Federal Land Regularization Policy: An Impunity Taken Too Far? -By Ikechukwu James Orji Esq.

INTRODUCTION

The real estate community has once again been thrown into a state of confusion and uncertainty with the recent regularization policy of the Lagos State Government. The real estate sector, like most other sectors in Nigeria, faces the problem of multiplicity of laws and regulations that sometimes contradict, overlap or duplicate one another. Nigeria is a conglomeration of states, and just as there is a national assembly that exercises legislative powers at the federal level, the states have state houses of assembly exercising legislative powers at the state level. Consequently, there are instances where laws made by the State Houses of Assembly contradict or conflict with those made by the National Assembly, and vice versa, as well as instances where different enactments are made on the same subject matter. Although these situations have been adjudicated and the proper legal positions established, it is perplexing why state governments persist in making laws and regulations that contradict, overlap or conflict with the enactments of the National Assembly. This paper examines the Lagos State Government’s policy of regularization of federal lands. In doing so, it takes a historical view of land administration and control in Nigeria, how federal lands are administered under the Land Use Act and the Supreme Court’s decision when the matter was brought before it.

LAND ADMINISTRATION AND CONTROL IN NIGERIA

Prior to the Land Use Act of 1978

Before 1978, two main land tenure systems existed in Nigeria. In the Northern region, administration of land was regulated by a statute known as the Land Tenure Law 1962. This law ensured that the radical title to all the land in the territory was vested in the government of the region. The government held the land as a trustee and ensured that the land under its control and management was used for the benefit of its subjects. Citizens were entitled to rights of occupancy, and certificates of occupancy were issued as evidence of these rights. Alienation of a right of occupancy was only permitted with the consent of the regional governor.

In contrast, in the southern part of Nigeria, land administration was regulated mainly by customary law. There was no uniform system of land administration applicable to the various communities in the southern region. Different communities, tribes and nations operated diverse land tenure systems, many of which survived colonialism. The basic thrust of these southern land tenure systems was private ownership of land. Land was owned outright by individuals, families or communities and was not subject to superior control, except in cases where the occupier held an inferior title, such as tenant or customary tenant. The government exercised direct proprietary control over relatively small areas that it had acquired for its own use. Thus, land could only be acquired through negotiation with various land-owing families, communities or individuals. The radical title, therefore, was not vested in a government but in the various landowners. However, the governments of the southern states could compulsorily acquire land through the public land acquisition laws applicable in each state. When this occurred, compensation was paid to the previous owners, and the land was used for public purposes. Outside of these government-acquired lands, most land in the South was privately owned and treated as a commercial asset. Consequently, individuals, families or communities had full liberty to sell, mortgage, lease or retain their land without reference to a superior authority.

In general land administration in Nigeria was riddled with complications and difficulties. There was no clear direction in land administration, especially in southern Nigeria, leading to a lack of harmonization, rampant land speculation, and concentration of land in the hands of a few privileged individuals. These issues necessitated the enactment of a law to address these defects and harmonize land administration across Nigeria.

The Erra of the Land Use Act of 1978

The Land Use Act (the Act) was enacted in 1978 as the principal legislation regulating the administration and ownership of land in Nigeria. The Act appears to have nationalized land by placing it in the hands of the government as a custodian, to hold in trust and administer for the use and common benefit of all Nigerians. Section 1 of the Act vests all land in a state in the Governor of that state. This section is the most important provision in the Act, as it vests the radical title in all land in a state’s territory in the Governor. Effectively, the ultimate ownership rights, which previously rested with individuals, families or communities—especially in southern Nigeria—shifted to the governor, who holds the land in trust for the benefit of all Nigerians.

With title, control, and management of land vested in the Governor, the Act specified that the interest or title an individual citizen can hold over land is a right of occupancy. This power of the Governor is reinforced by a combined reading of Sections 5(1) and (2), 22 and 28 of the Act. Section 5(1) gives the Governor legal authority to grant statutory rights of occupancy to any person for all purposes. Section 22 makes it unlawful for any holder of a statutory right of occupancy granted by the Governor to alienate that right or any part thereof—by assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever—without the consent of the Governor first had and obtained. Section 28(1), on the other hand, empowers the Governor to revoke a right of occupancy for overriding public interest, while Section 5(2) extinguishes all hitherto existing rights to the use and occupation of land, which is the subject of a statutory right of occupancy.

The Act aims to ensure effective and sustainable management and control of land in Nigeria, particularly in a way that gives the government sufficient powers over the acquisition, transfer or otherwise assignment of land and land resources. Additionally, the law sought, among other things, to reduce unequal access to land and land resources, a situation that had caused significant hardship to the citizenry. And the uncertainties associated with the former modes of land administration in Nigeria were addressed by this Act.

