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apart from giving protection from elements of nature, shelter in accordance with ... land accessibility and security, which is a fallout of the inept land policy.
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INTRODUCTION “The law, in its majestic egalitarianism, forbids the rich as well as the poor to sleep under bridges, to beg in the street and steal bread” Anatole France

“The foxes have holes, and the birds of the air have nest, but the son of man have nowhere to lay his head”1 Shelter represents one of the most basic human needs and has no doubt a profound impact on the health, welfare and productivity of the individual2. The importance of shelter to man cannot be overemphasized; apart from giving protection from elements of nature, shelter in accordance with contemporary modern standards, must offer such infrastructure and services that would make dwellings conducive3. Housing, particularly urban housing, remains an intractable problem in the developing countries of the world, Nigeria inclusive. The acute shortage of housing in developing world was the subject of World Bank Report4 that “the urban poor, typically housed in slums or squatters settlement, often have to contend with appalling overcrowding, bad sanitation and contaminated water. The sites are often illegal, and dangerous. Forcible eviction, floods and landslide and chemical pollution

Mathew 18 V 20. The Holy Bible. Revised Standard Version. Oludayo Amokaye: “The Role of the Judiciary in the Administration of Rent Control and Recovery of Residential Premises Edict No. 6 of 1997”. Report of a workshop Edited by Prof. E.N.U Uzodike 3 Tunde Otubu: Land Use Act and Housing in Nigeria:, published in the “Land Use Act: Twenty Five Years After” edited by I.O Smith 2003 p. 351 4 See World Bank Report (1990) pgs 30-31 1 2

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are constant threats”. This problem is not unconnected with our population explosion and uncoordinated rural-urban migratory pattern, which exerts excessive pressure on housing demands in the cities. A study of the housing situation revealed that it is characterized by inadequacy for which combinations of social, economic, demographic, technological and legal factors are responsible.5 Throughout Africa, statistics show quite clearly that urban dwellings are in general overcrowded and lacking in most elementary amenities and surrounded by the deplorable urban landscape situation6 Inadequate housing problems in Nigeria is so acute that the Federal Ministry of Works and Housing in 1994 estimated that 5milion housing units needed to be delivered by the year 2000, that is, at the rate of 833, 000 units per year, over a period of 6 years, to relieve the national housing problem7. Recently the Federal Mortgage Finance Limited came out with an opinion that in Lagos State alone, an immediate delivery of 500,000 housing units and an annual delivery of 200,000 housing units are required to relieve the stress in its housing sector8. The government, at various level and times, has tried to address this problem of inadequate housing. The first to Fourth National Development Plans addressed the problem to no avail. In 1981 the federal Government ca me up with the first National Housing policy, which was reviewed in 1990. This latest policy attempt to create a new housing finance system, Tunde Otubu: “Legal Overview of Housing in Public and Private Enterprises” published in “Management and Legal Policies, Issues in Public and Private Enterprises” Edited by Justus Sokafun (1999) p.306 6 Ebenezer Acquaye: “A theological Review of Housing Problems in Developing Countries: In “Housing in Nigeria” Edited by Poju Onibokun (1985) 7 See Five years of the National Housing Fund 1992-97 Published by Federal Mortgage Bank p. 18 8 Tunde Otubu Op.cit no. 3 p. 352 5

encourage housing sector capital market linkages, establish a national housing fund within the framework of the Federal Mortgage Bank of Nigeria and expand private sector role in housing delivery. This policy completes the framework for establishing and sustaining primary mortgage institutions. Inspite of the government efforts in this direction, the problems remain insurmountable. This state of affairs remains the same for many reason, but primarily because of government land policy and administration. While the government directed its energy and resources at other variables in the housing sector of the economy, it has refused and or neglected to address the fundamental and germane issue in housing delivery, to wit, land accessibility and security, which is a fallout of the inept land policy and administration in Nigeria. The importance of land to the provision of adequate housing cannot be overemphasized. Availability and accessibility of land provides the physical substratum on which houses are built. Land as an economic asset is also a source of wealth creation for the general development of the economy through sale, leases mortgages and charges. Above all, land also provides the sources of material for construction purposes. It is trite therefore to conclude that the extant land policy and administration in any nation determines substantially the adequacy or otherwise the stock of housing in the country. It is in the light of the above fact that this paper sets out to examine the relationship between housing delivery and availability of land, land administration and policy in Nigeria. The kernel of the paper is to posit that the current and extant legal regime for policy and administration of

land in Nigeria constitutes an albatross to production, supply and delivery of adequate housing to the masses of this country. It thus recommend an overhaul of the status quo to give room for a more pragmatic, efficient and effective policy administration in order to further the overall objective of adequate housing to the generally of Nigerians. To achieve the objective set out above, this paper is divided into the following

parts

which shall

be

treated

seriatim.

Following the

introduction, the paper in part one examines the concept of housing within the framework of National, Regional and international legislations, convention and soft laws and queried whether there is a fundamental right to Housing and if not whether there should be such a right. Part two of the paper examine the variables in the housing sector of the economy, espousing government housing policy plans, inputs, and development through legislation and administration in this area. This part will particularly examine such policy as the National Housing Fund, Housing finance and mortgage and the development in the building material industry. Part three discusses land policy and administration and its contribution to housing delivery. Part four concludes the paper with recommendation and suggestion for reform. PART I RIGHT TO PROPERTY/HOUSING The right to property means a right of ownership9 and ownership involves a bundle of rights – the right to use, sell, pledge, bequeath, and subject to some limitation, the right to destroy10. The concept of ownership could be

Roger Bird, Osbom Concise Law Dictionary N.J. Udombana, Weighted in the Balances and Found wanting. “Nigeria’s Land Use Act and Human Rights” published in the “Land Use Act: twenty Five Years After” ed. I.O. Smith (2003) 9

10

likened to the Roman doctrine of dominion under which the dominus was entitled to the absolute and exclusive right of property in the land11. Primordially, the right to own private property is well recognized and acknowledged throughout the world. Many philosophers, jurists and commentators have highlighted the primacy of property rights for the orderly development and growth of the state.12 According to a commentator13 the right to private ownership of property is the most honorable of all fundamental rights in point of antiquity as the philosophical and economic theories on the origin and justification of the right are legion. Most religious thinking, to a varying degree, accept that private ownership of property is essential for the full expression of personality under the conditions of this life and therefore regards it as one of the basic personal rights14 In the words of Lord Camder C.J. in Entick V Carrington15.

“By the Laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set

E.H. Burns, Cheshire& Burns Modern Law of Real Property (1982) p.26 The primacy of private property right is so much appreciated that it is believed that without this right the liberty of the citizen is meaningless. 13 E. Y. Exshaw: “The Right to Private ownership in Fundamental Rights. A volume of Essays Edited by J.W Bridge all sweet and Maxwell 1973 p.73 14 The Anglican position may be seen in Article 38 of the Articles of Religion which reads “The Riches and goods of Christians are not common, as touching the right, title, and possession of the same, as certain Anabaptists do falsely boast. Notwithstanding every man ought, of such things as he posesseth, liberty to give alms to the poor according to his ability”. Modern Roman Catholic doctrine is largely reflected in Article 43 of the constitution of Eire based on the teaching of Aquinas “Sic habet homo maturale dominium exteriorum rerum quia per nationam at voluntatem potest uti rebus exterioribus ad suam utiltatem quais propter se factis” (Thus has man natural authority over external things because through reason and will he can use external things to his benefits as if he had made them for himself) 15 (1765) 19 86, Tr 1030 at 1067 11 12

his foot upon my ground without my licence. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him” The right to private property is recognized and acknowledged under International law, Regional laws and Treaties and National laws. The Universal Declaration of Human Rights Instrument16 provides that “everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property17. The African Charter on Human and People’s Right18 also recognized the existence and preservation of private rights to property. In Article 14, it is provided that the right of individual to property shall be guaranteed and it may not be encroached upon except in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. At the national level, the 1999 Constitution of Nigeria19provides that “subject to the provision of this constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria20. Section 44 provides further that no such private property shall be compulsorily acquired by the state except on payment of prompt compensation and a right of access to court or tribunal

16

See Universal Declaration of Human Rights adopted Dec 10 1948, G.A. Res. 217 A (III) GAOR 3rd sess (Resolutions, Part 1) of 71, UN Doc. A/810 (1948) Reprinted in 43 A.J. I.L. 127 (Supp. 1949) 17 Ibid Art. 17 of The American Declaration of the Rights and Duties of man 1948. Art 23 providing that every person has a right to own such private property as meets the essentials needs of decent living and helps to maintain the dignity of the individual and his home. 18 Adopted June 27 1981 and came into force on October 21 1986 OAU Doc. OAU/CAB/LEG/67/3/Rev 5 reprinted in 21 I.L.M 58 (1982) 19 Cap C23 Laws of Federation of Nigeria 2004 20 Ibid section 43

for the determination of his interest in the property and the adequacy of compensation paid21 The right to Housing is a component of the right to property. Indeed, having a secured place to live is one of the fundamental elements for human dignity, physical and metal health and overall quality of life, enabling one’s development22. The human right to adequate housing, which is a derivative of the right to an adequate standard of living23 and human dignity,24 is of central importance for the enjoyment of all economic, social and cultural rights25. It connotes the right to live somewhere in security, peace and dignity26. The right is enjoyed without any form of discrimination and assured to all persons irrespective of income or access to means of production27. This right to adequate housing is recognized internationally. Article 25 of the Universal Declaration on Human Rights declares that “every man has the right to a standard of living adequate for the health and well being of

