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Agricultural Policy and the Nigerian Land Use Decree: The Conflict

Published online by Cambridge University Press:  28 July 2009

P. E. Oshio
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Extract

The importance of agriculture especially in a developing country cannot be over-emphasised. It had been the mainstay of the Nigerian economy since the colonial period. Apart from subsistence farming which catered for the food needs of the local population, Nigeria had exported cash crops in the past.

Unfortunately, the blessings of the oil boom have diverted our attention from agriculture in the past decade with the consequent neglect of it. But the dwindling fortunes of oil appear to have induced us to switch our attention once again to agriculture.

To this end, some practical steps have been taken by Government to encourage investment in agriculture. These include subsidising fertilisers and seeds for farmers, the establishment of various Agricultural Development Projects, the Communal Farm Programmes and the establishment of various River Basins Development Authorities. Other recent measures include tax relief for agro-allied projects; tax holidays for investors in combined agricultural productions and processing; capital allowances for capital expenditure on plant and equipment for, and equipment leasing to, agriculture; removal of import duties on tractors and other agricultural machinery and equipment and increased foreign equity participation within the framework of the Enterprises Promotion Decree.

Type
Research Article
Information
Journal of African Law , Volume 30 , Issue 2 , Autumn 1986 , pp. 130 - 142
Copyright
Copyright © School of Oriental and African Studies 1986

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References

1 In 1974 for example, the contribution of petroleum to the national economy exceeded that of agriculture by N2·1 billion. By 1976 petroleum had taken the largest share of the Gross Domestic Product. See Falusi, Abiodun O., A Survey of Nigerian Affairs, 1976–77, 55Google Scholar.

2 These are in conjunction with the World Bank.

3 See River Basins Development Authorities Decree No. 87 of 1979. Their functions include among others, the provision of water for irrigation purposes to farmers; development of fisheries; undertaking large-scale multiplication of improved seeds, livestock and tree seedlings; mechanised clearing and cultivation of land for crops and livestock production and the processing of crops, livestock and fish produced. See section 4.

4 For the details of these and other measures announced by the Minister of Agriculture and Natural Resources, see The Guardian, Lagos, 2 07, 1984, 1–2Google Scholar.

5 See generally, Ademiji, Omolaja, “The Land Use Act, 1978—Mortgaging a Right of Occupancy” in The Land Use Act, Report of a National Workshop, edited by Omotola, J. A., 1982, 88Google Scholar. For the relevant law on partition, see Johnson v. Onisiwo, 9 W.A.C.A. 189Google Scholar; Thomas v. Thomas, 16 N.L.R.5.Google Scholar

6 No. 20 of 1977.

7 Ss. 1 and 5.

8 S.2.

9 S.6(1)(1) and (b).

10 S.6(1).

11 For details, see the Schedule to the Decree.

12 S.10.

13 S.7(2).

14 S.12.

15 See Monetary Policy Circular No. 20 of 1986 by Central Bank.

16 Ibid. 4–5. They were 12 per cent, and 8 per cent, in the 1985 directives.

17 Ibid. 7.

18 Ibid. 8.

19 Section 8 provides that every agreement for the loan under the Decree shall be in such form and upon such terms and conditions as the Commissioner may approve.

20 I am grateful to Mr. Omolaja Adeniji, Head, Legal Department, U.B.A. Ltd., Lagos, for the useful information on the actual practice of banks in relation to agricultural charges. I owe my references to actual practice to the information in an interview with him during my research on this article.

21 For the general nature of a charge, see Tancred v. Delegoa Bay (1889) 23 Q.B.D. 239 at 242 (per Denman, J.)Google Scholar.

22 Garfitt v. Allen (1887) 37 Ch.D. 48 at 50Google Scholar.

23 Tennant v. Trenchard (1869) 4 Ch. App. 537 at 542Google Scholar; Re Lloyd (1903) 1 Ch. 385 at 404Google Scholar.

24 Tennant v. Trenchard (supra); Re Owen (1894) 3Ch. 220Google Scholar. Perhaps, where the charge is made by deed, it may be possible to equate it to an equitable mortgage made by deed for the purpose of exercising these powers out of court as the definition of a mortgage includes a charge. See section 2(1), Property and Conveyancing Law Cap. 100, Laws of Western Nigeria, 1959 and Property and Conveyancing Law, Cap. 129Google Scholar, Laws of Bendel State, 1976, s.2(1)Google Scholar.

