Interventions of the State || 'For the Use and Common Benefit of All Nigerians': Consequences of the...

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'For the Use and Common Benefit of All Nigerians': Consequences of the 1978 LandNationalizationAuthor(s): Paul FrancisSource: Africa: Journal of the International African Institute, Vol. 54, No. 3, Interventionsof the State (1984), pp. 5-28Published by: Cambridge University Press on behalf of the International African InstituteStable URL: http://www.jstor.org/stable/1160737 .

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Africa 54(3), 1984

'FOR THE USE AND COMMON BENEFIT OF ALL NIGERIANS': CONSEQUENCES OF THE 1978

LAND NATIONALIZATION

Paul Francis

On 29 March 1978 the Federal Military Government of Nigeria promulgated the Land Use Decree, which, with immediate effect, vested all land in the territory of each state of the Federation in the Governor of that state' The land was to be 'held in trust and administered for the use and common benefit of all Nigerians' in accordance with the provisions of the Decree.2 This paper considers the origins and effects of this policy of land nationalization.

The penetration by post-colonial African states of rural productive and political relations and their role in the promotion - or obstruction - of a transformation to agrarian capitalism are questions which have lately attracted considerable attention.3 This case-study considers the consequences of an instance of state intervention in rural property relations and the interests which it is likely to serve. Neither of these can be read directly from the text of the Decree itself. The links made between legislation and the interests of the classes which it articulates are inevitably speculative, and not only because of the impossibility of conclusively proving the link between motive and action. The intentions behind the Land Use Decree seem to have been neither unitary nor coherent, and its real potential as an instrument of expropriation is further shrouded in a rhetoric of equality and justice. Indeed, in its case, as will be shown, the contortions involved in the attempt to represent particular interests as universal rights introduced sympto- matic contradictions in the structure of the law itself.

It is, in turn, beyond the direct powers of legislators to determine the impact of their laws, for the effects of legislation are conditioned by a multitude of agencies and processes only some of which fall within the purview of the state. The distinction between legislative intention and legislation's effects is an impact of the disjunction between the national and the local; between the state's pretensions and the community's impermeability; or, in their normative aspects, between 'law' and 'custom'. We are concerned here with both the real relationship between these two levels and the ideological construction put upon it.

This paper consists of seven parts followed by a conclusion. A brief account of the background to the Decree is followed by a summary of its main provisions. The third section considers the implications of these provisions for the tenure of rural land and finds them to be ambiguous in two key areas. Next, the recep- tion and ostensible purposes of the Decree are examined. Here the dominant ideological construction which was put on the Decree is found to be at variance with its potential consequences in a manner which exactly parallels the central ambiguities in the Decree's drafting. It is argued that these contradictions are determined by the divergence of interest between the bureaucratic powers established to administer the Decree and the mass of rural dwellers who are its potential victims. In the light of this, the last three sections consider the effects of the Decree in the first twenty months following its enactment. This is done firstly in general terms. The focus is then shifted to a particular part of the Nigerian cocoa belt where the actual effects of the Decree on the pattern of land



NIGERIA'S LAND USE DECREE

holding in the area are evaluated against both its ostensible purposes and its potential impact.

BACKGROUND AND ORIGINS

The 'land question' had always been a major pre-occupation of Nigeria's colonial administrators.4 The debates between rival opinions in government and the complex and sometimes unlikely alliances between sections of indigenous and expatriate interest which underlay them cannot be considered here. However, the emergent policy may be summarized as being one of firm resistance to the persistent attempts of expatriate interests to obtain concessions for plantations and little interference in those arrangements between Africans which governed access to land. It is significant that the legislative regimes through which the policy of resisting expropriation and the emergence of a class of dispossessed landless labourers was effected were radically different as between the northern and southern parts of the country.

Before March 1978, land holding in the northern states of Nigeria had been governed by the Land Tenure Law of 1962. This law had reproduced most of the features of its predecessor, the Land and Native Rights Ordinance, which had been introduced to the protectorate in 1910 following the recommendations of the Northern Nigerian Lands Committee. The Land and Native Rights Ordinance had declared all lands in Northern Nigeria to be 'under the control and subject to the disposition of the Governor', to be 'held and administered for the use and common benefit of the natives of Northern Nigeria'. Radical title thus becoming vested in the state, the occupier's interest became known - in terms which the law, rejecting the notions of English common law, defined anew - as 'rights of occupancy'. The Governor was given the power to grant and revoke such rights of occupancy, and to demand rents. In exercising the powers con- ferred upon him by the law, however, the Governor was to 'have due regard to the native laws and customs existing in the district in which such land is situated'. As we shall see, the concrete effects of this legislation were slight.

