By Nweke Chinonso
*The Constitutionality Of The Asaba Accord
INTRODUCTION
This article is informed by a statement the writer came across a few days ago, in the news media. Speaking on the ban on open grazing by Southern Nigeria Governors’ Forum (SNGF) in an interview on Channels Television, Malami faulted the decision of the southern governors, saying it does not align with the provisions of the constitution. It would be recalled That Southern Nigeria Governors’ Forum (SNGF) during a meeting held in Asaba on Tuesday 13th May, 2021. For the first time in recent times, deliberated with sincerity of purpose. They dropped their parochial political togas. And came out with durable and doable Asaba Accord, a 12-point agenda which among the declaration is a ban on open grazing. Prior to the Asaba declaration His Excellency, Mr Rotimi Akeredolu, the Governor of Ondo State, Nigeria had in a public statement, directed that All Forest Reserves in the State be vacated by herdsmen with effect from Monday 18th January, 2021.
THE OWNERSHIP AND CONTROL OF LANDS AND FORESTS IN STATES OF NIGERIA
With all due respect, At a point I was asking myself if indeed Mr. Abubakar Malami is really a qualified legal practitioner and a competent person to hold the position of the AGF. His comment on the Asaba accord, to my mind, speaks otherwise.
Void of any iota of doubt, the Land use Act vividly states that the governor of a state is the sole institution entrusted with land. Section 1 of Land Use Act, CAP L5, LFN, 2004 provides thus: “Subject to the provisions of this Act, 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 Act”. Section 2 of the Act provides that “as from the commencement of this Act – (a) all land in urban areas shall be under the control and management of the Governor of each State. And (b) all other land shall, subject to this Act, be under the control and management of the Local Government, within the area of jurisdiction of which the land is situated”. Section 49 of the Act further provides that “Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned. (2) In this section, “agency” includes any statutory corporation or any other statutory body (whether corporate or unincorporated) or any company wholly-owned by the Federal Government”. The above provisions include that the Governor of a State in Nigeria owns and controls all lands and all forests within the State, with the exception of lands or properties owned by the Federal Government of Nigeria or Federal Government agencies.
Moving further, Section 315(5) Constitution of the Federal Republic of Nigeria, 1999 provides thus: “Nothing in this Constitution shall invalidate the following enactments, that is to say – (a) the National Youth Service Corps Decree 1993; (b) the Public Complaints Commission Act; (c) the National Security Agencies Act; (d) the Land Use Act, and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution”. Obviously the implications of the above provisions (Section.315(5)) are to wit:
(a) The Land Use Act is like a part of the Constitution;
(b) The Constitution is not Superior to the Land Use Act;
(c) In the event of inconsistency between the Land Use Act and the Constitution, nothing in the Constitution shall nullify any portion of the Land Use Act. Thus section 1(3) which provides thus “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”. Does not in any way affect any provision of the Land Use Act.
Also, Section 47 of the Land Use Act provides: “(1) [ That this] Act shall have effect notwithstanding anything to the contrary if any law or rule of law including the Constitution of the Federation or of a State and, without prejudice to the generality of the foregoing, no court shall have jurisdiction to inquire into:-
(a)any question concerning or pertaining to the vesting of all land in the Governor in accordance with the provisions of this Act: or (b) any question concerning or pertaining to the right of the…Governor to grant a statutory right of occupancy in accordance with the provisions of this Act; or (c) any question concerning or pertaining to the right of a Local Government to grant a customary right of occupancy under this Act. (2) No court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act”. It is respectfully submitted that the legal implications of the above provisions are as follows:
(a) . No provisions of the Land Use Act shall be in any way affected by the provisions of any other law in Nigeria, including the Constitution; (b) No Court in Nigeria has any powers to entertain any questions relating to (i) the vesting of all land in the State in the State Governor, (ii) the right of the State Governor to grant Statutory Right of Occupancy, (iii) adequacy of compensation paid or to be paid under the Land Use Act.
