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Administration of land allocation in Nigeria
Administration of land allocation in Nigeria S. Famoriyo
The article defines and explains the need for land management in Nigeria. A background account of traditional concepts of landownership and tenure is given, stressing the relevance of these in the formulation of legislation to improve land management. Physical, biological and economic factors are underlined and special attention is given to the sometimes conflicting demands of developing land to meet both urban and rural needs. The ‘institutional factor’ and the practical problems of introducing legislative control in Nigeria are then described and the article concludes with an explanation of past failures and a number of guidelines for future discussion. Keywords: land use legislation; rural development; Nigeria
urban and
Dr Famoriyo is Associate Professor in the Department of Agricultural Economics and Rural Sociology at the Ahmadu Bello University, Zaria, Nigeria.
‘S. Famoriyo, ‘Socio-economic analysis of the Land Use Act (No 6) of 1978’, research report, Ahmadu Bello University, Zaria, Nigeria, 55 pp, 1981. ‘S. Famoriyo et al, ‘Land tenure and real estate development in Nigeria’, International Real Estate Journal’, Vol 2, No 1, 1982, pp 65-71. 3D.R. Denman and Prodano, Land Use:An Introduction to Proprietary Land Use Analysis, George Allen and Unwin, London, 1972, chapter 1.
0264-8377/84/030217-08
The use of land in many societies can be seen as an instrument of social, political and economic emancipation, especially in ‘poor’ or ‘developing’ countries where land can be viewed as the basis of sociopolitical development. In Nigeria, there is almost total dependence upon land for ultimate survival by both the rural and urban sectors of the population. Yet estimates indicate that less than half of the 923775 square kilometres of Nigeria’s land is cultivated while there is a per capita average of 1.4-l .5 hectares (ha).’ Such underuse coincides with the existence of pressuregenerating factors such as increasing dependence on land, rapid industrialization and growing speculation with land as an object of monetary gain through investment. The effect is of course relative scarcity in relation to demand, leading to the development of a ‘market’ in land.’ A basic premise of this paper is therefore that if Nigeria’s land is to be effectively used by Nigerians, there must be an improvement in its management. It is crucial however that the decision-making entity responsible for any legislative approach fully understands the nature of factors impinging upon land resource management in Nigeria. Indeed, much of the failure of institutional land policy measures in Nigeria can be attributed to a lack of proper study, conceptualization and understanding of these factors in the past. This paper therefore aims to make a presentation of factors which operate within the decision-making process in relation to land use in Nigeria. In a clear analysis by Denman and Prodano, arguing from the point where the classicists left off, it was pointed out that land does not possess homogeneity in the market. 3 More significantly, they show that rent does not originate in the land per se, ‘but in the right to possess, occupy and cultivate the land to the exclusion of others . . , the true source of rent is not virgin homogeneous land but land subject to property rights’. Consequently, there is no market in passive, virgin land but rather in land possessing property rights; the proprietary land unit.
Proprietary land unit and land tenure systems As the basis of decision making in land resources management, the proprietary land unit exists in different forms. This is because the
$03.00 Q 1984 Butterworth
& Co (Publishers)
Ltd
217
Administration
of land allocation in Nigeria
prevailing land tenure systems determine the nature of a proprietary land unit. The latter therefore has to show features that characterize the former. Differences in proprietary land units arise from differences in the prevailing land tenure systems. The nature of a proprietary land unit under Nigerian customary land tenure is seen from the context that local sovereignties in land may be exercised by a traditional authority such as an Emir, an Oba, an Obi, a chief or a district head. Absolute rights of ownership of land are regarded as divine in Africa. Other varieties of ownership exercised over land in Nigeria include those by individuals, corporate groups and the state. Rights of ownership of land in Nigeria or proprietary rights within the proprietary land unit are distinguished by the acts of sale, alienation and disposition.4 Any land tenure system encompasses a large number of recognizable features and transactions relating to land. The outcome of a series of rules and regulations governing the relationships in land use and management show themselves in the character of the proprietary land unit. Land management in this context may be equated with land administration which is defined as ‘the exercise of executive responsibility over the land resources of a nation’.5 The customary land tenure system thus recognizes rights of property. It spells out categories of landownership within a proprietary sense. But it also recognizes rights of use of land within an usufructuary sense. The latter is a right to use land either perpetually as a member of the landowning community (in which case the right is inheritable), or temporarily by a non-member of the community. The customary land tenure system in Nigeria gives rise to a proprietary land unit which has a physical aspect-the physical soil itself (solum). It also has an invisible side to it - the abstract side which is composed of rights of property that convey power to the owner of the proprietary unit (in this case the members of the community as a corporate entity) to use land with all that is affixed to it in any particular manner.
Traditional concepts of landownership
%. Famoriyo, ‘Customary land tenure and the question of land reform in Nigeria’, paper presented at the Seminar on Agrarian Reform, institutional Innovation and the Reconstruction and Development of Agriculture, at the University of Wisconsin, Madison, USA, 8-20 July 1977. %.B. Oludemi. ‘Land administration functions in developing countries’, RePoti of the proceedings of the Seminar on Land Administration and the Development of African Resources, University of Ibadan, UNECA and CASLE, 27 November-2 December. %. Famoriyo, Land Tenure and Agricultural Development in Nigeria, Published for the Nigerian Institute of Social and Economic Research bv lbadan University Press, Nigeria, 1979. .
218
Traditional or customary concepts of landownership and tenure in Nigeria are older than the Nigerian state itself. The basis of landholding is the family which in the Nigerian context includes not only the man, his wife or wives and children, but also his close relatives with their wives and children. Under the family arrangements, the head chiefs and all individual members of the family have rights in family land. In fact, in Nigeria as in all autochthonous African countries, land is considered as being ‘owned’ by past, present and future generations. This assertion explains why alienation of interests in family land is not encouraged and may only bk allowed with the knowledge and full consent of elders considered to be principal members of the landowning family.’ This concept of ownership has been summarily stated: It is the family, existing as a corporate
body, that has rights of ‘absolute’ ownership in land under-customary tenure arrangements. The head of family ensures security of individual’s rights over land through the exercise of rights of management
and control
.