21

The provision of the Land Use Act 1978, an existing law of constitutional status has curtailed the immutability of this provision on compensation and access to court. Further discussion on this issue is reserved to part III of this work on Nigeria land Policy and Administration 22 N.J Udombana op.cit n.10 p. 79 23 See International covenant on Economic Social and Cultural Right, adopted 16/12/66 G.A Res 2200A (XXI), UN GAROR 21st session Supp. No. 16 UN Doc. A/6316 (1996) U.N. T.S. 993 came into force 3/01/76 (ICESCR) 24 Section 34 Constitution of Federal Republic of Nigeria 1999 25 Committee on Economic, Social and Cultural Rights: “The Right to Adequate Housing (Art. 11 of the covenant). “General comment No 4 in committee on economic, social and cultural rights: Reports on the sixth Session. ECOSOC official records 1992 26 Ibid 23 27 See ICESCR Art. 2 (2) providing that states parties must guarantee the right enacted in the covenant without discrimination of any kind.

himself and his family, including food, clothing, housing28 and medical care and necessary social services29 Though this provision on right to adequate housing is not given explicit recognition in the African Charter on Humans and Peoples Right, but the African Commission gave a robust and extremely important interpretation to the provision of the charter to include a right to adequate housing. In the Social and Economic Rights Action Centre and the Centre For Economic and Social Rights V Nigeria30 it was held that, “Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16 above, the right to property, and the protection accorded to the family, forbids the wanton destruction of shelter because when housing is destroyed, property, health and family life are adversely affected. It is thus noted that the combined effect of Article 14, 16 and 18(1) reads into the Charter a right to shelter or housing…”

It is worthy to note that the pronouncement in the above case would exert a strong persuasive flavour on Nigerian courts, particularly with the preeminence status accorded the African Charter within Nigerian law as 28

Emphasis supplied See also Principle 7(6) of Agenda 21, which recognize that access to life, health and shelter is essential to a person’s psychological and economic well being and should be a fundamental part of the national and international action. See also Article 11(i) of the international covenant on Economic Social and Cultural Rights (1996) which provides that parties to the covenant shall “recognize the right of everyone to an adequate standard of living for himself and his family including----clothing and housing” 30 Reported in 15th Annual Activity Report of the African Commission on Humans and People Rights 2001-2003 available at http:// ww.archpr.org/15th_Annual_Actiitiy__ Report ______ AHG. pdf 29

espoused in the case of Fawehinmi V Abacha31. However, the extant National law on the subject matter fell short of giving recognition to right to adequate housing. It is trite that the 1999 Constitution of Federal Republic of Nigeria recognized, within legal limits, the individual private rights to property particularly land and its resources32. The constitution did not however extend such right to include a right to adequate housing. It is true that the constitution recognized the need to provide houses and shelter for the citizen as it provides that “ the state shall direct its policies towards ensuring ----------that suitable and adequate shelter,---- are provided for all citizens33 However, laudable as the provision was, it is non-justifiable

and cannot

be subject of an enforceable right before the courts34. The non-justifiability of this provision has therefore made nonsense the acclaimed right to shelter as provided by the United Nations Charter on Universal Declaration of Jurisprudence.

Human Right

1948

within the

Nigerian Corpus

The only positive purpose of this provision lies in its

altruistic value as a reminder to the state of the need to provide shelter for the citizen, and perhaps a measure of performances of government policy in the area of providing shelter for the people. The right to housing does not mean and should not be taken to mean that the government must provide houses for every citizens, that will be a near impossibility, since a state’s resources are limited relative to social needs35.

31(1996)

9 NWLR (Pt 475) 710 CA Section 43 1999 Constitution of Nigeria 33 Section 16(2) the 1999 Constitution of Federal Republic of Nigeria. 34 See Section 6(6) C of the 1999 Constitution of Federal Republic of Nigeria. See also Olubunmi Okogie V Attorney General of Lagos State (1981) 1 NCLR 218 See generally J.O Akande: Introduction to the Nigeria Constitution 1999. 35 N.J Udombana op.cit p.77 32

The right to housing however, means that the government must provide the socio-economic and political environment adequate for the realization of that right and must adopt legislative and other measures to prevent any violation to individual’s right to an adequate housing36. Given the present state of the law in Nigeria vis-à-vis international legal regime on the subject and the primary importance of housing to effective and efficient enjoyment of other fundamental rights, should there be a clamour for the creation, enjoyment and enforcement of right to adequate housing under Nigeria law? Put differently can section 16(2) of the Constitution of Nigeria 1999 be made justiciable and or should it be made justicable in our courts? On the first leg of the question, the cases of the Social and Economic Right Action Centre and The Cenre For Economic and Social Right V Nigeria, and Fawehinmi V Abacha would seem to answer the question as to justiciability of the right to housing in the affirmative. While the former case extended the rights provided under the African Charter to include right to housing, the latter case highlighted the superiority of international instrument over local legislation where there is conflict in their provisions. However, the relevance of the foregoing argument, when the conflicting legislation is the constitution of the country, remains a moot point. That is, can the provisions of an international instrument to which a state party subscribe over-ride the express constitutional provision to the contrary?

Our

humble submission on this is negative.

36

Eze Onyekpere: “The Right to Adequate Housing” – The Concept of Legal Security of Tenure” 5(2) Hum Rts. L & Practice 44,45 (1997)

However, should that be the end of the clamor for a justifiable right to housing? Shouldn’t there be minimum benchmark standards for the recognition of this right under our law? In view of the enormous importance and relevance of housing to the overall development of the individual and the nation generally, the law should provide some regulatory and administrative mandatory provisions and directives towards giving teeth to the provisions of section 16(2)d of the 1999 constitution. While it is agreed that the state cannot directly provide houses for every citizens, efforts should be geared towards addressing those issues that impedes delivery of houses to the majority of the citizen. In particular, the state should evolve a legislative regime that ensures and enhances availability of and access to land. A good, efficient and effective land policy will not only make land available and accessible, but would also engender the development and growth of a robust mortgage financing system in the economy. Also, a good land policy administration would facilitate the growth in other areas of housing sector of the economy particularly the building materials industries. Short of recommending the creation of an enforceable right to housing, because of its impracticability in a capitalist economy, the law should provide a foundation towards realizing the constitutional aspiration expressed in section 16(2)d. This the law should do through the provision of a robust policy and administrative goals in the housing sector of the economy. This, shall be the focus of Part II of this paper. PART II HOUSING NEEDS AND POLICY: EXAMINING THE VARIABLES

Housing plays a significant role in the economy of any nation. In developed economy such as United Kingdom and America, housing accounted for more than 55% of construction out-put between 1992-199437. In Nigeria, like any other developing nation, the housing share of construction output is about 70% considering the low level of industrialization in the country38. The pre-eminence and importance of the sector was highlighted by a commentator who asserted that 3.89% growth in the construction sector in 1995 gave a corresponding growth of 4.10% in the nations GDP39.Statistical report for the current year cannot be different, particularly given the state of our population which is in excess of 120million people. Despite the importance of housing to the socio-economic development of the nation as highlighted above, housing problems has remained endemic and intractable in Nigeria, particularly in urban centres of the nation. It has become increasingly glaring that most of the urban population live in a dehumanizing housing environment while those that have access to average housing do so at very high cost. Rents in major cities of Nigeria is about 60% of an average worker’s disposable income, which is much higher

than the

20-30%

recommended

by United

Nations40.

