Title: Critical issues in Nigerian Property Law

Editor: Prof. Amos Agbe Utuama, (SAN)
Publishers: Malthouse Law Books
Reviewer: Tony Odiadi

Property law has a complexity and an arcane quality to it because it is rooted in man’s impulses, from the dawn of civilization, to acquire, retain and regulate the control of his possessions in society. Land and everything upon it, remains the recognised possession on which man’s existence and survival unarguably depends.

The book titled ‘Critical Issues in Nigerian Property Law’ is itself a critical contribution to the body of literature on the subject matter in Nigeria. It is a compendium of the variegated interrogation of aspects of property law in Nigeria and in this context, real property. Expectedly, the book takes on extant issues on the subject, foregrounded mainly on the Land Use Act, a piece of legislation which continues to generate so much scholarly interests. The book covers subjects like the challenge of shelter, consent, compensation, constitutionality, certificate of occupancy, wealth from land and climate change, all of which will be examined in details shortly in the course of this subject matter analysis and commentary.

It is both fitting and significant that such an important book put together by a set of eminent scholars on the subject of property law is dedicated to the memory of no less a person as Professor Jelili Omotola at his Tenth Anniversary Remembrance.

The book was unveiled at its presentation by Hon. Justice (Dr) Chima Cletus Nweze, JSC in a lecture titled ‘Polemisation of Real Property Jurisprudence in Nigeria’ at the Muson Centre, Lagos.

From this book of 254 pages, of ten chapters, the question may be asked: How can property law as a subject be situated within the essence of man’s quest for order, power and a secure existence?

In Chapter 1 of the book titled “Concept and Conception of Property in Law: the link with Shelter in Nigeria” the writer Nwudego Nkemakonam Chinwuba offers a good starting point for conceptual reflection and legal theoretical underpinnings, which is “that the place of property in jurisprudence could only inure if its normative validity is based on philosophical perspective of man as a dual being of essence manifesting an existence. Property, is best identified in shelter- the basic tool for the manifestations of man’s essence in existence”.

But no distinction is made even in the context of philosophical reflections as to property rights, whether collective or individualized, in mountains, valleys, hills, streams, rivers, lakes, forests, etc even where they fall within what is in essence, the possessory ambit of man.

Are there situations in which land can be compulsorily acquired and compensation not paid under Nigeria law? This is the focus of Chapter 2 titled “Compulsory Acquisition without Compensation under Nigerian Law” by R. A Onuoha. The writer made the point early on that “the purpose of government to compulsorily acquire private properties is mainly to ensure that land is available when needed for essential infrastructure”. This is clear and understandable for otherwise the duties and responsibilities of government to the citizenry and to the state will be seriously constricted if land and space cannot be appropriated or expropriated for the purposes of serving public interest far and above private interest.

In ascertaining title to land, the exact identity of land is a sine qua non, a fundamental requirement. This is where the survey plan as a critical document comes to play in proof of identity and title as well as dimension of interest. Kola Odeku and Olu Awolowo in Chapter 3 of the book looks at the place of survey plan, entitled “Survey Plan in Land Transactions: An Overview.” In Oyefeso v Coker 1999 1NWLR, pt588, 645 cited by the authors, they stated that “the purpose of Survey Plan in a land dispute is to show graphically the morphology of an area in dispute, its extent and size”. In the same manner the Supreme Court of Nigeria in Oshodi V Eyifunmi 2000 7SC, pt1, 145 where the point was made that ‘it is not in all cases that a survey plan of the land in dispute is either an absolute necessity or is so mandatory that unless it is produced and tendered in evidence, the court would have no option but to dismiss the claim’.

One of the unresolved controversies of the promulgation of the Land Use Act as it came into being in 1978 is whether land in Nigeria has virtue of the law now nationalized. The interrogation of this enduring issue is at the heart of “Land Use Act- a Catholic Legislation? by Hon. Justice I.A Umezulike, Chief Judge of Enugu State. Was this law set to make land more available to many, was it focused on egalitarianism, was it an somehow a decided act of social engineering, all of these may have formed the promptings for such an admittedly radical legislation. The writer takes us through the interplay of factors that necessarily influenced the regime at the time to embark on such extra-ordinary land reform that in some ways pitched the state against the land holding elites.

The Consent of the Governor confers validity to any act of alienation in land under the Land Use Act. The relevant provisions are sections 15(b), 21(a), 22(1) & (2), 23(1), 24(b) and 34(7) of the Act and so the numericity of provisions dealing and restating ‘Consent’ as a necessity establishes its settled importance in the Act. This is the focus of “Administration of Consent Provision under the Land Use Act: a Curse or Blessing for Development- Case Study of Lagos State” by Muiz Banire.

