Book Review On Consent To Transfer Interest In Land; Judicial And Legislative Approach. Author: Rasheed Jimoh Ijaodola

The article is a short review of the book; concent to land transfer in Nigeria: Judicial and legislative appproach.

In another realm of knowledge, 'from dust to dust is what is said about man and the land. Could this explain man's attachment to such a gift of nature? The answer to the forgone is not the concern of the book under review. What we can say is, that there is hardly any man's activity that is not connected to the land. In that case, land stability is the stability of the state, and the state's ability to effectively control and manage land use says a lot to its economy and political development. If the essence of laws is to ensure a stable society, then laws relating to land rights; who owns what land, and how should it be acquired should be made explicit.

It is in the light of the above that the author, a researcher, and lawyer helps to offer a legal understanding of land relation and laws in Nigeria. More to the legal arguments raised in chapters of this book also are constitutional enlightenment that cast light on property rights as they were within the ambit of the law. While the book focuses largely on the Land Act of 1978, its strengths and weaknesses and other ambiguities as expressed are best appreciated through an understanding of the land laws that precede it.

Historically, before the arrival of the British colonialist in the 1800s, the several ethnic Bloc that will later make Nigeria had customary rules as regard to land use, management, and control. Lands were designated as communal land, and some were family land. The right to transfer lands rests on the consent and participation of the communal head and its principal members, with or without the consent of the family head. Under the colonial Customary Tenancy; a customary overlord cannot alienate any part of the land subject to a customary tenant without the consent of the customary tenant and vice versa.

In 1962, the land tenure law requires the consent of the Minister before the interest on land can be transferred. Decades into Independence, Nigerians found this law ineffective and anti-investment, as bitter controversies often ensued over land. The enactment of the Land Use Act of 1978 is to undo the unsatisfactory nature of land management and control by the previous laws and arraignment. However, the author doubts very much if this has been achieved, as he demonstrates some ambiguities of sections that made up the Act. He states that the Act is not much different from the previous laws of land tenure that do not meet modern economic realities.

Section 1 of the so much talked about Land Use Act vested all land in a state to the Governor of the state. Although it limits its control to lands acquired by the federal government or its agencies; and land that possesses natural resources like mines and minerals is owned and controlled by the federal government. The right to acquire and transfer interest in land is provided by the Act as ' Right Of Occupancy' as defined, it is " a title to the use and occupation of land, and it includes a Customary Right and Statutory Right of Occupancy". 

Customary Right of Occupancy is granted on land that is not in urban areas and can be granted by the local government under section 6(1) of the Land Use Act. Where it is evident that there is an existing interest in land, the right granted thereafter is invalid. The author lament that section 36 of the Act created controversies concerning land. As it states that ' if land as at the commencement of this Act is used for Agricultural purposes, it occupier or holder is entitled to possession of the land for agriculture purposes as if a Customary Right of Occupancy had been granted...' he insists that the section do not favor land owners under Native Law and Custom such as owners of family property who may have a vast land not being used for agricultural purposes at the time the Act came into effect. But rather favors a Customary tenant who may not be from a land holding family but using the land for agricultural purposes at that time. In view of section 36, such tenant will be entitled to a Customary Right of Occupancy than the members of the Landholding family. This position he believes has created more problems for title to land than it intends to solve.

On the other hand, the Statutory Right of Occupancy is provided for under section 5 of the Act. It is a right that can be granted by the Governor of the state regardless of location. For a Certificate of Occupancy issued to be valid, there must not be a subsisting valid interest that has not been revoked properly at the time it was issued. Also, it should be noted that upon the grant of a Statutory Right of Occupancy all existing right on land is extinguished. But would one not think Governors can act arbitrarily over land. May wish to grant or revoke rights based on political and ethnic considerations other than the standard of Justice. However, the Judicial approach emphasizes that a Right of Occupancy cannot be revoked for public interest and later be granted to another for private use. Revocation can also be served to an occupier for a breach of conditions stated in the C of O. And in the case, revocation is served based on public interest(road, mining...) as stipulated in section 28 of the Act, the occupier is entitled to compensation for the value of improvement made on the land(like building). However, compensation does not apply to an occupier whose land has no improved value on the land. An idea the author think is not fair enough, and the section of the Act be amended, he recommends.

This review can not exhaust the numerous legal enlightenment that the book has posses. While the book ideas are originally a Ph.D. research thesis, it is a good recommendation for socio-economic researchers, students of legal studies, real estate management students, and property marketers alike who would want to arm themselves with the knowledge of property law in Nigeria.

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