A

commentator once put housing deficit in Nigeria at about 8million units41. To address this problem the country needs to produce and deliver a Issac. D. Property Development Appraisal and Finance. London Oxford Press 1996. P. 38 Adam O, “Management Training of Nigerian Indigenous Contractors and their preferred delivery system” Unpunished Ph.D Thesis, University College London (1992) p.45 39 Ogu. V. “Housing and Environmental Services in Benin City Nigeria” Unpublished Ph.D Thesis in Land Economics, University of Cambridge, England (1996) p.56 40 See Ebie. F “Greater Prospects Ahead in the Mortgage Sector” 2004 June Homes and Property Magazine 1(2) p.34; Onibokun, A.G “Housing Finance in Nigeria” in Onibokum (ed) Housing in Nigeria, University Press Ibadan 1985. p.76 41 Mabogunje A. “Financing Housing in Nigeria”. A paper presented at a workshop organized by Housing Corporation of Nigeria at Lagos. 2002. 37 38

minimum of 800,000 units of houses for the next 10 years, assuming that the deficit remain constant. To finance such housing project the government requires about 1.8billion Dollars annually. However, in view of limited resources, the government without the adequate support of the private sector and a robust housing finance policy cannot provide such finance alone. In realization of the enormity of the problem and the importance of the resolution of the problem to the socio-economic development of the nation, the government came up with a three dimensional approach to the problem. Firstly, it came out with the National Housing Policy in 1981 and promulgated the National Housing Fund Act in 1992. Secondly, the government liberalized and increases the number of primary mortgage institutions (PMI) in the country to facilitate the granting of mortgage loan to developers and mortgagors in the housing sector. Thirdly, the government tried to liberalize and privatize the building materials industry in order to encourage private investment in the area and thus engender the growth of the sector towards the delivery of the necessary construction inputs into the system. It is however worthy to note that the extant land policy put in place since 1978 remained unchanged despite the changes introduced in other variables encompassing the housing sector of the economy. An examination of government policies is necessary at this juncture. (A)

NATIONAL HOUSING POLICY

The problem of provision of adequate housing for the masses became a national issue during the second republic 1979-83. The various political parties at the time promised to deliver affordable housing to the electorate on owner’s occupiers’ basis. The present Jakande Estates, scattered around

Lagos State and the Shagari Estates, that dots the Nigerian landscape are testimonies of the era. To properly address the problem of inadequate housing and channel resources towards the area, the federal government came up with the National Housing Policy in 198142 The policy was reviewed and a new one put in place in 1990. In the main, the policy set out to achieve the following objectives43. (i)

To increase and improve the overall quantity and quality of housing in Nigeria

(ii)

To ensure that the provision of housing units are based on realistic standards which the prospective homeowners can afford.

(iii)

To give priority to housing programmes designed to benefit the low-income groups.

(iv)

To mobilize housing finance from all sources

(v)

To encourage every household to own its own home by providing more credits

(vi)

To encourage and support private initiatives and activities in the production of housing

(vii) To encourage local production of building materials (viii) To provide infrastructural services particularly suitable for self help housing programmes

42

Before the promulgation of the National Housing policy in 1981 the various National Development Plans had in one form or the other addressed the issue of inadequate Housing in Nigeria by directing more resources to the sector and the creation of a Directorate of Housing under the then Ministry of Works. 43 See; Federal Ministry of Housing and Environment Nigeria Housing Policy. Government press. 1981

(ix)

To provide the quality of rural housing and rural development through integrated rural development

In a determined effort to achieve these objectives the Federal Government embarked on an extensive construction of dwelling houses throughout the states of the federation. A total number of 10,000 housing units were projected for each state of the federation, especially for the low and middle-income earners in the society44. Unfortunately the housing programme envisaged did not materialized as it recorded partial success or failure in most part of the country. The programme was plagued by many problems ranging from political, socio economic and cultural problems. Most of the houses built were of inferior quality and standard. They were choky, inelegant in design without enough space and infrastructure. To compound the problem, the military intervened and terminated the Second Republic in 1983, thus putting an end to the dream of many citizen of becoming home owners. In 1990, the Federal government revived and reviewed the National Housing Policy by refocusing and redirecting its objective towards the provision of backup finance for housing delivery in the sector. This latest policy attempted to create a new housing finance system, encourage housing sector capital market linkages, establish a National Housing Fund

44

There is a general understanding that direct government involvement in housing provision is always wasteful because contracts for such housing construction are usually inflated while the qualities of jobs done are often substandard or the project is abandoned. See generally, Wahab. K. “Vector Auto Regression as a tool for forecasting Evolution” 70 Reserve Bank Economic Review (1984) p.3-11, see also Agboola T.A. and Olatubara C.O. “Cost Recovery in Nigeria Public Housing” 16(1) The Journal of Habitat International (1992) pp. 83.94

within the framework of the Federal Mortgage Bank of Nigeria and expand private sector role in housing delivery45. (B)

THE FEDERAL MORTGAGE BANK ACT46

To further realize the policy enunciated in the National Housing Policy, the Federal Government promulgated the Federal Mortgage Bank Act, to facilitate the granting of long term credit facilities to Nigerians desiring to acquire houses of their own and the granting of long term credit facilities to primary mortgage institutions with a view to enabling these institutions to grant comparable credit facilities to Nigerians. This course of event was influenced by the fact that an average city dweller need a good and effective mortgage finance system as an alternative to the traditional sources of housing finance which come in trickles, limiting them to incremented or progressive construction rather than purchase of ready made housing. The bank has additional function of providing credit facilities to commercial property developers, estate developers and developers of office and other specialized building at a competitive commercial rate of interest. The bank is also mandated to carryout research on mortgage finance activities and the construction industry and to invest in companies engaged in the manufacture and production of building materials in the country with a view to stabilizing the cost of such materials. Furthermore, the bank is empowered to license and encourage the emergence and growth of viable secondary mortgage institutions to service the need of housing delivery in all parts of Nigeria, encourage and promote the development of mortgage institutions at rural, local, state and 45 46

Tunde Otubu op.cit n3 p.352 Cap F 16 Laws of Federation of Nigeria 2004

federal levels and to supervise and control the activities of mortgage institutions in Nigeria47 Reading through the provision of the Act, the bank is to be well funded directly from the federal source as it was wholly owned by the federal government48. Other sources of fund for the bank included depositors fund, interest received from moneys invested by the bank, funds from the National housing fund, and any other money borrowed by way of loan or grant internally and from foreign sources49. Conceptually, the Act can be said to have laid a solid foundation for the development and growth of mortgage financing institution and practices in Nigeria, though the exclusion of the States from being part of the funding agencies could be said to have been an oversight. The states should be allowed to be part owners of the Bank as this will definitely increase and broaden the financial base of the bank. The current share capital of One Hundred Million Naira is insufficient to salvage the deficit financing in the housing sector of the economy, particularly in the era of bank recapitalization to the tune of twenty five billion naira. Such move would not only prevent institutional fragmentation but would also engender cooperative federalism and inter governmental relations. It is also evident from the provision of the Act that the modalities for granting loan and advances is left at the discretion of the board, as same was not explicitly laid out in the Act50. The draw back in this is the fact that one cannot guarantee consistency and continuity of policy direction with

Ibid Sections 5 and 6 Ibid section 11 49 Ibid sections 13 and 14 47 48

50

Ibid section 7

respect to loan advancement by the bank. Also this power may be abused and or misused by persons appointed into the board. The present inefficient and ineffective posture of the bank inspite of the enormous fund at its disposal, may be as a result of this inadequacy in the legislation establishing it. It is therefore recommended that a clear cut loan and advancement policy should be put in place, at least a benchmark standards, to set directional goal for the realization of the dreams of all Nigerians to easy and efficient mortgage finance system. (C)

THE NATIONAL HOUSING FUND ACT51

In order to increase the capital base of the Federal Mortgage Bank and encourage and inculcate saving habit towards home ownership by the citizen, the federal government promulgated the National Housing Fund Act. The Act was made with the objective to facilitate the mobilization of fund for the provision of houses for Nigerians at affordable prices, ensure the constant supply of loans to Nigerian for the purpose of building, purchasing and or improvement of residential houses, and to provide long-term loans to mortgage institution for on-lending to contributors to the fund amongst other things52. The resources of the fund are to be sourced from deductions from monthly salary of employees, both in the public and private sectors of the economy, private self employed individual are also encouraged to contribute to the fund while not leaving out the financial institutions like banks and insurance companies53. In fact, insurance companies are expected to contribute 20% of its non life fund and 40% of its fund into the coffers of 51Cap

N45 Laws of Federation of Nigeria 2004 Ibid section 2 53 Ibid section 4. Each worker earning N3000 P/A and above is expected to contribute 2.5% of his monthly salary into the fund 52

the fund54. To cap it all, the federal government shall make adequate financial contributions to the fund for the purpose of granting long term loan and advances for housing development in Nigeria. The fund is to be managed by the Federal Mortgage Bank and be utilized to finance the housing sector of the economy through wholesale mortgage lending to primary mortgage institutions that registered under the Mortgage Institutions Act55. The primary mortgage institution on the other hand are to grant direct housing loans to individual depositors who applied through them. In order to ensure continuity of the loan and guarantee repayment, the fund facilities are to be secured by a first mortgage on the property the subject matter of the loan. In case of loans granted to mortgage institutions, it shall be secured by a block of existing mortgages under cover sales and administration agreement to be executed between the federal mortgage bank and the mortgage institution56. To ensure compliance with the provision of the Act, offence and penalties are provided by the Act57. To be eligible for loan and advances under the fund, the individual must be a contributor to the fund for not less than 6months. Employers are required by the Act to remit the deduction from salary within one month of such deductions. Such individual application shall be routed to the Federal Mortgage Bank through a licensed mortgage institution and the bank shall not grant more than 80% of the approved loan from its fund. The mortgage institution is expected to provide the remaining 20% of the approved loan. The loan ceiling from the fund to an individual borrower Ibid section 5(2) Cap M 19 Laws of Federation of Nigeria 2004 56 Section 16 Cap N45 Law of Federation of Nigeria 2004 57 Ibid sections 20, 21 and 22 54 55

