By Mike Ozekhome, SAN
The Land Use Act of 1978 (LUA) has since laid the issue to rest as to who controls land in Nigeria. The provisions of Sections 1 and 2 of the Land Use Act, provides that all land comprised in the territory of each state in the Federation are vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.
The case of NZENWATA & ORS V. NZENWATA (2016) LPELR-410 89(CA) gives a detailed explanation of the control and management of land under the Land Use Act, 1978 in the following words: “The Learned Counsel on both sides are ad idem from their submissions in their respective Final Addresses that by the provisions of Sections 1 and 2 of the Land Use
ct, 1978, all land comprised in the territory of each State in the Federation were/are vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act (Section 1 of the Act).
Also as from the commencement of the Act, all land in the urban areas shall be under control and management of the Governor of each State and all other land shall, subject to the Act, be under the control and management of the Lo- cal Government within the area of jurisdiction of which the land is situated. (Section 2(a) and
of the Act). By the provisions of Sections 5 and 6(1) of the Act which deal with the Prin- ciples of Tenure, Powers of the Governor and Local Governments and Rights of Occupiers: It shall be lawful for the Governor in respect of land, whether or not in an urban Area- (a) to grant statutory rights of occupancy to any per- son for all purposes.” Section 5(1) (a) Section 6 (1) of the Act on the other hand provides that: It shall be lawful for a Local Government in re- spect of land not in an urban area- (a) to grant customary rights of occupancy to any person or organization for the use of land in the Local Government Area for agricultural, residential and other purposes.”
The combined effect of the provisions of all the Sections of the Act above quoted is that all lands in urban areas as well as the Rural Areas are either vested in the Governors or Local Government Chairmen and all citizens of this Country who hitherto owned land or not are mere beneficial occupiers or owners as the State Governor in cases of land in Urban ar- eas hold such land in trust for them. See Savannah Bank of (Nig) Ltd. & Anor v. Ajilo & Anor (1989) LPELR-3019 (SC) Per Belgore, JSC (as he then was) at pages 84-85, Paragraphs A-C).” Per AGUBE, J.C.A. (Pp. 32-34, Paras. D-D).”
In accordance with Section 1 of the Land Use Act 1978, State Governors can exercise the power to grant statutory rights of occupancy in any part of the State, at which point a proof of the right of occupancy, which is known as a certificate of occupancy, is issued by the State Governor. From the above provisions, it is crys- tal clear that my good friend, the Ondo State government and its Governor, Arakunrin “Ake- ti” Rotimi Akeredolu has control over all lands
Additionally, section 28 of the LUA, 1978, provides for the powers of the Governor to revoke rights of occupancy for overriding public interest. Similarly, the instances in which these rights can be revoked are provided for in the same section (28). From the aforementioned, it is within the powers of the State Government to exorcise occupants of lands within its territories if it is in the overriding interest of the public, such as security matters.
Governor Akeredolu can therefore, in exercising the rights granted to him by virtue of his position as Governor of Ondo State, issue the order asking herders to vacate the forests reserves within seven days, simply on the ground that the reserve belongs to the Ondo State government. Indeed, the Governor can compulsorily acquire such lands as occupied by the ungovernable herdsmen, in accordance with section 44 of the 1999 Constitution. In such a lawful event, the Governor is expected to make prompt payment of compensation to the herds- men, who have lawfully been in occupation without criminal records in accordance with section 44(1)
(a) of the Constitution. See AIGORO V. COMMIS- SIONER OF LANDS AND HOUSING, KWARA STATE (2011) LPELR-9112(CA).
The Governor has duly exercised his powers under the Land Use Act by giving the 7 days quit notice to the herdsmen. This is constitutional and legal. It is also correct to state that something drastic needs to be done to tackle the increasing menace of crimes and violent acts faced in Ondo State for- est reserve, which the Governor stated was his rea- son for the order.
Said Hippocrates (the father of Medicine), “desperate diseases require desperate remedies”. Akeredolu’s primary function as Governor of Ondo State is the security and welfare of his people (section 14(2)(b) of the 1999 Constitution).
