A Critical Analysis On Section 47(1) And 47(2) Of The Land Use Act -By Oluwaleye Adedoyin Grace

Abstract

This article critically examines Section 47 of the Nigerian Land Use Act, highlighting its historical origins, constitutional conflicts, and implications for land administration and property rights in Nigeria. Originally promulgated as a military decree, Section 47 was designed to centralize control over land by vesting authority exclusively in State Governors and excluding judicial oversight regarding compensation disputes and land tenure issues. However, this provision stands in direct conflict with several fundamental constitutional guarantees, including the right to fair hearing, protection of property, and judicial powers enshrined in the 1999 Constitution. Landmark judicial decisions have declared the ouster clause in Section 47 unconstitutional to the extent of its inconsistency with the Constitution, affirming the supremacy of constitutional rights over military-era legislation. The article further discusses scholarly critiques emphasizing the excessive concentration of power in Governors, the unfair compensation regime, and the urgent need for legislative reform to restore judicial review, fairness, and transparency in land governance. By analyzing legal doctrines, case law, and academic perspectives, this work advocates for the amendment or repeal of Section 47 to align the Land Use Act with Nigeria’s constitutional democracy and to protect citizens’ land rights adequately.

Introduction

The Nigerian Land Use Act (LUA) of 1978 was introduced to centralize and simplify land tenure across the country. While its objectives were noble, decades of experience have revealed significant shortcomings, especially with Section 47 of the Act. This section curtails judicial oversight on critical matters such as compensation for compulsory acquisition and Governor’s consent for land transactions. It grants near absolute powers to State Governors with minimal accountability, limiting rights guaranteed under the Nigerian Constitution. This article critically analyses the urgent need to amend Section 47 of the Land Use Act, referencing case law, Constitutional provisions, and other legislative instruments.

Overview of The Land Use Act and Section 47

The Land Use Act vests all land in the territory of each State in the Governor as trustee for the people (Section 1 LUA). Section 47 aims to oust courts’ jurisdiction on “any question concerning or pertaining to the vesting of all land in the Governor” and the Governor’s powers to grant statutory rights of occupancy. Most controversially, subsection 47(2) bars courts from inquiring into the “amount or adequacy of any compensation paid or to be paid under the Act.”

However, the supremacy of the Nigerian Constitution challenges the restrictions imposed by Section 47. The Constitution guarantees the right to fair hearing (Section 36) and prohibits expropriation without prompt and adequate compensation (Section 44(1)).

Section 47 grants Governors extensive control by requiring their consent for assignments, mortgages, and subleases of statutory rights of occupancy. This has led to:

• Bureaucratic delays that hinder land market transactions and access to credit.

• Opportunities for corruption and abuse of power due to opaque and unregulated discretion.

• Lack of democratic accountability as Governors act as quasi-landlords with absolute power over citizens’ land rights.

Compensation for compulsory land acquisition under the LUA is limited to “unexhausted improvements” and excludes the land’s market value, a practice widely condemned as unfair and unconstitutional. This restrictive compensation formula violates Section 44(1)(b) of the 1999 Constitution, which requires payment of “prompt, adequate, and effective compensation” for property acquired by the government.

The Historical and Legal Foundations of Section 47: Origins and Justifications

Section 47 of the Nigerian Land Use Act was indeed a product of its time, originally promulgated in 1978 by the Federal Military Government of Nigeria during the regime of lieutenant General Olusegun Aremu Obasanjo. The Act and its provisions, including Section 47, were designed to take precedence over conflicting laws, including the Constitution, because they were issued as military decrees during a period when constitutional provisions were effectively suspended or subordinate to military rule.

The purpose of Section 47 was to ensure the Act’s dominance by explicitly stating that it would have effect notwithstanding anything contrary in any other law or rule of law, including the Constitution of the Federation or a State. This was aimed at consolidating and centralizing land control in the hands of the Military Governors at the time. The military government sought to prevent judicial interference in land matters, facilitate swift government control over land allocation and acquisition, and impose strict administrative control to achieve rapid economic and infrastructural development goals.

However, after Nigeria’s transition to civilian rule, courts began to challenge the military decrees’ supremacy over constitutional provisions. Landmark cases, such as Nkwocha v. Governor of Anambra State and Controller General of Prisons v. Prince Elema & Another, have clarified that while the military government placed precedence on the Act, under the current constitutional dispensation, the Constitution is supreme. Courts have held that Section 47 is void to the extent that it conflicts with constitutional guarantees such as the right to fair hearing (Section 36), protection of property (Section 44), and the judicial powers vested exclusively in courts (Section 6 and 236).

Therefore, the military origin of Section 47 explains its explicit intent to override the Constitution and exclude judicial scrutiny during military rule. Yet, under Nigeria’s present democratic Constitution, this supremacy cannot stand, and Section 47 must be interpreted or amended accordingly to conform with constitutional supremacy and safeguards for property rights and judicial review

Judicial Decisions on Section 47 of the Nigerian Land Use Act and Its Constitutional Implications

The Supreme Court of Nigeria has consistently held that Section 47(2) of the Land Use Act, which seeks to exclude judicial jurisdiction over compensation and land disputes, conflicts fundamentally with the Constitution, particularly Sections 36(1), 44(1), and 236. Courts have declared that such statutory ouster clauses cannot restrict or waive judicial oversight over expropriation and compensation proceedings, emphasizing the supremacy of constitutional rights.

