, it has been argued that the myriad of problems associated with the land use act are traceable to both legal and administrative issues e.g. the incorporation of the act into the 1979 and 1999 constitution creating difficulties for review or repeal. The provision under section 29 that hinders payment of realistic compensation for appropriated land. Furthermore section 47 (2) of the act which excludes the courts from inquiring into any issue regarding either the amount or adequacy of any compensation paid or payable under the Act.

AGITATIONS FOR REPEAL/REVIEW OF THE ACT AND FOR OTHER LAND REFORMS

One fact is obvious from the foregoing that some governments in power at the colonial and post colonial times made attempts to respond to challenges of the land administration system through the laws and their implementation. This is understandable since the human society is dynamic and as such laws and other frameworks have to be reviewed to respond to the realities and challenges of human and infrastructural development. The efficacy and effectiveness of those laws remains a source of concern and has led to agitations from citizens.

Two agitations are in the front burners: one for outright repeal of the land use act and the other for review. One factor is obvious though: the act has noble intentions; implementation in a human environment may suffer hiccups. This does not obviate the need for review. The agitation for the expunging or review of the Land Use Act from the Nigerian constitution is thus understandable. However the review must be such that would move Nigeria forward in developmental efforts and remove constraints for genuine development and enterprise from its nationals. In an effort to reform, best practices, workable models that take account of our history, culture, and national developmental agenda must be set. The review and reform must be based on enlightened or participatory discourse and best practices. It is an onerous assignment that touches on the lives and livelihood of individual Nigerians and other corporate persons, among others.

Any reforms should have underlying well thought out goals. It is those goals that would guide the reform purposes. So the starting point of the reforms should address such issues as the timeliness with which processed land is made available in adequate amounts at right locations and at affordable prices to the people in a way to ensure its optimum use in terms of efficiency, equity and meeting of their basic human needs. access to land with the attendant issues of availability, affordability, security of tenure and ease of transaction.

This write-up has laid the foundation for understanding the context and background for call for land reforms. The next will address and expatiate on areas needing reform. Meanwhile, the debate continues!