INTRODUCTION

Customary land tenure is frequently considered to be an impediment to agricultural development. The lack of secure and clearly defined rights is often held to lead to a disincentive or an inability to invest in agriculture, while the inflexibility of traditional systems is said to prevent the transfer of rights between groups and individuals and thus inhibit the mobility of factors of production. This paper, which is based on an analysis of the origins, intentions and effects of the Nigerian Land Use Decree of 1978 (Francis, 1984), questions two related assumptions: first that traditional tenure systems are a constraint on agricultural development and second that solutions to the ‘problems’ that such systems present are to be found in legislation at the national level.

LAND TENURE AS AN ECONOMIC CONSTRAINT

During Nigeria’s colonial period a number of different phases may be distinguished in the debate about land. These phases are marked by the changing relationships between Africans, administrators and commercial interests. In the early colonial period the attitude of the administration was one of indifference. However, as the state and commercial interests began to seek and obtain interests in land, the issue took on increasing importance, becoming a preoccupation of Nigeria’s colonial administrators. From this period, the ‘land question’ figures repeatedly in colonial correspondence, memoranda, reports and enquiries. The main concern of the colonialists was with political stability rather than agricultural development, their fear being that the extensive alienation of interests in land to national or expatriate commercial interests would lead to landlessness and discontent. In Northern Nigeria, the Land and Native Rights Ordinance of 1910 vested all lands in the governor of Northern Nigeria. Similar legislation was proposed in some quarters for the south of the country, but this was strenuously, and in the end successfully, resisted by indigenous interests.

With political independence and the opening of the global debate on economic development, economistic arguments came to dominate the debate about land tenure in Nigeria. Elements of these arguments are found in the literature of the colonial period, but the debate was now cast in a new framework. While Lloyd had noted in 1962 (p.3) that his research on land tenure was occasioned ‘by a realisation that ignorance of the law had been seriously handicapping the commercial development of Western Nigeria’, only a few years later Adegboye (n.d., p.42) was arguing in a much more radical vein that ‘any society seeking land reform must make a choice between economic efficiency and retention of traditional ties and institutions’. From the late 1960s a number of Nigerian agricultural economists began to argue that customary forms of land tenure suffered from ‘defects and inconsistencies’ (Famoriyo,1973a: 3) that militated against the most rational economic use of land. In the words of Oluwasanmi (1966: 23–55):

Social institutions may be so rigid as to constitute formidable barriers to agricultural production …. The traditional system of tenure may sometimes constitute a formidable obstacle to the enterprising farmer desirous of increasing the size of his farm business.

Adegboye (1967) identifies defects in land tenure, farm tenancy and the provision of agricultural credit as obstacles to increasing productivity per acre and per farmer. With regard to land tenure he states that: ‘The present structure of land tenure makes it virtually impossible for enterprising young farmers to mobilise their labour and capital as freely as they would like to’ (p.340). This is so, we are told, because sales of land are rare, and thus the cultivator and his descendants are confined to family land, and because the division of land upon inheritance leads to holdings becoming uneconomic in size and productivity. The defects of customary farm tenancy are enumerated as follows: the terms of leases are often verbal and indefinite; the amount of tribute paid is governed more by the tenant’s relationship to his landlord than by the fertility or location of the land; subleasing is common in some areas; and the tenant is sometimes forbidden to plant permanent crops. Overall, the tenant’s insecure position discourages him from making substantial investments of capital or labour in the land which he occupies. The principal problem with regard to agricultural credit is also held to stem from customary land tenure: ‘A piece of land which is communally owned cannot be used for collateral’ and thus the commercial banks do not lend to farmers (Adegboye,1967: 340).

The solution adduced by Adegboye to the inadequacies of traditional forms of tenure was to vest all land in the Government and administer it through a Lands Commission and subsidiary committees. A similar ideology––belief in the irrationality of local custom combined with unbounded faith in the potential of bureaucratic intervention––is found in the writing of Famoriyo (1972: 56–65):

The problems may be considered as institutional barriers to development and stem largely from the failure to intervene in order to direct and streamline the customary tenure system so that it could become more conducive to economic development. If there had been objective intervention the result could conceivably have been the existence today of a powerful, dynamic and flexible land tenure system making a positive contribution to Nigeria’s agricultural development …. The complexity of the land tenure system in Nigeria shows that it is a single aspect of Nigeria’s agrarian structure. It clearly requires an intervention at both state and local levels …. The policy should consolidate the existing social situation …. This is saying that the policy should give due regard to farmers as individuals whose willing participation will promote the integration of the rural community, thus mobilizing it for the achievement of set goals.

