The general title of the Land Use Act itself shows the intention of the drafters as targeted mainly to deprive land owners of their claims to land in any part of Nigeria.
Little wonder then that it is “an act to vest all land comprised in the territory of each State solely in the Governor of each State, who would hold such in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agriculture, commercial and other purposes …”. As can be seen from this piece of very inelegant drafting, the short title of the Act has given it away, namely a smart venture by government to ‘steal’ land from the people. The motive behind the Land Use Act itself can be for another day, in so far as the drafters have by now succeeded in smuggling it into the Constitution, as a way of protecting their deals.
Legally speaking, land is a kind of real estate, or the solid surface of the earth that is not permanently covered by water and includes the natural resources therein. Part of the reasons why land ownership has become very fundamental is because of the legal principle of quid quid plantatur solo solo cedit, which means that ‘whatever is affixed to the ground belongs to the ground’. This maxim was applied under Roman law to determine that trees and crops were sold with, and formed part of the land. In a country like Nigeria where so much dependence is on mines and minerals, including gold, oil and gas, there has been a lot of disputes and court cases on ownership of land.
This is the spirit behind the theory of compulsory acquisition of land, where government has perfected the style of divesting traditional ownership of land from the people and then turn around to re-allocate same to others, under the guise of overriding public purpose, which has now been extended to commercial development of estates. This is what the courts must tackle and resolve on the side of the people, as any purpose that does not bear general utility value, such as land acquired for building schools, roads, hospitals or such other public infrastructure, should not in any way count as ‘overriding public purpose’. How do you take over land, acquire it compulsorily and then turn around to allocate the same land to a private company, who then develops a layout plan and begins to sell the same land to members of the public, who are not part of the land-owning family? The original land owners and their coming generations are then thrown into the streets and at times rendered completely homeless. It is injustice of the highest order, which must stop. How do you rob Peter to pay Paul?
Suffice it to say that presently, the principles governing the determination of ownership of land are fairly well settled under Nigerian law, at least from the decisions of the Supreme Court in the cases of Idundun v Okumagba, Ogunleye v Oni and Abioye v Yakubu. Indeed, it has been suggested that part of the method of decongestion of cases in the Supreme Court is to stop land cases from proceeding to the apex court, except where there is a landmark request to depart from the known principles. The summary of my foray into the origin and operation of the Land Use Act is to emphasize the point that the best land in Nigeria today is government land, that is land allocated directly by the government. For in such allocation, there is no dispute as to traditional ownership, government having ‘stolen’ the land from the original land-owners. So, if you want to buy land and you have the resources, search out for direct government allocation. Following that is land with global title, such as gated estates, properly laid out and allocated strictly based on the lay-out plan. It becomes very rare to run into individual crises in such acquisition. In these cases, the land is expensive but with assurance of good title. Then again, verification of title is easy, as title documents are properly kept and documented with the relevant government agencies and the process of approval becomes fairly predictable and easy.
That then leaves one with land covered by customary title, in which case the vendor is relying on traditional history of the family to market the land. In some States, this has become like a gold mine for land-owners, due mainly to some kind of collusion with some government officials. As far as the government is concerned, virtually all land in the State has been acquired compulsorily, with minor cases of excision of few portions to the hapless land-owners. On the other hand, the land-owners themselves have perfected the style of denying any compulsory acquisition, with court cases upon court cases. In most judicial divisions in Lagos State, at least about 70% of the cases relate to and disputes, principally by land-owners to challenge government acquisition. To determine title in such circumstance becomes extremely difficult, as most land-owners go far beyond the excised portions or even sell the acquired portions outrightly, with all manner of claims of pending allocation.
So, if you want to acquire land therefore, the first issue you must determine is the title of the vendor, as every other thing depends on that factor. Title is the beginning and ending of land ownership, being the foundation of any claim to land. A quick guide in this regard is to avoid land transactions laced with subtle pressure, as where land-owners claim competing multiple interests by many supposed buyers. If such were to be the case, the land should have been sold ever before you got there. So, you don’t give in to self-induced urgency of land-owners, but rather take your time to visit the relevant organs of government to confirm title.
Where the title is registered, then your next assignment is to visit the appropriate Land Registry, to confirm ownership and the existing transactions on the land, to search out for any possible encumbrance, such as pending mortgages, etc. You then proceed to the office of the Surveyor-General, to determine the actual location of the land. In some cases, the survey plan attached to the title document is in a totally different location, as many of the so-called ‘surveyors’ engaged by land-owners are not the licensed surveyors and they just cook up land from nowhere. The Lagos State Government has developed a new style of confirming the authenticity of certificates of occupancy upon payment of a token fee, as many certificates have been cloned in the past, leading to huge loses. The other commendable aspect is the online search for land with pending court cases. When you are satisfied with all these, you then conduct a ‘social search’, by going around the neighbourhood to secretly investigate the land, through security men, market women, shop owners, Community Development Associations, vigilantes, etc, who all have the history of the area and will reveal a lot to you that may not be contained in any land registry.
When you have satisfied yourself with the title and other searches, you then discuss the price of the land and agree on a figure. Thereafter you will engage your own competent and licensed surveyor to take the accurate measurements of the land to produce a survey plan, as you cannot claim to buy land without its clear identity, as to its accurate size and location. The surveyor will also help to determine that the land being offered is within the land owned by the vendor, so that you don’t end up paying for another person’s land, unknowingly. If you are satisfied to proceed to payment, then you must perfect all documentations, as to purchase receipt, contract of sale or deed of assignment, as appropriate. At the point of execution, you may do well to engage photographers and even video recording of the event, at times just for record purposes.
You must proceed to the point of possession immediately, by gathering your workmen to commence immediate development of the land, such as clearing it, erecting a shed or store for building materials, security house, fencing the land, or such other make shift developments that will show clearly that the land has been acquired. In practice, possession of land is classified as constituting 90% title, as once land is developed and occupied, you need a court order to evict the occupier, even though he is a squatter or trespasser.
Part of the problems being faced in the quest for genuine land acquisition is the probative cost of free land, which factor has turned many into victims, leading to huge loss of money in some cases.
From all that I have discussed above, it becomes clear that to successfully acquire land, you need the services of experts, like a lawyer, a surveyor or an estate agent, be ready to pay for their fees and then allow time for proper search and due diligence. Whereas the Lagos State Government is commended for all efforts to simplify the process of land acquisition through seamless search procedure, the solution is to release all acquired land to their owners and allow them to freely dispose of or negotiate transactions genuinely. Land ownership is mostly historical and it constitutes some form of customary heritage for the people, so they should not be robbed of their customary inheritance, only to pass same to others for a fee. Government should help regulate the process of sale and charge some fee thereafter, but the current regime of total and absolute acquisition cannot be of help to anybody, at least judging by the volume of court cases pending against the government by land-owners, who are bent on recovering their heritage.
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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