CHAPTER TWO
LITERATURE REVIEW, THEORETICAL
2.1
AND CONCEPTURAL
FRAMEWORKS
Preamble
The focus of this chapter was to document the review of literature carried out on the
themes that were related to the study. The review thus covered areas such as concept of land,
concept ofland tenure and land tenure systems, concept of land tenure security, measurement
of the nature of land tenure security, factors influencing
land tenure security, relevance of
land tenure security to rural land-use planning, implications
of land tenure security on rural
development, importance of land tenure security research in rural planning,
and concept of
ruralarea. The theoretical framework that provided guide to the study included Evolutionary
theory of land right, Continuum
of land right model, De Soto Model, and Central place
theory. The last section centres on the conceptual
landtenure security in southwestern
2.2
framework
was used for the analysis of
Nigeria.
Concept of Land
Land can be referred to as unmovable
and indestructible
three dimensional
areas of
the surface of the earth, the space above it, the sub-soil below the surface and every other
thingthat grows on or are fixed permanently
on the land (Black's
law dictionary
7th
edition).
It includesthe sum of the resources that are made by nature and man over which the control
of the earth's surface is given by possession.
It also includes the whole surface of the earth
(suchas ground, building sites, soil, farms, forest, mineral deposits and water resources) as
well as all forms of improvements
(manmade)
that are fixed to the earth's
surfacet+At.i.
1995).
Igbozurike (1986), Lanre (1991), Ker (1995) and Aasoglenang
that land is a term with diverse
meaning
to different
people
et at. (2013) observed
depending
on their interest,
.,
31
orientation or outlook
the solid portion
at any given time. In another
of the earth
occupied by clans, stool/skin
Others consider
surface
as nations,
territories,
a political
land as something
worship, express
themselves,
tradition or rear animals
dimension,
(Aasoglenang
humanactivities are concentrated
division,
authority
to be
areas,
the ground,
areas
soil, or earth.
on which they can farm, build a house, walk, play,
construct
viewed from different perspectives,
traditional
land is considered
a sports
complex,
portray
their
culture
and
et al., 2013). Apart from the fact that land can be
it is generally accepted among people that, most of all
on land.
Deckshatulu and George (1993) asserted that land fora long time has been seen as a
measureof wealth, status and power in all nations of the world. For instance, in India, people
were favoured by kings in form of titles of ownership
for land holdings during the feudal
rules. Land was acquired as a result of many wars and disputes not only between families,
kings and Nations who want to establish their kingdom and expand their territories
but also
betweencommon people since land was the only source of their livelihood.
The importance ofland
to any society cannot be over-emphasised.
fundamental to social, political and economic
economic growth and development
life of any nation. It is also the key factor for
of the nation. Jinadu
essential factor for rural, urban and national
development.
(2004) opined
asset of any nation
the fact that it creates a platform on which production
offeredas a commodity for consumption.
can be referred to as wetlands,
can be
Its location, size and planning status dictate directly
and indirectly the form, size and market orientation
activitiestake place.
that land is an
In line with this, Mabogunje
(2003) and Omirin (2002) asserted that land is the most important
especiallywhen considering
This is because it is
farmland,
pasture,
of the final product. In this study, land
forest and ground
on which human
-
,
--
---
-
---
--
~
32
In the rural area, land is a fundamental
play in improving agricultural
shelter, income and social
factor of production.
yield. IFAD (2015) asserted
identity.
In other words,
It has an essential role to
that it is the source of food,
it is source
of livelihood
in rural
settlements. It is also an economic resource and essential factor in the formation of individual
and collective identity, and in the day-to-day organisation of social, cu Itural and rei igious life.
It is seen as a political resource that defines power relations between and among individuals,
families and communities
Land especially
under established system of governance.
in Southwestern
Nigeria is foundation
utilitiesand raw materials in rural areas, and its accessibility
quality of life and poverty reduction.
However,
for food production,
shelter,
is thus crucial for improving the
land in rural areas is currently not properly
managed to facilitate different livelihood means at large scale due to lack of incorporation
across land administration
functions:
and land development (Williamson,
land tenure, land value, land fragmentation,
land use
Enemark, Wallace, and Rajabifard, 2010).
