Power Of Area Council To Allocate Land In Federal Capital Territory Abuja
By Khalid Olalekan Abdulkareem
Introduction
Land has been recognized as a primary source of wealth, social status, and power. It is the basis for shelter, food, and economic activities. Access to land is governed through land tenure systems. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. In Nigeria, the Land Use Act which was enacted in March, 1978 is presently Nigeria’s highest land administration instrument. The Act Vests all Land compromised in the territory of each State (except land vested in the Federal government or its agencies) solely in the Governor of the State, who would hold such Land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals and to organisations for residential, agriculture, commercial and other purposes while similar powers with respect to non urban areas are conferred on Local Governments. The Act, by this, abolished the Freehold, that is, the Fee Simple Estate which was previously existing in the Southern Part of the country. Fee simple is a system of ownership of land which grants absolute ownership of land to the owner in perpetuity. The Land Use Act reduced all titles to land to rights of occupancy not exceeding Ninety-Nine (99) years. Therefore, all Freeholders became Lessees of their various state governments and the land will revert back after the expiration of 99 years. This work will focus on the allocation of land in FCT, Abuja and whether the Area Councils have power to allocate land in FCT.
Legal Framework On Land Administration In Nigeria Under The Land Use Act
The main law on land administration in Nigeria is the Land Use Act. The Land Use Act was enacted in 1978. The Act addresses four important issues arising from the former land tenure systems in Nigeria. These are lack of uniformity in the laws governing land-use and ownership in Nigeria; uncontrolled speculation in urban land; access to land rights by Nigerians on equal legal basis; and fragmentation of rural lands arising either from the application of traditional principles of inheritance and/or population growth or the consequent pressure on land. It approaches these issues by proffering three related strategies, namely, the vesting of proprietary rights in land in the State; the granting of usufructuary rights in land to individuals; and the use of an administrative system rather than market forces in the allocation of rights in land. The Land Use Act created a right of occupancy regime in place of the hitherto unrestricted property rights. It vests all lands within a state in the governor but created a two-level management structure; one at the level of the state governor(Urban Area) and the other at the local government level (Rural Area). It also recognized the dichotomy in the existing land rights, which birthed the concept of actual grant and deemed grant of rights of occupancy under the Act. Even though the enactment of Land Use Act with its novel provisions as highlighted above was commendable, it is not without its own shortcomings.
Land Administration In Nigeria
Going by the provisions of section 4 and the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended), which excludes land from the listed items in the schedule, land administration falls within the exclusive residual jurisdiction of the States of the federation. This position is further reinforced by the provisions of the Land Use Act, which vests powers to manage lands in the State governors. The Land Use Act, having vested all lands in the state in the governor, provides for three regulatory institutions to manage the administration of land in Nigeria: The National Council of States, the State governors, and the Local Governments. This article will examine the powers given to each of the institution as follows:
The National Council of State
The Land Use Act empowers the National Council of States under Section 46 (1) of the Act to “make regulations for the purpose of carrying into effect the provision of the Act, particularly with regard to the transfer by assignment or otherwise howsoever of any rights of occupancy, including the conditions applicable to the transfer of such rights to persons who are not Nigerians. The Council may also make regulations relating to the terms and conditions upon which special contracts may be made under section 8; the grant of certificates of occupancy under section 9; the grant of temporary rights of occupancy and the method of assessment of compensation for the purposes of section 29 of the Act. To further buttress the regulatory power of the NCS, the Act by virtue of section 46(2) vests regulatory powers in the National Council of States, a body that has no statutory or management powers over the subject matter. No parcel of land is vested in the National Council of States by the Act or by the Constitution.
