By Mike Ozekhome, SAN
THE Land Use Act of 1978 has since laid the issue to rest as to who controls land in Nigeria. The provisions of Section 1 and 2 of the Land Use Act, 1987, 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[1] 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 Act, 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 Local Government within the area of jurisdiction of which the land is situated. (Section 2(a) and (b) of the Act). By the provisions of Sections 5 (1) and 6(1) of the Act which deal with the Principles 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 person 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 respect 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 areas 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). When the Respondent Claimed as beneficial owner of the Statutory Right of Occupancy of the land situate at Umuoluo Umuoka in Umuahia South Local Government which is part of the Capital of Abia State, he may have technically wrongly couched his first Relief but this is certainly a slip by the Learned Counsel who prepared the Statement of Claim and the Court was duty bound in the interest of justice to effect the appropriate amendment.” 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 provision, it is crystal clear that the State government has control over all land within its territories.
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. Governor Rotimi 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 state government. In such a lawful event, the governor is expected to make prompt payment of compensation to the herdsmen. See AIGORO V. COMMISSIONER OF LANDS AND HOUSING, KWARA STATE (2011) LPELR-9112(CA).
The governor has duly exercised his powers under the Land Use Act. This is factual. It is also true that something needs to be done to tackle the increasing number of crimes and violent conduct faced in the area (forest reserve), which the governor stated was his reason for the request. However, as is trite law, the governor’s powers are only effective up to the extent that they do not affect a citizen’s right(s) under the 1999 Constitution. The Constitution of the Federal Republic of Nigeria (1999) as amended supersedes the provision 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 to obey and uphold the constitution and its other laws that support it. No governor can unilaterally order a group of people, tribe or religion to vacate, by an ultimatum, any part of the state in which they govern, nor can he intervene or encroach on the fundamental rights of citizens as guaranteed by the Constitution. These rights include right to freedom of movement as was clearly stated in section 41; and rights to freedom from discrimination as is contained in section 42; right to own movable and immovable property.
Right to own land:
It is arguable that the herdsmen, who have been issued a quit notice by Governor Akeredolu’s request, are actually being sent away from a land to which they have legally acquired title and possession over. Where it is proven that the herdsmen have lived on the land for a significant time, then they are deemed to have a bonafide title to the land under the law. The case of IDUNDUN AND ORS V. 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.
These five ways in which title can be proved 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 would be consequentially deemed a breach of those herders’ rights. However, as stated above, section 28 of the Land Use act bestows title of all lands of a state to the governor. At such, a governor can give out lands in a state, just as he can take it back. The case of
Freedom of movement:
The Constitution of the Federal Republic of Nigeria, 1999 (as altered) provides the right to freedom of movement throughout Nigeria of a citizen, and to reside in any part thereof. Section 41 (1) of the Constitution of the Federal Republic 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 all corners, nooks and crannies within Nigeria as was aptly held in the case of OKAFOR v. LAGOS 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 person where he commits a crime or is suspected to have committed a crime in other to ‘prevent him from leaving Nigeria’. This, applying the literal rule, does not apply in an instance where the crime is expected or foreseen, as was Governor’s Akeredolu’s reason to tackle the increasing number of crimes and violent conduct faced in the forest reserve. At such, providing for removal of any person from any part of Nigeria where such person has not be proven to commit an offence under law is contrary to the provisions of the 1999 Constitution, and is thereby illegal, unconscionable, void, null and of no effect whatsoever and howsoever.
Legally speaking, the right channel available for Governor Akeredolu 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. However, the probability of successfully obtaining an order to the effect is slim to none. Although the freedom of movement is not absolute, 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. (Pp. 44-45, paras. F-E) concisely and unambiguously stated:
“The courts, including the Federal High Court, know the law and would not do things to whimsically undermine the rights of parties guaranteed 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 35 (f) (c) of the Constitution says that no person shall be deprived of his right to personal liberty save in accordance with a procedure permitted by law and for the purpose of bringing him before a court of law in execution of a court order or upon reasonable suspicion of his having committed a criminal offence. And 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 fundamental 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, the unconstitutionality of Governor Rotimi Akeredolu’s request cannot even be legalized by a court of law, and same will be held to be unconstitutional, unconscionable, arbitrable, oppressive, discriminatory, illegal and ultra vires.