Having examined the concept of land as the major means of livelihood as well as the
factor of production among rural residents and because of this, its demand is very high. The
quality of life of the people, where they live and work, their possibilities
for recreation and
the environment which surrounds them, depend to a large extent on the system of acquisition,
management allocation and servicing of land. Accessibility
of most the lands especially
Nigeria, depend largely on land tenure system. The need to examine
in
the concept of land
tenurewas therefore very important. Concept of land tenure was therefore the focus of next
section.
2.3
Concept of Land Tenure
The semantic understanding
of the concept ofland tenure is necessary in order to fully
appreciate its importance in developing countries. This is because of the different issues such
as high population pressure, increase in resource degradation,
reoccurrence
of food shortage.
-
---
"--~.~~-"
..
33
competition on land and land fragmentation
sensitive issue. As noted by Economic
land tenure cannot be understood
which have made land tenure a politically
Commission
of Africa (ECA), (2004) the concept of
except in relationship
to the economic,
political and social
system which produce it and which influences it.
Tenure is derived from the Latin word tenere which means "to hold." Tenure defines
the methods by which individuals
or groups acquire, hold, transfer or transmit property right
of resources (Ogolla and Mugabe, 1996). Based on the focus of the study, the concept of land
tenurehas been viewed differently in literature. For instance, McLaughlin
tenureas the rights and responsibilities
and restraints that individuals or groups of individuals
have regarding land. It was also defined as a broad term covering
established among people,
which
(Kasanga, 1994). Natural
Resource
(1981) defines land
determine
their varying
Management
all the relationships
right in the use of the land
Dictionary
(1996)
defined
it as the
relationship established among humans regarding the various rights to own, use, and control
of the resources. In the view of Adams (2001), land tenure is regarded as the rights and
institution that governsaccess
to and use of land. Despite the multiple definitions
of land
tenure, it is important to note that these definitions have a central team around access, rights,
ownership,utilization and control.
Land tenure is seen as an institution through which societies invent rules to regulate
behaviour (Tsue, 2015). These rules define how property rights to land are to be allocated
withinthe society.
In other words, it guides how access is granted to right of use. control.
and transfer as well as associated
responsibilities
and restraints.
Land tenure denotes the
bundleof rights that a given society has decided to allow individual or groups to hold as well
as the conditions under which those rights can be exercised (Osita, 2014). Land tenure can be
determined either by societal regulations
or by private agreements
and decisions
(Eze et
al.,2011). According to Olima and Obala (1998), land tenure consists of various laws, rules,
--~----~---~~
-
-
~-
34
that govern the rights, interest in land, duties and Iiabi Iity of
procedures and obligations
people in their use and control of land. Land tenure systems therefore determ ine who can use
what resources, for how long, and under what conditions.
more about property
rights
Strictly speaking,
land tenure is
in land and the way such rights are administered.
Having
examined the concept of land tenure. The next section examined different typologies of land
tenure that exist in Nigeria.
2.3.1 Typologies of land tenure in Nigeria
Land tenure in Nigeria according
to FAO (2002), Os ita (2014) and Eze, Konkwo,
Orebiyiand Kadiri (2011) can broadly be classified into three main types, namely; Private,
public (state controlled)
and communal
landholding.
These were explained
summarized
below;
a. Private Landholding:
All lands were originally
under the custody of the comrn unit)
through individual families or individuals in their private capacity. They have recognised
rights to ownership,
use, transfer and control. Initially, their right may have risen from
first settlement, partition, distribution
is recognized and guaranteed
or purchase. The right to private ownership of land
by the Nigeria constitution
as fundamental
right, that is the
right of an individual to personal or family land is secured by the Land Use Act. The
private owners ofthe land can secure hislher rights by registering the land under the legal
framework or even obtain a certificate of occupancy when desired since he is recognized
as the real owner. Private
landholding
according
classified into three, namely; family landholding;
to Adeniyi
(20 11) can further be
individual landholding
and customary
tenancy.
i. Family landholding:
landholding exists
it includes lands that are vested in a family as an entity. Family
in various
communities
and this type of landholding
established in Nigeria. In some rural communities,
family land ownership
is well
is more
35
predominant. Family could derive their grant from communal
holding if the ancestor
of such family was part of the original settlers in a given community
to use the land for different purposes such as agricultural,
purposes by the community
(FAa,
2002).
and was allowed
social and other economic
After the death
descendants are entitled to succeed to the property of deceased
of the founder,
the
founder. Individual
member of the family, therefore, has no separate claim of ownership to any part of it.