THE LAND USE DECREE

The Land Use Decree was promulgated on 29 March 1978 following the recommendations of a minority report of a panel appointed by the Federal Military Government of the time to advise on future land policy. With immediate effect, it vested all land in each state of the Federation in the governor of that state (Fed. Rep. of Nigeria, 1978).

The Decree distinguishes throughout between urban and non-urban (hereafter ‘rural’) land. In urban areas (to be so designated by the Governor of a state), land was to come under the control and management of the Governor, while in rural areas it was to fall under the appropriate local government. ‘Land Use and Allocation Committees’, appointed for each state by the Governor, were to advise on the administration of land in urban areas while ‘Land Allocation Advisory Committees’ were to exercise equivalent functions with regard to rural land. This paper is concerned principally with the provisions relating to rural land.

cocoa cultivation, for their living. Another 2500 or so people, almost exclusively migrant, cocoa-growing tenants renting land from indigenes, live in about 90 hamlets in the surrounding area. These immigrants have moved into the Ijesha area since the turn of the century from the Oyo culture area immediately to the north of Ibokun. They entered into agreements with local families and representatives of titled lineages for the use of land in exchange for the annual payment of several quarters of cocoa or its cash equivalent, a payment known locally as isakole and which was enforceable in the customary courts.

To what extent had the system of land tenure and distribution entailed by the history of settlement in the area been one whose inflexibility or inequity had inhibited the full economic use of land? A questionnaire administered to a random sample of 137 farmers in the Ibokun area in 1979 concerning their enterprises, and in particular their access to factors of production, included three questions that might have been answered by reference to land shortage (‘Why did you not plant more cocoa than you did last year? Could you obtain more land for cocoa if you wanted? What are the main problems with your farming enterprise?’).

IMPLICATION OF THE RURAL LAND TENURE IN NIGERIA

The various pre-existing tenures has some implication, both inherent and operational, which caused concern and dissatisfaction in Nigeria. The intrusion of English law into the indigenous system also gave rise to difficulties. Conversion of title from either of these systems to the other created numerous problems for conveyancers, and it took many years for conveyancers, in conjunction with the courts, to fashion proper rules for conveyancing. Moreover, attempts to use the English law of trust devices to create corporate holdings under the indigenous system led to serious conflict in the exercise of the power of management and control of the property between the head of the group and the trustee. It must be noted that due to political and socio-economic factors land later became alienable under the indigenous system, although corporate ownership remained more prevalent than individual ownership. Unfortunately, this development soon fell prey to unscrupulous hands. Traditional chiefs, as well as individuals, soon saw land as a means of enriching themselves at all costs. Chiefs would appropriate income from corporate holdings for their personal benefit rather than hold it in trust for the benefit of the members of the group. Greed and unprecedented racketeering thus characterized administration of group-owned lands. Many individuals also became land speculators, which resulted in the rise of land prices. The consequence was insecurity of title to land, as the same piece of land could be sold to different persons at different times.

These questionable sales invariably led to disputes, resulting in increased litigation which spanned many years. In extreme cases, many people resorted to violence to secure their interests in land. In some cases, even the courts looked helpless and embarrassed as evident from the following observation of Judge Verity in Ogunbambiv. Abowab:

The case is indeed in this respect like many which come before the court: one in which the Oloto family either by inadvertence or design, sell or purport to sell the same piece of land at different times to different persons. It passes my comprehension how in these days, when such disputes have come before this court over and over again, any person will purchase land from this family without the most careful investigation, for more often than not they purchase a law suit and very often that is all they get.

These abuses were not limited to privately owned lands or communal lands under customary law. The allocation of state lands was also affected in no small measure. The distribution was either to government functionaries, to persons who were closely connected with them, or to others who invariably had more wealth than most. In a sharp reaction to this unwholesome practice, the Nigerian Constitution Drafting Committee had observed that it is revolting to one’s sense of justice and equity that one person alone should own three or six or even more plots of state land in one state, when others of comparable status have none. The inequality is more condemnable when it is remembered that a plot of state land, allocated to a person at a nominal price, represents thousands of naira [the Nigerian currency] of public funds sunk into its improvement and development …. The committee therefore warned that it “would be laying a foundation for a major explosion in this country if the present system of abuse and profiteering were allowed to continue unchecked and unredressed.”

