By Olasupo Jubril Adedimeji
Nelson Mandela in his book, Long Walk to Freedom, had this to say about his house in Orlando West, Soweto: “It was the opposite of grand, but it was my first true home of my own and I was mightily proud. A man is not a man until he has a house of his own.” Abraham Maslow placed shelter among the most basic human needs alongside food and clothing, and the 1999 Constitution through the Fundamental Objectives and Directive Principles of State Policy affirmed this.
Despite this, the nation grapples with a massive housing shortfall, requiring approximately 700,000 to 1,000,000 new units annually to bridge the gap, not because the land does not exist, but because the law governing it has become an obstacle rather than an enabler. That law is the Land Use Act of 1978 and as aptly put by Eso JSC in the celebrated case of Nkwocha v. Governor of Anambra State,: “(T)he tenor of that Act as a single piece of legislation is the nationalization of all lands in the country by the vesting of its ownership in the state leaving the private individuals with an interest in land which is a mere right of occupancy”.
THE LAND USE ACT 1978
The Land Use Act No 6 of 1978 was promulgated on the 29th of March, 1978 by the Federal Military Government to exercise control over all lands in the country, unify Nigeria’s fragmented land tenure systems, end rampant land speculation, and ensure equitable access to land for all Nigerians. Its central innovation was the vesting of all land in each state (except those belonging to the Federal Government) in the Governor, who holds it in trust for the common benefit of all Nigerians. The Act abolished freehold interests and replaced them with “Rights of Occupancy”, evidenced by a Certificate of Occupancy (C of O) typically valid for 99 years.
In principle, this was a progressive intervention but in practice, it has become a bureaucratic labyrinth as getting Certificate of Occupancy often wastes a lot of time coupled with the huge cost of registration even when the Certificate of Occupancy is not a conclusive evidence of title in favour of its holder, as held in Sunmonu Olohunde & Another v Professors S.K. Adeyoju and Ogunleye v Oni where the court held that – The point must be stressed that a Certificate of Statutory or Customary right of Occupancy issued under the Land Use Act, 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is at best, only a prima facie evidence of such right, interest or title without more and may inappropriate cases be effectively challenged and rendered invalid and null and void.
Justice Eso of the Supreme Court, in the celebrated case of Nkwocha v. Governor of Anambra State, captured the Act’s radical effect in stark terms, describing it as legislation that reduced private interests in land to “a mere right of occupancy,” effectively nationalising all land in the country.
And nearly five decades on, that nationalisation promised by the Act has not translated into fairness or efficiency as the provisions of the Act have undoubtedly hinders business efficacy and creates unnecessary burden on security creation, perfection and realization over land; and has also contributed to the less than 5 per cent of the land in Nigeria formally registered with proof of right of occupancy (that is the Certificate of Occupancy), leaving the vast majority of the population to deal with tenure insecurity and its attendant negative implications on land related investment and agricultural productivity.
CONSTITUTIONAL PROBLEM
One reason the Land Use Act has survived for decades is that it has been shielded from ordinary legislative reform. The Land Use Decree was inserted into the 1979 and 1999 constitutions which makes it difficult for the Land Use Act to be revised or repealed thereby making it an extraordinary statute by virtue of its entrenchment under section 315(5) of the 1999 Constitution, a status Professor Akin Mabogunje, the 2009–2011 Chairman of the Presidential Technical Committee on Land Reform the Committee established by the then President Umaru Yar’Adua, described as “a clog in the wheel of development.
As a result, amending it will require a rigid process involving the support of not less than two-thirds majority of all the members of the National Assembly and approved by a resolution of the Houses of Assembly of not less than two-thirds of all the States in Nigeria, making it unfortunate as land is a life asset that requires to be tinkered with regularly to bring it in conformity with current realities.
Beyond the amendment barrier, there is also an ongoing legal tensions between the Land Use Act and constitutional provisions regarding fair hearing and access to justice, particularly concerning the Governor’s power to revoke titles under Section 28 of the Act, resolution of dispute referred to the appropriate Land Use and Allocation Committee which are exclusively appointed by the same Governor without confirmation by the House of Assembly under Section 30 of the Act, and the making of the Land Use and Allocation Committee as the final arbiter of the matter due to the ousting of the court jurisdiction over compensation adequacy under Section 47 (2) of the Act.
This as observed is inconsistent with democratic norms and ideals and in Ogunleye v. Oni, Justice Belgore of the Supreme Court captured the frustration surrounding the Act, noting that it is neither the magic wand it was portrayed to be nor the destructive monster that critics feared. Rather, it is simply a law with significant flaws that persist because political will to reform it remains absent.
ECONOMIC IMPERATIVE
The economic impact of the Land Use Act has been observed to be detrimental to capital formation and the growth of the mortgage industry due to the difficulty and cost of obtaining titles as less than 5% of housing units have formal title registration resulting to 95% of lands still held under customary title, creating a dead capital (untitled and unproductive assets) which cannot be used as collateral for bank loans. The duration for registration has also contributed to the decline in growth of the industry as while it will take twelve days and fifteen days to register property title in Rwanda and Botswana, respectively, such title will take seventy-seven days to be registered in Nigeria. In addition to excessive bureaucracy depicted by the highest number of procedures required for property registration in sub-Saharan Africa (13 procedures in Nigeria as compared to 9 in Kenya), the cost of property registration in Nigeria (20.8% of property value) is the highest when compared with that of other countries in the region.