However, as is trite law that, the Governor’s powers are only effective up to the extent that they do not arbitrarily affect a citizen’s rights under the 1999 Constitution, without resort to due process of law. The Constitution of the Federal Republic of Nigeria (1999) as amended, supersedes the provisions of the Land Use Act. It is the highest law of the land, the grundnorm and supreme law. See ABACHA & ORS V. FAWEHINMI (2000) LPELR-14(SC).
Thus, where any law or provisions of laws conflict with the Constitution, such law is null and void to the extent of its inconsistency. Inherently, Governors are bound by their oath of office to obey and uphold the Constitution and all other laws that
arbitrarily, whimsically and capriciously order a group of people, tribe or religion to vacate, by an ultimatum, any part of the state in which they gov- ern, without resort to the law courts, as this will amount to encroaching on the fundamental rights of citizens as guaranteed by the Constitution. These rights include right to freedom of movement (section 41); right to freedom from discrimination (section 42); and right to own movable and immov- able property (section 44).
Right to own land
It is arguable that the herdsmen, who have been issued quit notice by Governor Akeredolu are actu- ally being arbitrarily sent away from lands to which they have legally acquired title and possession over. Where it is proven that some herdsmen have peacefully lived on the land for a significant time without committing crimes, then they are deemed to have a bonafide title to lands occupied by them under the law. The case of IDUNDUN AND ORS
IKUMAGBA AND ORS (1976) 9-10 S.C. 227, reflects this position, as it posits five ways in which title to land can be proven:
By traditional evidence in the form of traditional history.
By production of documents of title
By proving act of ownership and possession over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.
By proving acts of long possession and enjoyment of land; and
By proof of possession of connected and adjacent land, in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
The above five ways to prove title to land are not mutually connected. Ergo, proving one of these ways is sufficient enough to prove title. See the case of BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOIYI & ORS (2011)
LPELR. Where any of these are proved, the government’s order could be challenged as constituting a breach of those herders’ rights. However, section 28 of the Land Use act bestows title over all lands of a state on the Governor. Consequentially, Governor Akeredolu can lawfully give out lands in a state, just as he can also lawfully take them back.
This is the dilemma – striking a delicate balance between Nigerians’ right to live and carry out business wherever they desire, and the need that they live peacefully, without criminal tendencies. Can the individual rights of these herders override the need for the Governor to maintain law and order as the Chief Security Officer of his state (section 215(4)); and to give maximum security to his people (section 14(2)(b)? I think not.
Freedom of movement
The Constitution of the Federal Republic of Nige- ria, 1999 (as altered) provides the citizen’s right to freedom of movement throughout Nigeria. He is also allowed to reside in any part thereof. Section 41 (1) of the Constitution of the Federal Re- public of Nigeria, in very clear and precise words, provides as follows: “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom”.
This fundamental right is widely applied, as citizens are thereby permitted to move across all corners, nooks and crannies within Nigeria, as was aptly held in the case of OKAFOR v. LA- GOS STATE GOVT & ANOR (2016) LPELR-
41066(CA). It is of no effect whether the citizens live where the land is located, or whether they are nomads. This position has been clearly reiterated by the apex court in IBRAHIM V. MOHAMMED (2003) FWLR (PT. 156) 902, where Lordship Kalgo, JSC, stated thus:
“The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live”.
See also the case of AROWOLO V. AKAPO & ORS (2002) LPELR-7063(CA).
The only exception/limitation to this is where restrictions have been placed on the movement or residence of such a person, where he commits a crime, or is suspected to have committed a crime in other to ‘prevent him from leaving Nigeria’. Thus, applying the literal rule, this limitation ap- pears to apply in an instance such as this, where the crime is committed, is expected or foreseen, as was Governor’s Akeredolu’s reason to tackle the increasing spate of violent crimes perpetrated by herders in the forest reserve of Ondo State.
herders should register for proper identification. Why will they not want to do this, when this will actually help the genuine herders to be separated from the violent and criminally-minded ones, such as kidnappers and armed bandits? This registration will determine how many herders are actually operating in the forest reserve and also separate the genuine ones from the invading terrorists who arrive from neighbouring countries.