25 Cap. 100, 1959, Western States; Cap. 129 1976, Bendel State.

26 Ss. 110 and 123 of the Laws.

27 Oyo, Ogun, Ondo States (Cap. 100); Bendel State (Cap. 129).

28 Omolaja Adeniji in Omotola ed., op. cit, at p. 105.

29 This point is considered more fully below.

30 Author's emphasis.

31 The Federal Government (60 per cent.) and the Central Bank of Nigeria (40 per cent.)—s.5. The latter is the managing agent of the Fund. See s.4.

32 In a recent Editorial Comment a national daily decried the rate of farmers′ default in loans repayment and the fact that not only bona fide farmers benefit from the loan scheme. It concluded that the present situation whereby non-farmers manipulate their way into obtaining the loan defeats the lofty purpose of the agricultural loan scheme. See Daily Times (Lagos), 12 06, 1986, 8Google Scholar.

33 See generally, Halsbury's Laws of England, 4th Edition, Vol. 1, 652Google Scholar.

34 “Farming stock” means crops or horticultural produce whether growing or severed from the land etc. “Other agricultural assets” means a tenant's right to compensation under the Agricultural Holdings Act 1948 etc.—s.5(7).

35 Ibid. s.7.

36 Ibid. s.5.

37 See Part, I, 1928 Act; and Agricultural Mortgage Corporation Act, 1956 and 1958. The provisions of these enactments have been modified by other statutes but without adversely affecting agricultural charges. See Agricultural Credits Act, 1932; Agriculture (Miscellaneous Provisions) Act 1944 & 1972; Agriculture Act, 1947; 1967, 1970 etc. and the Agricultural Holdings Act, 1948.

38 S.9.

39 S.6(1).

40 Ss.8(3); 9(7) and 9(8).

41 S.8(3). An agricultural charge is not a bill of sale—s.8(1).

42 S.8(6).

43 Agricultural Ordinance, Cap. 96, Laws of Nigeria, 1923 editionGoogle Scholar; Ordinance No. 4 of 1926 which repealed the former; Ordinance No. 24 of 1935; No. 62 of 1945; Cap. 7 Vol. 1, Laws of Nigeria, 1948; No. 37, Cap. 7 Vol. 1, 1958Google ScholarLaws of the Federation and Lagos. The long title of the latter reads: “An Ordinance to make provision for regulating the planting and growing of agricultural crops, for the control of plant disease and pests and for matters connected therewith.”

44 Agriculture Law, Cap. 3, 1954, Vol. 1, Laws of the Western Region of Nigeria 1958Google Scholar; Agriculture Law, Cap. 6, Vol. 1, Laws of Bendel State of Nigeria, 1976—both are re-enactments of the 1958 Ordinance, No. 37 in n.42 aboveGoogle Scholar.

45 Agriculture (Control of Importations) Act, No. 28, 1959. This came into operation on 31 March, 1964. See Legal Notice No. 48 o f 1964 (page B.87) Laws of the Federal Republic of Nigeria 1964.

46 See the Ordinances and Laws cited in notes 42 and 43 above.

47 See Cap. 7, Vol. 1 Laws of Nigeria, 1948.Google Scholar

48 See n.44 above

49 No. 6 of 1978. For general comments, see [1978] J.A.L. 22, 2, 136–160Google Scholar and (1977) 2 Nigeria Juridicial Review, 1. This Decree, No. 6 of 1978, was redesignated the Land Use Act in 1980 by the last civilian regime. In view of the return of military rule on 31 December, 1983, it is here cited as a decree.