In the landmark case of Controller General of Prisons v. Prince Elema & Another  12 NWLR (Pt. 1759) 235, the Supreme Court explicitly invalidated the ouster clause in Section 47(2), declaring it unconstitutional for barring judicial review on the adequacy and amount of compensation paid for compulsory land acquisition. The Court underscored that Sections 44(1) and 36(1) of the 1999 Constitution guarantee the right to a fair hearing and prompt, adequate compensation, protections which cannot be negated by statutory provisions. Judicial review in compensation disputes remains an essential constitutional safeguard.

Similarly, the Court emphasized in Controller General of Prisons v. Elema that land disputes involving compensation and expropriation are justiciable and fall within the jurisdiction of courts, including the Federal High Court, regardless of any ouster clause in the Land Use Act. The case arose from the refusal of authorities to pay compensation under the Edo State Law, with the Court firmly holding that limitations imposed by Section 47(2) cannot bar adjudication where constitutional rights are at stake. The principle of constitutional supremacy mandates the invalidation of any law inconsistent with the Constitution, especially those infringing on property rights and fair hearing.

These judicial findings align with the Court of Appeal and extensive legal commentary, which affirm that Section 47(2)’s attempt to oust jurisdiction violates constitutional guarantees and is liable to be declared unconstitutional upon challenge. Collectively, these decisions reinforce the doctrine that constitutional protections override statutory ouster clauses and preserve the judiciary’s authority to adjudicate land disputes, particularly those concerning compensation.

Key Authors and Scholarly Analysis On Section 47 Of The Nigeria Land Use Act

Implications of Section 47 of the Land Use Act in relation to the Nigerian Constitution

1. Conflict with Constitutional Supremacy

Section 47(2) of the Land Use Act explicitly ousts courts’ jurisdiction to review or inquire into the amount or adequacy of compensation paid for land it deems has been compulsorily acquired. However, this conflicts with Section 44(1) of the 1999 Constitution, which mandates prompt, adequate, and effective compensation for compulsory acquisition of property. Judicial review is essential to enforce this constitutional guarantee.

The Supreme Court decisions, notably Controller General of Prisons v. Prince Elema, have reaffirmed that the Constitution is supreme and that any law that conflicts with it, such as Section 47(2), is unconstitutional to that extent.

2. Implication for Fundamental Rights and Judicial Power

The Constitution guarantees fundamental rights such as the right to fair hearing (Section 36), right to property (Section 43), and judicial powers (Section 6 and 236).

However, Section 47’s attempt to exclude courts from these disputes violates these rights by preventing individuals from challenging the fairness or adequacy of compensation in court. As a result, judicial oversight over eminent domain or land expropriation is compromised, undermining the constitutional principle of checks and balances.

3. Impact on Property Rights

Section 47 limiting the court’s ability to review compensation undermines the constitutional protections for property owners, potentially leading to arbitrary or inadequate compensation, which the Constitution explicitly seeks to prevent.

This could disempower landowners, especially given the exclusive rights and protections they should enjoy under the law.

4. Legal and Practical Consequences

The existing provisions could encourage abuse of power by authorities, as the constitutional rights of landowners to fair process and adequate compensation are not enforceable via judicial means.

It also opens the floodgate for litigation over the constitutionality of Section 47 itself, as courts are increasingly likely to declare it null and void where it conflicts with constitutional guarantees.

Compelling Reasons to Amend Section 47 

1. Undermines Judicial Oversight and Democratic Norms: By ousting courts from reviewing questions concerning land rights and compensation adequacy, Section 47 denies affected persons access to judicial review. This is inconsistent with the principles of the rule of law and democracy, where courts serve as impartial arbiters to protect rights and ensure fairness. The absence of judicial scrutiny can lead to arbitrary decisions by Governors, undermining public confidence in the land administration system.

2. Inadequate Compensation Framework: The Act restricts compensation to unexhausted improvements on land, ignoring the broader value of the land and market considerations. This narrow basis for compensation often results in unfair and insufficient payments to rightful landowners. Amending the section would enable compensation to reflect both the value of the land and any improvements, providing a more just recovery for dispossessed owners.

3. Need for Transparency and Accountability: Section 47’s exclusion of court jurisdiction prevents transparency and can shield maladministration from scrutiny. Allowing courts to hear disputes related to land rights and compensation would promote accountability by subjecting the actions of Governors and local authorities to legal checks.

4. Modernizing Land Administration: Land is a vital asset that requires regular legal adjustments to meet contemporary socioeconomic realities. The constitutional entrenchment of the Land Use Act, including Section 47, rigidifies the amendment process and stifles necessary reforms. Removing the Act from the Constitution or loosening the amendment threshold would allow more timely and responsive legal reforms to improve land management.

