• Paper delivered by Honourable Justice Abiodun A. Akinyemi at the Public Lecture organised by the Association of Private Practising Surveyors of Nigeria (Ogun State branch), on Thursday, the 10th of February, 2022, at Abeokuta.
INTRODUCTION
Land is a highly coveted asset.
All over the world, individuals, communities and even nations, attach so much importance to it, because of the vital role it plays in human existence. Man is by nature, a land animal, therefore, without land, he cannot survive. He cannot live in water, or in the sky, but on land. Land is his natural habitat, where he lives and earns his livelihood. Therefore, land is crucial to his existence.
Man is created to have dominion over land. This perhaps explains his fixation with land, hence, his natural instinct to possess and control land, at all cost. Unfortunately, untamed nature and unbridled natural predatory instincts are not always to the benefit of man himself, as it is bound to create more chaos than order, and more harm than good, contrary to the Order of the Creator. Control and possession of land by man is divinely ordained to be orderly, if man is to enjoy the fulness of God’s greatest natural gift to him. That is why Laws exists, to help man tame his natural instincts, including his obsession to possess and control land selfishly, to thee detriment of others.
Land is a symbol of social status, whether in the traditional or modern African society. Its ownership is generally seen as evidence of prosperity. Therefore, many will go to any length to acquire it, so as to be considered among the wealthy and propertied class.
Land availability is critical to the socio-economic development of any society, more so in a state like Ogun, where land is about the most prominent natural resource that the people are blessed with.
With her proximity to Lagos, the economic and commercial capital of Nigeria, and the scarcity and relatively high prices of land in Lagos, land in Ogun State has become a prime asset, chased after, not only by individuals wanting to build their personal houses, but also by business organisations intending to set up factories and business premises, at affordable prices. Unfortunately, the nuisance created by land thugs and unscrupulous land vendors, has become a serious menace and disincentive to the realisation of this dream by many.
Land has become, not just a revenue-yielding resource for its owners, including government, but also a conflict generating factor, to the society at large, arising from the struggle to own or exercise control over a portion of it.
In the olden days, conflict arising from land was easily resolved traditionally, through the intervention of traditional rulers, community heads and respected elders, through the mechanism known as Customary Arbitration, the forerunner of what the world today knows as ADR-Alternative Dispute Resolution. Blood-letting violence was rare, although in few instances, communities went to war over land, especially in the South-Western and South Eastern parts of the Country. Indeed, some of these communal wars over land, are still with us today, notwithstanding intermittent ceasefires. But the scale of forceful dispossession of people of their lands and the use of miscreants and thugs, notoriously referred to as ‘Ajagungbales’, has become brazenly accentuated in recent years, giving serious cause for concern. Many individuals have been maimed, or even lost their lives, by merely daring to visit lands purchased by them, on which armed thugs have been stationed by other people rightly or wrongfully contesting the ownership. Families and communities have lost vital properties to invading land thugs. Even land surveyors, engaged to carry out legitimate professional duties, have been attacked, maimed, kidnapped and even killed by land thugs or rival claimants, for no just cause, and sometimes, without effective repercussions. Embarrassingly, the activities of these land miscreants are not always limited to private land, but are sometimes extended to government -allocated land.
SOME CAUSES OF LAND DISPUTES
The following are some of the reasons why land disputes are rampant in our society, creating room for the nefarious activities of landgrabbers:
1. SCARCITY OF LAND
The demand for land clearly outstrips its availability, especially in urban areas. As is usual in such situations, might over right, became the unwritten code, creating room and advantage for those who are more disposed to the use of force and violence, over the law-abiding.
2. UNTITLED AND UNREGISTERED LAND
Most of the land in Nigeria is untitled and unregistered. There is no register of titles, in which investigated, determined and verified proprietary rights and interests in all land in the state, with the names of their ascertained owners, are recorded. If we had that, all that anyone interested in buying land in any part of the state, including villages, will need to do, would be to simply conduct a search in that register, and he will find the history and ownership details of the land he intends to buy. Also, if we had that, a surveyor, engaged to survey a piece of land, only needs to conduct a search in the register of titles, to be sure that the person who has engaged him, is the legally registered and ascertained owner of the land, so as to save himself from unnecessary attacks. Instead, what we have is a register of land instruments, which merely records documents that are used in land transactions, such as deeds of conveyance, deeds of assignment, certificate of occupancy, power of attorney, etc. These documents are mere evidence of land transactions between one person claiming to be the owner and another claiming to be the purchaser. They do not give an assurance that the title so claimed in them truly and genuinely belongs to the so-called vendor. Only a register of titles can do that. Unfortunately, we do not have it. That is why you have situations in which holding a certificate of occupancy today, is not a guarantee that your title is genuine. Even someone without a single document can legally defeat your claim of ownership to the land, notwithstanding your certificate of occupancy. The detail of this, is outside the purview of this paper. Suffice only to say that because most of our land is untitled and unregistered, proper pre-purchase title investigation by prospective purchasers is impossible. So, despite the best of caution, you may still end up with a disputed title, and being forcibly and violently ejected from the land that you paid so much for.