shall not exceed N500,000.0058 or such other sum as the minister may from time to time prescribes. To secure the loan and ensure its repayment, the fund shall be secured by a first legal mortgage of the property which mortgaged shall be required to be stamped and registered at the borrower’s cost, at the land registry. In addition, the property shall possess sufficient value to recover the loan, a fact to be attested to by the legal report of the bank on the acceptability or otherwise of the title of the property59. The loan is repayable on monthly basis spanning a period not more than 25years60 The promulgation of this Act is not only commendable, but also a step in the right direction. A proper administration of the Act will foster a robust financial base for the take of an enduring mortgage finance practices in the country. However the percentage contribution by the federal government and participation by the various states in its finding would go a long way at stabilizing the resources of the fund. Inspite of the above, it is on record that the fund has generated a lot of money into its coffers awaiting disbursement. Through mandatory savings into the National Housing Fund about N13billin was mobilized between 1992 and 2004 but less than 10% was disbursed as loans for private home ownership61. Why this state of affairs, one may ask; so much money While no loan ceiling is placed on institutional lending, the Bank shall not grant an amount more than 50% of the mortgage institution shareholder’s fund in any given year 59 Emphasis supplied to buttress the need for a land policy that assures certainty and validity of title to land 60 See generally Terms and Conditions for obtaining loans from National Housing Fund by Mortgage Institutions and individual contributors regulation S.I 15 of 1996 made pursuant to section 14(3) Cap N45 Laws of Federation of Nigeria 2004. These regulations were published in five years of the National Housing Fund 1992-1997. A report on the implementation of the scheme of Federal Mortgage Bank of Nigeria (FMBN). See also supplement to official Gazette Extra Ordinary No. 3 Vol. 79, 4th February 1992 – Part A 61 Tanimu Y. “The New Federal Mortgage Bank of Nigeria” Home and property magazine (June 2004) p.43 58

available but contributors/beneficiaries are not utilizing them, why? Answer to this nagging question is the fulcrum of the next part of this research. PART III LAND USE AND POLICY Land is the nucleus of man’s livelihood and survival, and the quality and quantity of land determine the extent of man’s development. Whatever ideological approach is considered, it is generally acknowledged that land is central to any solution offered to the process of development and poverty. A closer look at the various theories of property associated with various ideological schools reveal one main aim, the need for an egalitarian land policy62 To an orthodox Marxist, property is the source of power in the final analysis, on the contrary, Martin Luther assumed the need for private property rights but emphasized the divine character of civil government. John Locke believed in basic human needs which every ruler should concede on the pain of expulsion and summarized these rights of man as life, liberty and property. He attempted to entrench property rights in the state of nature, in such a way as to put them beyond the meddling of government. Charles Fourier accepted the principle of private property rights but sought an equitable division of proceeds amongst those contributing to production. Montesquieu agreed that men only do well what they do freely while Pierre Joseph argued that all property is theft, he opposed private property but laid great emphasis on personal freedom. J.J

62

Olayide Adigun “Legal Theories of Property – The Land Use Act in perspective” published in “The Land Use Act- Administration and Policy Implication Unilag Press 1991 p.10

Rousseau wanted a community in which wealth was not necessarily equally distributed but that which know neither great wealth nor deep poverty. Louis Blanc stood for socialism resting on public ownership while, Freidrich Hegel ascribed all power to the state as the manifestation of the Divine on earth63 Thus, from whatever perspective one looks at it, the place of property (land), its use and management vis-a-vis individuals and the nation cannot be over emphasized. It is therefore imperative for the state to put in place a robust, effective and efficient land policy in order to maximize land use for various competing needs in the society. Whether state or private ownership of land is adopted by the state, it is important that land must be available for individuals in order to be able to excel and for the state in order for it to provide the necessarily developmental needs of the citizen64. From biblical times to modern times and the present, there has always been the need to put in place one form of land policy or the other to address the need of man in the society. In realization of this fact this section of the paper examines and chronicles land policy in Nigeria from precolonial days through the post independent period to the current policy enunciated under the Land Use Act 1978.

1.

Land Use And Policy Under Customary Law

The present state of Nigeria came into being in 1914 with the amalgamation of the Northern and Southern Protectorate of Nigeria. Prior 63

See generally Dias on Jurisprudence see also Denman D.R. The place of Property. Geographical Publications limited London 1978 64 See generally, Stephen K. Wegren: Land Reform and the Land Market in Russia: Operation Constraints and prospects (Sept. 1992) 40 No. 6 Europe – Asia Studies pp. 959 – 887; Petes H Ho: Who owns China’s Land? Policies, Property Rights and Deliberate Institutional Ambiguity (June 2001) No. 166 The China Quarterly pp.3914-421

to the coming of the white man and colonalization, there existed plethora of indigenous independent ethnic enclaves, scattered throughout the country with the different cultural traits and attributes65. Out of these multifarious ethnic groupings could be decipher the Yoruba of Southwest, Igbos of the East and the Hausa Fulani’s of the North amongst others. The land tenure system varied from one geographical area of the country to another. The wide variety of the tenurial System is traceable to the diversity of cultures existing within the Nigerian nation66 Among the Yorubas, land was corporately owned by the community, village or family, though individual landownership was also recongised67 Title to the land under Yoruba customary law was vested in the corporate unit and no individual within the unit can lay claim to any portion of it as the owner. The whole idea is that “group ownership in African context is an unrestricted right of the individual in the group to run stock on what is held to be the common asset of land; the right of all in the group to claim support from the group’s land and the tacit understanding that absolute ownership is vested in the community as a whole”68. The individual rights in land are limited to use and enjoyment of the land allotted to him. Though such right is transmissible and devisable, the concerned individual cannot alienate the land without the consent of representatives of the corporate unit recognized as such in law. Management of land at customary law was vested in the chief or headman of the community or family as the manager or trustee, holding the land for 65

See Ogundare JSC in AG. Federation V AG. Abia State (2002) 6NWLR pt 764, 542 of 640 Banire M.A Land Management in Nigeria: Towards a New Legal Framework. Ecowatch Publication 2006. p. 84 67 I. O Smith: “Practical Approach to Law of Real Property in Nigeria” Ecowatch Publication (1999) p.31 68 Oluyede: Modern Nigerian Law Evans Publication 1989 p.12 66

the use of the whole village community or family. The chief, headman or the family head may be seen as primus inter pares, his interest in the property is not greater than that of any other member of the group and he cannot effect a valid alienation of the land without the consent of the whole family69. It is the duty and responsibility of the head to preserve the property and keep it in good state of repairs. He allocates portions of the land to needy members and others for use, and collects rents and royalties on family properties let to outsiders. In this process, management of land at customary law is centrally controlled ensuring that lands are not unnecessary fragmented and lost. The system ensured that land remains in the family or group for eternity; land is only decimated upon the consensus of the family or group as a whole. While this system may be criticized as restricting land mobility and transferability among citizens, it guaranteed land stability and assured land availability for genuine uses. At that time, title was generally secured in the sense that it vested in the respective families or communities and it was very unusual for title to be challenged, except along boundaries which is still a common occurrence today70. The availability of land for strangers in perpetuity through the customary tenancy system71 also ensured that land can be made available for developmental purposes when required and at a minimal cost. The system of land use and management under customary law was so harmonious and encompassing that the colonists had no problem at retraining it with some little modification to suit their I. O. Smith op. cit p. 34 Banire M. A op. cit p.102 71 This system if well developed in modern times could have been the basis of granting long leases and developmental leases to government and corporate organizations at minimal cost. The quest for fabulous compensation prevalent today would not have arisen and the problem of reverter for failure of use would have been a thing of the past as the land goes back to the original owner upon non use by the grantee under customary law 69 70

own political and economic interest. This customary tenurial system enunciated above also operated to a large extent among the Ibos of the Eastern Nigeria and other tribes in the Southern past of the country. The land management structure that existed in the North prior to colonization exhibited most of the features of the customary tenurial system in the South72. The Jihad of the 19th century, during which the Fulani raided many parts of what later become known as Northern Nigeria saw the imposition of Islamic law in the wake of the raids. These invaders and conquerors annexed to themselves these new territories as spoils of war contrary to Islamic injunction. Even at then, the Islamic spiritual leader/Iman cannot assign ownership of cultivated land captured in war, even though held by unbelievers. Such lands, are wake or public lands and only the use of them can be granted73. The Islamic principle is therefore in consonance with indigenous land custom, which also did not accept outright alienation of land. In fact, it is presumed that the customary and Islamic systems of land tenure coincide generally on basic concepts74. To be more specific, the concept of corporate ownership, trusteeship role of the head of the social unit, restraints on alienation of property and the system of tenancy and pledge are all features common to both systems75. It is therefore trite to submit that customary land tenure system before colonization exhibited essentially a uniform system of land ownership and management which, though vested ownership of lands in the community or family, but which permitted individual access to land and protected land management for common beneficial use of the community concerned. Under the system the interest of the individual in the land is 73

Lugard Political Memonda p. 300 cited by Danjuma Rimdan op.cit np.67 Smith I.O op. cit p.29 75 See generally A.A. Quadri; Islamic Jurisprudence in the Modern world p. 316 74

indeterminable and is coterminus to that of the family and or the community concerned. Subject to a limited right of alienation by members of the group and communal planning restrictions, individual members can exercise all rights and privileges over land allotted to him by the family or community. Thus, such a member can ordinarily lease, pledge or mortgage the land once the superior in title of the family is assured76. And where the family or the community for the common good compulsorily acquires such land, such member is usually adequately and promptly compensated with a new allocation of land.77 At this time, and under the extant customary system, there was no land speculation and land grabbing that is now prevalent in modern times. The housing needs of the individuals and members of the family or community were adequately addressed through various customary mechanisms that ensured prompt and effective delivery of housing for private and public uses. Even strangers were given opportunity to develop and build houses on the land of their customary overlords. In Yoruba land such schemes as Owe, Aro, Esusu and Customary pledges78 were used to effectively address the need for funding and the provision of resources necessary for adequate housing delivery.

