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Reviewing a Peculiar Land Law Jurisprudence in Nigeria -

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Saturday, June 29, 2013 6:07 PM / Dr. Theophilus Olusegun Obayemi, II**

 

 

PECULIAR LAND LAW JURISPRUDENCE IN THE FEDERAL CAPITAL TERRITORY (ABUJA): A CRITIQUE OF HON JUDGE PETER Oyin AFFEN’S JUNE 17, 2013 DECISION IN GRAND SERVICES V HYDRAFORM ENGINEERING, SUIT # FCT/HC/CV/818/09

 

I.         INTRODUCTION

As the Nigerian Land Law jurisprudence continues to expand: Hon Judge Peter Oyin Affen has exposed the lacuna in the Nigerian Land Use Act, i.e., that unlike what obtains in other States within the Nigerian Federation, there can not be a grant of a Customary Right of Occupancy in the Nigerian Federal Capital Territory. Thus, in Grand Services (Nigeria) Limited vs Hydraform Engineering Nigeria Limited and Hon. Minister Federal Ministry of Housing and Urban Development, Case # FCT/HC/CV/818/09, the erudite Abuja High Court Judge—Hon., Affen, examined the law barring the local government and state government authorities from granting rights of ownership on lands vested in the federal government. In the end, Judge Affen was unable to affirm the title to either of the two purported grantees.

 

As a preface, under the Nigerian Land Use Act, all lands are vested in the Governor of the individual states. In fact, the long title of the Land Use Act states unequivocally that it is an Act to vest all land comprised in the territory of each State except land vested in the Federal Government or its agencies solely in the Governor of the State who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organizations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on local governments.

 

We examine this educating and legally illustrating decision and make two (2) salient observations:

 

(a) We submit that Judge Affen should have invited additional and/or supplemental Briefs of Argument/Addresses from the parties on two (2) sub-issues:

 

(i)                 An explanation of the contents of the Articles of incorporation and/or Charter of Incorporation existing between Federal Housing Authority (FHA) and the Federal Ministry of Housing and Urban Development (FMHUD)—especially as to whether FMHUD was authorized to confer title on third parties, regarding lands rightfully allotted to the FHA by the Minister of Federal Capital Territory. This takes into consideration the fact that FHA is a subsidiary of FMHUD.

 

(ii)               Assuming arguendo, that under the Bylaws and other incorporating documents of FHA, the FMHUD is also authorized to confer titles vested in FHA on third parties, would the fact that FMHUD allowed Hydrafom to enter into the parcel of land question evince an intent to transfer legal title to Hydraform?

 

(b).We also submit that two  necessary parties were not joined in the case—i.e., Federal Housing Authority (FHA”) and Kuje Area Council. FHA appears to be the entity to which the land in question was rightfully allotted to, by the Minister of Federal Capital Territory. Kuje Area Council is Hydraform’s landlord sand it purported to have granted a customary certificate of occupancy to Grand Services

 

In the end, subject to the Statute of Limitation and Discovery Rules, as it now turned out that Kuje Area Council had no land to allot at all, Grand Services may pursue necessary remedy against Kuje Area Council

 

II.       BACKGROUND FACTS

The Kuje Area Council granted a customary right of occupancy to plaintiff—Grand Services on August 24, 1994, regarding the property at Plot # HE 20, Phase AA Layout, Kuje, Abuja. Grand Services paid all fees and obtained a certificate of occupancy to the Federal Capital Territory Administration (FCTA) for regularization and received an acknowledgment on October 8, 2006.

 

In its counterclaim, Hydraform--the 1st Defendant was granted approval to develop housing units in partnership with the Federal Ministry of Housing and Urban Development (FMHUD) on behalf of the Federal Republic of Nigeria on a parcel of land situate at Kuje, Abuja (which land is particularly delineated in the perimeter survey plan dated July 20, 2005), and a formal agreement, memorandum of understanding and development lease agreement dated August 25, 2005 were executed between the 1st Defendant and FMHUD.

 

It is important to note that while Hydraform's counterclaim was not about title per se, Hydraform was also seeking a declaration that it was in lawful possession of the land, having allegedly been put into possession by the Minister in charge of FMHUD - who had averred that the FCT Minister granted the land to FHA. Now, FHA is a parastatal under FMHUD.

 

The FCT Minister did not deny that the Minister of FCT had granted the land to FHA—meaning that the grant to the FHA was legal and subsisting. Surprisingly, FHA was never made a party to the proceedings.

 

While it is true that during the proceedings, Hydraform merely led evidence to show that it was put into possession by FMHUD without establishing the title of FMHUD nor that of FHA, Hydraform ought to have made an Application before the learned Judge to address the issue of how Hydraform had come into possession with or without the consent of FHA. From the facts, we suspect that FHA intends to assign its interest to Hydraform. This is more glaring from the fact that FMHUD, i.e., FHA’s principal that was a party to the case did not deny or controvert Hydraform’s lawful possession.

