existing rights of the family or the community because the Act’s provision refers to a
“person”. Unfortunately, the Act does not define the meaning of a person to include
or exclude community or family. As regards the position of the local government
council, section 50 defines a customary right of occupancy granted by a local
government under the current Act as:
The right of a person lawfully using or occupying land in accordance with customary law
and includes a customary right of occupancy granted by a local government under this Act.
54
Section 6 permits the above to be granted by the local government. Also, in
section 36, the Act purports to convert rights held in land in non-urban areas to
customary rights of occupancy. This provision is clearly inconsistent and contradictory and leads to unclear results; to say that a right is held and enjoyed in accordance
with customary law and yet permits such right to be granted by a local government
which is a third tier of government created by the Constitution of Nigeria.
55 The
same view was held by Lord Lugard in his Dual Mandate as a colonial officer.
According to him, land in the then Northern Region of Nigeria could not properly be
described as ‘native land’ where the governors had the right to demand rents, to
nullify all alienation without his approval and, above all, to revoke the right at will.
A critical look at events since the Act became law confirms the view that the issue
of land dispute has been aggravated into more protracted and ‘deadly’ communal
and ethnic conflicts between traditional overlords and perceived customary tenants.
The family or communities still sue for a declaration of title to land.
In addition, the land conflicts have inundated the courts occasioning delays and
huge financial resources to the extent that self-help is increasingly becoming the
preferred option in asserting ownership rights. In some cases, a revocation order
made by governors often cannot be implemented owing to the resistance by erstwhile traditional/customary land owners. Indeed, it is often difficult to carry out
surveys which must form the basis of revocation cases due to resistance.
Two commonly cited judicial authorities following the promulgation of the Land
Use Act decided by the Lagos State High Court disclose the nature of the problem. In
Animashaun v. sufiami, Okuribido J. held that the defendants as customary tenants
having alienated the land without the consent of the overlord forfeited their customary tenancy and the overlord was held to be entitled to resume possession of the vast
area of land in dispute. This was in spite of the land Use Act. In another easily
referenced case, Cole J., after hearing all the evidence and submission of the learned
counsels to the parties in Davies V. Ilo, granted an application for a declaration of
title to another vast area of land in Ikeja, having dismissed the allegation by the
defendants that the plaintiffs were customary tenants. The judge concludes thus:
54 Customary right of occupancy is defined under section 50(1) as “the right of a person or
community lawfully using or occupying land in accordance with customary law and includes a
customary right of occupancy granted by a Local Government under this Decree.” Statutory right of
occupancy is also defined under the same section as “a right of occupancy granted by the Military
Governor under this Decree.”
55 The Constitution of Nigeria (1979).
170
B. B. Orubebe
“person”. Unfortunately, the Act does not define the meaning of a person to include
or exclude community or family. As regards the position of the local government
council, section 50 defines a customary right of occupancy granted by a local
government under the current Act as:
The right of a person lawfully using or occupying land in accordance with customary law
and includes a customary right of occupancy granted by a local government under this Act.
54
Section 6 permits the above to be granted by the local government. Also, in
section 36, the Act purports to convert rights held in land in non-urban areas to
customary rights of occupancy. This provision is clearly inconsistent and contradictory and leads to unclear results; to say that a right is held and enjoyed in accordance
with customary law and yet permits such right to be granted by a local government
which is a third tier of government created by the Constitution of Nigeria.
55 The
same view was held by Lord Lugard in his Dual Mandate as a colonial officer.
According to him, land in the then Northern Region of Nigeria could not properly be
described as ‘native land’ where the governors had the right to demand rents, to
nullify all alienation without his approval and, above all, to revoke the right at will.
A critical look at events since the Act became law confirms the view that the issue
of land dispute has been aggravated into more protracted and ‘deadly’ communal
and ethnic conflicts between traditional overlords and perceived customary tenants.
The family or communities still sue for a declaration of title to land.
In addition, the land conflicts have inundated the courts occasioning delays and
huge financial resources to the extent that self-help is increasingly becoming the
preferred option in asserting ownership rights. In some cases, a revocation order
made by governors often cannot be implemented owing to the resistance by erstwhile traditional/customary land owners. Indeed, it is often difficult to carry out
surveys which must form the basis of revocation cases due to resistance.
Two commonly cited judicial authorities following the promulgation of the Land
Use Act decided by the Lagos State High Court disclose the nature of the problem. In
Animashaun v. sufiami, Okuribido J. held that the defendants as customary tenants
having alienated the land without the consent of the overlord forfeited their customary tenancy and the overlord was held to be entitled to resume possession of the vast
area of land in dispute. This was in spite of the land Use Act. In another easily
referenced case, Cole J., after hearing all the evidence and submission of the learned
counsels to the parties in Davies V. Ilo, granted an application for a declaration of
title to another vast area of land in Ikeja, having dismissed the allegation by the
defendants that the plaintiffs were customary tenants. The judge concludes thus:
54 Customary right of occupancy is defined under section 50(1) as “the right of a person or
community lawfully using or occupying land in accordance with customary law and includes a
customary right of occupancy granted by a Local Government under this Decree.” Statutory right of
occupancy is also defined under the same section as “a right of occupancy granted by the Military
Governor under this Decree.”
55 The Constitution of Nigeria (1979).
170
B. B. Orubebe