Anti-Land Grabbing Statutes: Valid Under Constitution?
"I BELIEVE THAT A CRITICAL ANALYSIS OF BOTH THE LAND USE ACT AND THE TWO ANTI-LAND GRABBING LAWS UNDER REVIEW WILL REVEAL THAT MOST, IF NOT ALL, THE PROVISIONS OF THE LATTER ARE COVERED BY SECTIONS 43(1) & 46(1)(A) OF THE LAND USE ACT"
Introduction
The laws recently enacted by the Lagos and Ogun State Houses of Assembly, to curb the menace of criminal trespass on and fraudulent dealing in real property (popularly known as ‘land grabbing’) were received with a huge collective sigh of relief by the hapless residents of both States, who have borne the brunt of the unscrupulous activities of the perpetrators of the social vice popularly known as ‘omo-onile’. While both statutes are obviously welcome, I believe that certain salient legal issues which could impede and even scuttle the realisation of the lofty goals of their enactment, were apparently overlooked in enacting them, with the result that, in my view, there is a real likelihood that neither law will survive a serious challenge to its validity.
Background
For the past 38 years, the extant land legislation common to all the 36 States of Nigeria has been the Land Use Act, 1978; this statute is entrenched in the 1999 Constitution, vide Section 315(5)(d) thereof. By virtue of Section 315(6) of the Constitution, the Act is a federal legislation, as it takes effect as if its subject-matter is contained in the Exclusive Legislative List of the Constitution; only the National Assembly is competent to legislate on any matter on that List: Sec. 4(3) of the Constitution. That being the case, I believe that it is imperative to examine both the Act and the anti-land grabbing statutes, vis-à-vis the 1999 Constitution in order to determine their true legal position under the Constitution.
Can State Houses of Assembly Legislate on Land Matters?
This question is all-important, in the light of Section 4(7) of the Constitution which empowers State Houses of Assembly to legislate only on matters contained in the Concurrent Legislative List of the Constitution, but not those on the Exclusive Legislative List; this power extends to anything that is contained in neither List, but in a fictional ‘list’, popularly called the Residual List: ATT-GEN OF ABIA STATE v ATT- GEN OF THE FED. (2006) 16 NWLR pt. 1005 pg. 265 @ 381. To the extent that the aforesaid laws were made by the Lagos and Ogun State Houses of Assembly, their validity wholly depends on whether their subject-matter is contained in the Concurrent or the Residual Lists of the Constitution.
In this regard, in THE HON MINISTER OF JUSTICE & ATT-GEN OF THE FED
v ATT-GEN OF LAGOS STATE (2013) All FWLR pt. 704 pg. 1 @ 41D, the Supreme Court, per Galadima, JSC, held that:
“The power of the State Government to legislate on a given matter must be traceable to the body of the Constitution, either in the Exclusive Legislative List or the Concurrent List or Residual List, and any matter outside the ambit of the said constitutional provisions is null and void”
For reasons which I shall presently outline, I believe that land is contained in neither the Concurrent nor the Residual List, but rather, in the Exclusive Legislative List of the Constitution. Starting with the first of the ‘anti-land grabbing’ laws, the Lagos State Property Protection Law 2016, its long title describes it as “A law to prohibit forceful entry and illegal occupation of landed properties, violent and fraudulent conducts in relation to landed properties in Lagos State and for connected purposes”. It prescribes various sanctions such as fines and terms of imprisonment of up to N5million and 21years, respectively; that of Ogun State extends to 25years imprisonment and even the death penalty under certain circumstances.
I believe the intention behind this law contradicts that of the Land Use Act,
Section 1 of which declares peremptorily, that all land in a State shall be vested in the Governor of the State, to be “administered in accordance with the provisions of the Act”. This evidently rules out reliance on any other statute on land matters: expressio unius est exclusio alterius. If any such legislation is enacted by a State House of Assembly, it would simply be ultra vires and invalid, by virtue of Section 4(5) of the Constitution which provides that “If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National assembly shall prevail and that other law shall to the extent of the inconsistency be void”.