 

III.      LEGAL DISCUSSION

The issue then turned as to whether the Kuje Area Council had the right or power to grant a customary right of occupancy as to land situated within the Federal Capital Territory. All land and property lawyers and practitioners are aware of the Nigerian Land Use Act which came into operation in 1976, and appropriated all lands to the Federal, States, and Local governments.

 

Generally, a customary right of occupancy refers to the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a local government council under the Land Use Act.

 

According Judge Affen, there are two (2) categories of customary right of occupancy.

 

a.       A deemed grant held by the customary occupiers of land in accordance with customary law

 

b.       Actual Customary Right of Occupancy that a local government council may grant pursuant to section 6 of the Land Use Act. T

 

Under current dispensation, Deemed Customary Right of Occupancy has clearly been abolished in the Federal Capital Territory since February 4, 1976 when the Federal Capital Territory Act came into force.

 

a.         Abuja Area Councils are Equivalent to Local Government Authorities in Other States.

 

First, it is clear that laws/rules of devolution or decentralization of power between States and local government councils in each of the States of the Federation equally applies in the Federal Capital Territory (which is deemed to be a State), save that the equivalent of local government councils are designated as ‘area councils’.

 

Section 299 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that the legal status of the Federal Capital Territory is as if “it were one of the States of the Federation”.

 

Admittedly, Kuje Area Council is one of six (6) area councils in the Federal Capital Territory. See sections 3 and 303, and Part II of the Second Schedule to the Constitution.

 

Thus, the laws applicable in the Federal Capital Territory by virtue of s. 13(1) of the Federal Capital Territory Act, Cap. F6, LFN, 2004 (as listed in the 2nd Schedule thereto) include Niger State Local Government Edict (Law) of 1976 which shall have effect with such modifications as may be necessary to bring it into conformity with the Constitution.

 

In addition, section 318 of the 1999 Constitution provides that “local government area” or “local government council” includes an area council.

 

There is therefore little or no difficulty that the 1999 Constitution as well as the Federal Capital Territory Act recognize that the incidence of devolution or decentralization of power between States and local government councils in each of the States of the Federation equally applies in the Federal Capital Territory (which is deemed to be a State), save that the equivalent of local government councils are designated as ‘area councils’.

 

b.         The Limits and Scope of the Power to Grant Customary Rights of Occupancy by Local Governments.

 

Generally, under Section 3 of the Land Use Act, the Governor may for purposes of the Act designate the parts of the territory of the State constituting land in an urban area.

 

The power of a local government council to grant customary rights of occupancy derives from section 6 of the Land Use Act which provides that it shall be lawful for a local government council to grant customary rights of occupancy to any person or organisation for agricultural, residential and other purposes in respect of land not in an urban area.

 

However, as Judge Affen noted, the power conferred on local government councils to grant customary rights of occupancy does not extend to land designated as ‘urban area’ which is defined in section 51(1) as “such area of the State as may be designated as such by the Governor pursuant to section 3 of this Act”.

 

c.         All Lands in the Federal Capital Territory Are Conferred—Exclusively, on the Federal Government.

 

In GRAND SERVICES V HYDRAFORM ENGINEERING, the crucial question was whether the provisions of section 6 of the Land Use Act empowering local government councils to grant customary rights of occupancy in the various states are exercisable by the area councils in the Federal Capital Territory since all lands are vested exclusively in the Federal Government of Nigeria.

 

As noted hereinbefore, all lands comprised in the Federal Capital Territory are vested exclusively in the Federal Government of Nigeria.

 

In addition, section 49(1) of the Land Use Act also provides that “nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government and such land shall continue to vest in the Federal Government or the agency concerned”.

 

While section 51(2) of the Land Use Act provides that the powers of a Governor under this Act shall, in respect of land comprised in the Federal Capital Territory, Abuja, or any land held or vested in the Federal Government in any State shall be exercisable by the President or any Minister designated by him in that behalf and references in this Act to Governor shall be construed accordingly, there is no corresponding provision in the Act to the effect that the powers of a local government under the Act shall in respect of lands comprised in the Federal Capital Territory, Abuja be exercisable by the Area Councils. Thus, Judge Affen held that:

 

…there are no lands comprised in the Federal Capital Territory over which the area councils (including KAC) could validly grant customary right of occupancy. I so hold.

 

It therefore seems to me that the Land Use Act does not envisage the exercise by area councils of the power of the local governments to grant rights of occupancy in the Federal Capital Territory. If this were not so, the Land Use Act would have stated so in clear terms in much the same way it clearly provided for the exercise by the President or Minister of the powers of the Governor of a State.

 

The Judge referred to the case of GRACE MADU v DR. BETRAM MADU [2008] 6 NWLR (PT. 1083) 296 at 324 -325 H- C, where the Supreme Court held that:

 

“Section 18 of the Federal Capital Territory Act Cap. 503 Laws of the Federation of Nigeria 1990 vests power in the Minister of the FCT to grant statutory rights of occupancy over lands situate in the Federal Capital Territory. By this law, ownership of land within the FCT vests in the Federal Government of Nigeria who through the Minister of FCT vests same to every citizen individually upon application. Thus without an allocation or grant by the Hon. Minister of the FCT, there is no way any person including the Respondent could acquire land in the FCT.”