3. UNCERTAIN AND UNDEFINED BOUNDARIES
Whether genuinely or mischievously, many land owners do not know the exact boundaries of their land, especially with old natural boundary marks disappearing and being disputed. Even in this time and age, some still fail to take advantage of modern surveying, which helps to provide an accurate description of land. Although it is possible to succeed in prosecuting a land case without having a survey plan, (provided you can give a clear and unambiguous description of it, and by calling your boundary men as witnesses), there is no better substitute to having a properly prepared survey plan, by a licensed or registered surveyor. Absence of proper layout plans, may also lead to the alienation of the same plot of land to more than one purchaser, leading to dispute between two or more purchasers.
4. MULTIPLE SALE OF LAND
Some land-owning families are notorious for knowingly selling the same land to more than one purchaser, thus creating conflicts. Sometimes, a sale done by older members of a family, is denied by younger members of the same family, in order to fleece the purchaser of more money, or re-sell the same land to another purchaser who is willing to pay a higher price. Sometimes, it is a case of land agents and those who engaged them, selling the same land to different purchasers, thereby creating conflicts that result in violent efforts by one purchaser against the other, to take possession. Unfortunately, this problem is not limited to private land. Even government allocations suffer this fate, due either to poor record keeping, corruption, incompetence or lack of diligence, on the part of those vested with official responsibilities.
5. INEFFECTIVENESS IN THE IMPLEMENTATION OF THE LAND USE ACT
While the Land Use Act has noble intentions, its implementation has not largely achieved the desired results. Most of the mischief in land transactions intended to be cured by the Act are still with us today, principal amongst which, is in accessibility to land by genuine investors. Many genuine investors and private individuals still find it hard to have easy access to trouble-free land. The effrontery of landgrabbers and the notorious activities of many land vendors is a testimony to the failure of the Land Use Act, in this respect. Acquisition of land, even from government, is still a nightmare, not to talk of purchases from private owners. The failure of government to properly and effectively implement the provisions of the Land Use Act, is what has largely contributed to, and encouraged the menace of land grabbing and dubious land vendors. Indeed, landgrabbers are effectively selling government acquired and government allocated land in many parts of the state, as if in celebration of the failure of the provisions of the Land Use Act. Many people allocated land by government, are unable to take physical possession, after several years, even after paying and meeting all requirements.
5. ORAL HISTORY
Customary land ownership is founded predominantly, on traditional oral history, passed down from generation to generation, dating back sometimes, to time beyond human memory. As the history of the land is passed down, memories fail, and distortions occur. Imposters, or land grabbers, take advantage of this, and somehow, re-tell the story, locating themselves within a family that they really have no connection with, thereby laying claim to land that never belonged to their ancestors. When a court is confronted with competing evidence of traditional history, it is enjoined by law, to decide in favor of the party whose version appears more credible and probable. Unfortunately, an impostor may be able to tell a more convincing story than the genuine owner, and end up with a judgment in his favour against the genuine owner, whose story is true, but badly or incoherently told to the court.
THE “PROHIBITION OF FORCIBLE OCCUPATION OF LANDED PROPERTIES, ARMED ROBBERY, KIDNAPPING, CULTISM AND OTHER ANTI-VIOLENCE AND RELATED OFFENCES LAW 2016”, OF OGUN STATE.
The Law was passed in 2016, with a commencement date of November 14, 2016. As can be seen from its title, it covers much more than land-related crimes, though, it has become more known in respect of land related crimes. Indeed, it is more popularly referred to as the ‘Anti-Land Grabbing Law’. The simple rationale behind the law, (contained in Part 1 of it, comprising of Sections 3 to 14), is to put an end to, or reduce to the barest minimum, land-related violence. Generally, our laws frown at self-help, even where the one resorting to it, has a legitimate right to assert or protect. In a society governed by law, no one, howsoever highly placed, is expected to take the law into his own hands, no matter the level of his hurt.
