DEMOCRATIC LAND GOVERNANCE AND THE LAND

DEMOCRATIC LAND GOVERNANCE AND THE LAND USE ACT IN
NIGERIA - NEED FOR REFORM.

Introduction
Land remains a highly complex and contentious issue, involving economic, social,
political, cultural and often religious systems. 1 It constitutes the foundation of the people,
city and all economic, social, cultural, physical and political activities. 2 In fact, policies
about land are policies about the society, hence, access to land and land management
have significant implication for development.3 Land being a source of wealth and a
platform for human activities, land governance is one of the central requirements for
economic development.4 In modern times it is axiomatic for members of the public to
partake in the governance of the State in order to enjoy the full benefit of the membership
of the society and realize the full potentials of their fundamental inalienable rights,
including the right to property.5 In today’s world, the law needs to secure the habitual,
voluntary compliance of its subjects; it cannot rely entirely, or even primarily, upon the
commanding power of a sovereign to compel obedience. 6 There is a mutual interface
between the government and the governed bordering on participation of the governed in
the affairs of government. With respect to land, members of the society ought to partake
and in some way contribute to land administration and the implementation of land policy
in the State. In fact, the consent of the governed should be the bases of validity of
government, for those who seek the validation of their empowerment patently govern

with the consent of the governed.7 The impact of the members of the public should be felt
1

* Akintunde Otubu, LLB; BL, LLM, M.Phil, Doctoral Student, Obafemi Awolowo University, Ile Ife; Lecturer
Faculty of Law, University of Lagos, Akoka, Nigeria. Email: aotubu@unilag.edu.ng
Land Governance: Building Trust A Training programme on Transparency in Land Administration Organized by
UN-HABITAT and the International Institute for Geo-Information Science and Earth Observation (ITC) in
cooperation with Ardhi University (ARU) at Bagamoyo, Tanzania, 24-26 June 2008
2
Omotala, J. A. Law and Land Rights: Whither Nigeria: (1981). University of Lagos Press, Lagos, Nigeria. Udia,
C.M. Public Infrastructure Provision And Rights Of Way Acquisition In Nigeria
3
Udia, C. Good Governance in Land Administration. A paper presented at the MCPD Seminar organized by the
Cross River State Branch of the Nigerian Institution of Estate Surveyors and Valuers, (2010). Calabar
4
Silayo, E. Urban Land Policies for the Poor in East and Southern Africa. Paper presented at the World Bank
Conference on Land Governance in Support of the Millennium Development Goals (2009). Washington. D. C.
5
See: Chapters II & IV of the Constitution of Federal Republic of Nigeria 1999 as amended.
6

Franck T.M: The Emerging Right To Democratic Governance. The American Journal of International Law, Vol. 86,
No. 1 (Jan., 1992), pp. 46-91
7
Ibid. p 46

1

at the initiation, formulation, implementation and administration of land policies in order
to give it a human face; public representation and wider acceptance.
However, the preceding scenario is usually not the case. There is mostly a divide
between policy formation, implementation and administration on the one hand and the
people on whose behalf the policy was put in place on the other. A commentary in the
UNDP Land Policy and Governance studies8 identify the problem succinctly;
Where governance is linked to land policy, the tendency is to treat it as an ‘issue of
efficient state administrative function’ – e.g. ‘cheaper land administration’,
‘affordable land mapping’, ‘cheaper conflict management mechanism’, and so on
– evading the fundamental issues of political power, the political-economy of land
and political change.
The current thesis is to see land policy and administration as an integral part of
democratic governance and to be characterised by principles of universality of tenure

security, equitable participation and adherence to the rule of law, sustainability,
effectiveness and efficiency.9
In the light of the fore-going the paper examines the promulgation, implementation and
administration of the Land Use Act and juxtaposes its core values vis-à-vis the principles
of democratic land governance in order to rationalize its cogency or otherwise within the
corpus of acceptable democratic milieu. The paper thus sets out seriatim.
Democratic Land Governance
Land remains core issue in the governance of any State. Many of the world today’s
challenges, ranging from climate change, deforestation, rapid urbanization; increased
demand for natural resources; food, water and energy insecurity; natural disasters; and
violent conflict are land based. Many of these challenges have a clear land dimension.10
In the words of Deininger and Enemark,11
‘the key challenges of the new millennium12 have been clearly articulated. They
relate to climate change, food shortage, energy scarcity, urban growth,
8

Borras M. etal: Land Policy And Governance: Gaps And Challenges In Policy Studies available at:
http://landportal.info/sites/default/files/landpolicybrief1.pdf accessed 20/05/2014. Also available in Journal of
Agrarian Change 2010 Volume 10, Issue 1, p1
9

See: Palmer. D etal Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food
And Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
10
Ibid. p.1
11
Deininger, K & Enemark, S: Land Governance and the Millennium Development Goals in Innovations In Land
Rights Recognition, Administration, And Governance Proceedings From The Annual Conference On Land Policy
And Administration (World Bank) April 2010 p.1