LAND USE POLICY July 1984
Administration of land allocation in Nigeria
The family head therefore, grants rights of use over specific areas of land to individual members. The land granted to a family member in this way may be used by the latter and his children after him. At the death of the grantee, the portion of land reverts back into the family pool but the use rights continue to be enjoyed by his children. Essentially, the traditional concepts and practices of landownership and tenure in Nigeria specify that while the entire family has proprietary rights in the land, in the context already shown, the individual grantee is held to possess usufructuary rights over portions of land granted to him. It should, however, be added that individuals may acquire absolute rights (that is, unconditional or unlimited rights or rights of alienation) in land through gifts among living persons, pioneer clearing of virgin forests or through partition of family landed property. Rights acquired in any of these ways become proprietary rights, the owner being free to dispose of such rights without any consultation.
Physical, biological and economic factors
%.A. Agboola, An Agricultural Atlas of Nigeria, Oxford University Press, London, 1979, p 37. ‘J.S. Oguntoyinbo, ‘Climate’, A Geography of Nigerian Development edited by J.S. Oguntoyinbo et al, Heinemann Educational Books (Nigeria), Ibadan, Nigeria, 1978, p 24. gO. Ojo, ‘Relative significance of the physical environment and the 1978 Land Use Decree on agriculture in Nigeria’, paper presented at the Conference on Land use and Development in Africa South of the Sahara; Smallholder’s Logic and Technical Rationality at Ouagafougou, Upper Volta, 4-8 December 1978. “‘R. Barlowe, Land Resource Economics: The Economics of Real Estate, Prentice Hall, Englewood Cliffs, New Jersey, USA, 1978, p 45. “For example institutional factors, customs and sentiments.
LAND USE POLICY July 1984
This set of factors provides the resources (both animate and inanimate) which may promote or hinder man’s use of land. Preeminent among the physical and biological factors is climate with rainfall as the most important variable.’ Amounts of rainfall vary from more than 3556 mm a year around the Niger Delta, to 1016-l 524 mm in the Middle Belt, 762-l 016 mm in the Sudan zone and less than 508 mm in the semi arid areas of north-eastern parts of Nigeria. The seasonality of rainfall has implications for general agricultural activities within a particular area, in that excessive rainfall may disrupt agriculture in an area and inadequacy of rainfall such as exists in the geographically northern parts of Nigeria, imposes severe limitations and dictates that agricultural activities are only possible within a very short space of time unless there is some form of irrigation. In Nigeria water deficiency periods vary from a few weeks in the southern parts to several months in the northern parts, leading to drought. These conditions lead to low crop yields and a decline in crops available for export. Although high temperatures are experienced in Nigeria throughout the year, extremely high temperatures throughout the year limit the crop yields considerably.’ Economic factors affecting land resource management involve the operational mechanics of the price system as every individual attempts to make a profitable use of limited land resources.1° These economic factors include concepts such as value, input-output relationships and returns on investments. There are also production, marketing and transportation effects in addition to social welfare issues. Other economic considerations are the availability of land resources, competition between ‘use allocations’, effects of dispossession and distribution of compensation. Distribution of incomes from land resources among producers and workers in the society are issues which, particularly in this century, affect the use and management of land resources by individuals. In Nigeria, a capitalist country, the existence of land as private property means that the landowner aims to achieve the highest net return from the land, although economic factors are not always the only motivations. l1 It is also important that even in a capitalist system based on private ownership of land, the individual does not have a free rein, for society controls police power and taxation and governments make laws and create zoning ordinances which compel the land within a certain area to
219
Administration
of land allocation in Nigeria
be used for a specific purpose (such as residential purposes only). The economic factor necessarily manifests itself as the result of a concatenation of forces whose ultimate result is in the need for increased demand for land as the country embarks on rapid economic development. As a result, units of land within the city become more intensively used up; and this also leads to an ‘overs ill’ or encroachment into the immediate surrounding of the urban area.’ s Intensity in demand for land arises mainly from competition between land users. The degree of intensity is usually expressed in costs such as land values, rent or compensations. Landfor
urban de~~~o~rne~t
Urban development 0 0 0
“A, Gandonu, ‘Nigerian urban land supply, allocation ratio and policy guidelines’, paper presented at N/S/3? Land Policy Conference, University of Ibadan, 20-25 September 1976. ’ ?bid. ‘%. Famoriyo and R. Raza, ‘Even develobment in Nioeria: An achievable goal!‘, paper presented at the Nigerian Political Science Association Conference at Kano, Nigeria, 13-15 April 1981. 15D.W. Hail, Some EnvironmentalAspects of the Development of Land and Natural Resources, Report of the Proceedings of the Seminar on Land Administration and the Development of African Resources, 27 November-2 December, University of Ibadart, UNECA, and CASLE. ‘%. Famoriyo, ‘Natural resource utilization - making more kinds available for Nigeria’s green revolution’, address to Annual Conference of the Nigerian Society of Animal Production, in JOS l-5 September 1981.
in Nigeria within this setting includes:
modernization of existing cities; building new cities; maintaining the equilibrium between urban development entire human environment. l3
and the
In terms of the physical supply of land it has been difficult to provide enough land to meet the growing demand of the urban areas. It has also been difficult to provide land and a physical infrastructure for the expansion or creation of urban areas. Finally, the maintenance of balance between the rural and urban areas in terms of meeting land requirements has clearly not been achieved. Urban problems compared with those of rural areas are of daunting magnitude within the rural-urban continuum. Many of the main urban centres in Nigeria - Lagos, Kaduna, Ibadan, Benin, Kano - are overcrowded; the result has been a deterioration in the environment and emergence of shanty towns as well as slums.” Even though most people in Nigeria live in villages and compounds in the rural areas, the annual rate of growth of urban areas is very high, varying from 11.5% in the Lagos metropolitan area to about 7.6% in Kano. The inadequacy of infrastructure in the agricultural sector leads to low production in rural areas and accentuates the drift to towns. The ‘overextended’ cities then begin to show the signs of ‘environmental stress’. I5 in the last 20 years, Nigeria has witnessed the considerable repercussions of petroleum prospecting and as in many oil producing states, this operation has consumed a great deal of agricultural land. Mining for other minerals, the establishment of cement works, power stations, canning factories, forms of transportation - harbours and road networks require vast areas of land as the process of economic development advances. Lund
for rural
and agricultural de~~e~o~rnent
The increasing concern about the state of Nigeria’s rural sector has stimulated federal and state governments to embark on a number of specific projects aiming to increase food production, create employment and devise appropriate institutions to facilitate sustained development. In order to prosecute these projects, large areas of land must be acquired by these governments. In the Third National Development Plan (1975SO), it is estimated that a little under 2 million acres of land were planned to be used for food production projects in all the states.” Under the current Green Revolution Programme, each of the 19 states was expected to clear around 4000 ha of land. This would mean a total requirement of 76000 ha of land. Plans were made to acquire large areas of land for among others, the River Basin Development LAND USE POLICY July 1984
Administration
Table 1. Land use in Nigeria (%).