Going through the Law, it can also be seen that it is an attempt to remedy some of the loopholes in land litigation, usually exploited by mischievous litigants, to foist a ‘fait accompli’ upon the courts, or frustrate their opponents through technicalities and long delays. It is a notorious fact that land litigation drags, despite judicial best efforts, and some litigants take advantage of this, to harass and intimidate their opponents, forcing some to abandon their claims out of fear or harm. The fact that the Law Enforcement Agencies have no power to intervene in land disputes, provides added comfort to land grabbers to inflict acts of violence and intimidation on their weaker opponents. By criminalising the activities of these group of people backed with strict sanctions, the Law evinces a clear intention to deal decisively with this evil.
The House of Assembly under the leadership of the Rt Hon Speaker, Prince Olakunle Taiwo Oluomo and the Ministry of Justice, under the leadership of the then Hon Attorney-General, Dr Olumide Ayeni SAN, must be commended for their bold initiative and collaborative efforts in ensuring the passage of the law. Although Lagos State was the first to pass a similar law, that of Ogun State has been generally acknowledged to be more far-reaching, and a few other states have actually copied the Ogun State version.
PROVISIONS OF THE LAW AND THEIR IMPLICATIONS
The provisions dealing with land grabbing are to be found in sections 3 to 14 of the Law. However, time will only permit me to speak elaborately on a few of them, while I will comment generally on the others.
Let me start with how the Law in Section 1, defines certain words and terms:
1. “Agent” means a person who acts or purports to act on behalf of any party to a real property transaction, whether in respect of a sale, lease, license, mortgage or other dealings or disposal of or relating to the property including any person engaged for the purpose of forceful take over or sale of a landed property.”
2. “Land Grabbers/Ajagungbales” means hoodlums, thugs, miscreants, touts, or any person who parade themselves as land owners without having title to the property.”
3. “Landed Property” or “Property” includes a parcel of land, farmland, whether actively in use or not, an improvement building, any ancillary to a building, the site comprising any building or buildings together with any land ancillary thereto and any other place.”
4. “Lawful Occupation” means control of a property as recognized by Law.”
5. “Offensive Weapon” includes any article inclusive of firearms within the meaning of this Law made or adopted for the use of attacking, causing aggravation or injury to a person or intended by the person having it or being in possession of it for such use by him including an air gun, air pistol, bow and arrow, spear, cutlass, knife, matchet, dagger, cudgel, or any piece or wood, metal glass or stone capable of being used as an offensive weapon to cause bodily injury or harm.”
6. “Trespasser” means any person who intrudes on the property of another without permission or any lawful reason or authority.”
7. “Violent” means a turbulent state resulting in injury or death or destruction to person or property.”
FORCEFUL TAKEOVER OF LAND
This is one of the evils that the law aims to eradicate.
Section 3 which deals with it, provides as follows:
(1) As from the commencement of this Law, no person or group of persons shall use force to take over any Landed Property in the State.
(2) Any person or group of persons who having used force to take over a Landed Property in the State from the commencement of this Law is guilty of an offence.
(3) Any person or group of persons that contravenes any of the provisions of Sub-sections (1) and (2) of this section shall on conviction be liable to a term of Twenty-One (21) years.
IMPLICATIONS
• Whether you are a land owner or the agent of a land owner, if you use force to take possession of any land from anyone, whether the person is rightfully or wrongfully on the land, you risk going to jail for 21 years, if charged and found guilty, under this law.
• It does not matter that you are the genuine owner of the land or that the person you are forcefully ejecting is a trespasser.
• This provision may also apply in a landlord and tenant situation against a landlord who uses force to eject a tenant, instead of following due process. Removing the roof, doors, or physically throwing out your tenant’s properties, may constitute forceful take over of property, under this section.
VIOLENT ENTRY
Violent entry is more serious than forcible recovery, because of the additional ingredient of infliction or threat of infliction of physical harm. Violence is defined in the interpretation section as ‘a turbulent state resulting in injury or death or destruction to person or property’.
Section 4 provides:
(1) “Any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any landed property for himself or for any other person is guilty of an offence.