2

environmental degradation, and natural disasters. These issues all relate to
governance and management of land.’
It is thus clear that the place of land in modern day governance cannot be
overemphasized. It touches the very fabric of the society. It is also trite that modern
government in most part of the world thrives on the observance and adherence to
democratic norm and tenets, including consultation, representation, and participation in
governance.13
According to FAO report14 “land governance concerns the rules, processes and structures

through which decisions are made about access to land and its use, the manner in which
the decisions are implemented and enforced, the way that competing interests in land are
managed.” It is about the policies, processes and institutions by which land, property and
natural resources are managed. This includes decisions about access to land, land rights,
land use, and land development. Land governance is basically determining and
implementing sustainable land policies.15
Democratic land governance by extension is therefore defined as a political process that
is contested by multiple state and societal actors to control the nature, pace, extent and
direction of access to, control over, and use of land resources. It is one that combines
people’s mobilization ‘from below’ with state reformists’ initiatives ‘from above’. It is a
mutually reinforcing interaction, a symbiotic relation, between state and societal actors
who may have different and even conflicting motivations and agendas, but are both
interested in pushing for pro-poor land policies and in democratizing the state and society
more generally.16 Democratic land governance is thus the infusion of democratic
principles into land governance. It is a process which creates and encourages mutually
12

United Nations. “United Nations Millennium Declaration.”Millennium Summit, New York, 6-8 September 2000.
UN, New York. http://www.un.org/millennium/declaration/ares552e.pdf accessed 24/05/2014
13

Tambuwal. W: The Rule of Law As Fundamental Condition For Democracy and Good Governance In Nigeria.
Being a Paper Presented by the Speaker, House Of Representatives, Federal Republic Of Nigeria, at the Annual
Aminu Kano Memorial Lecture, The Sa’adu Zungur Auditorium, Aminu Kano Centre For Democratic Research And
Training, Kano On Wednesday, 17th April, 2013.
14
Palmer. D etal: Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food And
Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
15
Deininger, K & Enemark, S: Land Governance and the Millennium Development Goals in Innovations In Land
Rights Recognition, Administration, And Governance Proceedings From The Annual Conference On Land Policy
And Administration (World Bank) April 2010 p.2
16
Borras Jr S.M. & Franco J.C; Democratic Land Governance And Some Policy Recommendations. Oslo
Governance Centre (Democratic Governance Group Bureau for Development Policy) OGC DISCUSSION PAPER 1
– MAY 2008

3

beneficial interface between the State and other public stakeholders with reference to land

administration and management. It provides opportunity for public consultation and
participation in land administration, which process engenders transparency, consensus
building and peaceful resolution of conflicts that promotes efficient and effective service
delivery.
According to the proponents of this school17 ‘democratic land governance’ is a process
that involves three basic components. None of these three components alone is sufficient;
each is in itself a challenge to achieve; yet in the end all three are necessary to produce
democratic land governance. They are: people’s autonomous pro-reform mobilizations
‘from below’, independent state reformist initiatives ‘from above’, and mutually
reinforcing interactions between these two streams that are embedded in democratic
values.
Borrowing and adapting the FAO standard of good governance, 18 democratic land
governance should at the minimal level exhibit the following characteristics;
 Sustainable and locally responsive: It balances the economic, social, and
environmental needs of present and future generations, and locates its service
provision at the closest level to citizens.
 Legitimate and equitable: It has been endorsed by society through democratic
processes and deals fairly and impartially with individuals and groups providing
non-discriminatory access to services.
 Efficient, effective and competent: It formulates policy and implements it

efficiently by delivering services of high quality
 Transparent, accountable and predictable: It is open and demonstrates
stewardship by responding to questioning and providing decisions in accordance
with rules and regulations.

17

Ibid.
FAO. “Good Governance in Land Tenure and Administration”.FAO Land Tenure Series no 9. Rome. 2007.
Available at: ftp://ftp.fao.org/docrep/fao/010/a1179e/a1179e00.pdf accessed 24/05/2014.
See also Bell, K. C. Good governance in Land Administration. (2007). Available at:
http://www.fig.net.pub/fig2007/papers/ps_03/ps03_01_bell_2219.pdf accessed 24/05/2014
18

4

 Participatory and providing security and stability: It enables citizens to participate
in government and provides security of livelihoods, freedom from crime and
intolerance.


Dedicated to integrity: Officials perform their duties without bribe and give
independent advice and judgments, and respect confidentiality. There is a clear
separation between private interests of officials and politicians and the affairs of
government.