Farming Fadama (dry season agriculture) Forest reserves Non-agricultural Uncultivated bush land
i; 10 5 50
of land allocation
in Nigeria
Authorities (RBDAs), dams and irrigation facilities, Agricultural Development Programmes (ADPs). Although the rural sector is a potentially substantial landuser, there has been a relatively large underuse of land in Nigeria’s rural sector. Table 1 shows that the degree of land use m Nigeria in 1976 was 50%) this represents a very high degree of underuse. When the requirements for livestock are considered, the land situation is very critical. This is because the uncultivated bush land (50%) is tse-tse-infested and therefore unsafe for cattle grazing. The fadama land being used for dry season farming represents some of the best grazing lands available in Nigeria, pressure on which which leads to increased pressure on the small amount of land available for grazing.” The economic, social and political aspirations of any country and its people involve the use of land in one form or another. In order to fully satisfy all the demands upon land the institutional factor must be dealt with.
The institutional
factor
This constitutes the most subtle yet the most decisive factor affecting land resource management in any country. The institutional factor is concerned with the role of man in his sociocultural environment, the role which forces of social and collective action play in influencing the behaviour of man as a member of a family, a group and a community. To succeed, there are four criteria which any land use programme policy must meet. ‘* There must be: 1. 2. 3. 4.
I’S, Famoriyo and M. Awogbade, ‘Nomadic land resource use and beef production in Nigeria’, paper presented at the National Conference on Beef Production, at Kaduna, 27-30 July 1982. ‘*Op cit. Ref 10. lgJ R Commons, lnstifutional Economics: Its P/ace in Political Economy, University of Wisconsin Press, Madison, USA, 1959, p 45. 2oOp tit, Ref 6. 210p tit, Ref 10.
LAND USE POLICY July 1984
conformity with legality and constitutionality; political acceptance; no conflict with accepted cultures, attitudes, customs and traditions; no obvious administrative problems.
The land resource manager must use his knowledge and experience to bring these criteria together to make the impact of any policy and programme positive. A clear understanding of economic behaviour must be preceded by an understanding of man himself and while it is outside the scope of this paper to detail factors that explain human behaviour or condition human responses, it should be noted that man is a social animal, born into a group or society where there are already rules and institutions to which he conforms. These rules and institutions often change with time. In this context, institutions therefore represent any form of group or collective action which controls individual behaviour.” A fundamental institution such as government, property or family involves a group of secondary institutions. For landed institutions, the most important factor is property rights. Education and the family system are also institutions which influence people’s attitudes to the use and management of land. Nigeria’s customary (traditional) tenure system is based upon ownership of landed property by the family or community. Among the latter, it is a basic tenet that the ownership must be preserved since no member can unilaterally alienate or dispose of the land without the consent of principal members.20 Education can be said to indirectly affect land use ‘by raising individual aspirations, by facilitating the development of new technologies, and by pointing the way for better resource “management”‘“’ Conformity
with legality and constitutionality
The Federal Military Government
of Nigeria inaugurated
a Land Use 221
Administration
of land allocabon in Nigeria
Panel on the 26 May 1977, the first term of reference being that the panel should make a study of prevailing land tenure, land use and conservation practices. The pane1 was also to study and look at the feasibility of a uniform land policy for the country as well as to suggest steps for making government acquisition of land easier. The Land Use Act finally became effective on 29 March 1978 and became part of the Nigerian Constitution. This action has, however, become highly controversial. For instance, while some had claimed that the land in a state is vested in the state governor on the trust of the federal government, others had said that the federal government has no land of its own. But section 1 of the Land Use Act vests all land in a state with the governor who holds it in trust for the use and common benefit of all Nigerians. According to Momoh, it would be correct to say that all land in each state belongs to all Nigerians and is held in trust for them by the governor of that state.22 In a similar vein, Oretuyi has observed:“3 The Land Use Decree is one of the Decrees entrenched by the Military in the Constitution. Section 274(5) provides that nothing in the Constitution shall invalidate the Decrees and that their provisions shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of the Constitution. Discussing whether the Land Use Act is an existing A.L. Balogun said inter alia:24
law or not, Justice
It seems to me that from the commencement of the Land Use Decree on 29th March 1978, the right of ownership of any land in a State by any person ceased. Justice
Balogun
concluded
As the Land Use Decree 1978 was in force immediately before Section 274 of the 1979 Constitution came into force on 1st October 1979, there is no room, I think for any doubt that the Decree is an ‘existing law’ within the meaning of Section 274(4)(b) aforesaid.
Earlier, the Chief Justice of the High Court in Oyo State had considered the question of whether the Land Use Act was an existing law within the meaning of Section 274 of the Constitution of the Federal Republic of Nigeria, 1979. According to Fakayode:”
From the above provisions it can be seen at sight that the Land Use Decree is not an existing law but it is part and parcel of the Constitution regarded as such to all intents and purposes. 22T. Momoh, ‘Who really owns the land?‘, paper presented at the 70th Anniversary Celebrafions of the Nigerian lnstitufe of Estate Surveyors and Valuers, at Iganmu, 28 November 1980, published in The Sunday Times, 7 December 1980, p 9. ‘%.A. Oretui, ‘Federal or state government who owns the land?‘, Punch, 21 July, 1980. 24A.L. Balogun, ‘First, what says the Land Use Act’, Daily Sketch, 4 June 1982. 25E.0. Fakayode, Judgement delivered in the case of Aina and Co Lfd v Commissioner for Lands and Housing, Oyo State, the Akinyele North Local Government Attorney, Oyo State, 25 May 1982, published in Daily Sketch, Lagos, Nigeria, 5 June 1982.
