IMPACT OF LAND USE ACT 1978 ON COMMUNITY LAND HOLDING
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Impact of Land Use Act 1978 on Community Land Holding
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
The Land Use Act 1978 as we have noted above is a fundamental statute affecting Land Tenure in Nigeria today. The Act has modified substantially the existing Land Tenure Systems in Nigeria, but the amazing aspect is that it has not abrogated or pretended to substitute them; in its provisions, it recognized the customary land tenure as a valid and subsisting law regulating land tenure in Nigeria.
OBJECTIVES
At the end of this unit the student will be able to discuss the impact of the provisions of the Land Use Act 1978 on the Community and family Land Holding under customary law.
MAIN CONTENT
The Land Use Act 1978 (the Act) has as its objectives, the following;
- To remove the bitter controversies, resulting at times in loss of lives and limbs, which land is known to be generating
- To streamline and simplify the management and ownership of land in the country.
- To assist the citizenry, in respect of owing the place where he and his family will live a secure and peaceful life.
- To enable the government to bring under control the use to which land can be put in all parts of the country and thus facilitate planning and zoning programmes for particular uses.
In this respect, the Act, by virtue of its section 1, provided that all land comprised within the territory of each state is held in trust and “administered for the use and common benefit of all Nigerians”, while therefore vesting the land in the Governor, the act recognized the existing rights of all citizens on land. In cases where the land is located in Urban areas, the land shall continue to be vested in the person in whom it was vested before the act, if the land is developed, where the land is undeveloped then, any portion in excess of half hectare will be forfeited to the government. In the non-urban areas, the section 36 of the Act provided that the occupier shall continue in occupation as if the customary right of occupancy has been granted by the occupier. Occupier is defined as
“any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-leases or sub-under lessee of a holder”.
All existing rights in land has been converted to a right of occupancy, where it is in urban area it is deemed grant or granted by the Governor of state and referred to a statutory right of occupancy while in non-urban area it is deemed granted or granted by the approprate local government and referred to be customary right of occupancy.
The Act has preserved the existing rights being held under customary law by the community and family who are the rightful owners of land under customary law. In section 24, the devolution of rights under customary law on the death of the holder of a right of occupancy is preserved, and thereby the family property is preserved, while section 34(4) recognize any “encumbrance or interest valid in law”, and such land shall continue to be so subject and the certificate of occupancy issued”. Section 35 on the issue of compensation also recognize the interest of the land holder under customary law, when it provides inter alia
“Section 34 of this Act shall have effect not withstanding that the land in question was held under a leasehold, whether customary or otherwise.”
Affirming the position, the Supreme Court per karibi-whyte in the case of Ogunmola v Eiyekole (1990) 4 NWLR (pt 146) p 632 at 653, observed, “land is still held under customary tenure even though dominium is in the Governor. The vast pervasive effect of the land Use Act is the diminution of the plenitude of the powers of the holders of the land. The character in which they held remains the same. Thus an owner at customary law remains owners, owners the same event though he no longer is the ultimate owner. The owner of land, now requires the consent of the Governor to alienate interests which hitherto he could do without such consent”. Clearly, the Act has only modified the customary land tenure, but the rights of the land owner under customary law whether family or communal remains intact.
The right enjoyed under customary law had always being known to be absolute rights of ownership. The family or community owner has ultimate rights in the use and management of their land. However, with the coming into force of the Act, the rights had now been converted to statutory or customary right of occupancy depending on whether the land is located in urban or non-urban areas.
As we have noted above, only the family has the power to alienate its land or deal with it in any manner whatsoever, however, before a legally valid title can be passed now, there must be a consent of the Governor of the State to the transaction. (Section 22 and 34) section 36(5) and (6) seemed to have prohibited any transfer of land that is subject to customary right of occupancy, but the act specifically provides that any such transfer shall be void. We should emphasize that there is a difference between allocation of land within the family members and transfer of the land to a person not being member of the family. Where it is within the family, or community, since the family or community continues as the absolute owner of land and the member only occupies the land, then there is no transfer of interest by the family, but where the transfer is to an outsider, then it will seem to be prohibited where the land is within non-urban area subject to customary right of occupancy.
The Act has not extinguished the incidents of customary ownerships of the land in Nigeria. Section 36(1) and (2) refers to “occupier” and “holder” of the land. Both may be granted the deemed customary right of occupancy. The holder is the person holding land as customary owner while the occupier is the customary tenant within the meaning of section 50 of the Act see Abioye v Yakubu (1991) 5 NWLR (pt 190) 130.
CONCLUSION
The Act recognized the interests of the land holder under customary law though the right that may now be enjoyed is subject to the ultimate power of the Governor, the customary land tenure is still in existence in Nigeria.
SUMMARY
The Section 1 of the Act has transferred all land within the state to the Governor of the state to hold in trust for the people. The holders of land under customary tenure continue to hold same as if a statutory or customary right of occupancy has been granted to then by the Governor.
TUTOR MARKED ASSIGNMENT
Discuss the impact of land Use Act 1978 on customary land tenure.
REFERENCES/FURTHER READING
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.