In the southern states of the federation there had hitherto been little legislative interference in land tenure in the colonial or post-colonial periods. The attempts during the early part of the colonial period to impose a law of the Northern Nigerian kind on the south were foiled by a vigorous campaign on the part of African interests which presented a view of immemorial native custom incom- patible with the extension of state powers over land.5 The Native Lands Acquisition Ordinance of 1900 had restricted the transfer of rights in land to aliens while the Public Lands Acquisition Ordinance of 1917 empowered the Governor to obtain lands for public purposes, but otherwise in the south forms of land tenure were allowed to persist or develop as they would.6

The idea of implementing a uniform policy of land nationalization throughout Nigeria had been raised before in an academic context,7 but it appears to have first been suggested to the government by the Anti-inflation Task Force which had been appointed by the administration brought to power in the coup of July 1975. In the event, the government did not accept this body's recommendation that all land be vested in the state and that future transactions should require the approval of the respective State Government. However, it accepted in principle the recommendation of a subsequent inquiry that urban land be subject to such

6




restrictions, and appointed a Land Use Panel to advise on future land policy. The main report of this panel advised in unequivocal terms against either the nationalization of land or the extension of the land tenure system of the northern states to the country as a whole. However, a minority report was submitted which, characterizing the authors of the main report as 'protectors of vested interests militating against the rational socio-economic use of land', advocated its nationalization. Stating that, 'the idea of government being the custodian of land in the Northern States is germane and should remain as an acceptable base for land use', the military government endorsed the recommendations of the minority report.8 And so the decree was promulgated.

PROVISIONS

The Decree distinguishes throughout between urban and non-urban (hereafter 'rural') land. In urban areas (to be so designated by the Governor of a state), land was to come under the control and management of the Governor, while in rural areas it was to fall under the appropriate local government. 'Land Use and Allocation Committees', appointed for each state by the Governor, were to advise on the administration of land in urban areas while 'Land Allocation Ad- visory Committees' were to exercise equivalent functions with regard to rural land.9 In this paper we shall be concerned principally with the provisions relating to rural land.

The Decree envisaged that 'rights of occupancy', which would appear to replace all previous forms of title, would form the basis upon which land was to be held. These rights were of two kinds: statutory and customary. Statutory rights of occupancy were to be granted by the Governor and related principally to urban areas. In contrast, a customary right of occupancy, according to the Decree, 'means 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 under this decree'. Local Governments were empowered to grant customary rights of occupancy to any person or organization for agricultural, residential and other purposes with the proviso that grants of land for agricultural or grazing purposes should not exceed 500 or 5000 hectares respectively without the consent of the State Governor. With the minor exception of land subject to Federal or State claims, the Decree also empowered the Local Government to 'enter upon, use and occupy for public purposes any land within the area of its jurisdiction' and for the purpose to revoke any customary right of occupancy on any such land. The approval of the Local Government was to be required for the holder of a customary right of occupancy to alienate that right.'?

Governors were empowered to revoke rights of occupancy for reasons of 'over- riding public interest'. Such reasons included alienation by an occupier without requisite consent or approval; a breach of the conditions governing occupancy; or the requirement of the land by Federal, State, or Local Government for public purposes. Only in the last of these cases would any compensation be due to the holder, and then only for the value of 'unexhausted improvements' on the land and not for the land itself."

The transitional provisions of the Decree dictated the manner in which previous possession was to relate to the new system of land administration. Those relating

7




to rural land allow the 'occupier or holder' of land being used for agricultural purposes to continue to be entitled to possession of the land as if he had been granted a customary right of occupancy by the appropriate Local Government. The 'occupier' of agricultural land could, at his discretion, apply to register his right of occupancy with the Local Government. Developed rural land would similarly continue to be vested in the person in whom it was vested immediately before the commencement of the Decree as if the holder of the land was the holder of a customary right of occupancy; the 'holder or occupier' could apply for registration of his right. There were no transitional provisions in the Decree concerning rural land whether developed or used for agricultural purposes. All rights to such land would thus appear to be extinguished by the Decree. Further, the Decree states that no rural land is to be sub-divided or transferred (and in contrast to the equivalent provision relating to urban land, it seems that even the permission of the Governor could not make such action lawful). Parties to instruments purporting to make such transfers would be guilty of a punishable offence. The law made no allowance for the continued validity of concurrent claims in rural land. 2

