There has been conflict of interests in the operations of the Land Use Act that came into effect in 1978. While state executives derive more powers through its provisions, the public are getting the short end of the stick. CHINEDUM UWAEGBULAM writes that the four-decade old policy is due for review.

Despite its laudable objectives when it came into effect in 1978, there are certain aspects of the Land Use Act that professionals in land administration can no longer stomach. They include the provisions for consent, compensation, abolition of freehold titles, as well as control of land between states and the Federal Government. The professionals cum protesters renewed call for the National Assembly to amend the Act, as previous attempts have come to naught, with the Senate rejecting the proposal to expunge the Land Use Act from the 1999 Constitution. For instance, Section 22 of the Act states: “It shall not be lawful for the holder of a statutory right of occupancy granted by the governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise, howsoever, without the consent of the governor.” The Act vests all land in a state on the governor, who would hold such land in trust for the people and responsible for its allocation to individuals and organisations for residential, agricultural, commercial and other purposes. The aim of the law is to make land readily available to all Nigerians. To achieve this, Section 1 of the Act vests all land in the territory of each state on the governor. The section states: “Subject to the provisions of the Act, all land comprised in the territory of each state in the federation are hereby vested in the governor of the 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.” Before the Act came into being, two principal tenural systems operated independently in the Northern and Southern regions of the country. With its promulgation, the Act became the supreme land policy operating all over the country, thus replacing the two tenural systems mentioned above. The Act created a statutory title to land known as the statutory leasehold and customary rights of occupancy to be granted by the governor or council chairman. Either title is usually denoted by a Certificate of Occupancy, usually given to the holder as evidence of title. The Act has, no doubt, achieved a commendable measure of security of title that the land registration law of 1924 could not achieve. This is because the current Act confers the authority to grant and register title on a central authority, with a single title registration office in each state. Thus, whereas the possession of a Certificate of Occupancy is not a definite guarantee of title, it can only be challenged when it is wrongly or fraudulently issued and such cases are not common. Other objectives of the Act are to remove the bitter controversies that usually arise over title to land; assist the citizenry, irrespective of status, to realise the ambition and aspiration of owning land within the country; assist government in the exercise of its power of eminent domain or power to compulsorily acquire land as all land is now deemed to belong to state. Besides, it curtails the activities of speculators, who hoard land and, therefore, make it very expensive. It also removed the stranglehold, which traditional authorities had on community land. BUT a former President of Nigerian Institution of Estate Surveyors and Valuers (NIESV), Mr Emeka Eleh, said: “In effect, the clause has become impossible to be operated literally as specified. What obtains in practice is that the vendor (seller) will sign all documents to enable the buyer to obtain the consent of the governor at the point of sale and, therefore, transfers the cost and trouble of obtaining the required consent to the buyer.

Besides, the process of obtaining consent is cumbersome in many respects: Firstly, it is quite expensive as state governments now exploit the process to make money for their states. For instance, in Lagos State, the governor’s consent aggregate is three per cent, broken down as follows: Consent fees (Capital Gain Tax (CGT) at 0.5 per cent of assessed value; stamp duty at 0.5 per cent of assessed value; registration fee at 0.5 per cent of assessed value. For mortgage transactions, assessment is as follows: Consent fee at N2, 500/N1, 000,000; 0.25 per cent for registration fee at N5, 000/N1, 000,000, while 0.5 per cent for gift transactions, beneficiaries/applicants are exempted from payment of CGT. Secondly, it takes a long time to obtain the consent even when all conditions have been met. “In Lagos State, despite the commendable changes made in processing, it still takes about three months for consent to be obtained. The story of piles of assignments awaiting consent in many states of the federation is common knowledge. “This has made reliance on properties as collateral for loans quite unattractive as the process of perfecting a legal mortgage is time-consuming. In effect, a lot of banks do not accept properties as collateral for loans. This is counter-productive to the overall economy,” he said. Thirdly, the entire process of obtaining Governor’s Consent is very frustrating. Indeed, the process is plagued by corruption as a series of under-the-table expenses are usually involved. Another disputed area is the compensation provision, where Section 28, states: “It shall be lawful for the governor to revoke a right of occupancy for overriding public interest,” and Section 29, Sub-section 4(a) that provides for compensation in respect of land for such revocation. Eleh said the Section limits the compensation payable for land to the ground rent paid during the year of revocation as against the open market value, adding: “This provision apart from not conforming to the doctrine of adequate compensation provided for in the Nigerian Constitution, does not also recognise the interest of third parties in government allocated land.” The Act also abolishes freehold title to land. It limits the title that can be granted under it to leasehold interests not exceeding 99 years. The effect is that every allottee of state land or indeed owner of a property covered by a Certificate of Occupancy is deemed a tenant to the state. A lawyer and Principal Partner, Adekunle Omotola & Company, Adekunle Omotola, said: “With the benefit of hindsight, the then Military Government was also naive to have assumed that the governor would be a ‘good man’ capable of doing no wrong and in the process vested him with draconian powers to virtually dispense all manner of favours to whomsoever he wishes or to negatively use his powers to affect anyone who he is not well disposed to. “Investors cannot be comfortable with the fact that one person (in this case, the governor) can determine the fate of citizens of the state on such a most basic resource, which is required daily for shelter, business, school and farming.” Omotola said Section 47 also ousts the jurisdiction of the court into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under the Act. “It is quite shocking that the courts are excluded from inquiring into any act of the Governor pertaining to a grant of statutory right of occupancy in accordance with the provision of the Act or questions relating to the adequacy of compensation paid to a holder or occupier,” he said. For him, the insertion of the Land Use Act in the Constitution by virtue of Section 315(5) of the 1999 Constitution, requiring that a process of amendment of the Act must also be the same as that of the Constitution, is most unfortunate. “The constitutional requirement of two-third approval of the members of the National Assembly alongside two-thirds of the state Houses of Assembly before any amendment of the Land Use Act should be expunged,” he said. The Executive Director, Environmental Rights Action/Friends of the Earth Nigeria (ERA/FoEN), Dr Godwin Uyi Ojo, said: “The land use Act is begging for amendment because it has so many inconsistencies. It is subject to abuse and it is being manipulated. “Although, it is an issue that is in the concurrent list subject to constitutional means for its amendment, but the issue of overriding powers from the governors and the politicians to take the land for the overarching interest of the state has been manipulated severally and this is how large-scale land acquisition and grabbing are being perpetrated in Nigeria. “The result is severe. It is leading to scarcity of land for farmland. It will surprise you to know that farmers are hiring lands to farm. So, that distorts the level of production and the amount of food produced in the country.” A former Director of Federal Capital Development Authority (FCDA), Dr Yusuf Yahaya, noted that the Land Use Act has made land acquisition for government projects easier but not for the private sector due to post- allocation manipulation of developers by landowners. “The slow rate of provision of serviced plots still makes land scarce and costly as people still have to illegally buy plots by reversing the use of Power of Attorney, worsened by the decision of most states rejecting private layouts that would have complemented the supply of plots and been formalised for housing delivery,” Yahaya said According to him, land speculation has transited from community landowners and merchants to the new allottees, some of who are turned to regular land speculating investors with their illegal markets at the gates of government land offices.