Freedom from discrimination:
In discussing this fundamental right, I would refer to the Punch Newspaper publication of 19th January, 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 commitment, 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/many do not fall into the category of the rampant, blood-lusty “herdsmen” terrorizing citizens and states in Nigeria. At such, the categorization of every Fulani within the herdsmen bracket or the categorization of the herdsmen in the blood-lusty herdsmen bracket is, in the very least, discriminatory, which is contrary to freedom from discrimination as guaranteed by section 42.
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 call the governor of Ondo State to order seeing that he is about to infringe on the fundamental rights of Nigerian citizens. It is unconstitutional for the Governor of a state to ask herdsmen to leave any state in the country. The right to freedom of movement is meant to be enjoyed by all citizens.
HOW BEST CAN STATES TACKLE THIS ISSUE OF INSECURITY
Some of The Problems
Bad governance and poor leadership
Bad governance and poor Leadership in fact, remains Nigeria’s fundamental cause of insecurity from the past till date. Any government anywhere has the primary function of providing basic services such as water, security, electricity, good road network, quality education, and general infrastructure. Ironically, these basic things are not there in Nigeria and the people, in general, are frustrated and demoralized.
Overpopulation
Nigeria’s population has grown from 33 million in 1950 to about 192.3 million today. This phenomenal increase of the population has put enormous pressure on land and water resources used by farmers and pastoralists. One of the outcomes of this process has been 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. This is particularly the case in the Middle Belt – notably in Plateau, Kaduna, Niger, Nasarawa, Benue, Taraba, and Adamawa States. The conflicts primarily involve Fulani pastoralists and local farming communities. As violence between herdsmen and farmers has grown and developed into criminality and rural banditry, popular narratives in the form of hate speech have exacerbated the crisis.
Porous Borders
One major immediate factor which has enhanced insecurity in Nigeria is the porous frontiers of the country, where individual movements are largely untracked. The porosity of Nigeria’s borders has serious security implications for the country. Given the porous borders as well as the weak and security system, weapons come easily into Nigeria from other countries. Small Arms and Light Weapons proliferation and the availability of these weapons have enabled militant groups and criminal groups to have easy access to arms. Nigeria is estimated to host over 70 percent of about 8 million illegal weapons in West Africa. Also, the porosity of the Nigerian borders has made it possible for unwarranted influx of migrants from neighbouring countries such as Republic of Niger, Chad and Republic of Benin. These migrants which are mostly young men are some of the perpetrators of crime in the country.
Rural /Urban Drift
The migration of jobless youths from rural areas to urban centres is also one of the causes of insecurity in Nigeria. Nigeria is one of the countries in the world with very high rural/urban drift. Most urban areas in Nigeria have grown beyond their environmental carrying capacities and existing infrastructure and this has resulted to increased poor quality of the living conditions in urban areas in Nigeria. Out of frustration, these youths are drawn into crime.
Social Irresponsibility of Companies
Corporate social irresponsibility is a set of actions that increases externalized costs and/or promotes distributional conflicts. Companies engage in corporate social responsibility in order to offset corporate social irresponsibility. The rise of terror groups in some parts of the country is directly related to the neglect of social responsibility by companies to the community where they are operating. This was the case of the Niger Delta crisis.
Terrorism
At the most proximate and least disputable level, terrorism is the most fundamental source of insecurity in Nigeria today, and its primary bases and sources of support have generally been located in religious fanaticism and intolerance. As “the premeditated use or threat of use of violence by an individual or group to cause fear, destruction or death, especially against unarmed targets, property or infrastructure in a state, intended to compel those in authority to respond to the demands and expectations of the individual or group behind such violent acts” which has cost 13.4 per cent of the world gross domestic product. Nigeria has lost more than 1000 lives in the Northern region since 2009 to the insurgency of this infamous sect, Boko Haram which has been ravaging the northern region of the country.