The above stated characteristics of good land governance has been further streamlined
into 7 core principles of good land governance by Palmer 19 to include equitable
accessibility to land; Security of tenure; secured land and property rights of women;
adherence to the rule of law; decentralized Land administration; efficiency and
sustainability.
The relative importance of democratic land governance to the overall wellbeing of the
system and psyche of the people is measured by its outcomes which are evident in
peaceful and seamless land administration indices and economic development. Borras 20
points out that the symbiotic interaction between autonomous societal groups from below
and strategically placed state reformists from above provides the most promising strategy
to offset strong anti-reform resistance to pro-poor land policies, facilitating state
redistribution of contested lands to landless and near-landless working poor. It gives the
ordinary citizens a larger and legally-supported role in managing their own land rights. 21
Arguably, sound land governance is the key to achieving sustainable development and to

supporting the global agenda of the MDGs for it is assumed that the nearer that
administration and management may be located to landholders, the more accessible,
useable and used, cheaper, speedier and generally more efficient the system will be. 22
In fact, by building popular participation and transparency into land governance, the
government will become more responsive to citizens desires and more effective at service
delivery. When land governance is effective, equitable access to land and security of
tenure can contribute to improvements in social, economic and environmental conditions.
19

Note 15
ibid
21
Alden Wily, L., Governance and Land Relations: A Review Of Decentralisation Of Land Administration and
Management In Africa. International Institute for Environment and Development, London. 2003. P. 1
22
ibid
20

5

With good governance, benefits from land and natural resources are responsibly managed
and the benefits are equitably distributed. In cities, effective land management reduces
social tensions and promotes economic growth and poverty reduction. When democratic
land governance exists, decision-making is more transparent and participatory, the rule of
law is applied equally to all, and most disputes are resolved before they degenerate into
conflict. Improved governance can result in land administration being simplified and
made more accessible and effective.23
Attaining democratic land governance status is not easy. Policy reforms to strengthen
governance require the political will to overcome opposition from those who benefit from
non-transparent decision-making and corruption. Improving governance demands the
strong commitment of the people involved, and the development of capacity in order to
make changes possible. It requires an articulate citizenry, enlightened and proactive nongovernmental organisations and civil societies group; change oriented government and
consensus building among various stakeholders.
In the present day, information technology on the E-platform is being deployed to fasttrack and complements the traditional and conventional methods of democratizing
governance, including land governance.24 It exposes the impact of information and
communication technologies in government beyond the scope of provision of e-services
by the government to the citizen and other members of the public and encompasses such
area as the extent to which members of the public using the ICT participate and influence
government actions and inactions. It touches on e-voting, e-democracy and erepresentation and includes the digital interface between the government and the
governed generally.25 The E-platform is useful through the entire process of governance
including initiation, formulation, implementation and administration of government
23

Palmer. D etal Towards Improved Land Governance. Land Tenure Working Paper 11. A joint paper By Food And
Agriculture Organization and the United Nations Human Settlements Programme September 2009 available at :
ftp://ftp.fao.org/docrep../fao/012/ak999e/ak999e00.pdf accessed 20/05/2014
24
See generally: Alawadhi, S. & Morris, A. Factors Influencing the Adoption of E-government Services. (2009)
Journal of Software, 4; Altameem, T., Zairi, M. & Alshawi, S. Critical Success Factors of E-Government: A
Proposed Model for E-Government Implementation. Innovations in Information Technology, 2006, 1-5; Riley. T: Egovernment Vs E-governance: Examining the Differences in a changing public sector climate. International
Tracking Survey report 3 No.4 prepared under the auspices of the commonwealth secretariat and Government
Telecommunications and Information Services Canada May 2003 available at http://www.electronigov.net. accessed
on 19/05/2014
25
Otubu. A.K, E-Government and Land Administration In Nigeria – A Recipe For Lagos State (2009) 26 JPPL 6272.

6

policies. The use of these telecommunication devises towards achieving democratic land
governance cannot be overemphasized in modern day government.26
These normative standards of democratic land governance has been put in place to a
degree of success in many countries 27 including Tanzania,28 Botswana29 and United
Kingdom30 where members of the public are given a say in the administration of land in
the state. In these countries tenure security is assured and the conflict resolution process
is strengthened to empower the public and build public confidence in the system.
Outstanding example is the Land Board system of Botswana31 and Uganda.32 In the UK
the level of public participation in land administration has been heightened with the
introduction of the 2002 Registration Act,33 which Act also influences the positive change
in public administration transparency indices.34
The Land Use Act.
The Land Use Act is the primary law on land use in Nigeria. The Act is made up of fiftytwo sections arranged into 8 parts. Part one treats vesting of all lands in the State; control
and management of land by advisory bodies; designation of urban areas and the
applicable law for the interim management of land. Part two, deals with the principles of
land tenure; powers of the government and rights of occupiers. Part three is devoted to
the principles to be observed in fixing and revising rents; powers of the Governor to grant
26