(2) A person’s interest in or right to possession or occupation of any property shall not for the purpose of sub-section (1) of this section constitute lawful authority for the use of, or threat or violence by him or anyone acting on his behalf for the purpose of securing his entry into that property.
(3) For the purposes of this section, an offence is committed whether or not
(a) the violence in question is directed against the person or against the property; and
(b) the violence in question is intended to secure entry into the property for the purpose of acquiring possession of the property in question or for any other purpose.”
IMPLICATIONS
• If you use or threaten the use of violence in order to enter or allow another person to enter a piece of land or landed property, without lawful authority, you are guilty of an offence under this section.
• Although the law does not define ‘lawful authority’, it means that you must be permitted by law to enter the property. Such permission will include a court order allowing you to enter, force the place open, or authorising a surveyor to enter a land to conduct a survey. The ‘lawful authority’ is not to permit you to use or threaten violence, for no court of law, will authorise the use of violence, but to permit you to enter the property.
• “Lawful authority” would also include a Government Agency, entering a landed property to carry out a statutory duty, or Law Enforcement Operatives, entering a property to maintain law and order. For example, armed policemen who accompany court officials to execute court orders or take possession of property attached property, would be entering with lawful authority.
• The fact that you are the genuine owner of a property is not a justifiable reason for you to use violence to gain entry to it. What is expected of you is to have recourse to the law, by reporting to the Police, or instituting an action in court against the impostor or intruder. Otherwise, despite your genuine title, you may be liable to prosecution under this law.
• Again, landlords and tenants need to be aware of this provision, as either of them, who resorts to the use of violence against the other, in gaining entry into a property subject of tenancy, may be liable under this Law. As a landlord or tenant, the law expects you to follow due process in ventilating your grievances, rather than having recourse to self-help.
• The punishment for an offence under this section is imprisonment for 10 years without an option of fine, as prescribed by Section 4(4)(a).
• However, if you are armed with firearms or other offensive weapon, such as a gun, cutlass, knife, matchet, iron rod, stick, or even a stone, capable of being used as a weapon; or noxious or chemical substances, such as acid, etc, or in the company of anyone so armed, or you injure or use violence on any person, in your attempt to gain forcible entry, the punishment is mandatory death sentence, as prescribed by section 4(4)(b). Mandatory, means that once you are found guilty, the judge has no discretion to give you any other punishment than death sentence.
• Note that to get a mandatory death sentence, it is enough, just for you to be in the company of someone who is in possession of the offensive weapon.
CRIMINAL TRESPASS
Trespass means entering another person’s landed property without his invitation, consent or authority and refusing to leave when he asks you to leave. Once the owner challenges you and asks you to leave, and you refuse to leave, you will be liable to be charged for an offence under this Law.
Section 5(1) of the Law provides:
“Any person who is on any property as a trespasser after having entered as such is guilty of an offence if he fails to leave the property on being required to do so by or on behalf of the owner of the property, his agent or any other in lawful possession.”
The prescribed punishment for this, according to section 5(5) of the Law, is a fine of Five Hundred Thousand Naira (N500,000.00) or five (5) years imprisonment or both.
IMPLICATIONS
• If you are the aggrieved, in addition to, or as an alternative to instituting a civil suit for damages for trespass and injunction, you can make a complaint of criminal trespass to the Police and have the trespasser prosecuted under this law. Both actions can proceed simultaneously, because under our Law, it is not required that a criminal case must first end before you file a civil case, where both options are available to you, as in this situation.
• It is no longer open to the Police to wash off their hands from land disputes and simply tell the parties to go and ventilate their grievances in a civil court. By this provision, and indeed, all the provisions of this law, law enforcement agencies, particularly the Police, now have powers to investigate and prosecute land-related crimes under this law.
• Land Surveyors must also be weary of this provision. If you go on a land to carry out a survey, and someone shows up, claiming to be the owner or occupier, and asks you to leave, you should leave, otherwise you may be charged to court for criminal trespass. In such a situation, the advisable thing to do, is to tell those who engaged you, to obtain a court order to permit you to enter the land for the purpose of doing your work.
UNLAWFUL USE OF LAND AGENTS
The Law has criminalized the practice of stationing land agents on land for the purpose of forceful take over, and/or enforcement of court judgments.
Section 6(1) provides:
“Any person who places on any land or landed property any agent for the purpose of forceful takeover of the land is guilty of an offence and shall on conviction be liable to a fine of Five Million Naira (N5,000,000.00) or imprisonment to a term of Ten (10) years or both such fine and imprisonment.”