The State Governor
The Act vests all land in the territory of each State in the Federation in the governor of the State, in trust, to be administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act. Under the provision of section 3 of the Act, the basis of the control and management of land by the governor or the local government is determined by the designation of land as urban area and confining the undesignated areas to the control of the local governments. The Land Use Act in section 2 empowers the governor to control and manage land within an urban area only, while the local government is empowered to administer land outside a designated urban area. It is important to note that, for the governor to control and manage land in the state, there must be a designated area called urban area clearly spelt out in a gazette. Without this designation, the governor has no area of control and management of land in the state, as all lands are presumed to be non-urban areas by the Act.
Land Use and Allocation Committee
Section 2(2) of the Act mandates the establishment of the Land Use and Allocation Committee (LUAC) to help the governor in the management and administration of urban lands under his care. The functions of the LUAC are threefold. These are expressed in the Land Use Act as (i) Advising the State governor on any matter connected with the management of land in an urban area; (ii) Advising the State governor on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest; and (iii) Determining disputes as to the amount of compensation payable for improvements on land. The appointment, composition and the modus operandi of the committee is at the exclusive discretion of the governor. The Land Use and Allocation Committee shall be presided over by one of its members as may be designated by the governor and, subject to such directions as may be given in that regard by the governor, shall have power to regulate its proceedings. The governor is thus the unquestionable personage in the overall administration of land in the state.
Power to Grant Right of Occupancy
The Land Use Act empowers the governor to grant statutory right of occupancy and no more. The governor can only issue a certificate of occupancy in respect of land rights preceding the promulgation of the Land Use Act. All other powers of the governor flowing from this power of grant are restricted to statutory right of occupancy so granted. The provision of section 5 of the Act is clear and unambiguous in this respect. It reads: It shall be lawful for the Governor in respect of land, whether or not in an urban area to-(a) grant statutory rights of occupancy to any person for all purposes; (b) to grant easements appurtenant to statutory rights of occupancy; (c) to demand rental for any such land granted to any person. Thus, the power to grant easements and demand and review rent by the governor is limited to the grant of statutory right of occupancy. The governor may, however, impose a penal rent for a breach of any covenant in a certificate of occupancy requiring the holder to develop or effect improvements on the land the subject of the certificate of occupancy and to revise such penal rent as provided in the Act. This latter power is exercisable irrespective of whether the land is covered by statutory right of occupancy or otherwise; the essential requirement here is that the land is covered by a certificate of occupancy. By virtue of section 5(1) (f) of the Act, the governor can only impose penal rent for breach of any condition express or implied, where the land is covered by statutory right of occupancy granted by the governor. The implication of the provision is that rights of occupancy not statutorily granted under section 5(1) are excluded from the application.
Allocation Of Land In Fct
The Supreme Court in the Case of ONA v. ATANDA, while considering whether area councils have power to allocate lands in FCT considered the provisions of Section 49(1) of the Land Use Act, Section 1(3) FCT Act and section 297(2) of the Nigerian Constitution 1999 (As Amended).
Section 49(1) LUA provides that:
“Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.’’
Section 1(3) also provides that:
‘’the area contained in the Capital Territory shall, as from the commencement of this Act, cease to be a portion of the States concerned and shall henceforth be governed and administered by or under the control of the Government of the Federation to the exclusion of any other person of authority whatsoever and the ownership of the lands comprised in the Federal Capital Territory shall likewise vest absolutely in the Government of the Federation.
Furthermore, Section 297(2) of the Constitution of the Federal Republic of Nigeria, on its part provides it pointedly thus:-
‘’The ownership of all lands comprised in the Federal Capital Territory shall vest in the Government of the Federal Republic of Nigeria.’’
The implication of the above cited authorities is that ownership of land in the FCT vest solely on the Federal Government. The question now is whether by virtue of these provisions, customary right of Occupancy has been abolished in FCT? The firm view is that customary right of occupancy has been abolished by the provisions cited above in Federal Capital Territory. A community reading of Section 297(2) of the Constitution, Section 49(1) and Section 1(3) does have far reaching effects about the ownership, control and management of land within the Federal Capital Territory. It is beyond doubt that complete dominion or title or for that matter, proprietary right over all lands that comprised the Federal Capital Territory has become completely that of the Federal Government independent of any other person or authority. The Federal Government has thus become not only clothed with possessory right over land within the Federal Capital Territory but assumed exclusive right over it as its owner, not just holding it in trust for the people as in the case of the State Governors or Local Governments wholly and solely, devoid of any qualification or exception.