The family member has the right to allot part of the family property, right to manage
and control, right to alienate
the property
characteristics of family landholding
to strangers
(Eze et aI., 2011). Other
as identified by Adeniyi (2011) are summarized
below:
•
There is no formal land title as evidence
of ownership
but relies on long and
undisturbed acts of possession and ownership.
•
Title is vested in the family as an entity.
•
The head of the family and principal members of the family has the power to
transfer land to member and non-members
•
Transfer of land to members does not confer absolute ownership
but use rights
only.
ii: Individual Landholding: Individual landholding was not recognised in the past due to
the dominance of customary
after the promulgation
land tenure. But today, it has been gaining prominence
of the Land Use Act. People can buy land from community and
family land owners. Individual can also get allocation from Government
state land scheme
through the
under the state land law or LUA. It is also possible
for an)
individual to own land after the lawful partition of family land by family members or
absolute grant by the community or through adverse possession.
-
-----~
-~--~
~-~~
36
iii. Customary Tenancy: It is seen as a traditional
system
whereby
a land-owning
individual, family or community grants a right of occupation of land to another person
or group of people who are seen as a stranger on a renter basis. In this wise, the
strangers recognised the title of their grantor by the payment of customary tri buteo The
right of possession or use of the land is for a particular period of time. The :and can be
reverted after the purpose for which the right is conferred has been fulfilled. The type
of tenancy is recognised
by Land Use Act, under Section 36(2), in rural area, a
customary land owner or occupier for agricultural
or grazing purposes shall continue
to use and enjoy the land for the same purpose as if the appropriate
official had granted him a customary
right of occupancy.
local government
The types of customary
tenancy include gratuitous, service, share, kola, cash or rent-bearing
tenancies.
b. Public Landholding: This is asituation where land is owned, controlled and managed by
the government for public interest. The land is administered
by the Government
Use Act, 1978). Land use act, 1978 of section 28 empowers the Government
land for overriding
public interest by the Federal,
revoking the right of occupancy
to acquire
State and Local Governments
of the original owners (Adeniyi, 20 II, Francis,
The Act also clarifies what constitutes
(Land
"public purposes"
b)
\986).
in section 5 \ (\). These were
summarized below:
•
Land for exclusive government use or for general public use;
•
Use by anybody corporate directly established
by law or by any corporate bod-
registered under the company act
•
The need to use land for sanitary improvement
•
To obtain control over land contiguous to any part of which will be enhanced by
the road, rail construction
of any kind;
or other public work or convenience
undertaken or provided by the government.
about to be
37
•
Development
of telecommunication
•
Rural development
•
Agricultural
and mining
or settlements
and industrial, educational and other social services.
The intention of public landholding
is for public interest and not to benefit for private
interest.
c. Communal landholding:
Under this system of land holding, title to land is vested in
community as a whole. No single member of the community can claim ownership of any
portion of the land as their own. The management
of the land is vested on the elders,
headsmen, chiefs or traditional
rulers who administer the land in trust for the benefit of
the members of the community.
As noted by Famioriyo (1980) communal holding is held
by corporate bodies in form of socio-political
patrilineal and matrilineal
Nigeria, certain
parcels
groups such as rural, towns, villages.
groups, extended and nuclear families. In most southwestern
of land belong
exclusively preserved by the community.
by any member of the community;
the occurrence of communal
to the community;
usufructuary
rights are
Land can be jointly used; it can be used freely
it can also be divided among the families. Although
landholding
varies from community
related to farming practices, ethnic heterogeneity
to community,
it is
and stability of leadership. Land under
communal tenure can be used as:
•
Public square, markets, burial sites, common farmland etc
• Religious lands such as shrines, groves, other sacred sites; and
• Stool land which belong to the traditional rulers
Every member of the community. according
to Adeniyi
(2011) has equal right to a
portion of communal land on which different activities such as residential and farming
can take place. If any land is allocated to any member of the community,
the member
allotted the portion of the land does not become the owner of the land but is only
~--~-----~
------~~~~-
38
permitted to enjoy use right while the title to the land belong to the community.