Section 6(2) provides:
“Any person who enforces or uses agents for the enforcement of any judgment in respect of a landed property except as provided under the Sheriff and Civil Process Law is guilty of an offence and liable to a fine of Five Million Naira (N5,000,000.00) or imprisonment of Ten (10) years or both such fine and imprisonment.”
DEMAND FOR CONSTRUCTION FEES
The practice of miscreants terrorising and holding land purchasers to ransom, by demanding for fees before building on land purchased by them, has also become prohibited by the law.
Section 11 provides:
“Any person, who, whether for himself or acting as an agent of another, demands for any fine or levy in respect of construction work, e.g, roofing, repair or restoration of any property or disrupt or obstruct same for the purpose of demanding such fine or levy is guilty of an offence and shall upon conviction be liable to a fine not exceeding Five Hundred Thousand Naira (N500,000.00) or to a term of imprisonment of not less than seven (7) years or both such fine and imprisonment.”
OTHER OFFENCES
Other highlights of the law are provisions dealing with the activities of traditional rulers who aid the activities of Landgrabbers, Government Officials, involved in illegal transactions in respect of government acquired land, sale of landed property by persons without authorisation, etc.
ENFORCEMENT OF THE LAW
By section 14(1) of the Law, the Governor is empowered to set up a Joint Task Force, comprising of the representatives of the Bureau of Lands and Survey, Ministry of Urban and Physical Planning and any other relevant Law Enforcement Arm of Government, to enforce the provisions of the Law. I am not aware if this Task Force is in existence, and if it is, the fact that it is not very visible, is probably an indication of the level of its performance and impact. I am however aware, that presently, a few cases of persons being prosecuted under this Law, are before the courts. Yet it is not a secret that the evil of land grabbing is still going on in many parts of the State today.
EFFECT ON LAND ACQUISITION, SURVEYING PRACTICE AND THE PUBLIC
If the provisions of this Law are strictly and effectively enforced, it will certainly make the process of land acquisition by individuals and organisations less problematic. Those who own land but have been afraid or reluctant to build because of the fear of harassment by thugs and miscreants, will be encouraged to do so. More investors will be attracted to the State, knowing that they will no longer be harassed and held to ransom by miscreants and land agents for no justifiable reason. The activities of dubious land vendors and agents who sell land that they have no title to, will also drastically reduce, since they now know that, unlike in the past, they are more likely to go to prison, if caught.
Also, effective implementation of this Law, will enhance surveying practice by allowing surveyors do their work in a conducive atmosphere, without fearing for their personal safety. Land grabbers and thugs constitute grave danger to land surveyors in the practice of their profession. Many have been subjected to physical attacks, resulting in serious bodily injuries and even death, on some occasions. This should no longer be the case, if the provisions of this Law are effectively applied. However, Land Surveyors must also be weary of colluding with dubious land agents in producing false surveys or telling lies in survey plans. It cannot be denied that the unprofessional conduct of some surveyors are contributing to the confusion and conflicts experienced in land matters. Surveyors who continues to connive with dubious vendors and land agents may fall victim of the provisions of this Law and find themselves in prison as a result.
An effective implementation of this Law will bring relief to the general public, which has been traumatised for long by the activities of land grabbers and their thugs. Peace will return to our neighbourhoods and the ordinary citizen can feel confident to enter into land transactions, knowing that the law is firmly on his side to protect him dupes and land grabbers.
CONCLUSION
This is a good law, properly directed at a serious anti-social menace, with a great potential to accomplish its purpose. The key to its success however, lies in effective implementation, by those vested with the duty and responsibility to do so. First, the government must have the political will to implement it firmly and decisively, without political or sentimental considerations. Secondly, the Joint Task Force must be carefully chosen and properly equipped, to be able to function effectively. They themselves must be properly monitored to ensure that they do not become a cesspool of corruption. There is an added need to have a Fast-Track mechanism both in the Ministry of Justice and in the Judiciary, to deal with cases arising from this Law with despatch, so that the proper signal can be sent to the public, particularly those to whom the Law is directed, that it is no longer business as usual. Finally, there is a need for more awareness to be created about this Law in the public space. The more the public is aware of its provisions and the extent of protection it promises, the more they will be encouraged to take ownership of it and co-operate with the authorities in its implementation.
Hon. Justice Abiodun A. Akinyemi
10th day of February, 2022©