The Supreme Court while interpreting S.49(1) of the Land Use Act holds that it provides that the provisions of the Land Use Act shall not have any effect on any parcel of land the title of which is held by the Government of the Federation or any of its agencies. The title so held by the Government of the Federation or its agency applies to lands whether developed or undeveloped. Thus, land held by the Government of the Federation or any of its agencies prior to 29th of March, 1978 when the Land Use Act came into operation was not affected in any way by the provisions of the Act. Section 297(2) of the Constitution states in clearest terms that all land comprised in the Federal Capital Territory is owned by the Government of the Federation. Undoubtedly, nothing will affect the ownership of the land in the Federal Capital Territory that is vested in the Government of the Federation. The provisions of the Land Use Act therefore do not apply to the Federal capital Territory.
Furthermore, Sections 1 and 2 of the Land Use Act, laid a good foundation as basis for the inclusion of Section 49(1) thereof. These sections read thus:- “1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act. 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 such subject to this Act, shall be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.” In the two sections quoted above, nothing is said about vesting, control and management of land on the Government of the Federation. Evidently, the Act is meant to apply and have effect on lands held by the Governor of a State or as the case may be, the Local Government in trust for the use and common benefit of Nigerians. Indeed the citation of the Act makes it even clearer. It runs thus:- “An Act to vest all land comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land 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 organizations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments. It can be clearly seen that land vested in the Government of the Federation and that of its agencies are exempted from land matters provided for in the Act. Section 51(2) of the Land Use Act merely restated the obvious that the powers of a Governor under the Act shall be exercisable by the President in respect of the Federal Capital Territory. Also, in the case of Madu v. Madu, the Supreme Court noted that it is well settled that the ownership of the land comprised in the Federal Capital Territory, Abuja is absolutely vested in the Federal Government of Nigeria vide Ona v. Atenda (2000) 5 NWLR (Part 656) page 244 at page 267 paragraphs C – D. See also Section 297(1) & (2) of the Constitution of the Federal Republic of Nigeria, Section 236 of the Constitution of the Federal Republic of Nigeria, 1979 and Section 1(3) Federal Capital Territory, Act 1976. Section 18 of the Federal Capital Territory Act, Cap. 503 Laws of the Federation of Nigeria, 1990 vests power in the Minister for the FCT to grant statutory rights of occupancy over lands situate in the Federal Capital Territory to any person. By virtue of the provision of these laws, ownership of land within the FCT vests in the Federal Government of who through the Minister of FCT vest same in every Citizen upon application and not the Area Councils.
Conclusion
Conclusively, by virtue of S.297(2) of the Constitution, the Federal Capital Territory Act and the Land Use Act itself, all lands owned by the Government of the Federation or its agencies will not be subjected to the provisions of the said Land Use Act. Consequently, the question of customary right of occupancy does not arise in respect of lands that comprised the Federal Capital Territory.
References
- Constitution of The Federal Republic of Nigeria 1999 (As Amended
- Land Use Act Cap L5 Vol 7 LFN 2004
- Federal Capital Territory Act Chapter F6 Laws of the Federation of Nigeria 2004
- Ona v. Atanda (2000) 5 NWLR Pt. 656 at 244,
- Madu v. Madu (2008) LPELR-1806(SC)
- The Land Use Act and Land Administration In 21st Century Nigeria: Need For Reforms Akintunde Otubu Afe Babalola University: J. Of Sust. Dev. Law & Policy Vol. 9: 1: 2018 Pg. 81