Ibid p.65
See generally: Wily, A. L., Governance and Land Relations: A Review of Decentralization of Land Administration
and Management In Africa. International Institute for Environment and Development, London. 2003
28
Village Land Act 1999 under which community based local government elected Village Council act as Trustee
Land Manager of land within village area and adjudication Committee members are elected.
29
See: Tribal Land Act, 1968. Implementation developed over 30+ years with incremental changes. Primary law for
rural land administration through autonomous land boards. Adams, M: Land tenure policy and practice in Botswana;
Governance
lessons
for
southern
Africa.
Available
at:
http://www.mokoro.co.uk/files/13/file/lria/land_tenure_policy_and_practice_botswana.pdf accessed 08/08/2014
30
Straughton, E. Common Land Governance:The evidence of commoners’ and stintholders’ association minute
books, c.1800-1985. Contested Common Land Symposium 2: 7-8 September 2009 Newcastle University. Available
at: http://commons.ncl.ac.uk/wp-content/uploads/files/StraughtonSymposiumPaper.pdf accessed 08/08/2014
31
Where Autonomous legal body of mainly nominated members administer lands under Customary law as embedded
in statute (Tribal Land Act 1968 Cap 32:02) See: Mathuba, B. Land Tenure Issues in Botswana. Paper presented to a
workshop on Land Rights and Sustainable Development in Sub-Saharan Africa sponsored by DFID at Sunningdale,
UK February 1999.
32
Uganda’s 1995 National Constitution adopted a similar approach, elaborated in the 1998 Land Act. see: Rugadya,
M. & Busingye. H (eds.). Gender Perspectives in the Land Reform Process in Uganda. 2002
33
Land Registration Act 2002 (UK)
34
Martin R.W: The Threat to Indefeasibility of Title under the Land Registration Act 2002 vol.2 Southampton
Student Law Review (2012) p.15-26. More recently, under UK leadership, the G8 in 2013 is again focusing on
implementation of the Voluntary Guidelines, and importantly, on creating more transparency around large-scale land
transactions. See: http://usaidlandtenure.net/ accessed 08/08/2014.
27

7

rights of occupancy free of rent or at a reduced rent; acceptance of rent not to operate as a
waiver of forfeiture; penal rent and additional penal rent for unlawful alienation. In part
four, the Act discusses alienation and surrender of right of occupancy and part five treats
revocation of right of occupancy and compensation thereof. Part six contains transitional
and other relative provisions and part seven highlights the jurisdiction of the High Courts
and other Courts. The last part, part eight treats a variety of issues ranging from notices,
delegation of powers, power to make regulations, exclusion of certain proceedings,
modification of existing laws, exemption with respect to federal government lands,
validity of laws, interpretations and citation.35
The Act addresses four important issues arising from the former land tenure systems in
Nigeria: the problem of lack of uniformity in the laws governing land-use and ownership;
the issue of uncontrolled speculation in urban land; the question of access to land rights
by Nigerians on equal legal basis; and the issue of fragmentation of rural lands arising
from either the application of traditional principles of inheritance and/or population
growth and the consequent pressure on land. It approaches these issues via three related
strategies: the vesting of proprietary rights in land in the State; the granting of
usufructuary rights in land to individuals; and the use of an administrative system rather
than market forces in the allocation of rights in land.
Though the exclusive legislation on land rights of the citizen; one wonders how far the
Act has comply with the essentials of democratic land governance in its initiation,
formulation, promulgation implementation and administration. What are the shortcomings of the Act in this regard and what reform initiatives are necessary to update the
Act to the level required by the principle of democratic land governance? The remaining
part of the paper is devoted to these and other issues engendered by the promulgation of
the Act. The discussion on these issues is divided into three subheads as follows;
initiation, formulation and promulgation of the Act; implementation and administration of
the Act; other issues. What follows is the seriatim discussion of the issues.

35

See generally Fatula, O.A: Fundamentals of Nigerian Real Property Law. Afribic Press Ibadan 2012 p172

8

Initiation, Formulation and Promulgation of the Act
The Land Use Act is a product of the recommendation of the Land Use Panel set up by
the government in 1977. The need to set up the Land Use Panel was fallout of the
recommendation of the Rent Panel set up the government to address the concerns of the
urban wage earners in the aftermath of the cessation of the civil war and the oil boom in
the country. The Rent Panel identified land tenure to be a major constraint to the
successful implementation of many developmental programmes in the country. 36 It thus
recommended the establishment of a Land Reform Commission.37
This recommendation formed the fulcrum of the term of reference of Land Use Panel
subsequently set up by the government.38 The 12 members Land Use Panel advertised its
terms of reference in the national dailies and called for memoranda from members of the
public. The panel also engaged in field tours and consultations with members of the
public.39 According to the records of the panel40 an estimated 100,000 citizens attended
the various sittings where the panel listened to oral presentations and entertained
questions from the members of the public.
Two reports resulted from the sittings of the panel: the main report and the minority
report. The main report advised against nationalisation of lands in the country and the
extension of the 1962 Land Tenure Law of the Northern States to the Southern States. It
recommended a limited reform whereat both the Customary and the English land tenure
systems will operate side by side; the introduction of compulsory registration of lands in
urban centers of the country and the abolition of customary tenancy regimes. On the other