222
The Chief Justice
in his judgment
and it has to be
continued:
Whilst words used in an existing law can be modified, that is ‘restricted’ or ‘varied’ in meaning to bring the law into conformity with the provisions of the constitution, the Land Use Decree cannot and must not be so ‘modified’ because it is part and parcel of the Constitution. Any such modification, that is variation, enlargement, restriction or extension in the text of the Land Use Decree can only be done by complying with Section 9(2) of the constitution If the Land Use Decree were an existing law. the word ‘Military Governor’ would today have to be modified to read ‘The Governor of a State’ or ‘State Governor’ but since the decree is itself part of the constitution. no such modification can be done.
In most recent decision on the Land Use Act, Justice the Land Use Act to be ‘a dormant law’.
Oluwa
declared
LAND USE POLICY July 1984
Administration of land allocation in Nigeria
NEPA had been sued by the Lagos State Government for NlOOOOfor allegedly trespassing on a piece of land at the Dolphin Scheme, Ikoyi, Lagos. According to the report, Justice Oluwa was quoted: The Governor of Lagos State, not being a Military Governor, has no legal right to impose conditions for the use of any piece or portion of land in Lagos State in reliance on the Land Use Act, until necessary modification
are made to it.
Political acceptability
The political acceptability of any legislation depends on the group of individuals concerned. Illustratively, traditional rulers in many parts of southern Nigeria have inveighed the Act, arguing that they are in control of all lands within their jurisdiction. The wealthy ones have also at one time or the other spoken against the Act. In a recent study carried out in Kano and Kaduna States, it was shown that public servants and businessmen constituted the major beneficiaries of land allocation in both states. 26 These classes of beneficiaries made up 90% of the total allocations in each of the two states. Those who hailed the decree were however initially, the ‘dispossessed Nigerians and their champions - students and radical scholars’.*’ It is difficult to assess the efficacy of this criterion in Nigeria where policies generally come from the top down. Igbozurike also drew attention to the fact that the Land Use Panel did not visit rural areas. This would seem to have been a major fault and it is safe to add that most rural people are unaware of a policy that purportedly changed the basis of landownership in Nigeria. It is therefore essentially an urban land policy. Conflict with accepted values the concept of family ownership of land in southern parts of Nigeria and tried to unify the basis of ownership with what was existing in the north in accordance with the 1962 Land Tenure Law. Before the Act, concepts of family ownership of land and inalienability of land along with landlordism and tenancy existed in southern Nigeria. If the Land Use Act is anticipated to the provisions of the customary land tenure, it can still be argued that by being urban-biased, and leaving land allocation in the hands of the Land Allocation Advisory Committees in the local government areas, the Act has indicated the need to preserve accepted customs, cultures and so on. The report of the Kaduna State Land Investigation Commission seems to suggest that local government councils working together with the Land Allocation Advisory Committee at the village level may improve the workability of the Act. This may also make any possible abuse in land allocation difficult to achieve. It is therefore necessary to conclude on this point that it is not so much the existence of a conflict as the need to work out an established pattern with the existing culture and tradition before the land policy can succeed. The Land Use Act abolished
Administrative practicality 260p tit, Ref 1. “U.M. Igbozurike, Nigerian Land Policy, published by the Department of Geography, University of Nigeria, Nsukka.
LAND USE POLICY Juty 1984
A number of problems arose in making the Land Use Act administratively workable: 0
Allegations
abound that even to secure application
forms for a
223
Administration
of land allocation
in Nigeria
a
l l
certificate of occupancy under the Act, may necessitate giving bribes. Construction of illegal structures at the early stage of the decree’s enactment enabled some to escape some of its provisions. Officials often lacked understanding of the nature of their functions. A clash of interests was apparent between Ministry of Lands officials and the Land Use Allocation Committees. There emerged a need to delineate the structure, appointment and functions of the Land Use Allocation Committee and the Land Allocation Advisory Committee. Discrimination in dealing with people was noted; the powerful, rich and influential were clearly favoured. Democratic procedures were ignored in matters relating to control and administration of land matters thus leaving room for exploitation and/or oppression by the powerful. The question of who recommends decisions on urban boundaries, allocation and the processing of application forms to obtain certificates of occupancy to the governor was unresolved.*s
So far under the Land Use Act, relatively few allocations have been made in a number of states. It is understood that Lagos State has formulated a land policy in which applications were to be based strictly on merit. No information is available on the extent of its workability.
Implications
and conclusions
It would seem apparent that the Act as a land policy has not yet achieved the objectives set for it; applicants have been encountering difficulties in getting land allocated to them; the process of allocation is very slow. Consequently, many development projects are affected. The following areas of action can therefore be suggested: 1.
2.
3.
4.
28/hid.
224
Policy makers in the area of land in Nigeria must study the physical, biological, economic and institutional factors in all parts of the country or commission so as to understand the interactions of these factors and how these would affect the policy. Although stress may constantly with the be put on economic factors, these interact others. In view of the rapid development of the urban areas and their rather depressed state, effective planning and strong adherence to planning laws in the urban areas is essential so as to work effectively with a land policy. Introduction of a cadastral system is of the utmost importance for two reasons; firstly enacting legislations will always be circumvented in Nigeria because an efficient cadastral system which is the basis of real land control is absent and secondly the Act is of little value in the rural areas; no cadastral map exists to show which land is vacant and which is not - it is impossible to administer something undefined. There is a lack of understanding and clarity as to the exact relationship between federal and state governments with regard to the Act. These and other areas of change would tend to lend much credence to the assertion that the Land Use Act needs not only a review but methodical restructuring.
