27 January 2013

Nigeria: Challenges of Land Use Act

To address the pitfalls and many of the challenges associated with the Land Use Act of 1978, it has been argued that the country needs a 'Land Adjudication Act' (LAA) that would allow rights to be adjudicated and the parcel to be defined under the surveyors' law.

Lynn Holstein, a land administration specialist in a paper titled 'Land Reform in Nigeria: Some Lessons from International Experience in Systematic Adjudication and Registration' at a dialogue on legitimizing Systematic land Titling and Registration in Nigeria by the Presidential Technical Committee on Land Reform in Abuja submitted that SAR has been used to achieve a greater coverage of formal registered lands across nations in similar situations as Nigeria in the last 50 years.

He said countries like Brazil, Thailand, Indonesia, Kenya, Malawi, Philippines, Moldova, PDR Laos and Turkey have used sporadic registration to a great extent to cater for demands for secure titles, but in time they had to use SAR to address the realization that the greater majority of the nation's properties were outside the formal system.

"An example of SAR comes from the Thailand Land Titling Project which is perhaps the best known SAR project that used the method from 1984‐2000 till date. Systematic adjudication and registration was undertaken on a village‐by‐village basis by teams from central and provincial offices with supervision from the provincial land offices. Systematic registration was used to produce and register over 12.4 million titles (over 700,000 per year) between 1984 and 1999, and at the same time in other areas, sporadic adjudication was used with about 10 million registered parcels produced. In 1984 Thailand had a total of about four million titled parcels registered; by 2000 this had risen to about 26.4 million parcels."

In Nigeria, he argued that to undertake SAR work within the states means finding and defining an adequate legal framework, involving the right institutions, gaining adequate finance and HRD. A legal framework for SAR at state level may need to build or depending upon existing laws, be improved and expanded. "It probably needs to start early as many legal issues of registration are simply not addressed upfront as usually the practice has been put ahead of creating a legal framework. Such a framework will include Federal laws," he said.

He, however, admitted that one of the challenges of undertaking SAR especially in the pilot stage is that there may not be a suitable legal framework in place to allow it to take place. The Land Use Act, 1978, he said presents a Challenge for SAR because the Land Use Act appears to have placed severe handicaps on land use in Nigeria.

Justice Abiodun Akinyemi of the High Court Abeokuta in his paper titled: 'Legal and Regulatory and Operation of Systematic land Titling in Nigeria' said one of the cornerstones of the modern trend in land governance and administration is the adoption of the Systematic Land Titling and Registration method, as against the age-long Sporadic non-compulsory registration approach.

He said the Systematic titling and registration is one of the options now being considered by some of the countries in a bid to obtain optimal value from their land wealth. "I dare to say, that, without the adoption of Systematic titling and registration, the idea of a dynamic and result-oriented national land policy for Nigeria will remain elusive."

Akinyemi posited that the fact that is incontestable is that there is a wide gap in value between land with a properly registered title and one without it.

"Just as an individual with a registered title to his plot of land is potentially wealthier and better positioned to take advantage of opportunities for greater prosperity, than another individual with a vast expanse of land but without a registered title, a nation with most or all of its land expanse, properly titled and registered, is wealthier or potentially more prosperous, than another with an equally vast amount of land which is untitled and unregistered. Secured title is a significant catalyst for economic development," he said.

He said it would be unthinkable for anyone to see systematic titling and registration as anti-Land Use Act, stating that there is no need to wait for an amendment of the Act before embarking on Systematic land Titling and Registration because Section 48 of the Act already provides sufficient legal basis for it. "The only legislative amendment that will be necessary will be at the individual state level as has been earlier mentioned, and that should not present any difficulty because unlike what it would take to amend the Act at the National Assembly, amendment of a State Law is much faster." He said

He, however, suggested that government must have a long‐term plan for systemic land registration with availability of qualified staff to steer the process. There must be areas mapped out for pilot scheme in the six geopolitical zones. And there must be urgent need for sensitization and advocacy to keep the people properly informed on the need and economic importance of the new systemic land Registration.

He also examined relevant provisions of the Land Use Act including those that may appear to be obstacles or constitute peculiar challenges to the working of the intended system. In addition, his paper examined the need for a regulatory regime for the new system, and proffered suggestions that may assist in ensuring a successful transition from the old to the new system.

Dr Amokaye Oludayo, Head of Department, Private and Property Law, University of Lagos, in his own submission titled 'The Land Use Act and Regulatory and Institutional Requirement for Systematic Land Titling and Registration' said the functioning of titling systems in land holds important consequences for the economy.

Investments in land, he argued are affected by the security of property rights. Furthermore, land is relatively immutable and unmovable so it provides good collateral for securing finance. "Well-functioning titling systems therefore promote investment and reduce the transaction cost of credit. Under this system, he maintained, land transactions are required to be formal and registered.

His paper also discussed the impact of the Land Use Act and Land Registration laws on the resolution of problems of uncertainty of property rights in urban and non-urban areas through a formal land title and registration system. It further proffers practical solutions to nudge forward the full implementation of the Act that will be fair, beneficial and equitable to all stakeholders.

He argued that "From whatever perspective we look at the issue of title, the Land Use Act appears to have an answer. If we define Land Use as ownership or bundle of rights or degree of control of land, the Land Use Act has in section 5, 34 and 36 defines the nature of rights exercisable by a holder or occupier of land. Holders or occupiers of land have right of occupancy and enjoy limited ownership power over the land they use, enjoy or control. Their rights to use, enjoy and control, is limited particularly when it comes to alienation which is either prohibited or subjected to approval by Governor or Local Government."

Dr Oludayo observed that Under the Land Use Act, absolute title to land is vested in the Governor who can in turn grant occupational rights to the citizens. Certificate of occupancy issued by the Governor or the Local Government is an inconclusive evidence of title held by the occupier or holder. He therefore, submitted that If title is defined in this context to mean a documentary evidence of ownership, then the title of a holder of land whether customary or statutory is protected by the Land Use Act by the issuance of Certificate of Occupancy by the Governor or the Local Government.

"The most problematic aspect of the Land Use Act is deemed grant of occupancy (whether in the urban and non-urban areas) on the occupiers or holders thereby dispensing with the requirement of Certificate of Occupancy issued by the Governor or the Local Government as evidence of their title to urban or non-urban areas," he said.

In his opinion, Dr Ogugua V. C. Ikpeze, Nnamdi Azikwe university, in a paper titled 'Towards an Effective Land Registration System in Nigeria: A Comparative Analysis' posited that the Land Use Act of 1978 seemed to have nationalized land and sought to introduce uniform right of occupancy system in Nigeria. "The question is whether the aim of Land Use Act was achieved. Your answer is mine. Three decades later, a uniform system of Land Tenure is yet to be articulated in Nigeria. Lawyers and laymen hardly appreciate what the LUA 1978 is all about with reference to land tenure." He said

His paper, therefore, appraised the existing land tenure system in Nigeria with the aim of identifying the pitfalls in LUA, making some comparisons with what obtains in some countries presently and in the end making suggestions for reforms geared towards improved land registration that will remove impediments to development.

"Without doubt, social change, globalization, tremendous technological progress and interconnections of business relations with environmental consequences have put a strain on the traditional land tenure systems globally for they cannot adapt to new developments. Therefore, there is need to evolve new systems of land resources. Thus the evolution of systemic land registration in Nigeria as it is clear that investing States land on Governors of each state did not achieve the desired goals of LUA of 1978," he said.

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