Alienations Under the Land Use Act and Express Declarations of Trust in Nigeria

Abstract

Nigerian conveyancers routinely resort to powers of attorney and agreements to sell (estate contracts) as tools to avoid the prohibitory clauses of the Land Use Act. Judges have shown their sympathy through a strict (but beneficial) construction. Nevertheless, the current system exacerbates the risk of acquiring precarious titles in land transactions. Accordingly, this article suggests that the avoidance objective will be best achieved through the application of the principles of trust and the use of trust instruments such as express written declarations of trust.

Risk Profile of Customary and Statutory Property Rights: Implication for Real Estate Development in Port Harcourt

“…Acceptance of the LUA over cultural norms is a major challenge in most communities as integrating the systems with indigenous cultures and tenure systems becomes difficult. Authors (Nwabueze, 2009;Oladapo & Olotuah, 2007) agree that the LUA needs to be better drafted for its efficiency as it is currently fraught with several problems due to clashes of customary and statutory rights as well as institutional inefficiencies. These problems include the following:…”

“…There were different land use systems in the southern and northern parts of Nigeria. In the then southern Nigeria, customary system of land tenure governed land interest and land was owned by communities, families and individuals in freehold which was controlled by the head of the family and the community head (Nwabueze, 2009). The route to land acquisition was either by inheritance, first settlement, conveyance, gift, outright purchase or long possession.…”

“…The consent of the governor was required before any alienation of interest in land could take place (Mabogunje, 2007). Many of the provisions of the Land Tenure Law are similar to those of the LUA (such as state control, management powers and consent before alienation) which is an indication that the LUA was modelled after the Land Tenure Law of Northern Nigeria (Nwabueze, 2009).…”

“…Land used for agricultural purposes includes land which is allowed to fallow for the recuperation of the soil. The LUA took away from the landowners their absolute proprietary interest and replaced that absolute interest with a less durable right of occupancy (Nwabueze, 2009;Utuama, 2008).…”

“…Before this time, customary tenure system allowed only the heads of the families to make decisions over land. Nwabueze (2009), however, noted that this system has evolved over time with individual ownership in existence. This ownership is rooted in the family ownership of land as families from time to time alienate or share land to their members, sometimes for direct use, sometimes as they wish such as sale or lease.…”