The Section 22 requirement of the Act for the Governor’s prior consent before any transfer or mortgage of land adds further layers of cost. In Lagos, obtaining Governor’s consent for a mortgage involves up to 17 stages while an assignment involves 20 stages. The cost of these can reach 10 per cent of the loan value for mortgage transactions and 15 per cent of property value for assignments, and in the words of Dr A. Nnamani, who served as the Attorney-General of the Federation in 1978, “It seems to me that it is not healthy for the economy that the Governor’s Office should be flooded with these applications for consent. We should not sacrifice efficiency on the altar of control.”
In addition to the above, the lack of secure and easily transferable titles has resulted in making the country’s mortgage market one of the smallest mortgage markets in Africa relative to GDP, while close to 85 per cent of urbanites live in rented accommodation which swallows up as much as 40 per cent of their salary, if not more. The dynamism of this ugly scenario is backed by the evidence that Nigeria is perhaps the fastest urbanizing country in Sub-Saharan Africa and the Land Use Act (1978) which was enacted to make land available for public development as found it difficult to come to terms with this development which has led to difficulty and complication in acquiring land seamlessly. The result, therefore, is a situation where the Land Use Act (1978) has only succeeded in compounding the same problem it was supposed to address, despite the perceived intention of the Act to eradicate land acquisition issues.
HUMAN RIGHTS IMPERATIVE
The current land regime has frequently clashes with fundamental human rights, particularly the right to property and adequate housing which is a right of every citizen of Nigeria to live somewhere in security, peace, liberty and dignity as stated in the multiplicity of international conventions which Nigeria is a signatory to and ratified such as the International Covenant on Economic, Social and Cultural Rights which has made provisions for the right to adequate housing in Article 11(1), and in the case of Oshevire v. British Caledonian Airways Ltd, the Court of Appeal held that international agreement embodied in a convention or treaty is autonomous, as the parties contracting have submitted themselves to be bound by its provisions, which are therefore above domestic legislation. Thus, any domestic legislation in conflict with the convention is void.
One of the provisions which have frequently clashes with citizens right to property is Section 28 of the Act which allows Governors to revoke rights of occupancy for overriding public interest, a term often applied vaguely to benefit private developers at the expense of ordinary citizens as seen in the case of Osho v Foreign Finance Corporation where the plaintiff’s right of occupancy was revoked for overriding public interest but the land was however granted to a private person for its private business, and the court held that the revocation was invalid and remarked that the Governor has no right to revoke a statutory right of occupancy and grant the same to a private person for any other purpose than those specified by Section 28 (2) of the Act. Similar decision was taken by the Court in Lawson & others v Ajibulu and it should be noted that the Court will still hold an acquisition of land to be invalid even where the third party intends to use the land for the purpose similar to that of the State. However, judicial enforcement has been inconsistent, and many revocations go unchallenged due to legal illiteracy or lack of access to justice.
Also, under Section 29 of the Act, compensation is paid only for unexhausted improvements (buildings or crops) and not for the land itself as against what is obtainable in Malawi in its payment for compensation which include not only the unexhausted improvement but also the amount the person paid in acquiring the land and other appreciation in the value of the land since the date of such acquisition. This current situation under the Land Use Act of 1978 leaves many families economically disenfranchised and homeless after government-led clearances and the peasant farmers and the urban poor are the most vulnerable, often facing unlawful evictions and a lack of protection for customary land rights.
WAY FORWARD
To address the housing deficit, a comprehensive overhaul of the land administration system of the country is required as trying to benefit from the untapped potential in the real estate industry without reforming the Land Use Act is like trying to drive a Ferrari with the hand brakes on. Hence, the following are recommended to address the housing deficit in Nigeria:
Land Use Act should be excised from the 1999 Constitution of the Federal Republic of Nigeria to facilitate its comprehensive amendment/review through the normal legislative process;
The members of the Land Use and Allocation Committee appointed by the Governor should be confirmed by the House of Assembly;
Geographical Information Systems (GIS) should be implemented across all states and land registries should be moved online to reduce corruption and cut processing times;
The requirement for Governor’s consent for mortgage transactions should be removed with removal consideration of Sections 21, 22, and 26 of the Land Use Act to deepen the financial sector, facilitate business efficacy, mortgage development and housing provision in Nigeria;
Valuation methods should be updated to reflect open market value for both land and improvements, ensuring affected persons are not left in a worse position after revocation;
Customary land titles should be formally recognize and codify to provide security for the rural poor and allow them to use their land as bankable assets;
Land Registry Divisions should also be created in Local Governments;
The right of anyone dissatisfied with the Act of the Governor to apply to the High Court should not be abrogated and the revocation of the land for overriding public interest must be transparent and subject to public scrutiny;
Compensation must not be limited to unexhausted improvement as the value of the land and market value of the improvement should also be taken into consideration while arriving at compensation payable.
CONCLUSION
The Land Use Act of 1978, while originally well-intentioned, has become a significant barrier to solving Nigeria’s housing crisis and unlocking Nigeria’s housing potential requires more than just building houses; it requires removing the structural obstacles that keep land out of reach for the masses. If Nigeria is serious about closing its 22-million unit housing gap, the conversation must move beyond short-term projects toward long-term structural reform that balances state control with secure private proprietary rights. Only through such a transformation can land serve its role as a catalyst for economic rejuvenation and social justice.
Hence, it is therefore expedient to take a second look at the Land Use Act of 1978 with a view to reviewing it to meet the aspirations of every Nigerian because reforming the Land Use Act is central to addressing Nigeria’s housing deficit and reform must ensure that the issue of adequate housing receive the commitment and changes in behavioural approach to the distribution of national resources in favour of the under-privileged in the society.
The question is no longer whether to reform. The question is how much longer we can afford not to.