This position may be the ground for the customary belief that “once a pledge always a pledge” for a customary pledge is perpetually redeemable thus emphasizing the inalienability of land of customary level. See Okoiko V Ezedaulue (1974) 3 5c p. 15 This same position warranted the suzerainty of the overlords under the concept of customary tenancy, for though the interest of the customary tenant may ensure in perpetuity, the land remained that of the customary overlord. See Abioye V Yakubu (1991) 5 NWLR (pt 190) p.130 77 See generally J. A Umeh Compulsory Acquisition of Land and Compensation in Nigeria (Sweet & Maxiwell) 1973 78 Owe, Aro and Esusu are customary cooperative mechanism employed to provide labour and funding for developmental needs of the contributing members on rotational basis, while Customary pledge is a secured credit transaction mechanism available at customary level to raise necessary funds to meet exigencies of the time. See generally Smith .I.O : Nigerian Law of Secured Credit Transaction (Ecowatch Press) 2003, Omotola J.A: The Law of Secured Credit (Evans Publication) 2006 76

ii.

Land Use and Policy Under Colonial And Post Colonial Nigeria

Upon the establishment of British rule in Nigeria, the colonial masters did not attempt to impose a uniform land tenure system throughout the length and breath of Nigeria. The system in the Southern Nigeria continued to be governed mainly by indigenous customary regimes with the infusion of some statutory laws. In the North, a uniform tenure system was introduced under the various Land and Native Rights Laws79. The Southern Nigeria operated a dualistic system while a paternalistic system operated in the Northern part of the county. It has earlier been noted that land management and control under the customary tenurial system in Southern Nigeria was vested in the hands of the head of the family or community concerned for and on behalf of members of the group concerned. Such head of the group held group lands under an arrangement which has been described loosely as analogous to the trusteeship concept under English law80 On taking over the reigns of government in Southern Nigeria the British did not abrogate the existing land tenurial system, but adopted it and subsequently through legislation and policies, introduced the English land tenure system into this part of the country. With this approach, a dual system of land tenure and management exited in the South. The dualist practice, fully recognized customary tenurial systems which tended largely to preserve land as communal inheritance, incapable of absolute conversion into private assets81. However in order to make land 79

Banire M.A. op. cit p.85 Banire M.A. The Nigerian Law of Trust (Excel Publications 2001) p. 11-12 81 See generally Amodu Tijani V Secretary, Southern Nigeria (1921) AC 399 80

mobile and easily transferable to boost economic growth, the British introduced the principle of transformation, which emphasized the systematic conversion of communal titles into individual titles and the substitution of English law for uncertain customs82 Since 1869, the colonial government had through various legislations, proclamations and policies, sought to facilitate the transition from the customary system of land tenure to English land tenure system. Such legislation include the Swamp Improvement Ordinances, of 1863 & 1877 and the Land Title Ordinance of 1868. This latter Ordinance which sought to settle claims to land in Lagos and to validate the title of the owners, holders, and occupiers thereof, formed the basis for the grants of land made by the crown between 1863 and 191483. In 1917 the colonial government instituted a legal framework for compulsory acquisition of land and registration of title to land. The system of compulsorily acquisition was given legal backing by the Public Lands Acquisition Act of 191784 which permitted government to compulsorily acquired land needed for public purposes and pay compensation. The colonial government also sought to achieve certainty of title by instituting a system for registering dealings and instruments affecting title and other interest in land85.

82

R. W. James; Nigerian Land Use Act: Policy and Principles (Unife Press 1987) p.12 Nwabueze B. O. Nigerian Land Law (Nwamife Press) 1972 p. 119 84 Cap 167 Laws of the Federation of Nigeria 1958. The predecessor Legislation in this area was the Native Lands Acquisition Proclamations 1900 85 The introduction of the system of transformation from customary tenure to English tenure had threw a lot of confusion and uncertainty into the system of land management in the country. See generally R.W James op. cit p.8 for criticism of this British land policy in southern Nigeria. 83

The system was first introduced in Lagos vide a legislation in 1883 and the rest of Southern Nigeria in 1900. The two legislations were re-enacted into the Land Registration Ordinance 1907 of Southern Nigeria and later into Land Registration Act 1924 on the amalgamation of Northern and Southern Nigeria in 1914. Upon regionalization and States creation the legislation became a state law86. The focal point in land tenure and administration in colonial Southern Nigeria was that there was no general or omnibus Statute regulating land tenure or vesting general control and management in the Governor or any other colonial officers. The system and policy in this area encouraged and engendered the development of dual tenurial system with all its vagaries and manipulation. In fact, the introduction of the transformation policy encouraged land fragmentation and speculation, which fostered a regime of insecurity of title to land and uncertainty of interests in land. The system bred confusion into land administration and all efforts to remedy it through legislations proved abortive87 In the words of Banire “Problems relating to insecurity of title did not arise until ownership of land began to be individualized with the attendant disputation of title that inevitably accompanied individualization88 Thus, the colonial government encouraged and assisted the growth and development of a capitalist land management policy with all the trappings

86

Banire M.A op.cit p 98. The colonial government also promulgated the Registration of Titles Act 1935 which unfortunately was never applied in any part of the country except in Lagos where its application was piecemeal and only in designated registration zones. See Olofintuyi, V Barchlays Bank (1965) NMLR 142 87 Ibid p. 99 see also Idundun V Okumagba (1976) 9-10 Sc 227 where the supreme court listed five different ways of establishing title to land under Nigeria law; thus bringing to the fore the complexity and uncertainty of title to land in the country. 88 Ibid p. 102

of open market system and vagaries associated with such policy. Even where government compulsorily acquired land for public purposes, compensation was usually arrived at using the free open market approach. In the Northern region of Nigeria the situation was much different. The incoming British administration met and inherited a monolithic tenurial system, which recognized the suzerainty of the caliphate in land administration.

It

was

therefore

not

difficult

for

the

incoming

administration to step into the shoes of the conquered Fulani’s. In the words of Lugard “The Fulani in old times under Dan Fodio conquered this country. They look the right to rule over it, to levy taxes, to depose kings and create kings. They in their turn have by defeat, lost their rule which has come into the hands of the British. All these things which I have said the Fulani by conquest took the right to do now pass to the British”. In a subsequent passage he said “the government will in future hold the rights in land which the Fulani took by conquest from the people and if the government requires land it will take it for any purpose”89 The North operated a paternalistic approach to land administration. The British declared all lands in the North to be native land and put the management and control of all land under the chief executive of the region for the benefit of all the people, thus exercising the powers of trusteeship of the land in accordance with native laws and customs.

89

See Mcdowell C.M. An Introduction to the Problems of Land Ownership in Northern Nigeria 1964

Based on the Northern Nigerian land committee report90 the colonial administration promulgated the Land and Native Rights Proclamation of 191091 which was repealed and replaced with the Land and Native Rights Ordinance of 191692. The Land Tenure Law of 1962 later replaced this Ordinance93. All these succeeding legislation are impari material in concept, content, scope and application. It primarily introduced the paternalistic principle explained above into the region. Section 4 of the Land Tenure Law provided that “all native lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the minister charged with responsibility for land matter and shall be held and administered for the use and common benefits of all natives” indigenous to Northern Nigeria. Under the Act the absolute ownership rights of the natives over land was subjugated and circumscribed to a mere right of occupancy, which is a limited right of use over land for a determinable period. The control; and management of land was transferred from the Emirs to the chief executive of the Northern protectorate. This management power was so expansive to the extent, that even the limited right of use of the land is revocable by the chief executive without compensation in some cases. And where compensation was payable it was only for the improvement or development on the land and not the land itself. Thus, one may reasonably conclude that the British administration in the Northern pursued a policy of land nationalization based on the socialist 90

CMD 5102 of 1910. See Rimdam D.D. op.cit for a detailed examination of the purpose for which the committee was established. 91 No. 9 of 1910 cap 96 Laws of Northern Nigeria 1958 92 No 1 of 1916 93 Cap 59 Laws of Northern Nigeria 1963

concept of state ownership and control of major factors of production, particularly land. This policy was akin to the customary land tenure which sees land as corporately owned and managed for the benefit and development of members of the group or family or community concerned. Through this policy, the colonial administration in the North was able to rationally, effectively and efficiently manage the land resources in the area. Irrespective of any drawback in the Act it succeeded to a large extent at reducing land speculation and grabbing, land disputes and uncertainty of title of land in the area. This paternalistic policy continued unit the eve of the promulgation of the Land Use Act in 1978. The introduction of the Land Use Act and its provision is a justification for the success of the application of the Land Tenure Law to the then Northern Nigeria. The post independent land policy in Nigeria exhibited dual features and characteristics. While in the southern Nigeria the policy was dualism with customary land tenure system operating side by side and atimes overlapping with the English land tenure system. The Northern policy was characterized by a paternalistic system, which essentially nationalized all lands turning former owners into tenants. This fragmented land policy situation was fostered and encouraged by the fact that there was no national land policy for the whole country irrespective of the importance of land to production and development of the nation. Furthering this haphazard posture was the fact that constitutionally land matters and management was regarded as a residual matter within the legislative competency of the various states that constitutes the country; a position which encouraged the development of multifarious land legislations and

policies in the country94. This state of flux with respect to land policy and management in the country continued till the promulgation of the Land Use Act 1978 which subsequently introduced a uniform land tenure legislation throughout the country but, without, unfortunately, a uniform administrative and implementation policy95. An examination of the Land Use Act is the focus of the next section. iii.