The operation of the rights of occupancy system in northern Nigeria could not be spared of these abuses. Thus Professor Jegede laments that “even in the Northern States where the Land Tenure Law and its predecessors have been in operation for about a century, there is the cry against rich and influential members of the society using their position to seize the land of the less privileged members of the society ” Ironically, not only individuals suffered from the abuses just analyzed; governments were also affected. On the occasion of the inauguration of the Nigerian Land Use Panel in 1977, the Chief of Staff, Supreme Headquarters, declarations in land transactions in the country. At present, it is not only the individual who wants to build his or her house that is facing difficulties in finding suitable land, the Local, State and Federal Governments are also inhibited by problems placed in their way in acquiring land for development.

From the foregoing, it is obvious that the systems of land tenure in Nigeria before the Land Use Act introduced a uniform rights of occupancy system were unsatisfactory and in need of reform.

SUMMARY

The Nigerian Land Use Decree of 1978 nationalised all land in the country and notionally handed over its administration to committees constituted at state and local government level. One justification given for the Decree was the rationalisation of customary land tenure systems which were held to be a constraint on agricultural development. This paper considers the impact of the Decree on patterns of landholding and use in a community in the cocoa belt of southwest Nigeria. Analysis of the political conditions which govern the ownership and control of land indicates that the system of tenure as it existed prior to the Decree functioned as an equitable, stable and yet flexible means of regulating access to land. Suppositions about the defects of such customary tenure systems are shown to arise from fundamental misconceptions about the nature and operation of customary law. The Decree was ambiguous in key respects as to its implications for the continued validity of rural tenures, and introduced considerable confusion and uncertainty. In particular, tenancy became insecure with the deterioration of relationships between landowners and tenants as many tenants stopped paying ground rent. But for the most part, in the absence of effective structures for its administration, the impact of the Decree was slight. The legislation did nothing to ‘rationalise’ any of the supposed defects of customary tenure.

CONCLUSION

The effects of the Decree thus bear no relation (beyond being predominantly in the reverse direction) to the supposed objectives of rational intervention in customary tenure. In the Ibokun area, the main effect of the Decree was to change the relationship between landowners and tenants, introducing uncertainty, insecurity and conflict. Otherwise, the consequences of this potentially radical legislation were rather slight. Whatever the correct interpretation of the Decree’s provisions on customary tenure, the allocation of land for houses continued as before, as did practices such as the division of land among segments of descent groups. The sale of land, although it had never been very common in the area, also continued. (In urban areas, the conditions of dubious legality created by the Decree in fact led to a rise in the price of land). Thus if the Decree had any effect on the distribution of land, it was purely incidental.

On the question of legislated reform, the local effects of state law have been shown to be unpredictable. The intentions behind the Land Use Decree were, and have remained, obscure, and the somewhat arbitrary local effects of the law make it difficult to interpret its general significance. The massive notional powers over land given to government-appointed committees introduce a statism which operates beyond the rule of law. Nevertheless, the lack of administrative capacity on the part of the state has meant that the impact of the Decree has so far been slight, and it seems likely to remain a dead letter.

 

REFERENCES

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Adegboye R O. 1967. The need for land reform in Nigeria. Niger. J. Eeon. Soc. Studies 9(4): 339–50. .

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Adeniyi E 0.1972b. Land tenure as a socio-cultural factor in rural development in the middle belt of Nigeria. Proceedings of the 1972 Annual Conference of the Nigerian Economic Society.

Fabiyi Y L. 1974. Land tenure innovations in rural development: The problems in western Nigeria with some Tanzanian comparisons. Ph.D. dissertation, University of Wisconsin.

Fabiyi Y L. 1984. Land administration in Nigeria: Case studies of the implementation of the Land Use Decree (Act) in Ogun, Ondo and Oyo States of Nigeria. Agric. Admin. 17: 21–31.

Famoriyo S. 1972. Elements in developing land tenure policies for Nigeria. Q. J. Admin. 7(1): 55–57.