In
addition, the chief or headman cannot reallocate any allocated land to any other member
without consultation
2.4
and the agreement of the original allotee.
Land Tenure System
Land tenure is the set of rules that define how access is granted to rights, to use.
control, and transfer of land as well as the associated
2015). Land tenure can be recognised
responsibilities
and restraints (Tsue.
as a system that regulates relationship
among people.
individuals and groups with respect to land. The system of land tenure include people either
individuals or groups; a broad set of formally or customary defined rules; the relationship to
land which is also known as rights to land; and the whole framework
enforce land rights and responsibilities
(Ajibade,
2015). According
that regulates and
to FAO (2002), such
systemsbring into play social, economic, technical, institutional, political and legal.
2.4.1 Evolution of Land Tenure System in Nigeria
Evident from different
scholars
have shown that land tenure system
in Nigeria has
evolvedthrough three major periods (Atilola, 2010; Babalola et aI., 2015 and Udoekanern et
aI.,2014). These are pre-colonial,
i.
colonial and post-colonial
Pre-colonial Era: In the pre-colonial
adjudication and appropriation
era, land tenure system was characterised
by the might of warfare, occupation
which princes, religious adventurists,
followers and communities
periods
and rulership
by
in
warlords and kings carved out dominions for their
(Atilola, 2010). Community
the way in which land is administered
leaders had greater influence in
for farming, grazing and communal
living. The
use of natural structures such as tree was adopted in order to define boundaries for each
family or community. The management
of such a family or community
land, especially
the transfer and allocation of land was vested in the head of the family and traditional
ruler who operate according to the tradition and customs of their people. During this era
39
according to Famoriyo
(1973) and Nwosu (1991), every member of the family and
community has right of use but member cannot alienate their family or community land
especially to aliens. Famoriyo (1973) identified three core principles of the customary
tenure system. The first principle is that individual member of the family or community
was entitled to a portion of land which is enough to feed himself and the members of
his family. The second principle is that no member of the community
could dispossess
another of his or her stake on family land. While the third principle is that no one could
alienate members'
interests in family land without the knowledge
and consent of those
members.
In the northern
part of Nigeria,
Fulani and Hausa (nomadic
and pastoral
farmers) are cattle rearers, who rear cattle over a large area of land. They locate their
settlements in a particular
place without a specific boundary. After the Fulani Jihad
war in 1804. The indigenous
Law. The Law recognised
land tenure system was replaced by the Muslim Maliki
five categories of land namely: (i) mamluka; (ii) amiriyya;
(iii) matruka; (iv) mawat and (v) wakf. Land can be held in absolute ownership
individual under mamluka; while Usufructary
by
right can be granted to individual and
family under amiriyya; Land is open to all community member for grazing or hunting
under matruka
while mawat
lands are those farther away and can be used after
reference to authority. Lands under Waif category are donated for the sake of Allah
and for the benefit of the generality of people.
In the southern part of Nigeria, land was held by the community,
family. The main land was owned
ownership was later transferred
(1978) added that customary
by ancestors
to extended
village and
who were the first settier: the
lineage.
Dosumu
land tenure in the southern
colonial rule was held in different ways, such as communal
(1977) and Aniyon
states of Nigeria before
lands, stool or chieftaincy
-------~~~
--
--- - ~
-
40
lands, family lands and individual
or separate
property.
Figure 2.1 described
the
structure of the land tenure system in pre-colonial era in Nigeria.
ii.
Colonial Era: Land tenure system during Colonial Era was sub-divided
into colonies
and protectorates by the colonial master when they arrived southern part of Nigeria in
the later part of 19th century. The landholding
system was freehold
which help the
Europeans to acquire
land in Lagos colony, they did so with the concept that the
transactions conferred
on them absolute
ownership
and the right of alienation.
caused lots of conflicts between the tradition (customary)
This
land tenure system and the
colonial freehold system that gave rooms for the European trading to acquire land.
The Native Lands Acquisition
Ordinance of 1900 was designed by the colonial
administrator for the colony and protectorate
of southern Nigeria, prohibited any alien
from acquiring interest or right in or over land unless the written approval
Governor was obtained.
Public
promulgated in order to facilitate
objective of the ordinance
occupied land. However,
Land
Acquisition
the acquisition
was the payment
the Northern
of 1917 was
later
of land for its programmes.