LAND USE POLICY July 1984
The article defines and explains the need for land management in Nigeria. A background account of traditional concepts of landownership and tenure is given, stressing the relevance of these in the formulation of legislation to improve land management. Physical, biological and economic factors are underlined and special attention is given to the sometimes conflicting demands of developing land to meet both urban and rural needs. The ‘institutional factor’ and the practical problems of introducing legislative control in Nigeria are then described and the article concludes with an explanation of past failures and a number of guidelines for future discussion. Keywords: land use legislation; rural development; Nigeria
urban and
Dr Famoriyo is Associate Professor in the Department of Agricultural Economics and Rural Sociology at the Ahmadu Bello University, Zaria, Nigeria.
‘S. Famoriyo, ‘Socio-economic analysis of the Land Use Act (No 6) of 1978’, research report, Ahmadu Bello University, Zaria, Nigeria, 55 pp, 1981. ‘S. Famoriyo et al, ‘Land tenure and real estate development in Nigeria’, International Real Estate Journal’, Vol 2, No 1, 1982, pp 65-71. 3D.R. Denman and Prodano, Land Use:An Introduction to Proprietary Land Use Analysis, George Allen and Unwin, London, 1972, chapter 1.
0264-8377/84/030217-08
The use of land in many societies can be seen as an instrument of social, political and economic emancipation, especially in ‘poor’ or ‘developing’ countries where land can be viewed as the basis of sociopolitical development. In Nigeria, there is almost total dependence upon land for ultimate survival by both the rural and urban sectors of the population. Yet estimates indicate that less than half of the 923775 square kilometres of Nigeria’s land is cultivated while there is a per capita average of 1.4-l .5 hectares (ha).’ Such underuse coincides with the existence of pressuregenerating factors such as increasing dependence on land, rapid industrialization and growing speculation with land as an object of monetary gain through investment. The effect is of course relative scarcity in relation to demand, leading to the development of a ‘market’ in land.’ A basic premise of this paper is therefore that if Nigeria’s land is to be effectively used by Nigerians, there must be an improvement in its management. It is crucial however that the decision-making entity responsible for any legislative approach fully understands the nature of factors impinging upon land resource management in Nigeria. Indeed, much of the failure of institutional land policy measures in Nigeria can be attributed to a lack of proper study, conceptualization and understanding of these factors in the past. This paper therefore aims to make a presentation of factors which operate within the decision-making process in relation to land use in Nigeria. In a clear analysis by Denman and Prodano, arguing from the point where the classicists left off, it was pointed out that land does not possess homogeneity in the market. 3 More significantly, they show that rent does not originate in the land per se, ‘but in the right to possess, occupy and cultivate the land to the exclusion of others . . , the true source of rent is not virgin homogeneous land but land subject to property rights’. Consequently, there is no market in passive, virgin land but rather in land possessing property rights; the proprietary land unit.
Proprietary land unit and land tenure systems As the basis of decision making in land resources management, the proprietary land unit exists in different forms. This is because the
$03.00 Q 1984 Butterworth
& Co (Publishers)
Ltd
217
Administration
of land allocation in Nigeria
prevailing land tenure systems determine the nature of a proprietary land unit. The latter therefore has to show features that characterize the former. Differences in proprietary land units arise from differences in the prevailing land tenure systems. The nature of a proprietary land unit under Nigerian customary land tenure is seen from the context that local sovereignties in land may be exercised by a traditional authority such as an Emir, an Oba, an Obi, a chief or a district head. Absolute rights of ownership of land are regarded as divine in Africa. Other varieties of ownership exercised over land in Nigeria include those by individuals, corporate groups and the state. Rights of ownership of land in Nigeria or proprietary rights within the proprietary land unit are distinguished by the acts of sale, alienation and disposition.4 Any land tenure system encompasses a large number of recognizable features and transactions relating to land. The outcome of a series of rules and regulations governing the relationships in land use and management show themselves in the character of the proprietary land unit. Land management in this context may be equated with land administration which is defined as ‘the exercise of executive responsibility over the land resources of a nation’.5 The customary land tenure system thus recognizes rights of property. It spells out categories of landownership within a proprietary sense. But it also recognizes rights of use of land within an usufructuary sense. The latter is a right to use land either perpetually as a member of the landowning community (in which case the right is inheritable), or temporarily by a non-member of the community. The customary land tenure system in Nigeria gives rise to a proprietary land unit which has a physical aspect-the physical soil itself (solum). It also has an invisible side to it - the abstract side which is composed of rights of property that convey power to the owner of the proprietary unit (in this case the members of the community as a corporate entity) to use land with all that is affixed to it in any particular manner.
Traditional concepts of landownership
%. Famoriyo, ‘Customary land tenure and the question of land reform in Nigeria’, paper presented at the Seminar on Agrarian Reform, institutional Innovation and the Reconstruction and Development of Agriculture, at the University of Wisconsin, Madison, USA, 8-20 July 1977. %.B. Oludemi. ‘Land administration functions in developing countries’, RePoti of the proceedings of the Seminar on Land Administration and the Development of African Resources, University of Ibadan, UNECA and CASLE, 27 November-2 December. %. Famoriyo, Land Tenure and Agricultural Development in Nigeria, Published for the Nigerian Institute of Social and Economic Research bv lbadan University Press, Nigeria, 1979. .
218
Traditional or customary concepts of landownership and tenure in Nigeria are older than the Nigerian state itself. The basis of landholding is the family which in the Nigerian context includes not only the man, his wife or wives and children, but also his close relatives with their wives and children. Under the family arrangements, the head chiefs and all individual members of the family have rights in family land. In fact, in Nigeria as in all autochthonous African countries, land is considered as being ‘owned’ by past, present and future generations. This assertion explains why alienation of interests in family land is not encouraged and may only bk allowed with the knowledge and full consent of elders considered to be principal members of the landowning family.’ This concept of ownership has been summarily stated: It is the family, existing as a corporate
body, that has rights of ‘absolute’ ownership in land under-customary tenure arrangements. The head of family ensures security of individual’s rights over land through the exercise of rights of management
and control
.