The Land Use Act

Given the prevailing situation in the country with respect to land tenurial and management system, the government of the day promulgated the Land Use Act in 1978 to address the problem. The extant contrasting land tenure system in the country, the hassles in getting land for public purposes, particularly in the Southern Nigeria, the need to curb the activities of land speculators and justly redistribute land resources, necessitated the land reform programme that gave birth to the Land Use Act. The Land Use Act is a product of the recommendation of the Land Use Panel set up by the government in 1977. The need to set up the Land Use Panel was a fallout of the recommendation to the Rent Panel set up the government to address the concerns of the urban wage earners in the aftermath of the cessation of the civil war and the oil boom in the country. The Rent Panel identified land tenure to be a major constraint to the successful implementation of many developmental programmes in the country96. In its recommendation, the Rent Panel endorsed the government 94

Banire M.A. op.cit for a lucid and seminal discussion on the constitutional position on management of land in pre and post Land Use Act era 95 Datong D.Z op. cit p.70 96 See generally Udo R. K . “The Land Use Decree and its Antecedents” University of Ibadan Lecture Series 1985. Olaide Adigun op.cit, Banire M.A op.cit, Smith I.O op.cit

rejection of Nationalization of all Lands in the country, though it associated itself with the view that we “cannot build a modern society on a policy of non-interference with outdated customary tenure system97. It thus recommended the establishment of a Land Reform Commission with powers to: 1.

Study very closely the various aspects of our land tenure systems and to recommend steps to be taken to streamline them;

2.

Take stock of the land situation in the country and establish order of priorities

3.

Control future uses and open new land for the needs of Nigeria’s growing population especially in urban areas;

The panel also recommended the promulgation of a Decree which will vest in the state governments within two yeas of the Decree all undeveloped sites in private approved layouts within defined urban centers. This recommendation formed the fulcrum of the term of reference of Land Use Panel subsequently set up by the government to “examine the land tenure systems in the country and recommend steps to streamline them and facilitate the acquisition of land for the construction of housing, especially by owner occupier”98 In the main, the recommendations of the Land Use Panel gave birth to the promulgation of the Land Use Decree, now Act on March, 29th, 1978.

a.

Salient Features of the Land Use Act

The thrust of the Decree was largely to extend the Northern System of Land management to the whole country, as a means of ensuring easier 97

Ashamu E. O.; Land Ownership and Tenure – Landlords and Tenants: Paper Presented to the NISER Conference on Land policy in Nigeria, September 1976 98 See Annual Budget speech by the Head of State, General Olusegun Obasanjo, Christened “Anti-inflation Budget” delivered on 31st day of March 1976

access to land for government, and ostensibly, for individuals. Like most other land policy enactment, and land reform legislations, the Land Use Act is intended to achieve a number of political, economic and social objectives99. It made a modest attempt at land redistribution so as to achieve a wider measure of social justice and seeks to tackle the economic ills associated with extreme fragmentation of farm land. Some of the most important of the provisions of the Act include; (i)

All Land situated in the territory of each state in the country is now vested in the Governor of the state100. For southern Nigeria in particular, this means state appropriation of land from families and communities without any compensation except for economic crops and other betterment on the land101

(ii)

All land control and management, including land allocation in urban areas come under the Governor of each state while land located in rural area becomes the responsibility of the various local government102. However only the Governor can declare parts of the state territory governed by him as an urban area by an order published in the state gazette103.

(iii)

All land in urban areas is to be administered by a body known as the Land Use and Allocation Committee which has the responsibility of advising the Governor in the management of urban land; a land

Karl S. Landstrom; Public Land Policy Review in Progress (Aug. 1967) 49 No.3 Journal of Farm Economics pp.759-781 Gray L.C. The Social and Economic Implications of the National Land Program (May 1936) 18 no. 2 Journal of Farm Economics pp.257-273 100 See section 1 Land Use Act, 1978 101 Ibid section 29 102 Ibid section 5 and 6 103 The implication of this provision is that where the Governor declares all land within the state to be urban lands, the local government in that State will have no land to manage. It also mean that there is likely to be a time, when the whole state is urbanized, that the local government will have no land to manage under the Act. Thus the power vested in the local government under the Act can be said to be transitional in the main 99

Allocation Advisory Committee is provided to advise local government in the like manner. (iv)

All lands which has already been developed remained the possession of the person in whom it was vested before the Act became effective104

(v)

The Governor is empowered to grant Statutory Certificate of Occupancy (C of O) which would be a definite term to any person for all purposes and rights of access to lands under his control

(vi)

The maximum area of undeveloped land that any person could hold in any one urban area in a State is one half of an hectare, in the rural areas this must not exceed 500 hectares except with the permission of the Governor.

(vii) The consent of Governor is required for the transfer or alienation of any statutory right of occupancy, and the consent of the local government, or that of the Governor in appropriate cases, must also be obtained for the transfer of customary right of occupancy. (viii) The government may acquire land and revoke the right of occupancy for overriding public purpose and pay compensation ONLY for the unexhausted improvement on the land including agricultural of crop105 In its almost 30years of operation the Land Use Act has succeeded substantially at making it easy for government to acquire land for public purposes, drastically minimized the burden of land compensation and considerably reduced land litigation, it has however created a new genre Section 34 and 36 of Land Use Act 1978 See generally Akin Mabogunje “Land Management in Nigeria: Issues, Opportunities and Threats” a lead paper presented at the National Conference on Land Management and Taxation” organized by the Department of Estate Management, University of Lagos on 16th July 2002. 104

105

of problems for land management in the country particularly in the Housing sector of the economy.

b.

Problems of the Land Use Act

Some of the fundamental problems engendered by the application of the Act has been summarized by a commentator as follows: 1.

The Decree, as it stands, represents an abrogation of the right of ownership of land hitherto enjoyed by Nigerians, at least in the Southern part of the country, and its nationalization by government is inconsistent with democratic practices and the operation of a free market economic system;

2.

Many state Governments failed to establish the Land Use and Allocation Committee in their respective states for many years a situation that hampered the steady and continuous delivery of land for building purposes;

3.

Many Governors do not give the urgent attention needed to their responsibility of granting consent for land transaction, thereby impeding the development of an efficient land market and housing finance institutions in the country;

4.

Equally serious is the attempt by some Governors to use the provision requiring their consent to land transactions as a means for raising revenue for their States by imposing heavy charges for granting such consent, thereby increasing transaction cost and overhead, obstructing the development of an efficient land market and housing finance institutions in the country;

5.

Attempt by some State Governors to declare all land in their State as urban land gave rise to considerable distortion absurdities in the operation of the land market;

6.

The inconveniences and delays in securing statutory certificates of occupancy have induced many land transactions among Nigerians to move to the informal market or to be falsely dated pre march 1978, the operative date for the Land Use Act

7.

The exclusion by the Decree of the rights of families or individuals to develop private layouts has led to the emergence of a disjointed, uncoordinated and system of physical planning in Nigerian cities and a declining rate of housing provision in the country;

8.

The power of Governors and the local government to revoke any right of occupancy over land for overriding public interest has been used arbitrarily in the past and helps to underscore the fragility of the rights conferred by the certificate;

9.

In consequence of the above, there is increasing reluctance by both the courts and the banks to accept the statutory certificate of occupancy as a conclusive evidences of the title of the holder to the right nor as adequate security in an application for loan106.

10.

In addition, the Land Use Act, though a national legislation, its implementation and administration is left with the various states. This position gives rise to the plethora of administrative policies based on the state’s interpretation and application of the Act

11.

The Act imposed a frosted and restricted land market structure on the economy. It encourages state monopoly on land

106

Akin Mabagunje op. cit

ownership, management and administration in the country with concomitant hardship on individual and private developers and the development of a viable mortgage finance institution in the country. The problem associated with such monopolistic arrangement is succinctly elucidated in the words of Professor Denman when he said; “Those who wish to see the state as universal landlord do not stop to consider the grave social consequences of what they advocate. One of the arguments often on the lips of extremists is that land nationalization will break the suzerainty of the landlord. That may well but at what cost? There are bad landlords and good landlords and there will always be. For every bad landlord there is more than one good alternative. Now a tenant who falls out with a bad landlord can seek a happier day with another, but how would such one fare when there is only one supreme landlord to whom he could turn for land?107

12.

