IMPACT OF THE LAND USE ACT, 1978 ON NIGERIAN CUSTOMARY LAND LAW TENURE

Introduction
Before the promulgation of the Land Use Act, hereinafter referred to as the “Act”, the land tenure system
in Nigeria was basically of three different types namely: Customary, Non Customary and the Special Land
Tenure system in the former Northern region which was a combination of the customary and non-
customary system. Land was thus held by the community, the individual and the state/ government.

According to Prof. Omotola, the need to resolve the often bitter acrimony resulting from the controversies
in respect of land and security of title to same and the need to simplify the management and ownership of
land in Nigeria among other reasons led to the promulgation of the Land Use Act (LUA).

By virtue of section 1 of the LUA the concept of radical title to land existing in the owner prior to the Act
was abolished and substituted with the limited title in the form of a right of occupancy. This has led to legal
arguments as to whether or not the Land Use Act expropriates private property for public purposes. Prof
Smith, I.O. rightly in our view observed that “….the conception of the Land Use Act as a piece of legislation
is far from being an emasculation of the pre-existing customary land tenure…”
Without much ado it is pertinent to note that the Act has not abolished pre-existing land laws and tenures.
Rather the previous laws have undergone some changes with the Act in place since 1978. The evidence for
this is not farfetched
Facts pointing to the Preservation
The starting point is the provision of Section 48 of the Act which provides that;
“All existing laws relating to registration of title to or interest in, land or the transfer of title to or any
interest in land shall have effect subject to such modifications… as will bring those laws into conformity
with this Act or its general intendment”.
Thus under the Act, the pre-existing land law and tenure of which the principles are in conformity with the
general intendment of the Act are saved. The provision of the above section 48 of the Act is also applicable
to the concept of customary law and tenure that was in existence prior to the Act.
Second by S. 51 which is the definition section in the LUA, the Act recognises customary right of occupancy
and describes an ‘occupier” to include a person holding land under customary law. A corollary to S. 51 is
S. 36 (2) which gives a deemed grant to the occupier or holder of land in non-urban area to continue to hold
as if he had applied for and obtained a customary right of occupancy. This however does not mean that a
licensee who is the occupier becomes entitled to that land. Hence it has been held in Onwuka v.Eduala1989
1 NWLR pt. 96, p.182 that the landowner is the one entitled to the deemed grant and not the occupier/

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customary tenant . See also Abioye v. Yakubu. 1991 5 NWLR pt. 190; Mogaji v. Cadbury 1985 2NWLR
395 at 396.

Third, S. 24 recognises the devolution of rights under customary law upon the death of the holder of a right
of occupancy and this is also applicable to customary land and tenure thereby sustaining the concept of
family property.
Four, S. 34(4) recognises any incumbrance held on land. A customary pledge of land falls under such
category of incumbrance and is thus recognised.

Five, S. 35 recognises and preserves customary tenancy together with its incidents. In Okunnola v.
Oluwo,(1987) 4 NWLR (pt. 64) p. 141 at 36, it was established that the Act has not destroyed the concept
of customary tenancy and it was not intended to transfer the possession of the land from the owner to the
tenant by whom the owner is in possession. The Act has also preserved the remedies or reliefs or forfeiture
available to customary landlord whenever a tenant disputes the title of the former or alienate without the
consent of the landlord the land let to him (the tenant) by the landlord. The reversionary interest of the
customary landlord is never extinguished by the passage of time. This is also the position of the Court in
Abioye v. Yakubu. 1991 5 NWLR pt. 190 and Madam Safuratu Salami & Ors v. Eniola Oke 1987 4 NWLR
pt. 1 or 1987 9-11 SC 43.
Six, by the combined effect of sections 2(1) and (b) (5), 6 and other relevant provisions of the Act, the
customary right of use, control and management of community or family property is also preserved. No
member of the community or family can validly apply for and obtain a certificate of occupancy to own
family property nor can a prospective customary tenant by-pass the customary land owner to apply to the
State or Local Government for a right of occupancy. Thus as it were before the Act any alienation of
community or family land requires first and foremost the requisite consent of the community or family.
This has been judicially affirmed by the Supreme Court in Salami v. Oke (supra).

The Caveat

We must note carefully that the preservations of the rules and incidences of customary law and land tenure
noted above are however subject to their conformity with LUA. Thus in dealings with land held under
customary law prior to the Act recourse must always be made to the question as to whether or not the
dealing in every case complies with the provisions of the Act. Thus the requirement of Governor’s consent
must be sought and obtained for all transactions.

The Nigerian courts have also confirmed the above principles in a long line of cases which include:

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 i. Dzungwe v Gbishe 1985 NWLR Pt. 8 p. 528.
ii. Kasali v Lawal 1986 NWLR Pt. 28 p. 308.
iii. Madam Safuratu Salami &Ors v. Eniola Oke 1987 4 NWLR pt. 1 or 1987 9-
11 SC 43.
iv. Okunnola v. Oluwo (1987) 4 NWLR (pt. 64) p. 141 at 36.
v. Onwuka v Eduala 1989 1 NWLR pt. 96, p.182.
vi. Savannah Bank v Amel Ajilo 1989 2 NWLR pt. 97, p. 305.
vii. Oniah v. Onyia 1989 1 NWLR pt. 99, p. 514.
viii. Adebiyi v Williams 1989 1 NWLR pt. 99, p. 61.
ix. Ogunleye v. Oni 1990 4 NWLR Pt. 135, 745.
x. Ogunola v. Eiyekole 1990 4 NWLR Pt 146, p. 632
xi. Abioye v. Yakubu. 1991 5 NWLR pt. 190, p.130
xii. The Registered Trustees, Apostolic Church v Olowoleni 1990 6 NWLR Pt. 158, 514
xiii. Kyari v. Alkali 2001 11 NWLR Pt. 724 p. 412
xiv. Anibire v Womiloju [1993] 5 NWLR (pt 295] 623 (CA);
xv. Abidoye v Alawode [1994] 6 NWLR (pt 349) 242 (CA);
xvi. Nyagba v Mbahan [1996] 9 NWLR (pt 471) 207(CA).

See particularly the dictum of Olatawura JSC in the case of Ogunola v. Eiyekole 1990 4 NWLR Pt 146, p.
632.