 

Concluding, Judge Affen held that anyone whose root of title is not an allocation or grant by the Minister of the Federal Capital Territory (as in the instant case) does not have a valid title to land situate within the Federal Capital Territory, and a declaration of title cannot be founded on such a root of title.

 

IV.       RELATIONSHIP BETWEEN THE FHA AND THE FMHUD

As we pointed out, only the FCT Minister can grant titles to lands in the FCT. It is undisputed that the FCT minister allotted the land to FHA. It is also undisputed that the FHA is a parastatal of the FMHUD. What remains for determination is whether FMHUD was authorized to confer title on third parties, regarding lands rightfully allotted to the FHA by the Minister of Federal Capital Territory, taking into consideration the fact that FHA is a subsidiary of FMHUD.

 

It is against this backdrop that this author submitted that Judge Affen should have invited additional and/or supplemental Briefs of Argument/Addresses from the parties on above two (2) legal issues. It is necessary to have an explanation of the contents of the Articles of incorporation and/or Charter of Incorporation existing between Federal Housing Authority (FHA) and the Federal Ministry of Housing and Urban Development (FMHUD)—especially as to whether FMHUD was authorized to confer title on third parties, regarding lands rightfully allotted to the FHA by the Minister of Federal Capital Territory. This takes into consideration the fact that FHA is a subsidiary of FMHUD. As we said earlier, assuming arguendo, that under the Bylaws and other incorporating documents of FHA, the FMHUD is also authorized to confer titles vested in FHA on third parties, therefore, the fact that FMHUD allowed Hydrafom to enter into possession of the parcel of land in question clearly evinces an intent to transfer legal title to Hydraform.

 

To avoid a lacuna, further addresses on the FHA/FMHUD’s title may be needed. Otherwise, fresh legal proceedings may occur, or fresh legal costs and fees may be needed outside Judge Affen’s court to set the matters straight.

 

V.        NECESSARY PARTIES: NOT JOINED

Joinder of Parties: What is the purpose of a joinder of a party? In Lajumoke v. Doherty (1969) 1 NMLR 281 Eso JCA (as he then was) on the joinder of a party held that the purpose of a joinder of a party is to enable the Court to bind parties who ought to be bound by the decision of the court and in a proper case the court can join third party as co-defendant even against the wish of a plaintiff.

 

The question: Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter?" See: Green v. Green (1987) 3 NWLR (Pt.61) 480, (1987) 2 N.S.C.C. Vol. 18 (Part II) 1115 at 1127; Uku v. Okumagba (1974) 1 ALL NLR (Part 1) 475; Peenok Investments Ltd. v. Hotel Presidential Ltd. (supra); Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 177; Adefarasin v. Dayekh & Anor. (2011) 11 NWLR (1044) 89 @ 36-37, Paras. E-C." Per KEKERE-EKUN, J.C.A. (P.21, Paras.C-G)

 

FHA appears to have legal title from the FCT Minister. Also, Kuje Council appears to have granted a customary right of occupancy to Hydraform. Are these two entities necessary parties: FHA is a necessary party because FMHUD’s power to allow Hydraform into possession derived—indirectly—from FHA. Any pronouncement on FMHUD’s derivative power necessarily involves FHA. Noone questioned FHA’s grant from FCT Minister. The only issue is whether FHUMD, while acting in place of its subsidiary—FHA—can confer title Hydraform. To void Hydraform’s title claim traceable to FHUMD necessarily involves FHA.

 

Finally, on the common law principle of landlord/tenancy rules, Grand Services is still liable to Kuje Council for all rates and taxes. As Hon Affen did not void all liabilities owed by Grand Services to Kuje Council., there are grounds that the pronouncements in this case do not bind Kuje Council as it was not a party to the case. Moreso is the fact that contiguous to Kuje Council is Niger State which is not subject to the federal government ouster

 

VI.       CONCLUSION

If FHA has legal title from FCT Minister, then FMHUD’s power to allow Hydraform into possession derived—indirectly—from FHA creates an issue that should be resolved. Surprisingly, Kuje Area Council and FHA were not made a parties to the suit. We also believe that Kuje Area Council is a necessary party as the landlord, and also because Grand Services should pursue a claim for compensation for indebitatus assumpsit in so far as the Nigerian Administrative Law allows relief against the government

 

Academic as the issues raised herein may sound, Judge Affen’s pronouncements shows that he may belong to the Class of Taslim Elias and Niki Tobi who left the academic for the bench. A good judgment and a welcome exposition into the Nigerian land law rules in the Federal Capital Territory.

  

**Dr. Theophilus Olusegun Obayemi, II, a recipient of the Nigerian Land Law in 1991 is of the Bars of California and Nigeria

 



Tags: Dr. Theophilus Olusegun Obayemi,  LAND LAW,  PETER Oyin,  ENGINEERING,  FCT,  HC,  CV,  Nigeria,  Grand Services (Nigeria) Limited,  Hydraform Engineering Nigeria Limited,  Abuja,  Federal Capital Territory Administration,  FCTA, 


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