LAND USE POLICY July 1984
Administration of land allocation in Nigeria
The family head therefore, grants rights of use over specific areas of land to individual members. The land granted to a family member in this way may be used by the latter and his children after him. At the death of the grantee, the portion of land reverts back into the family pool but the use rights continue to be enjoyed by his children. Essentially, the traditional concepts and practices of landownership and tenure in Nigeria specify that while the entire family has proprietary rights in the land, in the context already shown, the individual grantee is held to possess usufructuary rights over portions of land granted to him. It should, however, be added that individuals may acquire absolute rights (that is, unconditional or unlimited rights or rights of alienation) in land through gifts among living persons, pioneer clearing of virgin forests or through partition of family landed property. Rights acquired in any of these ways become proprietary rights, the owner being free to dispose of such rights without any consultation.
Physical, biological and economic factors
%.A. Agboola, An Agricultural Atlas of Nigeria, Oxford University Press, London, 1979, p 37. ‘J.S. Oguntoyinbo, ‘Climate’, A Geography of Nigerian Development edited by J.S. Oguntoyinbo et al, Heinemann Educational Books (Nigeria), Ibadan, Nigeria, 1978, p 24. gO. Ojo, ‘Relative significance of the physical environment and the 1978 Land Use Decree on agriculture in Nigeria’, paper presented at the Conference on Land use and Development in Africa South of the Sahara; Smallholder’s Logic and Technical Rationality at Ouagafougou, Upper Volta, 4-8 December 1978. “‘R. Barlowe, Land Resource Economics: The Economics of Real Estate, Prentice Hall, Englewood Cliffs, New Jersey, USA, 1978, p 45. “For example institutional factors, customs and sentiments.
LAND USE POLICY July 1984
This set of factors provides the resources (both animate and inanimate) which may promote or hinder man’s use of land. Preeminent among the physical and biological factors is climate with rainfall as the most important variable.’ Amounts of rainfall vary from more than 3556 mm a year around the Niger Delta, to 1016-l 524 mm in the Middle Belt, 762-l 016 mm in the Sudan zone and less than 508 mm in the semi arid areas of north-eastern parts of Nigeria. The seasonality of rainfall has implications for general agricultural activities within a particular area, in that excessive rainfall may disrupt agriculture in an area and inadequacy of rainfall such as exists in the geographically northern parts of Nigeria, imposes severe limitations and dictates that agricultural activities are only possible within a very short space of time unless there is some form of irrigation. In Nigeria water deficiency periods vary from a few weeks in the southern parts to several months in the northern parts, leading to drought. These conditions lead to low crop yields and a decline in crops available for export. Although high temperatures are experienced in Nigeria throughout the year, extremely high temperatures throughout the year limit the crop yields considerably.’ Economic factors affecting land resource management involve the operational mechanics of the price system as every individual attempts to make a profitable use of limited land resources.1° These economic factors include concepts such as value, input-output relationships and returns on investments. There are also production, marketing and transportation effects in addition to social welfare issues. Other economic considerations are the availability of land resources, competition between ‘use allocations’, effects of dispossession and distribution of compensation. Distribution of incomes from land resources among producers and workers in the society are issues which, particularly in this century, affect the use and management of land resources by individuals. In Nigeria, a capitalist country, the existence of land as private property means that the landowner aims to achieve the highest net return from the land, although economic factors are not always the only motivations. l1 It is also important that even in a capitalist system based on private ownership of land, the individual does not have a free rein, for society controls police power and taxation and governments make laws and create zoning ordinances which compel the land within a certain area to
219
Administration
of land allocation in Nigeria
be used for a specific purpose (such as residential purposes only). The economic factor necessarily manifests itself as the result of a concatenation of forces whose ultimate result is in the need for increased demand for land as the country embarks on rapid economic development. As a result, units of land within the city become more intensively used up; and this also leads to an ‘overs ill’ or encroachment into the immediate surrounding of the urban area.’ s Intensity in demand for land arises mainly from competition between land users. The degree of intensity is usually expressed in costs such as land values, rent or compensations. Landfor
urban de~~~o~rne~t
Urban development 0 0 0
“A, Gandonu, ‘Nigerian urban land supply, allocation ratio and policy guidelines’, paper presented at N/S/3? Land Policy Conference, University of Ibadan, 20-25 September 1976. ’ ?bid. ‘%. Famoriyo and R. Raza, ‘Even develobment in Nioeria: An achievable goal!‘, paper presented at the Nigerian Political Science Association Conference at Kano, Nigeria, 13-15 April 1981. 15D.W. Hail, Some EnvironmentalAspects of the Development of Land and Natural Resources, Report of the Proceedings of the Seminar on Land Administration and the Development of African Resources, 27 November-2 December, University of Ibadart, UNECA, and CASLE. ‘%. Famoriyo, ‘Natural resource utilization - making more kinds available for Nigeria’s green revolution’, address to Annual Conference of the Nigerian Society of Animal Production, in JOS l-5 September 1981.
in Nigeria within this setting includes:
modernization of existing cities; building new cities; maintaining the equilibrium between urban development entire human environment. l3
and the
In terms of the physical supply of land it has been difficult to provide enough land to meet the growing demand of the urban areas. It has also been difficult to provide land and a physical infrastructure for the expansion or creation of urban areas. Finally, the maintenance of balance between the rural and urban areas in terms of meeting land requirements has clearly not been achieved. Urban problems compared with those of rural areas are of daunting magnitude within the rural-urban continuum. Many of the main urban centres in Nigeria - Lagos, Kaduna, Ibadan, Benin, Kano - are overcrowded; the result has been a deterioration in the environment and emergence of shanty towns as well as slums.” Even though most people in Nigeria live in villages and compounds in the rural areas, the annual rate of growth of urban areas is very high, varying from 11.5% in the Lagos metropolitan area to about 7.6% in Kano. The inadequacy of infrastructure in the agricultural sector leads to low production in rural areas and accentuates the drift to towns. The ‘overextended’ cities then begin to show the signs of ‘environmental stress’. I5 in the last 20 years, Nigeria has witnessed the considerable repercussions of petroleum prospecting and as in many oil producing states, this operation has consumed a great deal of agricultural land. Mining for other minerals, the establishment of cement works, power stations, canning factories, forms of transportation - harbours and road networks require vast areas of land as the process of economic development advances. Lund
for rural
and agricultural de~~e~o~rnent
The increasing concern about the state of Nigeria’s rural sector has stimulated federal and state governments to embark on a number of specific projects aiming to increase food production, create employment and devise appropriate institutions to facilitate sustained development. In order to prosecute these projects, large areas of land must be acquired by these governments. In the Third National Development Plan (1975SO), it is estimated that a little under 2 million acres of land were planned to be used for food production projects in all the states.” Under the current Green Revolution Programme, each of the 19 states was expected to clear around 4000 ha of land. This would mean a total requirement of 76000 ha of land. Plans were made to acquire large areas of land for among others, the River Basin Development LAND USE POLICY July 1984
Administration
Table 1. Land use in Nigeria (%).