Customary courts were given exclusive jurisdiction by the Decree in cases over land which was the subject of customary rights of occupancy. Proceedings already pending before any court concerning title to land could continue, but were to be disposed of by a decision relating to the entitlement of one of the parties to a right of occupancy. Significantly, disputes over the amount of compensation for unexhausted improvements on land due to occupiers displaced under the provisions of the Decree were to be referred not to the courts but to the state Land Use and Allocation Committees.'3

IMPLICATIONS

What did these measures imply for the continued validity of customary forms of tenure, transfer and lease in the rural areas? In vesting all the land in the state and reducing the possessor's interest to a right of occupancy, the new law drew heavily upon the land legislation already current in the northern state, a number of whose provisions it incorporated verbatim. These earlier laws defined a customary right to occupancy as 'the title of a native or native community lawfully using or occupying native lands in accordance with native law and custom'. As we have seen, they enjoined the Governor to have due regard for such local custom, and outside the towns the practical effect of the legislation on indigenous tenure appears to have been negligible. Certificates affirming rights of occupancy were not issued to natives unless they were applied for, which for the most part they were not, and no rents were demanded of natives by the Governor or his successors. As in the south of the country under different legislation, the colonial and post-colonial policy had been one of non-interference. This policy was integral to Indirect Rule; to quote Lugard: 'In practice, therefore, the Govern- ment should not intervene between the native rulers and the people under their jurisdiction as to the disposal of lands or the tenure upon which they are held, except to advise, and to maintain justice' (1922: 300). Transactions in land thus continued impeded. Hill's study of a Hausa community in northern Nigeria con-

8




tains evidence that sales of land were occurring before the colonial occupation, and at the time of her fieldwork they were frequent in the community studied, there also being a number of distinct arrangements by which land could be rented or pledged (1972: 62-4, 240, 263, 267). Such transfers were not legally required to come under administrative purview, for although under earlier laws (as under the Land Use Decree) it was unlawful to alienate land which was the subject of a statutory right of occupancy without the Governor's consent, such consent was not required in the case of a customary right of occupancy unless a native sought to alienate land to a non-native.

However, the equivalent provisions of the Land Use Decree - those relating to the capacity of the holders of customary rights to alienate those rights - are confusing. Several sections of the Decree could appear to have bearing on the question:

Section 21(b) states that customary rights of occupancy may not be alienated without the approval of the appropriate Local Government.

Section 28(3d) states that alienation of customary rights of occupancy without such approval constitutes grounds for the Governor to revoke a right of occupancy.

Section 26 reads as follows: 'Any transaction or instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this decree shall be null and void.'

Section 36 refers to occupied rural land. Sub-section (5) states that: 'No land to which this section applies shall be subdivided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested as aforesaid.' It seems that even the consent the Governor or the Local Govern- ment gave could not make such a transfer legal.

These provisions all seem to restrict the rights of holders of rural land to deal in their interests. However, in defining a customary right of occupancy to include 'the right of a person or community lawfully using or occupying land in accordance with customary law', the Decree implies that the rules of customary law continue to apply to the tenure of such land.14 This impression is reinforced by the transitional provisions relating to rural land, which make the registration of customary rights of occupancy with local authorities optional.

Executive pronouncements on the purposes of the Decree did little to clarify this question. In the address to the nation in which he announced the promulgation of the Decree, the head of state, Lt General Obasanjo, stated that 'one of the effects of the new policy is that no-one except the State Governments and Local Authorities can now assign or lease undeveloped land to anybody'.15 In the same speech, however, the General assured Nigerian farmers and rural dwellers that they would 'continue to use land for agricultural, pastoral and residential purposes without any hindrance. Their right to continue to farm their lands without any encumbrances and part with their interest at will is assured' (emphasis added).16

Other official statements on the Decree's implications for the status of customary forms of land tenure and transfer were equally confusing. Thus, Brigadier Jemibewon, the then Military Governor of Oyo State, interpreted the Decree as follows: 'Nobody is allowed to deal with any interest in land in an urban area without the prior consent of the Military Governor and in a rural area without the consent of the Local Government. It is quite simple'.'7 Yet a publication of the Federal Ministry of Information appeared to flatly contradict the Governor's