In Savannah Bank Ltd v. Ajilo, the Nigerian Court of Appeal stated that what the mischief aimed at resolving by the Land Used Act was the abrogation of absolute ownership or freehold interest by the community, the family and the individual. When Ajilo’s case reached the Supreme Court, the Court described the Act as a revolutionary law intended to change land management in Nigeria.

In Savannah Bank Ltd v. Ajilo, the Nigerian Court of Appeal stated that what the mischief aimed at resolving by the Land Used Act was the abrogation of absolute ownership or freehold interest by the community, the family and the individual. When Ajilo’s case reached the Supreme Court, the Court described the Act as a revolutionary law intended to change land management in Nigeria.

In interpreting the above section, the Court of Appeal in BHS Intl. Ltd v. A. G Lagos & Ors.  stated thus;

‘The provisions only maintain the title of the Federal Government and its agencies in the land comprised in the territory of each state for the purposes of the Act such that it was exempted from the land put under the sole control of the Governor of the State and over which he can grant title by way of certificate of occupancy’.

Also, Abubakar Muazu Lamido, JCA, in Dan A. D. Petroleum & Gas Ltd. & Anor V. Jigawa State Govt & Ors. held that, ‘Notwithstanding the fact that the Land Use Act vested all land in the territory of a State to the Governor, there is an important exception with respect to land held by the Federal Government or any of its agencies.’

In Ajilo’s case, the Supreme Court of Nigeria stated that:

It is important to stress for emphasis that the only exceptions to the vesting in the Governor and of control and management by him are those lands excluded under sections 22 and 49(1) of the Act.

Furthermore, Section 51(2) of the Act went further to state that “The powers of a Governor under this Act shall, in respect of land comprised in the Federal Capital Territory or any land held or vested in the Federal Government in any State, be exercisable by the Head of the Federal Military Government or any Federal Commissioner designated by him in that behalf and references in this Act to Governor shall be construed accordingly.”

A combined reading of the above authorities shows that federal lands are under the control and administration of the Federal Government. The Federal Government has a ministry created and charged with the responsibility of overseeing lands and land matters. The Federal Ministry of Lands—Housing and Urban Development is responsible for administering Federal Lands. Additionally, there is a Federal Land Registry, created by the Federal Lands Registry (Miscellaneous Provisions) Act 1992, and its functions are similar to the functions of the Land Registries of States.

REGULARIZATION POLICY OF THE LAGOS STATE GOVERNMENT

It is apparent that many of the problems the Land Use Act sought to resolve have resurfaced, as certain provisions of the law have themselves causes hardship on the citizens and recent laws and actions by state governments have once again put landowners, prospective owners and investors in a state of confusion. One such instance is the regularization policy of the Lagos State Government.

This policy requires landowners who have acquired interests in federal lands within Lagos to re-validate their interests by obtaining the Lagos State Governor’s consent and applying for certificates of occupancy in respect of such lands, even though they may have already obtained their certificates of occupancy from the Federal Government of Nigeria and registered their interests at the Federal Lands Registry. To enforce this Policy, the Lagos State Government enacted the Urban and Regcausedional Planning and Development Law (the “Town Planning Law”), which requires applicants for building permits in the state to possess a valid title to the property in question. This requirement forces the applicant to first seek the governor’s consent before undertaking any structural development on the land or property.

This policy has created some level of confusion and uncertainty in the real estate market, which the Land Use Act aimed to eliminate. Landowners, investors and real estate practitioners are now caught in the middle, unsure of whom to approach for the perfection of title, conducting searches or developing properties on federal lands.

It is the writer’s submission that the regularization policy of the Lagos State Government is an act of rascality and an impunity at its peak. One would have expected Lagos State, which prides itself as ‘the Center of Excellence’, to live up to that reputation. The regularization policy, along with the provisions of the Town Planning Law and other laws supporting this policy, runs contrary to the intent, purpose and spirit of the Land Use Act and is therefore void and of no effect. It is the law that where there is a conflict between federal legislation and state legislation, federal legislation takes precedence, has priority and overrides local state laws on the same subject, as it is enacted by the National Assembly.

THE SUPREME COURT’S OPPORTUNITY TO CORRECT THE ERROR

The Federal Government, in an attempt to address the issue, invoked the original jurisdiction of the Supreme Court of Nigeria in the case of AGF v. AG Lagos State. This case presented an early and rare opportunity for the Supreme Court to properly clarify the uncertainty surrounding real estate transactions on federal lands located in states. Regrettably, this opportunity was lost.