36

Ashamu E. O.; Land Ownership and Tenure – Landlords and Tenants: Paper Presented to the NISER Conference
on Land policy in Nigeria, September 1976. See also: Udo R. K .“The Land Use Decree and its Antecedents”
University of Ibadan Lecture Series 1985.
37
With powers to; Study our varied land tenure systems and to recommend steps to be taken to streamline them;
Take stock of the land situation in the country and establish order of priorities; Control future uses and open new
land for the needs of Nigeria’s growing population especially in urban areas;
38
See Annual Budget speech by the Head of State, General Olusegun Obasanjo, Christened “Anti-inflation Budget”
delivered on 31st day of March 1976
39
The panel visited more than 53 towns scattered throughout the then 19 states of the federation, conducting town
hall meetings and engaging the traditional authorities and stakeholders in the towns visited. See: Udo R. K. The
Land Use Decree and its Antecedents. University of Ibadan Lecture Series 1985 p. 40
40
Idigbe, C. Report of the Land Use Panel-Main Report (1977)p. 29

9

hand the minority report in the main recommended full 41 or partial42 nationalisation of all
lands in the country.
The government white paper on the report of the panel did much discredit to the main
report though not expressly endorsing the recommendations of the minority report.
Subsequently, the Land Use Act was promulgated by Military fiat vesting all lands within
the state in the governor of the state and replacing the erstwhile unfettered title of the
citizens to a limited right of right of occupancy. The provisions of the Land Use Act are
comparable to the provisions of the Land Tenure law of Northern Nigeria 1962. In
essence the government of the day jettisoned the recommendation in the majority report
in favour of the minority report. To further subvert the will of the majority at repealing
the Act the Military government made it part of the constitution of the Federal Republic
of Nigeria and tied its amendment to the arduous constitutional provisions.
The foregoing reveals that the Military government, though not elected representatives of
the people, was aware of the need not to rely entirely, or even primarily, upon the
commanding power of a sovereign to compel obedience to law. It employed the principle
of democratic land governance by consulting the relevant stakeholders and members of
the public at the initiation of the Act. It sought and obtained the participation and inputs
of members of the public. Unfortunately, contrary and in opposition to known the tenets
of democratic land governance, the same government did not abide by and/or implement
the decision of the majority in the promulgation of the Act. According to a member of the
land Use Panel; ‘the reaction of the people in most of the places that the panel visited was
that government should not interfere with their land.’ 43 This position was reflected in the
main report of the panel but was unfortunately decreed against by the Land Use Act. To
this extent the Act is undemocratic, unrepresentative and anti-people; there is a need for
reform of the Act in line with democratic tenets.
Implementation and Administration of the Act

41

Ibid. The federal government will pronounce by Decree that all lands in the Federal Republic of Nigeria is
nationalized and henceforth transferred to the State.
42
Ibid. This essentially involves the application throughout the country of the Land Tenure Law 1962 of Northern
Nigeria subject to some few alterations proposed by the Land Use Panel.
43
Udo. Note 32 p. 45

10

The Land Use Act having vested all lands in the state in the governor 44 provides for 3
pronged but uncoordinated regulatory institutions under the Act. Whilst section 46(1) of
the Act empowers the National Council of States to make regulations for the purpose of
carrying the Act into effect in some broad respect; subsection(2) of the same section
invest the Governor with the powers, subject to subsection (1) to make regulations on
other matters. Meanwhile, section 2 of the Act envisages the division of land in the State
for administrative purposes between the State Governor and the local government
assisted by advisory administrative committees set up by the authority.
From the set out, it is obvious from these provisions of the Act that there is dichotomy in
the land administrative set up under the Act. It is devoid of any uniformity, consistency
and certainty. Each state is empowered to set up its own administrative structure on land
administration. There is in Nigeria today as many disparate land administration systems
as there are States in Nigeria. 45 Where there is no administrative structure, the applicable
land administrative system will depend whether the land is in the North, the South of
Nigeria or whether the land belong to the Federal government or its agencies.
Fundamentally too, whilst the land vested in the governor is to be held in trust and
administered for the use and common benefit of all Nigerians in accordance with the
provisions of the Act; the federal government has no such obligation imposed on it in
respect of all lands vested in it by law. Thus, while the governor has a caveat placed on
him in respect of his management powers46 under the Act; the president can, to a large
extent, deal with the land under its care as his personal property. 47 In fact there is no
administrative structure in place to guide the management of all federal lands, except the
provisions of the Act indirectly extending the administrative structure under the Act to
Federal Capital Territory Abuja.48 Contrary to good land governance initiatives, the Act
44

This excludes all lands belonging to the federal government and its agencies under section 49 of the Act
Ukaejiofo A.N. Perspectives in Land Administration Reforms In Nigeria. Journal of the Environment, Vol. 2(1):
43-50, 2008.
46
It is conceded that this restriction on the powers of the governor is more superficial than real, but at least there is a
potential bench-mark against which the governor’s performance can be measured.
47
This probably account for the unwholesome and unfettered exercise of brute power by land administrators in
Abuja in respect of alleged distortion of Abuja master plan. Recently the Minister of Federal Capital Territory (FTC)
ordered the demolition of houses in Abuja on independence day 1st October, 2013.
48
Section 51(2) of the Land Use Act provides that the powers of Governor under this Act shall, in respect of land
comprised in the Federal Capital Territory, Abuja, or any land held or vested in the Federal Government in any State,
be exercisable by the President or any Minister designated by him in that behalf and references in this Act to
Governor shall be construed accordingly.
45