Farming Fadama (dry season agriculture) Forest reserves Non-agricultural Uncultivated bush land
i; 10 5 50
of land allocation
in Nigeria
Authorities (RBDAs), dams and irrigation facilities, Agricultural Development Programmes (ADPs). Although the rural sector is a potentially substantial landuser, there has been a relatively large underuse of land in Nigeria’s rural sector. Table 1 shows that the degree of land use m Nigeria in 1976 was 50%) this represents a very high degree of underuse. When the requirements for livestock are considered, the land situation is very critical. This is because the uncultivated bush land (50%) is tse-tse-infested and therefore unsafe for cattle grazing. The fadama land being used for dry season farming represents some of the best grazing lands available in Nigeria, pressure on which which leads to increased pressure on the small amount of land available for grazing.” The economic, social and political aspirations of any country and its people involve the use of land in one form or another. In order to fully satisfy all the demands upon land the institutional factor must be dealt with.
The institutional
factor
This constitutes the most subtle yet the most decisive factor affecting land resource management in any country. The institutional factor is concerned with the role of man in his sociocultural environment, the role which forces of social and collective action play in influencing the behaviour of man as a member of a family, a group and a community. To succeed, there are four criteria which any land use programme policy must meet. ‘* There must be: 1. 2. 3. 4.
I’S, Famoriyo and M. Awogbade, ‘Nomadic land resource use and beef production in Nigeria’, paper presented at the National Conference on Beef Production, at Kaduna, 27-30 July 1982. ‘*Op cit. Ref 10. lgJ R Commons, lnstifutional Economics: Its P/ace in Political Economy, University of Wisconsin Press, Madison, USA, 1959, p 45. 2oOp tit, Ref 6. 210p tit, Ref 10.
LAND USE POLICY July 1984
conformity with legality and constitutionality; political acceptance; no conflict with accepted cultures, attitudes, customs and traditions; no obvious administrative problems.
The land resource manager must use his knowledge and experience to bring these criteria together to make the impact of any policy and programme positive. A clear understanding of economic behaviour must be preceded by an understanding of man himself and while it is outside the scope of this paper to detail factors that explain human behaviour or condition human responses, it should be noted that man is a social animal, born into a group or society where there are already rules and institutions to which he conforms. These rules and institutions often change with time. In this context, institutions therefore represent any form of group or collective action which controls individual behaviour.” A fundamental institution such as government, property or family involves a group of secondary institutions. For landed institutions, the most important factor is property rights. Education and the family system are also institutions which influence people’s attitudes to the use and management of land. Nigeria’s customary (traditional) tenure system is based upon ownership of landed property by the family or community. Among the latter, it is a basic tenet that the ownership must be preserved since no member can unilaterally alienate or dispose of the land without the consent of principal members.20 Education can be said to indirectly affect land use ‘by raising individual aspirations, by facilitating the development of new technologies, and by pointing the way for better resource “management”‘“’ Conformity
with legality and constitutionality
The Federal Military Government
of Nigeria inaugurated
a Land Use 221
Administration
of land allocabon in Nigeria
Panel on the 26 May 1977, the first term of reference being that the panel should make a study of prevailing land tenure, land use and conservation practices. The pane1 was also to study and look at the feasibility of a uniform land policy for the country as well as to suggest steps for making government acquisition of land easier. The Land Use Act finally became effective on 29 March 1978 and became part of the Nigerian Constitution. This action has, however, become highly controversial. For instance, while some had claimed that the land in a state is vested in the state governor on the trust of the federal government, others had said that the federal government has no land of its own. But section 1 of the Land Use Act vests all land in a state with the governor who holds it in trust for the use and common benefit of all Nigerians. According to Momoh, it would be correct to say that all land in each state belongs to all Nigerians and is held in trust for them by the governor of that state.22 In a similar vein, Oretuyi has observed:“3 The Land Use Decree is one of the Decrees entrenched by the Military in the Constitution. Section 274(5) provides that nothing in the Constitution shall invalidate the Decrees and that their provisions shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of the Constitution. Discussing whether the Land Use Act is an existing A.L. Balogun said inter alia:24
law or not, Justice
It seems to me that from the commencement of the Land Use Decree on 29th March 1978, the right of ownership of any land in a State by any person ceased. Justice
Balogun
concluded
As the Land Use Decree 1978 was in force immediately before Section 274 of the 1979 Constitution came into force on 1st October 1979, there is no room, I think for any doubt that the Decree is an ‘existing law’ within the meaning of Section 274(4)(b) aforesaid.
Earlier, the Chief Justice of the High Court in Oyo State had considered the question of whether the Land Use Act was an existing law within the meaning of Section 274 of the Constitution of the Federal Republic of Nigeria, 1979. According to Fakayode:”
From the above provisions it can be seen at sight that the Land Use Decree is not an existing law but it is part and parcel of the Constitution regarded as such to all intents and purposes. 22T. Momoh, ‘Who really owns the land?‘, paper presented at the 70th Anniversary Celebrafions of the Nigerian lnstitufe of Estate Surveyors and Valuers, at Iganmu, 28 November 1980, published in The Sunday Times, 7 December 1980, p 9. ‘%.A. Oretui, ‘Federal or state government who owns the land?‘, Punch, 21 July, 1980. 24A.L. Balogun, ‘First, what says the Land Use Act’, Daily Sketch, 4 June 1982. 25E.0. Fakayode, Judgement delivered in the case of Aina and Co Lfd v Commissioner for Lands and Housing, Oyo State, the Akinyele North Local Government Attorney, Oyo State, 25 May 1982, published in Daily Sketch, Lagos, Nigeria, 5 June 1982.
