customary law represents the culture of the people of southern Nigeria who were
subject to it.
50 The principle of joint ownership was so pertinent that the communal
or family head’s consent was essential to any disposition of soil/land.
51 The role or
position of the community or family “head” was so revered under customary land
governance system that he could even resist moves by other family members who
attempted to sue him to give an account.
52 Another interesting principle under
customary land governance was the well-established fact that no member of the
family had any alienable right in the family property not even by will.
53
Sadly, it is this simple and workable soil governance system that the Land Use
Act has changed. The result is a rather chaotic and conflict laden land tenure system
without any ascertainable soil governance principle. To bring out the effects of the
Act, it is imperative to identify some unwholesome changes inherent in it and how
the contradictions it introduced have been harvested by the ethno-political elite of the
country for personal aggrandisement.
For example, this has distorted governance through avoidable herdsmen/farmers
conflicts or ethno-religious tensions/conflicts that now threaten the peace and unity
of the Federal Republic of Nigeria with unintended consequences.
At first blush, section 1 of the Land Use Act provides that all land in the country is
to be held by the state governors in trust for the people. It has made the governors to
step into the shoes of the heads of communities or heads of families, i.e. the governor
of each state has to approve every land contract in his state. In other words, his
consent must be obtained before any transfer or alienation of land or institutionalise
trusteeship. Obviously, the general provisions of the Act have abolished, to a large
extent or entirely, the customary land governance system. The first point that needs
to be noted is that the prevailing statutory right of occupancy has replaced the
absolute fee simple (free of charge) ownership that obtained under the customary
governance system. Furthermore, sections 34 and 36 have replaced the family head
with the governor and the local government council respectively. In addition,
sections 24 and 25 prohibit partitioning of land into smaller portions except with
the consent of the governor and the payment of highly exorbitant fees and stamp
duties to the governor or the local government. More so, section 35 appears to have
placed an absolute bar on the peoples’ right to transfer land. Also important is the
fact that sections 28 and 5 subsection 2 have made fluid the capacity to revoke
50 Note, however, that this customary principle of the head of family in Southern Nigeria is similar to
some other African societies. For a good comparative study see Bentsi-Enchill (1964), also see
Sarbah (1968). According to him: “The village community is a corporate body, of which the
members are families, or family groups, residing in the several households, and including the
joint as well as patriarchal families.”.
51 Amodu v. Secretary of Southern Nigeria (1921) A.C. 399–404.
52 The dictum of per Foster-Sutton, P. in Fynn V. Gardiner (1953) 14 W.A.C.A. P. 260. Cf. this view
with the flexible position expressed by Per J Robinson in Archibong V. Archibong (1947)
18 N.L.R. 117.
53 Ogun V. Mefun (1931) 1 N.L.R. 82. See Abeje v. Ogundairo the Nigerian Supreme Court Case
(unreported SC.80/1968 dated 13-02-1970).
Soil Governance and Sustainable Land Use System in Nigeria: The Paradox of. . .
169
subject to it.
50 The principle of joint ownership was so pertinent that the communal
or family head’s consent was essential to any disposition of soil/land.
51 The role or
position of the community or family “head” was so revered under customary land
governance system that he could even resist moves by other family members who
attempted to sue him to give an account.
52 Another interesting principle under
customary land governance was the well-established fact that no member of the
family had any alienable right in the family property not even by will.
53
Sadly, it is this simple and workable soil governance system that the Land Use
Act has changed. The result is a rather chaotic and conflict laden land tenure system
without any ascertainable soil governance principle. To bring out the effects of the
Act, it is imperative to identify some unwholesome changes inherent in it and how
the contradictions it introduced have been harvested by the ethno-political elite of the
country for personal aggrandisement.
For example, this has distorted governance through avoidable herdsmen/farmers
conflicts or ethno-religious tensions/conflicts that now threaten the peace and unity
of the Federal Republic of Nigeria with unintended consequences.
At first blush, section 1 of the Land Use Act provides that all land in the country is
to be held by the state governors in trust for the people. It has made the governors to
step into the shoes of the heads of communities or heads of families, i.e. the governor
of each state has to approve every land contract in his state. In other words, his
consent must be obtained before any transfer or alienation of land or institutionalise
trusteeship. Obviously, the general provisions of the Act have abolished, to a large
extent or entirely, the customary land governance system. The first point that needs
to be noted is that the prevailing statutory right of occupancy has replaced the
absolute fee simple (free of charge) ownership that obtained under the customary
governance system. Furthermore, sections 34 and 36 have replaced the family head
with the governor and the local government council respectively. In addition,
sections 24 and 25 prohibit partitioning of land into smaller portions except with
the consent of the governor and the payment of highly exorbitant fees and stamp
duties to the governor or the local government. More so, section 35 appears to have
placed an absolute bar on the peoples’ right to transfer land. Also important is the
fact that sections 28 and 5 subsection 2 have made fluid the capacity to revoke
50 Note, however, that this customary principle of the head of family in Southern Nigeria is similar to
some other African societies. For a good comparative study see Bentsi-Enchill (1964), also see
Sarbah (1968). According to him: “The village community is a corporate body, of which the
members are families, or family groups, residing in the several households, and including the
joint as well as patriarchal families.”.
51 Amodu v. Secretary of Southern Nigeria (1921) A.C. 399–404.
52 The dictum of per Foster-Sutton, P. in Fynn V. Gardiner (1953) 14 W.A.C.A. P. 260. Cf. this view
with the flexible position expressed by Per J Robinson in Archibong V. Archibong (1947)
18 N.L.R. 117.
53 Ogun V. Mefun (1931) 1 N.L.R. 82. See Abeje v. Ogundairo the Nigerian Supreme Court Case
(unreported SC.80/1968 dated 13-02-1970).
Soil Governance and Sustainable Land Use System in Nigeria: The Paradox of. . .
169