11

provides no administrative structure to support the exercise of these powers vested in the
president or his nominees.
It is thus clear at the outset that the administrative regime and structure bequeathed by the
Act is not likely to advance the pristine objectives of land administration as set out in the
preamble to the Act or accord with the norm of democratic land governance. The
justification or otherwise of this position becomes obvious after a dispassionate
examination and analysis of the provisions of the Act on the topic to which we now turn.
1. The National Council of States.
Under the Act49 the National Council of States may make regulations for the purpose of
carrying this Act into effect and particularly with regard to the transfer by assignment or
otherwise howsoever of any rights of occupancy, including the conditions applicable to
the transfer of such rights to persons who are not Nigerians. The Council may also make
regulations relating to the terms and conditions upon which special contracts may be
made under section 8 of this Act; the grant of certificates or occupancy under section 9 of
this Act; the grant of temporary rights of occupancy and the method of assessment of
compensation for the purposes of section 29 of this Act.
In the first instance, the Act by virtue of section 46(2) vests regulatory powers in National
Council of States, a body that has no management powers over the subject matter. It is on
record that no parcel of land is vested in the National Council of States by the Act.
Furthermore, though the National Council of States never made any regulations in
furtherance of this provision, the provision empowers a National body to make
regulations for State (Land) matters in a federation where land management falls within
the residual legislative lists; the exclusive legislative jurisdiction of the State. 50 This raises
fundamental democratic and constitutional questions. The authenticity and enforceability
of any regulations made under this provision by the council will always be suspect and
liable to be contested, particularly where such regulation is at variance with the State land
management objectives.

49

Section 46(1) Land Use Act
Land Tenure and Management is not listed in either the Exclusive or the Concurrent Legislative List of the
Nigerian Constitution.
50

12

The section also empowers the National Council of States to make regulations
particularly with regard to the transfer by assignment or otherwise howsoever of any
rights of occupancy, including the conditions applicable to the transfer of such rights to
persons who are not Nigerians. The exercise of this powers may conflict with the
provisions of the Acquisition of Land by Aliens Laws 51 of the various states in the
federation particularly where the regulations is at variance with the provisions of these
legislations. The mute point is whether the provisions of a regulation can override the
express provisions of an enactment. The exercise of such regulatory powers, even when
necessary, should be made subject to the provisions of existing legislation on the subject.
Contrary to the trite principles of democratic land governance, the Land Use Act thus
created a veritable avenue for dichotomy, conflict and confusion in land administration in
the country. This provision of the Act calls for reform in order to nip in the bud the
potential constitutional crisis that the application of this provision of the Act may
engender. It is therefore suggested that land matters should be moved from the current
residual legislative list to concurrent legislative list in order to give it the National
outlook, uniformity and consistency it deserves in policy formation and in tandem with
Fundamental Objectives and directive Principles of State Policy enshrined in the Nigerian
constitution. Land is a natural resource and the ultimate denominator of national life
which administration and management touches on the life of all citizens in the country. It
is therefore incumbent for the country as a unit to be involved in the policy directions of
all lands in the country. Whilst land policy may be set at the national level based on
fundamental objectives and directive principles of the Nation, management of land
should be invested in the federating units in line with the tenets of true federalism. The
power to make regulations vested in the National Council of States should therefore be
repealed and same be vested in the states of the federation.
2 The State Governor.
The Act vests all land comprised in the territory of each State in the Federation in the
Governor of that State in trust to be administered for the use and common benefit of all

51

E.g. Acquisition of land by Aliens Law Western Region of Nigeria 1959

13

Nigerians in accordance with the provisions of the Act. 52 In section 3 the Governor,
subject to such general conditions as may be specified in that behalf by the National
Council of States, may for the purposes of this Act by order published in the State
Gazette designate the parts of the area of the territory of the State constituting land in an
urban area. The basis of the control and management of land by the Governor or the local
government is determined by the designation of land as urban area and confining the
undesignated areas to the control of the Local governments. 53 Unfortunately there has
been no nationally approved standard for this demarcation as envisaged by the Act. In the
absence of clear criteria for qualifying any area as urban, manifest confusion is being
experienced in the land management sector of the nation. 54 In the absence of any
regulatory standard, states resort to the provisions of section 4 of the Act 55 and impose
different standards and regulations in respect of the designation of areas of the state as
urban and non urban lands.56.
The Act also invests the Governor with enormous management and administrative
powers including the power to grant and revoke right of occupancies; power to issue
certificate of occupancy and impose rents on land; power to give and or withhold consent
to subsequent transactions under the Act amongst others. To assist the governor in the
exercise of these powers, the Act mandated the governor to empanel a Land Use and
Allocation Committee.