50 See Prof. Essang, S. M. in a keynote address at the National Workshop on the Land Use Act 1978 published in The Land Use Act: Report of a National, Workshop, at 10–11.Google Scholar He was however quick at regretting that these objectives have not been realised. See also Omotola, , Essays on the Land Use Act 1978, Lagos University Press, 1980, vii.Google Scholar

51 The Panel was set up by the Federal Military Government on 16 April 1977 with the following terms of reference:

“i. to undertake an in depth study of the various land tenure, land use and conservation practices in the country and recommend steps to be taken to streamline them;

ii. to study and analyse the implications of a uniform land policy for the country;

iii. to examine the feasibility of a uniform land policy for the entire country, make recommendations and propose guidelines for their implementation; and

iv. to examine steps necessary for controlling future land use and also opening and developing new lands for the needs of the government and Nigeria's growing population in both urban and rural areas and make appropriate recommendations.” See text of the Address delivered to the Panel by Commodore Oduwaiye on behalf of the Chief of Staff, Supreme Headquarters, on 26 May, 1977.

52 See generally ss.1, 5, 6, 26, 28, 34(5) and (6).

53 S.34(5) and (6).

54 S.5(1)(a)—all purposes include agriculture.

55 S.6(1)(a)and(b).

56 S.36(1)–(3) appears to affect customary tenancy adversely. In Akinloye v. Chief Oyejide, (unreported) Suit No. HCJ/9A/83 delivered on 17 07, 1981Google Scholar it was held that s.1 of the Decree hasvested ownership of all land in each State in the Military Governor and that the customary overlord was no longer entitled to collect customary dues “Ishakole” from the customary tenant. This appears to change the existing law on this subject for which see: Omotola, , “The Customary Tenant and Transfer of Land in Nigeria” (1975) Nig. J. of Contemp. Law, Vol. 6, Nos. 1 & 2, 44.Google ScholarAlthough the Supreme Court of Nigeria cited the case with approval on the effect of s.1 in Nkwocha v. Governor ofAnambra State (1984) 1 S.C.N.L.R. 634 at 647–649Google Scholar there are still strong doubts as to the correctness of this decision in view of ss.34 and 36. It appears that the last word is yet to be said. See: Editorial Comment: “Does the Land Use Act Expropriate?” (1985) 3 J.P.P.L. 1;Google Scholar Adeloye: “Some Aspects of the Land Use Act” (1982) N.C.L. Rev. 312 at 315–318:Google Scholar here the writer, a Judge, criticised the decision in Oyejide's case (above) and defended his contrary decision in Jacob Owoeye v. Matthew Adedara (unreported), Appeal No. HCR/3A/80, delivered on 24 February, 1980 on the same subject three years earlier. See also; “The Land Use Act Strangers” (1985) 4 J.P.P.L. 1 at 3–4.Google Scholar

57 Olawoye, C. O.: “Statutory Shaping of Land Law and Land Administration up to the Land Use Act” in The Land Use Act: Report of a National Workshop, 20–21.Google Scholar

58 A deemed holder under s.36 can only apply to the Local Government in its discretion for registration as one to whom a customary right of occupancy has been issued in respect of the land in question and not a fresh grant. S. 36(3) does not even empower the Local Government to issue a customary right of occupancy but merely to register the holder or occupier as one to whom a customary right of occupancy has been issued in respect of the land in question.

59 S.28. While the Military Governor can revoke any right of occupancy, statutory or customary (see s.28(1)), the Local Government's power of revocation is restricted to customary rights of occupancy by virtue of s.6(3)(d).

60 Ss.28 and 50 read together. Under the former “overriding public interest” includes public purposes and under s.50(1)(h) “public purposes” includes agricultural development.

61 Public Lands Acquisition Act Cap. 167, Laws of the Federation of Nigeria and Lagos 1958Google Scholar; Cap. 105, Laws of Western Nigeria, 1959Google Scholar; The Town and Country Planning Law of Western Nigeria, Cap. 123, Vol. VI Laws of Western Nigeria, 1959;Google Scholar Public Lands Acquisition (Miscellaneous Provisions) Decree, No. 31, 1976. The latter has been expressly excluded by s.31 of the Land Use Decree in respect of any land vested in, or taken over by the Military Governor or any Local Government or the right of occupancy revoked under the provisions of the Decree.