Legally speaking, the right channel available for Governor Akeredolu, in my humble legal opinion (if he must demand their exit within 7 days), is for the Governor to file an action at the Federal High Court, stating the reasons as to his request to oust the herdsmen from the forest reserve and vacate his state. His reasons are strong enough, and courts would readily agree with him.
This will ensure his acts with legal and constitutional imprimatur. Freedom of movement is not absolute, though no court of law in Nigeria has been found to grant an application that breaches the fundamental right of its citizens. In KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287(CA), the issue for determination was whether the rights to personal liberty and freedom of movement as guaranteed by the Constitution of the Federal Republic of Nigeria, are absolute. There, EKO, J.C.A. (as he then was), in pages 44-45, paragraphs F-E, concisely and unambiguously stated:
“The courts, including the Federal High Court, know the law and would not do things to whim- sically undermine the rights of parties guaran- teed by the Constitution. The rights to personal liberty and freedom of movement, guaranteed respectively by sections 35 and 41 of the 1999 Constitution, are not absolute. Section 41 (2) (a) of the Constitution says that the right to freedom of movement may be deprived under a law that is reasonably justifiable in a democratic society that imposes restrictions on the “movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria”.
An application for enforcement of a party’s fun- damental right presupposes the right has been, is being or is likely to be violated otherwise than in accordance with the procedure permitted by law. That argument will be defeated when it is apparent that the right has been deprived of in accordance with the procedure permitted by law.”
Therefore, once the Governor can show to the court that the peace and order of Ondo State have been breached by the herders, the constitutionality of Governor Rotimi Akeredolu’s order cannot be faulted by a court of law; and same will be held to be constitutional, and not unconscionable, arbitrary, oppressive, discriminatory, illegal or ultra vires his gubernatorial powers.
Freedom from discrimination
In discussing this fundamental right, I would refer to the Punch Newspaper publication of 19th Janu- ary, 2021, in which the Senior Special Assistant to the President on Media and Publicity, Garba Shehu, replied to Governor
Rotimi Akeredolu’s request thus:
“Governor Rotimi Akeredolu, a seasoned lawyer, Senior Advocate of Nigeria and indeed, a former President of the Nigerian Bar Association, has fought crime in his state with passion and com- mitment, greater sensitivity and compassion for the four years he has run its affairs and, in our view, will be the least expected to unilaterally oust thousands of herders who have lived all their lives in the state on account of the infiltration of the forests by criminals”.
I completely agree with this opinion. It is important to note that not every Fulani living in Ondo state is a criminal, as some, or many, who have lived there for decades, do not fall into the category of the rampant, blood-lusty “herdsmen” terrorizing citizens and states in Nigeria. Consequently, the categorization of every Fulani within the herds- men bracket or the categorization of the herdsmen in the blood-lusty herdsmen bracket will, in my humble view, appear to be discriminatory.
This is contrary to freedom from discrimination as guar- anteed by section 42. It is a court of law that can sift the chaff from the seeds. I do not agree with the tarring of a whole race with the paint brush of criminality. I give an example: if some Igbo or Edo or Yoruba people (permit my example) are fond of committing crimes in the Sagon Gari area of Kano City, it will be wrong, unconstitutional and even immoral, to term all Igbos, Edos and Yorubas in Kano as criminals who must be evicted within seven (7) days. What about the majority innocent ones, many of whom are living in Kano in their third generation? My thesis is that the criminals must be separated from the innocent ones. I therefore agree with the compulsory registration introduced by Akeredolu, to sift the good from the bad and ugly.
Is the presidency right by telling Akeredolu that he can’t sack herdsmen because they have lived there all their lives?
The Presidency has every right to be worried about the Governor’s order, seeing that he is about to infringe on the fundamental rights of Nigerian citizens without a court order to that effect. A court order, I repeat, is necessary. I do not want any reprisals in a volatile, mutually suspicious country of major religions and ethnic fault-lines.