52

Section 1 Land Use Act
Ofogba, V: Understanding The Land Use Act Lawsprings & Co available at: http://lawsprings.com/index.php
accessed 24/12/2013
54
Ibid. According to the commentator, the absence of clear criteria for qualifying any area as urban breeds the
following confusion in the land management sector of the nation.
1) The authority of the Governor to control land will not be ascertainable.
2) The appropriate certificates to be issued will not be known.
3) Location of land becomes questionable and land identification impossible.
4) Adjudication process will be hampered; High Court and Customary Court jurisdictions confused resulting in
congestion as evidenced in Lagos state.
5) Land management seriously hampered as the Registry becomes confused – Two types of Certificates of
Occupancy – SRO and CRO.
6) Revenue generation status to states muddled up with that of local government.
7) In the absence of clear definitions of Urban Areas then other factors come to play. .e.g. states equating urban Area
with Local Government Headquarters or others determined by distance to the Emir’s palace, and in other cases at the
pleasure of the Governor.
55
The provisions of the section permits adoption of different laws based on Land Tenure Law of the former Northern
Nigeria or the various individual states Land Law.
56
In Lagos State the Governor by a 1981 regulation declared almost all the lands in Lagos State as urban lands
leaving the Local Government with little or nothing in respect of management of land in the state.
53

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3. Land Use and Allocation Committee
Section 2(2) of the Act mandated the Governor to empanel a Land Use and Allocation
Committee to perform various functions.57 The appointment, composition and the modus
operandi of the committee is at the exclusive discretion of the Governor. 58 The committee
shall consist of such number of persons as the Governor may determine, but shall include
in its membership at least not less than two persons possessing qualifications approved as
estate surveyors or land officers and who have had such qualification for not less than
five years; and a legal practitioner. 59 The Governor is thus the unquestionable personage
in the overall administration of land in the state. In practice the composition, quality and
tenure of the committee has tended to vary over time depending on the government in
power and the disposition of the governor.60 Commenting on the composition and
relevancy of the committee, Omotola61 observed that
‘it is doubtful whether from the composition and mode of appointment of
members of the committees whether any person can ever obtain a satisfactory
compensation even for improvements on land compulsorily acquired by
government. Since the committee cannot be an independent and impartial tribunal,
the provision is not only retrograde but also conflicts with the fundamental
principles of natural justice which requires that a person shall not be a judge in his
own cause.’
The Act is undemocratic in its provision and unrepresentative in its administration.
Members of the public and other segments of the society are not represented as of right in
the committee as the law provides no criteria for the appointment into the committee.
Furthermore there is no certainty of tenure or duration for members of the committee as
57

(a) advising the Governor on any matter connected with the management of land in urban areas; (b) advising the
Governor on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy
on the ground of overriding public interest under the Act; and (c) determining disputes as to the amount of
compensation payable under this Act for improvements on land
58
The Land Use and Allocation Committee shall be presided over by such one of its members as may be designated
by the Governor and, subject to such directions as may be given in that regard by the Governor, shall have power to
regulate its proceedings.
59
Section 2(3) Land Use Act
60
Datong, P.Z. the Role of state government in the implementation of the land use act in Adigun, O (ed.) The Land
Use Act: Administration and policy Implication; Proceedings of Third National Workshop. University of Lagos
Press 1991 p 64
61
Omotola, J.A: Compensation Provisions of the Land Use Act (1980) Nigerian Bar Journal XVI at p 36

15

they hold their position in the committee at the pleasure of the Governor. Unfortunately,
the state legislature is powerless to curtail the excesses of the Governor in this regard
since they lack the power to amend and or review the Land Use Act, being a Federal
legislation. The power of the Governor in the composition, powers and operations of the
committee must be reviewed to capture the present nature of governance in civil society.
In furtherance of the foregoing it is recommended that the Act be amended in the
following respect.
1. All lands in the state should not be vested in the Governor but in a corporate body
to be called the State Land Use and Allocation Board to be held and administered
for the use and common benefit of all Nigerians in accordance with the provisions
of the Act.
2. The Board shall have responsibility for any matter connected with the
management of land in the State and on any matter connected with the
resettlement of persons affected by the revocation of rights of occupancy on the
ground of overriding public interest under this Act.
3. Membership of the Board shall include the Governor as the Chairman, members
of the State Traditional Chiefs; Experienced Lawyers, Estate Valuers, Surveyors,
all nominated through their professional associations; selected relevant state
commissioners; members representing the Community Development Association
(CDAs) nominated from among the members of the State CDAs; four other
members representing the general public appointed by the governor on the
recommendation of the simple majority of the members of the state Assembly;
and the executive secretary of the Board appointed by the governor on the
recommendation of the simple majority of the members of the state Assembly.
4. Members of the board, except the Governor and the state commissioners, shall
serve for a fixed period of time renewable not more than once. On been appointed
members shall, save for death, resignation, criminal conviction and or infirmity,
have a secured tenure of office and shall only be liable to be removed by the
Governor on the recommendation of simple majority of members of the State
House of Assembly.
16