222
The Chief Justice
in his judgment
and it has to be
continued:
Whilst words used in an existing law can be modified, that is ‘restricted’ or ‘varied’ in meaning to bring the law into conformity with the provisions of the constitution, the Land Use Decree cannot and must not be so ‘modified’ because it is part and parcel of the Constitution. Any such modification, that is variation, enlargement, restriction or extension in the text of the Land Use Decree can only be done by complying with Section 9(2) of the constitution If the Land Use Decree were an existing law. the word ‘Military Governor’ would today have to be modified to read ‘The Governor of a State’ or ‘State Governor’ but since the decree is itself part of the constitution. no such modification can be done.
In most recent decision on the Land Use Act, Justice the Land Use Act to be ‘a dormant law’.
Oluwa
declared
LAND USE POLICY July 1984
Administration of land allocation in Nigeria
NEPA had been sued by the Lagos State Government for NlOOOOfor allegedly trespassing on a piece of land at the Dolphin Scheme, Ikoyi, Lagos. According to the report, Justice Oluwa was quoted: The Governor of Lagos State, not being a Military Governor, has no legal right to impose conditions for the use of any piece or portion of land in Lagos State in reliance on the Land Use Act, until necessary modification
are made to it.
Political acceptability
The political acceptability of any legislation depends on the group of individuals concerned. Illustratively, traditional rulers in many parts of southern Nigeria have inveighed the Act, arguing that they are in control of all lands within their jurisdiction. The wealthy ones have also at one time or the other spoken against the Act. In a recent study carried out in Kano and Kaduna States, it was shown that public servants and businessmen constituted the major beneficiaries of land allocation in both states. 26 These classes of beneficiaries made up 90% of the total allocations in each of the two states. Those who hailed the decree were however initially, the ‘dispossessed Nigerians and their champions - students and radical scholars’.*’ It is difficult to assess the efficacy of this criterion in Nigeria where policies generally come from the top down. Igbozurike also drew attention to the fact that the Land Use Panel did not visit rural areas. This would seem to have been a major fault and it is safe to add that most rural people are unaware of a policy that purportedly changed the basis of landownership in Nigeria. It is therefore essentially an urban land policy. Conflict with accepted values the concept of family ownership of land in southern parts of Nigeria and tried to unify the basis of ownership with what was existing in the north in accordance with the 1962 Land Tenure Law. Before the Act, concepts of family ownership of land and inalienability of land along with landlordism and tenancy existed in southern Nigeria. If the Land Use Act is anticipated to the provisions of the customary land tenure, it can still be argued that by being urban-biased, and leaving land allocation in the hands of the Land Allocation Advisory Committees in the local government areas, the Act has indicated the need to preserve accepted customs, cultures and so on. The report of the Kaduna State Land Investigation Commission seems to suggest that local government councils working together with the Land Allocation Advisory Committee at the village level may improve the workability of the Act. This may also make any possible abuse in land allocation difficult to achieve. It is therefore necessary to conclude on this point that it is not so much the existence of a conflict as the need to work out an established pattern with the existing culture and tradition before the land policy can succeed. The Land Use Act abolished
Administrative practicality 260p tit, Ref 1. “U.M. Igbozurike, Nigerian Land Policy, published by the Department of Geography, University of Nigeria, Nsukka.
LAND USE POLICY Juty 1984
A number of problems arose in making the Land Use Act administratively workable: 0
Allegations
abound that even to secure application
forms for a
223
Administration
of land allocation
in Nigeria
a
l l
certificate of occupancy under the Act, may necessitate giving bribes. Construction of illegal structures at the early stage of the decree’s enactment enabled some to escape some of its provisions. Officials often lacked understanding of the nature of their functions. A clash of interests was apparent between Ministry of Lands officials and the Land Use Allocation Committees. There emerged a need to delineate the structure, appointment and functions of the Land Use Allocation Committee and the Land Allocation Advisory Committee. Discrimination in dealing with people was noted; the powerful, rich and influential were clearly favoured. Democratic procedures were ignored in matters relating to control and administration of land matters thus leaving room for exploitation and/or oppression by the powerful. The question of who recommends decisions on urban boundaries, allocation and the processing of application forms to obtain certificates of occupancy to the governor was unresolved.*s
So far under the Land Use Act, relatively few allocations have been made in a number of states. It is understood that Lagos State has formulated a land policy in which applications were to be based strictly on merit. No information is available on the extent of its workability.
Implications
and conclusions
It would seem apparent that the Act as a land policy has not yet achieved the objectives set for it; applicants have been encountering difficulties in getting land allocated to them; the process of allocation is very slow. Consequently, many development projects are affected. The following areas of action can therefore be suggested: 1.
2.
3.
4.
28/hid.
224
Policy makers in the area of land in Nigeria must study the physical, biological, economic and institutional factors in all parts of the country or commission so as to understand the interactions of these factors and how these would affect the policy. Although stress may constantly with the be put on economic factors, these interact others. In view of the rapid development of the urban areas and their rather depressed state, effective planning and strong adherence to planning laws in the urban areas is essential so as to work effectively with a land policy. Introduction of a cadastral system is of the utmost importance for two reasons; firstly enacting legislations will always be circumvented in Nigeria because an efficient cadastral system which is the basis of real land control is absent and secondly the Act is of little value in the rural areas; no cadastral map exists to show which land is vacant and which is not - it is impossible to administer something undefined. There is a lack of understanding and clarity as to the exact relationship between federal and state governments with regard to the Act. These and other areas of change would tend to lend much credence to the assertion that the Land Use Act needs not only a review but methodical restructuring.
LAND USE POLICY July 1984