62 Such grant will be void by virtue of s.26.

63 (1974) 10 S.C. 59 (decided before the Land Use Decree).Google Scholar

64 (1985) 2 N.W.L.R. Part 8, 528.Google Scholar

65 Ibid, at 540 (per Aniagolu, J.S.C. delivering the lead judgment). The principle also applies to s.34 of the Decree.

66 No. 87 of 1979.

67 S.5(4).

68 S.6(1)(a)and(b).

69 S.6(3).

70 Those whose rights are revoked are entitled to compensation under s.29, but whether compensation will be adequate is a different issue. See Sonoiki, O.: “Land Values and the Question of Compensation for Land (within the Framework of the Land Use Act)” in Omotola, (ed.) op. cit. at 42 a nd Omotola: “Compensation Provisions of the Land Use Decree” (1980) 16 N.B.J. 32.Google Scholar

71 Cap. 48. This principal statute has been amended or modified by others but without derogating from the laudable goals of this Act. See Agriculture Act, 1958, 1967, 1970 a n d notes 36 and 75.

72 “Agricultural land” means land used for agriculture which is so used for the purposes of a trade or business, or which is designated by the Minister for the purposes of this subsection, and includes any land so designated as land which in the opinion of the Minister ought to be brought into use for agriculture, s. 109(1).

73 S.1(1) clearly represents a complete translation of government policy on agriculture into statute. The provisions of the Act are “for the purpose of promoting and maintaining … a stable and efficient agricultural industry capable of producing such part of the nation's food and other agricultural produce in the United Kingdom and of producing it a t minimum prices consistently with proper remuneration and living conditions for farmers and workers in agriculture and an adequate return on capital invested in the industry”

74 Ibid., part II, ss.9–21.

75 Ibid., part I.

76 A consolidated Act for the Agricultural Holdings Act 1923 and part III of the Agriculture Act 1947. The 1948 Act has also been amended e.g. by the Agriculture Act, 1958, Cap. 71.

77 Cap. 43. For amendments, see n.36.

78 Kasumu, A. B.: “The Question of Consent to Alienation: Effect on Development” in Omotola, (ed.), op. cit. 95–95.Google Scholar The argument is based on the fact that a charge does not involve transfer of the land. See Megarry, and Wade, , The Law of Real Property, 4th edition, 1975, 887;Google ScholarThompson v. Salah [1972] 1 All E.R. 530, at 533.Google Scholar

79 Ss. 15, 21, 22, 28, 34, 50.

80 S.48.

81 Seen.25.

82 Cap. 41.

83 S.2 of the Statutes.

84 These are ss.15, 21, 22, 23 and 34(7).

85 See my acknowledgement in n.20.

86 S.26.

87 S.34(7) and (8). See also on this point Solanke v. Abed (1962) 1 All N.L.R. 230;Google ScholarBarclays Bank v. Akande (1961) 4 All N.L.R. 820;Google ScholarMartins v. Molade (1930) 9 N.L.R. 53;Google ScholarChidiak v. Coker, (1954) 14 W.A.C.A. 506.Google Scholar

87 Except where the right of occupancy over the land is expressly granted by the Military Governor or the Local Government.

89 This has been quoted in extenso, above.

90 See s.6(1), Decree No. 20 of 1977.

91 Compensation is not payable for an interest forfeited to the Military Governor under s.34(5)–a case of confiscation!

92 Sees.28(2)(a), 3(d), 5(a)–(c).

93 Some bank officials think that the bank is entitled to the compensation (see n.20). This might be due to a confusion of the effect of a mortgage with that of a charge. As a conveyance, the mortgage transfers the interest in the security to the mortgagee who will be entitled to compensation as a person with the interest in the right of occupancy at the time of revocation, (see Aturanse and Ors. v. Federal Commissionerfor Works and Housing (1975) 6 S.C. 1Google Scholar; Chairman, L.E.D.B. v Adesina and Anor. (1969) 1 All N.L.R. 118.Google Scholar See also s.63(1) C.A. 1881 and Omotola: “Vesting and Divesting in relation to compulsory purchase of Land” (1977–80) 8 Nig. J. of Contemp. Law, 182.) But the charge is not a conveyance and transfers nothing to the chargee. (See n.77.).

94 The absence of such a clause in a mortgage of a right of occupancy was fatal to the mortgagee's claim in the Tanzanian case of Manyara Estates Ltd. and Ors. v. National Development Credit Agency, [1970] E.A. 177 at 182–183 (per LAW, P.)Google Scholar