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OWNERSHIP AND USE OF LAND IN NIGERIA UNDER THE LAND USE ACT

OWNERSHIP AND USE OF LAND IN NIGERIA UNDER THE LAND USE

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OWNERSHIP AND USE OF LAND IN NIGERIA UNDER THE LAND USE ACT

CHAPITRE ONE

INTRODUCTION

MEANING OF LAND AT COMMON
In general, different scholars have varying conceptions of the meaning of Land under common law. Niki Tobi, J.S.C., provided one such definition, defining land to encompass not just the earth's surface and subsoil, but also any appurtenances permanently linked to it.

1 As a result, section 3 of the Interpretation Act is consistent with the aforementioned definition. In the case of Wilson v. Shorock2, another learned scholar and legal eminence, Bennett. J., defined Land as “not merely the earth surface, but down to the centre of the earth and up to the heavens.”

1.2 MEANING OF LAND UNDER CUSTOMARY LAW

Nobody has yet to provide a clear – cut definition of land in this country, as Essien acknowledged when he stated, “none of the existing major books on Nigerian Land Law has bothered about the meaning of Land under customary Law, and case Law offers little assistance in this regard.”

1. Niki Tobi, “Cases and Materials on Nigerian Land Law,” Mabrochu Books, Lagos, 1977, p.1.

2. Re. Wilson Syndicate (1938) 2 All E. R. 599 at 602

Regarding”3 but it is safe to add that Land under customary Law, like its meaning under Common Law, includes things not only on the surface area,

but also other things on the Land, as the principles of quid quid plantatur solo solo cedit hold sway, an exception from the Court's decision in the case of Ezeani V. Njidika4 where Elias C. J. N. (as he then was) said:

We believe that planting the Land with economic crops such as rubber must be regarded as necessarily incidental to the use of the Land because there is no evidence that it was prohibited under the terms of the original pledge;

however, it is also clear that the pledgee has no right to any compensation or credit for the plantations that accrue to the pledged land under the principle of quid-quid plantatur Solo Solo Cedet.

As a matter of grace rather than legal right, the learned trial judge instructed the appellant to allow the respondents to reap the next harvest before giving over the pledged Land to the appellant.

1.3 MEANING OF LAND UNDER STATUTES

The interpretation Act of 1959 and 1999, Cap 192, is now contained in Cap 123 Laws of the Federation and defines

3. Credit and Security Law in . P.74 (Conveyance)

4. 1 All N.L.R., p. 402 (1964).

Land is defined as “any building or other thing attached to the earth or permanently fastened to anything so attached, but excludes minerals.”5

Land ownership is a critical issue in the country; it is even a fundamental right as provided for in Section 436, which provides for the right to acquire and own immovable property wherever in Nigeria, and Section 44 discusses forcible acquisition of property.

In the case of Chiade v. Aggo7, the Court held that under Section 44(1) of the Constitution, no movable property or any interest in an immovable property shall be taken possession of compulsorily, and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by law.

While section 44(1) (a) requires prompt payment of compensation, section 44(1) (b) grants any person claiming such compensation a right of access to a court of law, tribunal, or body having jurisdiction in that part of Nigeria to determine his interest in the property and the amount of compensation.

5. Article 18 (1)

6. Republic of Nigeria Constitution of 1999

7. 1 N. W. L. B (Pt. 907) p.319, 2005

The Land Use Act of 1978 is an important statute that improves the Land tenure structure in Nigeria, and it to some extent corrects the inequities in respect to Land between the Land owner and the renter.

Section 1 of the Land Use Act, on the other hand, vests in the Governor of each state the management of land for the use and profit of all Nigerians.

Obikoya and Sons Ltd v the Governor of Lagos State and another8 held that under Section 28 of the Land Use Act, a right of occupancy may be revoked for overriding public interest on two broad bases, namely, for “the cause” under Section 28 (2)

(a) and the requirement of the land by government for public purposes of a local, state, or federal nature, or for mining, oil pipelines, or purposes connected therewith under Section 28(2)(b) and (c).

8. (1987), 1 NWLR (pt.50), p.385

Section 315(5) (d) of the 1999 Constitution provides that nothing shall invalidate the following statute, namely the Land Use Act. The court held that it is not correct in law that it is only when there is an element of “fraud” involved.