No doubt a radical legislation, but what ought to be the fate of the law in the light of its operation or impact yet on land regime and administration in Nigeria? The matter was examined by Uche Jack-Osimiri in Chapter 6 “Repeal Land Use Act 1978 or Amendment of its provisions governing Compensation for Compulsory Acquisition? The writer set the tone of his submission, by supporting ‘amendment of the sections relating to the award of compensation for land compulsorily acquired or in the alternative, it would advocate the repeal of the Land Use Act in the entirety of Southern States of Nigeria’.

In Chapter 7, the constitutionality of the Land Use Act is taken to task by Wole Olanipekun, SAN in ‘Constitutionality of an Unconstitutional Act: the Unconstitutional Entrenchment of the Land Use Act in the Nigerian Constitution’. The writer submits that the test of constitutionality can be found in the fundamentality of the Constitution itself as the embodiment of the will of the people and the source of any other law in the realm. This is normally exemplified in the pre-amble of most constitutions including the 1979 and 1999 Constitutions. How therefore, according to the writer, did a piece of legislation never deliberated upon by either the Constituent Assembly chaired by Justice Udo Udoma or the Constitution Drafting Committee chaired by Chief FRA Williams, SAN became injected into the 1979 Constitution? The provision of the Constitution section 274 (1)(a) 1979 Constitution speaks of an existing shall be modified and be brought in conformity with the Constitution, the section 274(5) set a list including the Land Use Act of laws which shall continue to apply like the Constitution. Now section 274 is the equivalent of section 315 of the 1999 Constitution.

How secured is the Certificate of Occupancy as a tile to land? Imran Oluwole Smith looks at this in Chapter 8 dealing with ‘The Land Use Act and Efficacy of the Certificate of Occupancy’. In the long title to the Land Use Act Cap L5 LFN 2004, part of the purpose of the Act is to create certainty of title by stripping every one of title and vesting it in the Governor of the State. The Governor grants through the issuance of a Certificate of Occupancy under section 9(1)(a) by exercising the power under section 5(1)(a). Yet this C of O issued by the Governor may not avail as an unimpeachable evidence of title in a situation where another party demonstrates superior title or interest particularly where title had been vested before the commencement of the Act as in the case of a deemed grant.

As a resource, there is no gainsaying the place of land in the economic and commercial life of any society and this means that legal structures can enhance the access to this resource for the good of many or otherwise constrict this potential and make it available only to a few which can turn out to be counter-productive to social or economic progress and harmony. Amos Agbe Utuama discusses this vexed issue in Chapter 9 titled‘Underbelly of the Land Use Act: Activating the Wealth of the People’. The question is, how has the Land Use Act achieved this as part of its much vaunted purpose? The writer submits that the ‘wealth of the Nigerian people in land is unfortunately lying dormant in the underbelly of the Act’ and states further ‘that land is a store of value. As such, it is an asset that can be saved, retrieved and exchanged at a later date’. The writer captures the frustration of many in this regard when he made the point that ‘The objectionable aspects of the Act therefore is the weakening of the property rights of the people, especially the poor, in many ways and thereby impoverish them.’

Land and property right can only thrive in a world of secure environment. The current scourge of climate change remains a growing challenge and calls for some examination even from the Nigerian microcosm within the global environment. Chapter 10, the last in the book is titled ‘The Land Use Act, Nigerian Urban and Regional Planning Act, and Climate Change in Nigeria? By Theresa Ilegbune. The writer makes the submission which is undeniable that ‘Climate change has the potential to bring about damaging and irreversible effects on infrastructure, food production and water supply’.

Doubtless, this book establishes itself as a major addition to the study of Property Law in Nigeria. The book does an immense honour to the memory of the Late Professor Omotola many of whose academic protégés have, in this book and elsewhere, continued to sustain the tradition of using the rigour of analytical tools to challenge academic orthodoxy; who, also, continue to think and pursue enquiries out of the box of settled orthodoxy in Land and Property Law thereby promoting genuinely expansive scholarship.

In a book of collected essays such as this, it is mostly inevitable that thematic and subject matter overlap and recurrence will exist making a number of topical issues repeated several times across the pages which could have been avoided through serious editing for a more concise outcome.

It must be said that not even these gaps mentioned above can take away the substantial scholarly content and immense academic value of this book which comes highly recommended as a serious research companion for those in academics, legal practitioners, students and general interest readers going forward on the subject of Property Law in Nigeria.
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