The administration of the Act has also led to the development of speculative compulsory acquisition of land by the various State Governors. This is a policy whereby the Governor would declare an area as acquired land for the state and or its agency. Since such land are usually undeveloped, no compensation is paid. Subsequently, after so many years and particularly when individuals in need of land had developed such land, the state government will then start selling the land to such developers. This it does by means of what it called ratification or outright sale108. Such policy adds no positive value to land management

Cited in Omotola J.A Law and Land Rights; Whither Nigeria, University of Lagos, Inaugural Lecture Series (1988) pp 25-26 108 Most of the land at Ketu, Ojota, and Bariga in Lagos State and Ogijo, Ota and Akute in Ogun State were State acquired Land, which is now being sold by means of ratification by the concerned states. Atimes the government will acquire land in excess of its needs and 107

but only aggravate the problems of land scarcity, speculation and cost, with adverse effect on the development of the housing sector of the economy; particularly housing finance and security of title to land. These various weaknesses of the Land Use Act have impacted negatively on adequate production and supply of housing, particularly residential housing, within the Nigerian economy. With the nationalization of lands and the vesting of same in the State Governors, coupled with the quantum of compensation payable for land acquisition by the State, the Act has not only retarded land mobility and accessibility, but has also abolished the economic relevance of land as a factor of production and as an economic asset for the creation of wealth within the Nigerian context. It thus represents a retreat from the ongoing government transformation of Nigeria into a free market economy, which requires that a society must transform all its factors of production – land, labour, capital and entrepreneurship into, as it were, commodities which can be brought to a self-regulating market with a price tag and exchanged in a deepening range of economic transaction109. In respect of land, such transformation would require that land was individualized and the extent of each plot is clearly delineated, surveyed and registered and that a title deed indicate its ownership. Under the extant economic policy in Nigeria all other factors of production have economic value except land. This position is borne out of the fact that bare land has no economy value under the Land Use Act as it commands no right to compensation for its acquisition.

subsequently give out the excess to political patronage instead of releasing it to the original owners. 109 Polanyi Free Market Enterprise” in Developing Economy” 1958

This distortion of classical economic theory impacts negatively on growth and development of the economy, including the housing sector. This is because under the current land policy, land cannot be freely brought or sold nor can it be kept as a future asset, as it has no valve in the eye of the law. This is a disincentive to the growth of the housing sector, as land is not factored into the cost of production of housing110 The Land Use and Allocation Committee is expected to advise the Governor on Land issues and their non establishment by the various State government constitutes an albatross on the smooth delivery of housing to the populace. Even where this committee is constituted, what is their relevance and effectiveness in the scheme of things? A commentator had once commented that this committee lacked the necessary bite for effective land administration in the state. His argument is premised on the fact that not only are the members of the committee appointees of the Governor and mostly government apologists and public servants, but also for the fact that the Governor is not bound to accept and or act on the advise of the committee111.

110

The situation is better explained with a scenario where a person applied and got a State land at, say for example, Lekki, for 6million Naira, excluding other development charges; He built a mansion at the market cost of N200million. Subsequently he sold the property for N300million with the purchaser paying around N5million as transaction cost, including consent fee, capital gains etc. The government on subsequent acquisition of the property for overriding public interest would be liable to pay the replacement cost of the building on the land with no compensation for the acquisition of the land itself. Thus were the land to be undeveloped at the time of acquisition the allottee would only get a refund of the rent paid for the current year. He would thus lose the 6million Naira earlier paid to the State for the same land. This is surely an unjust enrichment of the State at the expense of the individual. 111

Banire M.A: Land Management in Nigeria Towards a new legal framework op. cit p. 174 see also Essang “Reflections on some of the provisions of the Land Use Act 1978” in Report of proceeding of National Workshop on the Land Use Act 1978 Unilag press 1982 p. 12; T. O. Folami op. cit.

Also the thorny issue of consent to subsequent transaction provision of the Land Use Act has been and remains a serious threat to the realization of any meaningful policy on housing delivery in Nigeria112. Not only does the issue of obtaining consent constitutes additional unnecessary transaction cost, particularly when it is seen as a source of raising revenue for the state, but its ineffectiveness causes delay and hampers the development of an efficient mortgage and housing finance institution. In the words of Obaseki JSC113” “In my view and I agree with chief Williams expression of anxiety over the implementation or consequences of the implementation of the consent clauses in the Decree. It is bound to have a suffocating effect on the commercial life of the land and house owning class of the society who use their properties to

raise loans and advances from the banks”. The

consent requirement imposes a greater burden on a prospective developer,114and creates unnecessary bottlenecks in the creation perfection and realization of mortgage with adverse, resultant effect on mortgage institutions and wealth creation. The magnitude of the problem becomes obvious when it is realized that the operation of the Federal Mortgage Bank and the National Housing Fund is premised on the existence of a viable and efficient mortgage system. With this situation one can

See generally the following for a seminal discussion on the consent provision M.A Banire op.cit. Adeoye & Oguniran “the Socio Economic Implication of the Consent provisions of the Land Use Act; K. Oluwajana The Land Use Act and the Banking Industry; Ladi Taiwo, Practical Implications of the Land Use Act on Mortgages” in the Land Use Act: Administration and Policy Implications ed. Olayide Adigun, Unilag press 1991; E. Essien Land Use Act and Security in Real Estate in Nigeria, R.A Omuoha Governor’s consent under section 22 of the Land Use Act: The position since Savannah Bank V Ajilo, Tunde Otubu, Land Use Act and Housing in Nigeria: Problems and Prospects in “The Land Use Act. Twenty five years after” ed I.O Smith; P.O. Adeoye The Use of A Right of Occupancy as security for Advances – A Caveat”, Journal of Business and Property law 1989. p. 17. See also the case Savannah Bank of Nigeria Limited V Ajilo (1987) 2 NWLR 421. 113 Savannah Bank of Nigeria Limited V Ajilo (1987) 2 NWLR 421. 114 M.A Banire “The Relevance of the Certificate of Occupancy to Estate Development (1997) Vol 1 No 1 LJES 153. 112

reasonably fathom the reason for the non-disbursement of the fund in the fault of the National Housing Fund. Another identifiable drawback of the Land Use Act to effective housing delivery is the issue of security of title to Land under the Act. The question is how secured and unimpeachable is the title derived under the Act? This question becomes pertinent as it goes to the root of wealth creation capacity of land as an economic input. The problem of insecurity of title under the Act is multidimensional. Firstly, the Act encouraged and sustained the creation of dual interests and title in land, i.e express grant and deemed grant. While the former has fixed and certainty of duration, the latter have an indeterminable tenure that may enure till eternity115 Secondly, the Act recognized and allowed the continuous use of pre Land Use Act title deeds for land transaction without compelling its conversion to certificate of occupancy provided for by the Act.116 Thirdly, with the power of the Governor to grant statutory right of occupancy for all purposes and the omnibus provision of section 5(2) of the Act, the Governor may grant and revoke right of occupancy at will117 In the words of Smith “a certificate of occupancy issued by the Governor as evidence of a deemed grant ……… is precarious, because such certificate of occupancy tends to evidence a pre-existing title, security of title is not necessarily assured save where the pre-existing title is valid and This position remained a fact inspite of supreme court decision in Ajilos case. See Tunde Otubu. The Deemed Grantee and the future of Land Use Act, (Current Research Article) . 116 For a critique of this practice see Omotola J.A The land Use Act and the Lagos State Land Registry. Practice 13 NJCL (1981-83) pp.37-50 117 See Smith I.O. The Certificate of Occupancy; Nature and Value in The Land Use Act; Twenty five years after op. cit. See however the supreme court decisions in Dantosho V Mohammed (2003) 6 NWLR (pt 817) 457 and Ibrahim V Mohammed (2003) 65 NWLR (pt 817) 615. Smith I.O A Review of Recent Decision of the Supreme Court interpreting Section 5 of the Land Use Act (2003) JPPL 23 p.179 115

indefeasible”118 As said by this writer at another forum, “ it becomes obvious that the title given by the Governor is not as secured as its sounds. This will and has surely affected the development of the housing sector of the economy. Not only will the financial institutions be wary of taking such shaky, title as security for advances, but prospective property developers will also think twice before embarking on development”119. No wonder that more than 80% of the contributors to National Housing Fund could not access the fund since the title they offer under the Land Use Act could not satisfy the stringent requirement stipulated under the Federal Mortgage Bank Act on the National Housing Fund Act. Fourthly, the power of the governor to revoke grants and the quantum and categories of persons entitled to the compensation under the Act further reduced the validity and value of the title derived under the Act. Compensation is limited only to the exhausted improvement on the land120 and a mortgagee is expressly excluded from the categories of persons entitled to compensation121. All these drawbacks affects the security value of certificate of occupancy, whether as the basis to title or as collateral for loan advances to raise capital finance for housing. Another notable hindrance created by the Act is with respect to restriction or embargo in land transfer in some respect and the denial of economic value to undeveloped land in the country. By virtue of the provisions of the Act, non urban lands particularly land covered by the provisions of section 36 of the Act cannot be alienated in any form either by sale, lease,