By the way, why will Governors abdicate their solemn duties through short cuts? What stops Governor Akeredolu and other South West Governors from using their local vigilante groups such as AMOTEKUN, to flush out the criminals and deal with them? Why use the crimes of some (whether in the minority or majority) to deal with all of them, including the innocent ones?
How best can states tackle this issue of insecurity
Some identified problems
Bad governance and poor leadership Bad governance and poor leadership still remain Nigeria’s bane and fundamental cause of insecurity from the past till date. It is the duty of every government anywhere to see its primary function
fare, water, electricity, good road network, quality education, and general infrastructure. Our governments do not.
Overpopulation
Nigeria’s population has grown from 33 million in 1950 to about 208 million today [UNO, mid-June, 2020]. This phenomenal increase of the population has put enormous pressure on land and water resources used by farmers and pastoralists. This pressure has led to the blockage of transhumance routes and loss of grazing land to agricultural expansion, while the increased southward movement of pastoralists has led to increased conflict with local communities, with the latter (e.g. Ondo State) being at the receiving end.
Porous Borders
One major immediate factor which has enhanced insecurity in Nigeria is the porous borders of the country, where individual movements are largely untracked. Given the porous borders, as well as the weak security system, weapons easily find their way into Nigeria from other countries. Small arms and light weapons proliferation have enabled militant and criminal groups to have unhindered access to arms. Nigeria is estimated to host over 70 percent of about 8 million illegal weapons in West Africa.
The porosity of Nigerian borders has also led to unceasing influx of migrants from neigh- bouring countries, such as Niger Republic, Chad and Republic of Benin. These migrants who are mostly young men constitute the perpetrators of major crimes in the country.
Rural /Urban Drift
The migration of jobless youths from rural areas to urban centres is a major cause of insecurity in Nigeria. Nigeria is one of the countries in the world with very high rural/urban drift.
Lack of social irresponsibility of companies
Companies engage in corporate social responsibility to enable them offset corporate social irresponsibility. The rise of terror groups in some parts of the country is directly related to the abysmal neglect of social responsibility by companies to the community where they operate. This has been the case of the Niger Delta, leading to crisis.
Acts of Terrorism
Acts of terrorism have become the most fundamental source of insecurity in Nigeria. Its primary base and source have been squarely located in religious and ethnic fanaticism and intolerance. There is fear, destruction and death, especially against unarmed targets, property and infrastructure in
in prohibiting nomadic pastoralism, which is practised by millions of Nigerians, especially of the Fulani stock? We shall find out sooner than later.
Community policing should be immediately established within states of Nigeria for effective management of insecurity. Nigeria’s behemoth Police Force (sections 214 and 215 of the 1999 Constitution) should be dismantled in favour of states, LGAs and community policing.
There is an urgent need to create an enabling economic environment that allows for social, security, economic and physical infrastructure. This will allow for business and industrial growth.
Creation of job opportunities for the teeming youth is a sine qua non to prevent rising crime.
Adequate punishment e.g. barring for life, politicians who use thugs for politics, should be encouraged. This will help our electoral system.
There must be good governance, transparency and accountability.
Security systems must be strengthened
Our weak security system can be attributed to a number of factors which include corruption, inadequate funding of the Police (and other security agencies), lack of modern equipment, poor welfare of security personnel, and inadequate personnel.
There is therefore the need to improve our security architecture through the training of security officers, sufficient training in modern security methodologies, provision of state-of-the-art equipment and appropriate remuneration, good service conditions, and a convenient pension scheme.
Modern methods of intelligence gathering, and intelligence sharing, training, logistics, motivation, and deploying advanced technology in managing security challenge should be introduced immediately.
Poverty reduction is a must. A realistic social security programme must be vigorously pursued and implemented, to ensure that the teeming populace meet their basic needs.
There should be mutual trust, respect and accommodation by all ethnic and religious groups in Nigeria. No section should claim superiority over others whom they unfortunately regard as vassals.