POSSIBLE SOLUTIONS
Grazing Reserves as Possible Solution – It is clear that Nigeria and, indeed, Africa have to plan towards the transformation of pastoralism into settled forms of animal husbandry. The establishment of grazing reserves provides the opportunity for practicing a more limited form of pastoralism and is therefore a pathway towards a more settled form of animal husbandry. Nigeria has a total of 417 grazing reserves out of which only about 113 have been gazetted. Whether we support or oppose pastoralism, it is clear that at least in the short and medium term, many herds must continue to practice seasonal migration between dry and wet season grazing areas. Ultimately, there is the need for permanent settlement of pastoralists.
The Law, Politics and Pastoralism – One of the greatest difficulties in addressing and resolving issues surrounding pastoralism is the politicisation of legal regimes and the blockages to the enactment of or implementation of laws that can redress the key challenges posed. In 2016, for example, a legislation was proposed – “A Bill for an Act to establish Grazing Reserve in each of the states of the Federation Nigeria to improve agriculture yield from livestock farming and curb incessant conflicts between cattle farmers and crop farmers in Nigeria” – and thrown out. There is an emerging conflict between the constitutional principle on the free movement of persons and goods and laws emerging in some States restricting movement. Some States have enacted laws or are processing bills to prevent open grazing on their territory. There are four initiatives so far in Benue, Ekiti, Taraba and Edo States. Could such laws be effective in prohibiting pastoralism, which is practiced by millions of Nigerians?
3. Boosting the Number of security Personnel in affected areas – One key step in tackling the insecurity crisis is to boost the numbers of security personnel, particularly in the most vulnerable areas of Benue, Nasarawa and Taraba states. In the short term, some of the soldiers currently engaged in policing duties in the South East and South West should be redeployed to the troubled states; the large numbers of police personnel still guarding politicians and other privileged elite in Abuja and state capitals should also be reassigned to these areas. The federal government should further provide the army and police units deployed to these states with additional logistics support, including more patrol vehicles and especially more motorcycles for moving through difficult terrain and reaching remote communities. Security services must also improve on their ability to gather intelligence and predict attacks, including through closer engagement and communication with local residents. Moreover, the police should put to better use information gleaned from interrogations of arrested armed group members to apprehend and disarm militias camped deep in forests.
4. Accountability – Steps to hold perpetrators of violence accountable should be implemented. President Buhari has pledged repeatedly that those responsible for the killings will be arrested and prosecuted. The government needs to ensure that both herders and farmers responsible for violence are held to account, transparently and even-handedly.Community policing should be established within each divisional police headquarters for effective management of insecurity.
5. There is serious need for the creation of an economy with appropriate social, economic, and physical infrastructure for business and industrial growth.
6. There is a need for our security apparatus to ultimately improve the training of security officers, sufficient training in modern security methodologies, the provision of state-of-the-art equipment and appropriate remuneration, good service conditions, and convenient after-service arrangements.
7. The government should boost people’s living standards by establishing more centers of entrepreneurship across the nation, most notably in the North and North East.
8. There should be a creation of more job opportunities for the youth; this will make them abstain from committing all such crimes.
9. There should be a punishment such as barring politicians who use thugs for politics for life.
10. The government should promote good governance, openness, accountability through the use of print and digital media, and inform the public through conferences, seminars, and NGOs.
11. Strengthen weak security system – of the ways to tackle insecurity is to strengthen our weak security system. This 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 the need for government to be proactive in dealing with security issues and threats, through modern methods of intelligence gathering, and intelligence sharing, training, logistics, motivation, and deploying advanced technology in managing security challenge.[2] Another way is by creating an economy with relevant social, economic and physical infrastructure for business operations and industrial growth which also results in gainful employment.
12. There is the need for government, at all levels, to ensure that poverty is reduced and a realistic social security programme is pursued and implemented to ensure that the populace meet their basic needs.(copied).
Mike Agbedor Abu Ozekhome is a lawyer and human rights activist, holding the rank of a Senior Advocate of Nigeria. He is known for his work as a constitutional lawyer, according to Wikipedia.