With such broad based membership and statutory powers of the board, the hitherto
excessive powers of the Governor will be curtailed. Land management in the state will
come to resemble the wishes and aspirations of the members of the public as it will infuse
more public participation in land administration in the state. Such recommendation will
also ensure a constant feedback and a crisscross of opinion on land administration
between the government and the governed and thus lessen issues of conflicts with respect
to land matters.
Other issues
1. Adjudicatory powers.
Under the Land Use Act, the Governor is endowed not only with executive powers, but
also with legislative and judicial powers. He is the main character in the implementation
and execution of the policy of the Act. He is also empowered to make rules and
regulation under the Act, thus exercising quasi-legislative powers. The Governor also
exercises quasi-judicial powers as he sits on the head of the Land Use and Allocation
Committee to resolve disputes on adequacy of compensation payable to the victims of
revocation of land rights.
Section 2(2) of the Land Use Act sets up the “the Land Use and Allocation Committee”
which shall have responsibility for advising the Governor on any matter connected with
the management of urban lands. Some of the functions of the committee include advising
the Governor on any matter connected with the resettlement of persons affected by the
revocation of rights of occupancy on the ground of overriding public interest under Act
and determining disputes as to the amount of compensation payable under the Act for
improvements on land.62 This latter function is carried out irrespective of whether the
land is in urban area or not, including lands under the care of the local government. 63 It is
being performed along with their primary duty of advising the Governor with respect to
land in urban areas.
Theoretically, the committee is independent as it is presided over by one of its members,
but the Governor determines the composition, membership, tenure of the committee and
regulates its proceedings.64 Furthermore, the committee is only advisory and its
62

Section 2(2)b & c
See section 30
64
Section 2(4)
63

17

recommendation is not binding on the Governor. The Governor thus has the final say in
any matter put forward by the committee. Also, the committee/Governor’s decision on
the quantum of compensation payable for improvement on land under the Act is final. 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 the Act.65
The import of these provisions is that the Governor combines all the functions of the 3
arms of government under his control and management. He carries out executive,
legislative and judicial functions with respect to the administration of the Act. This
position is contrary to the fundamental tenets of democratic government as espoused in
the principles of separation of powers and the rule of law. 66 Though the Act conceded the
power to determine whether a party is entitled to a declaration of a right of occupancy to
the courts;67 the courts are precluded from investigating into any question concerning or
pertaining to the vesting of all land in the Governor or 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.68
In a democratic setting, the adjudicatory powers of the Governor in the implementation of
the Act cannot withstand judiciary scrutiny, particularly the finality of the
Committee/Governor’s decision on the matter. The inviolability of the provision has been
tested in courts but the ouster clause in the Act has prevented the reformation of the
provision through judicial process.69 It is however gratifying to note that the court of
Appeal in Kanada V Governor of Kaduna State and Another,70 declared section 47(2)
void for being inconsistent with the provision of section 40(1) of the 1979 Constitution of
the Federal Republic of Nigeria,71 for it denies persons claiming compensation for
65

Section 47(2)
See generally: Verkuil P.R, Separation of Powers, The Rule of Law and the Idea of Independence, 30 Wm. & Mary
L. Rev. 301 (1989), available at: http://scholarship.law.wm.edu/wmlr/vol30/iss2/8 accessed 24/12/2012
67
Section 39
68
Section 47
69
See Fawehinmi, G. ‘Ouster of court’s jurisdiction by statutes’ in Olarinde, E.S et al (eds.) Contemporary issues in
the Nigerian legal system (1997) 67; Oba, A.A. The African Charter on Human and Peoples’ Rights and ouster
clauses under the military regimes in Nigeria: Before and after September 11 (2004) 4 African Human Rights Law
Journal p 275-302. Smith, I.O "Effect of ouster clauses on the Application of African Charter on Human and
people’s Rights under a Military Regime: The Nigerian experience”. Review of the African Commission on Human
and Peoples’ Rights vol. 9 Part 2 (2000) pp. 192-205.
70
(1986) 4 NWLR (Pt 35) 361
71
Now section 44 of the 1999 constitution.
66

18

compulsory acquisition of his property access to court of law or tribunal or body having
jurisdiction in Nigeria.
Whilst the courts may be striving to align the provisions of the Act to modern day reality
of governance, it is trite that judicial reformation of the law is not only tortuous but
labourious. The process, like the common law, may take centuries to materialize and it a
fact that judge made laws can be as imprecise as the vagaries of the mind. There is the
need for legislative intervention to remedy all the lapses in the Act by way of review of
its provisions, particularly the provision on denial of judicial access to redress any
perceived wrongs occasioned by the Act. A review of the provisions of the Act will
promote and enhance the growth of democratic land governance in the country. Therefore
the prov