The owner or holder of land has the right to be heard under Section 28(2)(a) of the Land Use Act. A holder of a right of occupancy shall be heard before his right is withdrawn, according to Section 36 (2) of the 1999 Constitution, which supplements the provision of Section 28 of the Land Use Act.

In addition, in the Lagos State Development and Property Cooperation and others V Foreign Finance Corporation9. The Court decided that (1) the fact that full particulars of the group of the revocation of a right of occupancy shall be communicated by the Instrument cancelling the right of occupancy, even if the enabling

Law does not expressly declare so, is inherent in the provision of Section 36(2) (a) of the 1999 Constitution. To remove a grant of statutory right of occupancy from a private or individual and award it to another private company or individual for the same purpose as was held in L.S.D.P.C. v Foreign Finance Cooperation (Supra), is an abuse of statutory power.

9. 1 N.W.L.R. (pt.50) at 413 (1987).

SOURCES OF NIGERIAN LAND LAW
There are several sources of Nigerian land law, including the following:

1.4.1 Nigerian Customary Law:

Prior to the introduction of received English Law into Nigeria, the various existing communities had their own system of Customary Law that governed their business. The principles of customary law are tested for validity; before the courts use them, they must pass the three tests of validity stipulated by statute. As determined in the case of Mojekwu v Mojekwu10, such a ruling has been integrated as one of the sources of Nigerian Land Law.

1.4.2 Received English Law

English Laws are made up of the principles of Common Law, the doctrine of Equity, and statutes with broad implications. English Law was introduced into Nigeria by Ordinance No.3 of 1863, in Attorney General V. John Holt.11 Osborn C J. confirmed the above fact when he stated:

10 N.W.L.R. (Pt 50) 283 (1997)

11 A.C. 599 (1910) 2 N.L.R.I (1915)

It has been enacted by ordinance No.3 of 1863 that all laws and statutes in force within the realm of England on the first day of January, 1863,

that are not inconsistent with any ordinance in force in the colony or with any rule made in pursuance of any such ordinance, should be deemed and taken to be in force in the colony and should be applied in the administration of justice so far as local circumstance would permit.12

1.4.3 NigerianLegislations

Nigerian Legislations are the laws enacted by the organs of government whose primary responsibility it is to enact laws for the states.13 Ordinances, Decree and Statute, Act, and Law are all examples of laws passed by the Nigerian Central Legislature prior to October 1, 1954, when Federalism was adopted in Nigeria. Nigerian laws examples include:

12. Id., p.9.

13. Legislation is classified into two types: (1) primary and (2) subsidiary.

Ordinances: These were laws passed in Nigeria before to the country's independence in 1960; the majority of these laws were either repealed, reiterated, reformed, or re-enacted following the country's independence.

Acts: Legislation enacted by the National Assembly. For example, the Evidence Act, Marriage Act, Criminal Code, Land Use Act, and so on.

Laws: Legislation passed by the State House of Assembly, for example: Akwa Ibom State Land Tenant Law, Akwa Ibom State High Court Laws, Akwa Ibom State Sales of Goods Laws, and so on.

Statutes: These are all of the many Acts of Parliament, such as the ICPC Act, the E.F.C.C. Act, and so on.
The Constitution is considered as the Federation's primary and highest law. Consider the 1999 Constitution.
14. One example is the abolition of the Osu system in South-East Nigeria.

In Nigeria, legislation is the most important source of law. This is because legislation has the power to nullify any received English law and to remove any customary rule.14 Also in 1959,

the Western area of Nigeria repealed the English Conveyance Act of 1881 and replaced it with the Nigerian Conveyance Act.

The Property and Conveyancing Act (P.C.L) of 1959.15 has achieved widespread application throughout the western region.16 The Land Use Act 1978 is the most notable piece of legislation in respect to land use since it has freed land holding from the shackles of various customary laws and has become the primary source of land rights in Nigeria.

1.4.4 Judicial Precedent

The Nigerian case The ratio decidendi and obiter dicta of courts are both part of the law. This has become crucial, thus

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