The
Ordinance
of compensation
Protectorate
only in respect
of
was saved by the experience
of
southern Nigeria. Lord Luggard who occupied Northern
found locally for the administration
of land holdings.
"proprietorial" rights were appointed or re-appointed
of the
Nigeria used the "tools" he
The Emirs
who exercised
and given "letter of appointment"
which transferred their feudal pattern ofland holdings to the Crown. The Native Rights
Proclamation
of 1910 nationalised
administration of the Governor
all land and placed
it under
in the interest of the indigenous
the control
population.
was later re-enacted with the amendment by the Land and Native Ordinance,
ordinance declared
all lands as native lands and that the Governor
and
The law
1916. The
shall hold and
administer the land for the use and common benefit of the native people. The Ordinance
41
allowed government
and non-natives.
to easily control and supervise
Other
principal
legislations
land transaction
which
allowed
acquire and convey titles to land for purposes of commerce
between natives
colonial
governor
and governance
to
include
Treaty of Cession (1861), Nigeria Lands Transfer Act (1916), State Lands Act (1918)
and Town and Country Planning Act (1947). According to Udoekanem
Treaty of Cession
of 1861 became
the principal
of all the treaties
et al (2014) the
signed by the
colonialists with traditional chiefs in Nigeria. The effect of Treaty was that the root title
of the land was passed to the British crown.
However, towards the end of the colonial administration,
the existing customary
tenure in Western Nigeria was abused by the chief and their traditional
alienate the community
lands for personal
benefits.
Communal
rulers who
Land Rights which
vested in Trustee Law of Western Nigeria was enacted in 1959 in order to curb their
excesses. Their powers were vested in a body of trustees that were appointed
government. Figure 2.2 summarized
by the
the structures of the tenure systems in colonial era
in Nigeria.
iii.
Post Colonial Era: After attainment of independence
within Nigeria's
territories
was transferred
in 1960, administration
to Nigerians.
In the early years of the
independence, Nigeria witnessed very little change in land administration
that were put in place in colonial era. In the south, land continued
held by individuals, families and communities
northern part of Nigeria,
Nigeria Land Tenure
Law to replace
from systems
to be customari Iy
with chiefs as the key managers
the then government
in 1962 enacted
the colonial-era
of lands
Native
rn
the
the new Northern
Lands
Ordinance. The Law placed all lands under the custody of Governors,
Acquisition
who were to
administer land for the use and common benefit of the natives of northern Nigeria. The
law formally recognized customary
land held by the people without proo fur evidence
(Udo, 1990). However,
land by government,
the need for physical development
corporate
role of land speculation
bodies and individuals.
led to higher demand for
Consequently,
by kings, family and individual
the increasing
made it difficult
for both
government and corporate bodies to get land at a moderate price. Most of the land that
was held by family and communities
were not surveyed. It does not also have physical
boundaries. The nature of land tenure system makes it difficult to improve land titling
and registration (Fabiyi, 1990). This was why the then Federal Military Government
up Land Use Panel
addressed include:
in 1977 to formulate
land ownership,
registration and transferability
National
landuse,
ofland.
replaced by the Land Use Decree
land tenure,
Issues that were
land speculation
and the
The land tenure law of 1962 was modified and
(now Act) of 1978. Figure
structures of the tenure systems during post-colonial
I
Land Policy.
set
Communal holding
+
the
era in Nigeria.
c;
c;
c;
Usufruct
2.3 described
Community Leader
Family
Individual
Figure 2.1: Customary Land Tenure Structure (Informal System)
c;
Freehold
~---l
Leasehold
Life Interest
I I
l
Conditional Fee
Figure 2.2: Colonial Land Tenure Structure (Non-Customary
Iq
System)
Individual
Individual
43
q
Trusteeship
r Customary
Right of Occupancy
I
Iq
Statutory Right of Occupancy
Government
Citizens
Figure 2.3: Post-Land Use Decree Land Tenure Structure
Source: Babalola et al. (2015) ; Gbadegesin et al. (2016) and Atilola (2010)
2.4.2 Land Use Act of 1978
In 1978, the Land Use Act of 1978 was enacted with the primary purpose of making
landmore accessible and acquisition less cumbersome
with the purpose of securing its tenure.