Smith I.O op. cit. p. 192 See Tunde Otubu op. cit no.3 p. 357 120 See Section 29 of the Land Use Act 1978 121 Ibid section 51 118 119

mortgage or charges. This provision has thus tied down a large chunk of economic assets that would have ordinarily been available for further creation of wealth122. The provision of section 29 of the Act vis a vis the economic value of undeveloped land had earlier be discussed123. With the coming of the Land Use Act, land accessibility and affordability for private development has become an harculian task. In the words of a commentator, while indeed land has become easier and cheaper for public use, access to land for private development appears to have become even more difficult than ever before124. And for a government that is neither nationalistic nor with socialist tendency such land policy would only engender the enrichment of government and rulers at the expense of the majority of the people that needs the land for other economic uses125. This policy of the Act brought distortion into the Land use and management in the country with dare consequences for land market and distribution in the country. As a result, land may be physically available but not accessible due to exclusivity of ownership rights. What matters then is

See generally Webster Johnson V. Twenty five years of progress. Division of Land Economics (1945) The Journal of Land & Public Utility Economics 21 No. 1 p. 54 see also Adeoye F. O. “The Use of A Right of Occupancy as Security for Advances- A Caveat” 13, 14 & 15 JPPL (1990/91) p.61; Adeoye & Ogunniran “The Socio Economic Implication of the Consent provision of the Land use Act” in the Land Use Act: Administration and Policy implication op.cit p.77 123 See Fekumo. F. The Land market under the Land Use Act (1988) Vol 2(8) Gravitas Review of Business and Property Law” p.22 124 Omirin M.M “Issues in Land Accessibility in Nigeria” paper presented at the National Conference on Land Policy Reforms and Property Taxation in Nigeria, organized by the Department of Estate Management, University of Lagos July 2002 125 It is a known fact that most of the large farmlands and estates in the country are owned by past military rulers, government officials and their cronies. These new set of “farmers” got their larges through the manipulation of the provisions of the Land Use Act by the powers that be. In essence the Act has succeed at creating a new land owning class in the military Generals and their co travelers in power politics of the day 122

not how much land is physically available at any given time but how much of it is not available because of obstacles to development126 In view of the fact that the housing industry is emotionally and financially sensitive to land prices and since the decision to buy land is the most crucial in the housing development process, it is imperative that these identified lapses or drawbacks in the current land policy and administration in Nigeria must be corrected. This is with a view to providing a solid foundation for the growth and development of a viable housing sector in which the private sector shall take the lead in providing affordable housing for all; backed by an effective and efficient mortgage system. It is therefore necessary to proffer the following suggestion for the reformation of the current legal and administrative regime. PART IV 1.

Recommendation

There is currently a distortion and dichotomy in the legal and administrative structure on land management in the country. While there is a national legislation on land maters, we have regional or local administrative polcies.127. This position is fueled by the current constitutional provision relating to land management in the country. Constitutionally, land is a residual matter but with a constitutional backed national legislation. Thus, the first recommendation is that land policy and management should move from the residual list to the exclusive legislative list or atleast the concurrent legislative list. This becomes imperative given the relative importance of land to the overall development of the nation’s Nicholas “Private Housing Development Process: A case study”. Consultancy Report for the Department of the Environment U.K. 1980 126

127

Banire M.A op. cit

economy. It should be noted however that this constitutional shift is not meant to nationalize all lands in the country but to offer a uniform and systematic land development and management programme for the country. Following on the heels of the foregoing recommendation is the need to put in place a uniform administrative and implementation structure through a national legislation in order to streamline and harmonize the current vagaries in the implementation and administration of the Land Use Act.128 Thirdly, the place of an efficient and effective registration and documentation of land transactions to security of title and stable land market cannot be overemphasized. To this end the existing mechanisms and procedure for regularization and registration must be reoriented and reorganized to achieve greater effectiveness, reliability and economy. Since market efficiency depends very much on the availability of reliable information that can be used to check genuineness of titles before purchase and to trace records of land transfers at any point in time, efforts should be geared towards making registration compulsory for all land dealing. Government should compel the conversion of all existing titles on land to a certificate of occupancy within a stipulated time. Such policy would foster the development of a uniform land title in the system, which in turn would engender certainty, reliability and security of land title deeds129 However 128

See generally Williams K.J “The effects of Land Use Regulation on Property Values 36 Environmental Law 105, 2006, pp.106-130 129

This policy can be implemented by the Government through the issuance of certificate of occupancy to the parties seeking the consent of the Governor to subsequent transactions where their prior title deeds was not a certificate of occupancy. The same procedure should be employed where the government issues a deed of ratification over land to an applicant. With vigorous implementation of this procedure in the nearest future certificate of occupancy become the uniform title deed over land in the country. See generally Onuoha R. A “The Problem of

such certificate of occupancy should not be of limited duration like the present, except otherwise dictated by the prior title of the grantee. The certificate should not be revocable at the whims of the Governor and when revoked for overriding public purpose, should command payment of compensation for its intrinsic value outside any betterment on the land. It is in such situation that security of title of the C of O would be assured and enhanced. More so when the definition of the holder in section 51 would have been extended to include a mortgagee. Fourthly, a corollary to the above recommendation is the retention of the consent provision to subsequent dealings in land. This recommendation may seem curious given the avalanche of criticism that trailed the application of the provision under the present law. However the provision should be retained in order to encourage and develop the habit of land documentation and registration among members of the public. Such policy will further certainty and security in land title with resultant positive effect on the development of a vibrant mortgage finance industry. In this context, the consent provision should be retained for mere administrative purpose to record land dealings generally. The current haphazard and costly procedure in the application of the provision should be jettisoned for a more liberal approach that would encourage compliance rather than defiance on the part of the parties seeking consent. With the removal of the consent fee, land prices would better reflect their actual exchange values and the spate of corruption on the part of both bureaucrats and the land dealing public will reduce drastically.

Land As Security Under The Nigeria land Use Act 1978” Unpublished PhD Seminar, Faculty of Law, University of Lagos. 2004

Fifthly, the current legal regime, which seeks to restrict the economic relevance of land to development and as a key factor of production, with a price tag, should be jettisoned. In its place land liberalization if not, privatization should be encouraged. It is such policy of liberalization that would engender the development of a robust and efficient land market system, which in turn will precipitate a proper and effective allocation of land among the competing needs of the economy130. To achieve this, the issue of compensable items under section 29 of the Act should be revisited. No matter how little, compensation should be extended to include the value of land simplicita. This will ensure that such land commands a price at the land market for the betterment of the economy. Also the provision of section 36 of the Act prohibiting alienation of lands in rural areas should also be reviewed. Such land should be released into the market in order to create more wealth in the economy. Also the definition of holder in section 51 of the Act should be extended to included mortgagee.

However the

consent provision should be retained to ensure that the government monitors land dealings efficiently. Furthermore Government should also reduce its speculative land acquisition policy and free more land from the shackles of undue and unnecessary compulsory acquisition. Since the Act recognized communal interest in land and acknowledged the rights of owners of developed land, more land will be made available in the market if government called curb its appetite for unnecessary acquisition. This will translate into more 130

It may be argued that such policy of liberalization would not adequately provide for public utilities and uses in the system. However, with the current successive policy of private sector participation (PSP) and privatization in almost all spheres of public life, the argument lacks much substance. For instance, refuse collection; water supply and electricity generation enjoys good patronage from the PSP in Lagos State. Also the current development and management of public parks and utilities by private organizations speaks volumes of the benefits of such privatization policy. An example is the establishment and management of private cemeteries in the country.

economic activities and wealth creation. In this wise, public land ownership should be limited to areas that have already been earmarked for specific public projects aimed at providing infrastructure and urban amenities. Instead of competing with private developers in the provision of housing, public investment in infrastructure to open up new areas should be accorded greater priority. With privatization so high on the global agenda for efficient management of resources, it is an aberration for governments to abdicate their responsibility as enablers in order to compete in activities the private sector could perform more efficiently131 Finally, the law should encourage, facilitate and stimulate the growth and development of private layouts within a defined and coordinated legal environment, regulated by the State. This approach will curb the emergence of the current disjointed, uncoordinated and haphazard system of physical planning in Nigeria cities and raise the level of provision of housing in the country. 2.

Conclusion

This paper has examined the place and role of efficient land management policies in the provision of adequate housing within the Nigeria legal and administrative context. It identified and discussed the various variables necessary to ensure the delivery of housing to the members of the public. Following a discussion and appreciation of government efforts in this regard, particularly with the introduction of National Housing policy, National Housing Find and the establishment of mortgage finance institutions, the paper identified the current land policy as a major hindrance to the successful implementation of government policy on housing. It therefore recommended a policy shift and amendment to the existing legal and administrative framework particularly in the area of 131

See generally Robert W. Poole “Privatization for Economic Development in ‘The privatization Process: A worldwide perspective” T.L. Anderson & P.J. Hill eds. 1996

recognizing land as a factor of production and allowing it to command market price. In all the paper called for a general overhaul of the current system and free land from the existing government monopoly and insecurity foisterred on the nation by the implementation and administration of the Land Use Act.