Section 41 of the Nigerian Constitution also provides that “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom”. It must be stressed that by virtue of section 315(5) of the Constitution and section 47 of the Land Use Act, the provisions of section 41 of the Constitution must apply subject to the provisions of the Land Use act relating to the powers of a State Governor over lands in the State. In other words, the right of every citizen and resident of Nigeria to move freely on all lands and to reside anywhere, is subject to the following:
(a)A citizen of Nigerian and/or indeed any person IS NOT ENTITLED to enter, for purposes of possession, use or other occupation, upon any land or other real properties in any state in Nigeria unless and until – (i) the Governor of the affected State or the holder or deemed holder of the Right of Occupancy on the affected land or real property has previously granted such a citizen or person permission or license to access, occupy or use such land or real property, and (ii) upon/after due fulfillment by such a citizen or other person, of all reasonable and lawful conditions set by the Governor or by such holder or deemed holder of the relevant Right of Occupancy. This means that there are only four lawful options open to any Nigerian citizen/resident who desires to have the right take over, possess, use, occupy or otherwise reside in any land, or forest within any State in Nigeria, they are to wit:-
(i) Such a citizen must have applied for and obtained in respect of the affected land, a Certificate of Statutory Right of Occupancy from the Governor of the State within which the land is situate (if the land is in an urban area) or a Certificate of Customary Right of Occupancy from the Chairman of the Local Government Area within which the land is located (if the land is in a rural area), or
(ii) Such a citizen must have applied for and purchased the affected land from the holder or deemed holder of the Right of Occupancy over the land, or
(iii) Such a citizen must have applied for and taken a lease/tenancy of the affected land from the holder or deemed holder of the Right of Occupancy over the land, or
(iv) Such a citizen must otherwise have applied for and been granted a license (that is, legal permission/consent) to have access to or occupy the affected land; such license may only be given by the Governor, the holder of a right of occupancy over the land or his privies, agents, successors-in-title or assigns. Howsoever, the bottom line is that all access to, use and occupation of land must be lawful and backed by extant law.
However, it’s pertinent to note that the constitutional right of any Nigerian citizen or resident to move freely around Nigeria is limited by the Law of Trespass to Land. In Nigeria, just like in Britain, the Law of Trespass to Land is a specie of the Law of Torts and falls under the category of civil wrongs that are actionable per se. This means the aggrieved lawful owner/possessor of real property need not show any actual damage to his property in order to succeed in a Court action founded upon trespass. The definition of what amounts to trespass in Nigeria remains ever so wide that the most flimsy straying upon the land is sufficient (per O. Maxwell Ikongbeh (2016). One of the most comprehensive definitions and one of the clearest explanations of meaning and nature of trespass to land was given in the case of NGENE v. OKOH & ANOR (2018) LPELR-44946(CA), per TUR, J.C.A ( pp. 24-31, paras. A-B.
Trespass is both a civil and criminal wrong because it can cause injury, i.e., violation of legal rights as well as damage to one’s person and or property substantially; any intentionally directed, unreasonable interference with one`s person or property is trespass. As can be seen in Ataguba v. COP (2011) LPELR-3845(CA), the Court of Appeal held (Per NWODO ,J.C.A ( P. 33, paras. A-C); SPIESS V. ONI (2016) LPELR-40502(SC), per SANUSI ,J.S.C ( Pp. 53-54, paras. C-F). Trespass law is a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. In Law of Torts (p. 660), learned author S.C. Thanvi explained that “the legal maxim, “Quare Clausum Fregit” defines land as not only the surface and any building on it but also the airspace and subsoil, in so far as these are vested on the plaintiff. The action of trespass to land penalizing direct interference with other people`s land”.
CONCLUSION
Conclusively, from the foregoing it is clear as the crystal that there is hardly any provision of any law in Nigeria that entitles any person in Nigeria to arbitrarily enter upon, possess, use, occupy, settle or reside upon any land in any State in Nigeria without the prior permission of either the Governor of the State or the holder or deemed holder of the Right of Occupancy in respect of that land, or, their privies or assigns. I would have love to delve deeper into all that the Attorney General said, which to my is a clear indication that our garment of unity has been torn long ago by political gladiators who breed sinister motives, but needless doing that because it’s not the soul of this article.