Section 36(5) Of The Land Use Act: The Appropriate Interpretation By: Hameed Ajibola Jimoh Esq.

Land Use Act, 1978, section 36(5) provides that ‘No land to which this section applies shall be sub-divided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested as aforesaid’. Considering this provision, a clear interpretation would mean that such transfer is void and invalid even whether with or without the consent of the Local Government. In fact, section 36(6) of the Act provides that such transfer is an offence where it provides thus ‘Any instrument purporting to transfer any land to which this section relates shall be void and of no effect whatsoever in law and every party to any such instrument shall be guilty of an offence and shall on conviction to a fine of N5,000 or to imprisonment for 1 year’. It then means that such act of transfer makes both the transferor and transferee, including witness or witnesses to such agreement or deed subject to imprisonment upon conviction, which makes it a strict liability, where such proof of transfer is made. This paper has taken a well-considered view into the provision of section 36(5) of the Land Use Act-herein after referred to as the LUA, as to the appropriate interpretation of the section while bearing in mind the effect of interpretation that would not render such provision unreasonable, absurd and inconvenient. It is the humble submission of the writer of this paper that considering the principles and rules of interpretation of statutes, applying a literal interpretation would be unreasonable and absurd, rather, it is the submission of the writer of this paper that considering the like provision of section 34(7) of the LUA, which provides that ‘No land to which subsection (5)(a) or (6) of this section applies held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with the prior consent in writing of the Governor’, it is appropriate to interpret the provision of section 36(5) of the LUA as follows ‘No land to which this section applies shall be sub-divided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested as aforesaid, except with the prior consent in writing of the Local Government’. This submission is made considering the provision of section 2(1) of the LUA which shares control and management of lands between the Governor of a State and the Local Government thus ‘2(1) As from the commencement of this Act- (a) all land in urban areas shall be under the control and management of the Governor of each State; and (b) all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated’. Also, considering the provisions of the LUA in respect of powers of Local Government in relation to land not in urban areas thus ‘6(1) It shall be lawful for a Local Government in respect of land not in an urban area- (a) to grant customary rights of occupancy to any person or organisation for the use of land in the Local Government area for agriculture, residential and other purposes. (b) to grant customary rights of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government area concerned’. Furthermore, it is the humble submission of the writer of this paper that the provisions of section 21(b) of the LUA are considered as a guiding provision towards a reasonable interpretation of section 36(5) of the LUA. The said section 21(b) of the LUA provides thus ‘It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever- (b) in other cases without approval of the appropriate Local Government.’. Also, it is observable that section 36 generally is in respect of deemed grant of a Customary Right of Occupancy wherein section 36(1) of the LUA provides thus ‘The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person’.  Further see: section 36(1) , (2), (3) and (4) of the LUA. Therefore, the reader of this paper would agree with the writer of this paper that to interpret the provision of section 36(5) of the LUA along-side the provision of section 36(6) of the LUA would result in some absurdity. It is therefore the humble submission of the writer of this paper that considering other provisions of the LUA referred to above, in this paper, there is need to interpret the provisions of such section 36(5) and (6) LUA in such a manner that would avoid the absurd result. So, what would be done is to modify the language used in the said section 36(5) and (6) of the LUA by looking and considering those other provisions of the Act that have been produced above so as to reach the intention of the legislature. This is what is called the ‘Golden Rule’. This Rule was reported to have been formulated in the case of Back v Smith (1936)2 M & W 191 at p. 195: 115 ER 724 at p. 726, where Parke B stated thus ‘It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further’. Therefore, it is the humble submission of the writer of this paper that a literal or strict application or interpretation of section 36(5) and (6) of the LUA would only result in absurdity, repugnance and injustice. Therefore, there is need for the said provision of section 36(5) and (6) of the LUA to be modified, so as to avoid such inconvenience that the strict or literal application or interpretation would result in. The writer of this paper had thought with due respect, that Professor I. O. Smith would have considered this provision in line with the reasoning in this paper, in his book ‘Practical Approach to Law of Real Property in Nigeria, Second Edition, Ecowatch Publications Limited, 2007, at pages 123-127, but the learned author with due respect, never averted his mind to the need for such interpretation as opined by the writer of this paper. Finally, it is the belief of the writer of this paper that the Nigerian Courts of law would whenever the opportunity presents itself for interpreting this provision of section 36(5) and (6) of the LUA, would consider interpreting the said provisions in line with the ‘Golden Rule’ to such effect that ‘No land to which this section applies shall be sub-divided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested as aforesaid, except with the prior consent in writing of the Local Government’. e-mail: hameed_ajibola@yahoo.com  ]]>