The Federal Government argued, in the aforementioned case, that under sections 49 and 51(2) of the Land Use Act, the management and control of lands held by the Federal Government in any state and the Federal Capital Territory, Abuja, whether developed or undeveloped, were vested exclusively in the President or Minister nominated by the President. It further contended that the Lagos State Government had been interfering with this exclusive power of the Federal Government to grant consent for transactions involving federal lands in Lagos State by requiring such transactions to be submitted to the Governor of Lagos State for consent under its policy.

Unfortunately, the Supreme Court’s opportunity to resolve these issues on the merits was lost, as the case was struck out following a jurisdictional challenge brought by the Lagos State Government. The challenge was based, amongst other grounds, on the assertion that the Federal Government, having relinquished its interest in No. 10 Gerrard Road, Ikoyi, which is the subject matter of the suit, lacked the standing or requisite authority to bring or sustain the action. As a result, the Court was deprived of its adjudicatory powers to entertain the case since there was no proper plaintiff before it. In its well-considered ruling, the Apex Court, in striking out the case, held thus:

“…it is thus not enough for the plaintiff to assert that the control and management of federal lands exclusively vests in the President who holds same in trust for the federation but to further show that the defendant’s act of interference persists in spite of the plaintiff’s persisting exclusive title to the land. Having transferred its title in the land to others, it is untenable for the plaintiff to assert that the very title that ceases to vest in it is adversely threatened by the defendant’s interference. The plaintiff who lacks the standing to sue, …cannot invoke the original jurisdiction of this Court to assert a title he no longer has, it will be academic and hypothetical for this court to proceed on the matter. It never does that.”

The writer respectfully holds the opinion that the decision of the Supreme Court above was reached per incuriam. It was incorrect for the Supreme Court to hold that issuance of title to land by the Federal Government to others means that the Federal Government’s title or right over such lands ceases to exist. In Ogunleye v. Oni, the court held that the reversionary interest of the government is not affected by the issuance of a certificate of occupancy. The court further stated that a certificate of occupancy is merely evidence of a statutory right of occupancy, which can be revoked by the government.

Nigeria operates a leasehold land tenure system, where the government holds radical title (ownership) to all lands, while individuals and organization only acquires derivative title (leasehold) for specific period. The government retains a reversionary interest in all lands, and this interest ought to be when it is being, or is likely to be, interfered with. In the writer’s opinion, the actions of the Lagos State Government not only interfere with the reversionary right but also it undermine the Federal Government’s administrative powers over federal lands.

Furthermore, notwithstanding its ruling that there was no standing to sue, given the public interest nature of this case, the Supreme Court should have proceeded to decide the matter on its merits. This was the position of the Supreme Court in the case of Dingyadi & Anor v INEC & Ors., where it was held that “[it] has the power to make consequential order where there is an element of public policy in a matter which requires urgently securing public confidence in the administration of justice.”

Had the Apex Court seized the moment to preside over the suit on its merit, their noble Lordships would have made a pronouncement on the propriety or otherwise of the policy, thereby settling the matter.

CONCLUSION

While the Land Use Act grants significant powers to State Governors regarding the management and control of land within their states, these powers are not absolute. The Act specifically exempts lands, whether developed or underdeveloped, that are held by the Federal Government or any of its agencies. These federal lands fall under the exclusive control and authority of the Federal Government, as outlined in Section 49 and 51(2) of the Act.

Any legislation or policy by a state government that contradicts or attempts to undermine the provisions of the Land Use Act is null and void. In legal terms, where there is a conflict between federal and state legislation, the federal law takes precedence, as established by the Constitution of Nigeria. The Supreme Court, despite missing the opportunity in AGF v. AG Lagos State, has the responsibility to ensure that the supremacy of federal legislation, especially on matters of national importance such as land ownership and administration, is upheld.

Therefore, the regularization policy of the Lagos State Government, which demands landowners on federal lands to revalidate their titles under state laws, not only contradicts the Land Use Act but also infringes on the Federal Government’s constitutional authority over its lands. This policy should be declared void and of no effect, as it violates the principles of federalism and the clear provisions of the Land Use Act that govern the relationship between federal and state governments concerning land administration.

In conclusion, it is imperative for the courts to reaffirm the limits of state authority under the Land Use Act to prevent unnecessary conflicts and confusion in the real estate market, ensuring that the Act’s original intent—to provide a uniform and clear system of land administration across Nigeria—is preserved.

Written By Ikechukwu James Orji LL.B, BL., ACArb.

Source: BarristerNG