5. Enhancing Access to Justice and Economic Development:  Allowing judicial intervention in land disputes fosters confidence in the land tenure system, encouraging investment and efficient land use. Proper judicial oversight ensures that land allocation and compensation practices support sustainable economic growth and social equity.

6. Conflict with Fundamental Human Rights: Section 47, by ousting judicial jurisdiction, can conflict with constitutional guarantees of fair hearing and protection of property rights under Nigeria’s Constitution. Affected persons may be deprived of due process, violating their fundamental rights and potentially exposing the state to legal challenges in regional and international human rights bodies.

7. Negative Impact on Land Market Development: The exclusion of courts creates uncertainty and risks in land dealings, as potential investors and land users may be wary of non-transparent and non-reviewable land tenure decisions. Reinstating judicial access would enhance the credibility of land titles, making land transactions safer and more attractive.

8. Discretionary Powers Prone to Abuse: Section 47 effectively grants extensive discretionary powers over land to State Governors without adequate oversight. Such concentrated authority is prone to abuse, nepotism, and corruption, especially in a context with weak institutional checks. Judicial review is necessary to check arbitrary acts and ensure decisions align with statutory and public interest.

9. Inhibiting Community and Customary Land Rights: The Act and Section 47’s provisions often clash with native and community land ownership systems; as statutory rights override customary interests without proper adjudication. Amending the section to allow courts to hear disputes would facilitate better integration of customary and statutory land laws, protecting indigenous rights.

10. Promoting Consistency and Legal Certainty: Courts play a crucial role in interpreting laws and setting precedents. Ousting them from land issues prevents the development of consistent legal standards, causing confusion among land administrators and users. Amendment would enable jurisprudence that clarifies competing land interests and strengthens legal certainty.

11. Catalyzing Broader Land Policy Reforms: Section 47’s amendment could be a gateway for comprehensive reforms addressing the complexities of land use, allocation, and compensation in Nigeria. It serves as a critical step toward liberalizing and modernizing land governance frameworks in line with global best practices.

Conclusion:

The Nigerian Land Use Act, vital as it has been, now requires urgent reform. Section 47’s ouster of court jurisdiction and excessive gubernatorial control violate constitutional guarantees, deny citizens fair hearing, and hinder economic progress. Landmark cases affirm the primacy of constitutional rights over the Act’s provisions, emphasizing the need to amend Section 47 to restore justice, transparency, and efficiency in land administration. The amendment should focus on judicial oversight reinstatement, compensation fairness, simplification of Governor’s consent, and democratic accountability mechanisms. These reforms are critical for unlocking Nigeria’s land potential and fostering national development.

References

Judicial Cases

1. Controller General of Prisons v. Prince Elema & Another 12 NWLR (Pt. 1759) 235 (Supreme Court) — Landmark case invalidating Section 47(2)’s ouster of court jurisdiction over compensation disputes.

2. Kaduna State Governor v. Kanada (Court of Appeal) — Declared ouster clauses unconstitutional to the extent of conflict with fundamental rights.

Books and Scholarly Works

1. Aina, A. (2025). Land Use Act 1978: Key Provisions — A comprehensive scholarly analysis of the Land Use Act with specific critique of Section 47 and its constitutional conflicts.

2. Olawuyi, D. S. (2014). Law and Land in Nigeria — Discusses land administration issues and legal reforms including constitutional challenges.

3. Nwogugu, E. I. (2007). Law of Land Use in Nigeria — Detailed account of Nigerian land laws including analysis of the Land Use Act.

Articles and Policy Reports

1. “Amending the Land Use Act: Time for Reform,” AO Legal, 2024 [aolegal.net] — Discusses the need to amend Section 47 citing constitutional and practical reasons.

2. “Section 47 Nigerian Land Use Act,” LawGlobal Hub, 2024 [lawglobalhub.com] — Legal commentary focused on Section 47’s ouster of court jurisdiction and reform recommendations.

3. “Land Use Reform in Nigeria: Removing Stifling Bottlenecks,” Guardian Nigeria, 2022 [guardian.ng] — Opinion piece discussing governance challenges and judicial oversight including Section 47.

4. “Comparative Analysis of Land Use Act Using Traditional and Modern Legal Principles,” International Journal of Advances in Engineering and Management (IJAEM), 2022 — Academic article addressing land law and constitutional alignment issues.

Legal Websites and Databases

1. Nigerian Laws Online Repository [lawsofnigeria.placng.org] — Source for Land Use Act full text and related statutes.

2. Supreme Court Nigeria Judgments Database [supremecourt.gov.ng] — Repository for judicial decisions including Elema cases.

3. Nigerian Law Reports and NWLR [lawpavilion.com] — Legal research platform for Nigerian jurisprudence.

Oluwaleye Adedoyin writes from the faculty of law, Ahmadu Bello University, Zaria.

Phone No: 08106289069

Email: oluwaleyeadedoyingrace2001@gmail.com