The law vested all power to hold land in the Governor of the State. The Land Use Act of
1978was promulgated to address important issues arising from former land tenure systems in
Nigeria, which are the problem of: lack of infirmity in the laws governing
Ownership; uncontrolled
speculation
eitherthe application of traditional
in rural land; fragmentation
principles of inheritance
Land Use and
of rural lands arising from
and population
on land and the
problemof access to land rights by Nigerians on equal legal basis. The strategies to be used
to achieve the goal of the Act include: vesting of rights in land to the state; granting of
usufructuary rights in land to individuals and the use of an administrative
marketforces in the allocation of right in land (Umezurike,
The Act distinguishes
1989).
between Urban and non-urban land. According to the Act, land
inurban areas was to come under the management
areas it was vested under the appropriate
Committees appointed
system rather than
and control of the Governor, while in rural
local government.
Land Use and Allocation
for each state were to advise government
within urban territory while 'Land Allocation
Advisory
Committees'
on land administration
were to exercise the
samefunctions with regard to land in rural area. The Act also foretell that right of occupancy
44
would replace all previous forms of title. This would form the basis upon wh ich land can he
held. The Act categorise
the right of occupancy
Statutory rights of occupancy
Governor while customary
into two namely; statutory and customary.
of land within the urban territory were to be granted by the
right of occupancy
which
means
the right of a person
community lawfully using or occupying land in accordance to the customary
customary right of occupancy
granted
by Local Government.
law including a
Local governments
were
therefore authorised to grant customary rights of occupancy to any person or organisation
agricultural, residential or other purposes. Moreover,
grant customary right of occupancy
local governments
or
for
were authorised to
in such rural land for not up to 500 hectares
for
agricultural purposes or 5,000 hectares for grazing purposes [section 6(2)]. This limit may be
exceeded by the consent of the governor.
The Act permits the local government
to enter
upon, use and occupy for public purposes any land within the area of its jurisdiction'
and
revokeany customary right of occupancy on any such land. The Act further provided that: (i)
all land which has already been developed
should remain the possession
of the person in
whomit was vested before the Act was effective; (ii) the consent of the Local Government
governormust be obtained appropriately
or
for the transfer of customary right of occupancy.
According to Agbola (1987), some of the advantages
of Land Use Act included a 'common
legalsystem for the acquisition of land in the country; the prevention of the fragmentation
of
land and the assurance of more steady control of land'. However, despite these, advantages.
issuesof land tenure and conflicts did not decrease after the promulgation
of 1978 Land Use
Act.
2.4.3 The Nigerian Land Reform Agenda
Nigeria land reform agenda
was initiated
as a result of different
problems
and
constraints of Land Use Act 1978 which varies from insecurity of tenure, lack of political will
by government, uncertainty in land title, abolition of freehold land title among others (Atilola.
45
2010;Adeniyi, 2011). The administration
bold step to inaugurate
nine-member
of the late President Umaru Musa Yar'Adua
Presidential
Technical
Committee
took a
on Land Reform
(PTCLR). The terms of reference ofthe committee include the following:
~ to review previous
land use act and the existing land tenure in different
country with a view to putting the land tenure system into a historical
parts of the
perspective
in
Nigeria.
~ to collaborate with and provide technical assistance to state and local government
areas
in order to undertake land cadastral nationwide.
~ to determine
individuals'
appropriate technology
"possessory"
rights
using
the best
practices
so as to determine the process of identification
and
most
of locations and
registration of title.
~ to ensure that land cadastral boundaries and title holdings are demarcated
in such a way
that community, hamlet, village, towns among others are recognised.
~ to assist and encourage state and local governments
to establish and arbitrate mechanism
for land ownership conflict resolutions
~ to establish a National Depository
for land title holdings and records in all states of the
Federation and the Federal Capital Territory.
~ to establish a mechanism
for land valuation in both urban and rural areas, in all parts of
the Federation and
~ to make other recommendation
successful land administration
that will ensure an effective, simplified,
sustainable and
in Nigeria.
2.4.4 Customary versus Statutory Land Tenure system
Customary land tenure can be referred to as the system that most rural communities
operatewith, to express and order ownership, regulate, possess, access, use and transfer. It is
derived from and-sustained
by the community
itself without any external
influence by the