I believe that a critical analysis of both the Land Use Act and the two anti-land grabbing laws under review will reveal that most, if not all, the provisions of the latter are covered by Sections 43(1) & 46(1)(a) of the Land Use Act which provide as follows, respectively: “No person shall, in an urban area: (a) Erect any building, wall, fence or other structure upon; or
(b) Enclose, obstruct, cultivate or do any act on or in relation to any land which is not the subject of a right of occupancy or license lawfully held by him or in respect of which he has not received the permission of the Governor to enter and erect improvements prior to the grant to him of a right of occupancy”.
The punishment for contravening this provision is a fine of N5,000 or imprisonment of one year (Sec. 43(3), while a further fine of N100 shall be imposed on such offender for every day during which he fails to comply with the Governor’s directive to remove any structure erected on property to which he is not entitled: Sec 43(4). The words “do any act on or in relation to any land which is not the subject of a right of occupancy or licence lawfully held by him” are wide enough to cover the activities of the socalled “omo-onile” and others, which are the subject of the anti-land grabbing laws. To the extent that the sanctions prescribed for violating Section 43 of the Land Use Act are milder than those of the anti-land grab- bing laws, any person prosecuted under the latter would be entitled to insist on the lighter sentence under the Act: AFOLABI v
GOV. OF OYO STATE (1985) 2 NWLR pt. 9 pg 734 @ 753H, per Aniagolu, JSC.
As for Section 46(1)(a) of the Act, it provides that: “The National Council of States may make regulations for the purpose of carrying this Act into effect, and particularly with regard to the transfer by assignment or otherwise howsoever of any rights of occupancy, whether statutory or customary”. This body was created by the Constitution, vide Paragraphs 5 & 6 of Part 1 of the Third Schedule thereto. By virtue of this provision, the Council possesses the exclusive power to regulate the transfer of real property across Nigeria. I believe that the provisions of the land grabbing laws are within the exclusive purview of the Council. Accordingly, in my view, both laws could plausibly be challenged on the ground that they are ultra vires the Legislatures of Lagos and Ogun States, notwithstanding the assent of their respective Governors thereto.
Summary & Conclusion
1. By the combined effect of Section 315(5) (d)&(6) and Paragraph 2 of Part III of the 2nd Schedule to the 1999 Constitution:
(i) Land is deemed to be contained in the Exclusive Legislative List of the Constitution;
(ii) To that extent, only a legislation enacted by the National Assembly (or deemed to be so enacted, such as the Land use Act) is applicable for the purpose of regulating the acquisition and tenure of land across the 36 States of the Federation; this includes offences committed in connection therewith as well as the jurisdiction, powers, practice and procedure of courts in relation thereto;
2.Criminal trespass on and the fraudulent/forcible acquisition of land is the subject-matter of the anti-land grabbing laws recently enacted by the Lagos and Ogun State Houses of Assembly
3.By virtue of Section 4(3) of the Constitution, no State House of Assembly is competent to legislate on a matter contained in the Exclusive Legislative List of the Constitution, unless the Constitution expressly or impliedly authorises it to do so; the Constitution has not conferred such authority on any State House of Assembly in relation to land or real property;
4.By virtue of Section 4(7) of the Constitution State Houses of Assembly can only legislate in respect of matters in either the Concurrent or the Residual Lists of the Constitution; land is contained in neither List;
5.The Land Use Act vests all land in a State on the Governor subject to the condition that such land shall be “administered in accordance with the provisions of the Act”;
6.Section 46(1)(a) of the Land Use Act specifically empowers only the National Council of States to regulate the transfer of any rights of occupancy by any means whatsoever;
7.In accordance with the “expressio unius est exclusio alterius” principle of statutory interpretation, no other person or authority, including
State Governors or State Houses of Assembly, is competent to exercise this power;
8.Given that, in my view, the subject matter of the said anti-land grabbing laws has already been legislated upon by the National Assembly vide Sections 143 & 146(1)(a) of the Land Use Act, the Assembly is deemed to have covered the field, and to the extent that they are inconsistent with the Act, they are ultra vires and invalid: Section 4(5) of the Constitution & HON. MIN. OF JUSTICE & ATT-GEN. OF THE FED. v ATT-GEN OF LAGOS STATE, supra, per
Muhammed, JSC.
Recommendation
Interested States should get the buy-in of the National Council of States to any anti-land grabbing legislation, by getting the Council to make the requisite Regulations in line with Section 46(1) (a) of the Land Use Act.