THE POWER AND DUTIES OF THE GOVERNOR UNDER THE LAND USE ACT

Section 1 of the Land Use Act vests all land in a state in the Governor of that state to hold on trust for the benefit of Nigerians. Non-Nigerians, however, are not excluded from the governor’s trusteeship since section 1 is subject to other sections of the Act which authorize the grant of a right of occupancy to “any person”.

CHAMAN LAW FIRM

5/23/2022 4 min read

THE POWER AND DUTIES OF THE GOVERNOR UNDER THE LAND USE ACT

Section 1 of the Land Use Act vests all land in a state in the Governor of that state to hold on trust for the benefit of Nigerians. Non-Nigerians, however, are not excluded from the governor’s trusteeship since section 1 is subject to other sections of the Act which authorize the grant of a right of occupancy to “any person”. This phrase obviously includes non-Nigerians. Also, land held by the federal government or any of its agencies in any state of the federation is excluded from the governor’s trusteeship.

The Act vests all land comprised 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.

Section 2 of the Land Use Act 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 imperative, therefore, that for the governor to control and manage land in the state, there must be a defined territory called urban area clearly spelt out in a gazette. Without the classification or demarcation of an area as urban, the governor has no area of control and management of land in the state, as all lands are presumed to be non-urban area by the Act. Notable to state that there has been no nationally approved standard for this demarcation as provided by the Act.

In the absence of clear criteria for qualifying any area as urban, manifest confusion is being experienced in the land management sector of the nation. The absence of clear criteria for qualifying any area as urban breeds the problem of uncertainty as to extent of land under the governor’s control; appropriateness of certificate to be issued; jurisdiction of courts in the adjudication of land matters; confused land identification processes and administrative conflicts between the governor and the local government amongst others, in the land management sector of the nation [1].

Also, in the absence of any regulatory standard, States resort to the provisions of section 4 of the Act and impose different standards and regulations in respect of the designation of areas of the state as urban and non-urban lands. It is important, therefore, to have uniform standards and parameters for designating an area as urban or non-urban in order to move the land reform agenda to the next level.

The Governor also has the power to give consent for mortgage and other transactions as contained in sections 21 and 22 of the Act and the power is seemingly dynamic. This is because land and other attributes and concepts are so diverse that the frequency and number of transactions are innumerable. In this connection, the power of the governor is required in any alienation of statutory right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease, or otherwise howsoever.

The power to revoke rights of occupancy is vested in the Governor by section 28 of the Act. This power is exercisable at the discretion of the Governor. Except for the inclusion of subsection 4 of this provision, the Governor is at liberty to do anything with the power. Even the overriding public interest provision in subsection 4 has been ineffective. Sometimes, the precise purpose for acquisition and or revocation is not included in the schedule transmitting the notice of revocation or acquisition.

Notably, some other major aspects of the Act concerning power and duties of the Governor where divergent views have been expressed either for or against the Act include the status of the Act vis-à-vis the Constitution and succession of the Civilian Governor to the power and position of Military Governor. An instance, the Act requires the consent of the Governor for a valid transfer of interest in land. On the status of the Act under the Constitution since its inclusion in section 274(5) of the 1979 Constitution (now section 315(5) of the 1999 Constitution). There have been decisions of the constitutionality and other constitutional aspects of the Act.

The interpretation of this provision has thrown up a lot of controversy among writers and judges. While some of them have vehemently maintained that the Act is a mere existing law, not forming part and parcel of the Constitution, others maintained that it is part of the Constitution. In Chief Nkwocha v. Governor of Anambra State & Ors (1983) 4 N.C.L.R. 643., the Supreme Court settled the confusion on the status of the Act by holding that the Land Use Act is not a mere existing law but part and parcel of the Constitution.

Also, on the succession of the Civilian Governor to the position and power of the former Military Governor as contained in section 276(1) of the 1979 Constitution (now section 317(1) of the 1999 Constitution), the interpretation of this provision has equally been a controversy in the legal and media space.

The Court in J.M. Aina & Co Ltd v. Commissioner Land and Housing, Oyo State & 2 Ors (1989) N.M.L.R (pt. 97) p.305, maintained that under section 276 of the 1979 Constitution (now 317 of the 1999) the Governor could only succeed to such property, right, privilege, liability or obligation as was held by the Military Governor which immediately before the date when the Constitution came into force was vested in or exercisable by or against the former authority and it cannot be a sheer inadvertence that the power is omitted. Accordingly, the rights and powers of the Military Governor over all lands in the State could not be succeeded by the democratically elected Governor because the Military Governor held such land for the use and common benefit of all Nigerians. This in a way also gives a background to the power and duties of the Governor pertaining land under the Land Use Act.

[1] Valentine Ofogba, “Understanding the Land Use Act”, retrieved May 18, 2022 from http:/ /lawsprings.com/index.php

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