9




interpretation of the provisions of the decree with respect to rural land:

Every application for residential development must henceforth be made to the Military Governor in an urban area while in a rural area there are certain possibilities. If a person wants to develop land to which he can lay any customary claim, then the application should be made to the family, clan, or local chief for grant of land in accordance with the custom of the area. Where such a person has no claim supportable by customary law or usage, then he could apply to the Local Government exercising jurisdiction in the area ior the grant of a customary right of occupancy. It should be mentioned that customary right of occupancy so granted gives a more secure tenure than customary usage simpliciter (emphasis added).'8

A second key issue with regard to rural land tenure - and one of some political importance - was the question as to whether concurrent claims in rural land per- sisted after the enactment of the new law. But on this question the Decree was equally ambiguous. No part of it expressly abolished or outlawed the payment of rent in respect of customary tenancies in land. However, although a sub-section of the Decree preserves the validity of mortgages and other encumbrances on urban land, there is no equivalent provision relating to land in rural areas. It might therefore be assumed that there was no intention of preserving concurrent claims in rural land.

But in this field too the Decree's definition of a customary right of occupancy implies that the precepts of customary law are allowed to continue. In addition, a number of sections of the Decree relating to rural land make the distinction between 'holders' and 'occupiers' of such land, and such a discrimination would be unnecessary if the erstwhile owner of land was, under the operation of the Decree, to forfeit his claims in land to the occupier, his erstwhile tenant. Thus:

Section 6(5) speaks of 'the holder and the occupier' being entitled to compensation for the value of unexhausted improvements on land taken over for public purposes 'according to their respective interests'.

Section 36(2) states that the 'occupier or holder' of rural land being used for agricultural purposes could continue in possession of it as if a customary right of occupancy had been granted him.

Section 36(3) states that 'the occupier' might apply to the Local Government for registration of his rights in rural land. However, the same sub-section states that the Local Government could issue the 'holder or occupier' with a customary right of occupancy once they were satisfied that he 'was entitled to the possession of such land whether under customary rights or otherwise howsoever'.

Furthermore, under the Decree an occupier 'means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lessee or sub-underlessee of a holder' (S.50, emphasis added).

On the issue of collateral claims in rural land, however, the statements of the administration were consistent: there was no longer any obligation to pay ground rent in respect of rural lands after the Decree. In speeches in Oshogbo and Ilesha soon after the Decree's promulgation, the Military Governor of Oyo State declared that the payment of rents in respect of rural land in any form was not compulsory under the Decree and that anyone who forcibly demanded them, 'no matter how highly placed in society', would be subject to the full rigours of the law.'9

10




PUBLIC LEGITIMATION AND PRIVATE INTEREST

Public reaction to the Decree was mixed. By some sections of opinion it was greeted with a flourish of socialist rhetoric. According to one commentator, it represented 'one of the most revolutionary steps taken by the present government to establish a truly egalitarian society in Nigeria'.20 Others described it as 'the bedrock of socialism',21 and as embodying 'a truly African concept of ownership'.22 Such assessments of the Decree for the most part misinterpreted its provisions, whose egalitarian implications are strictly limited. Although the transitional provisions of the Decree limit any individual's continuing interest in undeveloped urban land to half a hectare in any state, no limit was placed upon the area of developed land by any individual, nor upon the size of future grants of undeveloped land. Furthermore, the Decree's definition of developed land appears to leave little latitude for its opposite. With regard to land in rural areas, even the generous 500 and 5000 hectare limits on new grants of land for agricultural and grazing purposes respectively apply only to single grants made without the permission of the Governor. There was no limit to the number of such grants which could be made nor, if the permission of the Governor was obtained, upon their size.

Others were less sanguine about the new law. In some quarters the passing of private property, which had formed the basis of security of tenure and also been a source of collateral, was lamented.23 There was also the contention that it was inequitable to deprive owners of land of their legally obtained interests without compensation, particularly when the new constitution, which was to be ratified later in 1978, ensured the right to property and made it unconstitutional to deprive a person of such without the prompt payment of compensation.24 On the other hand, the Decree was also criticized for not going far enough in creating the conditions for economic equality.

A major focus of early opposition to the Decree was traditional chiefly authority in the south of the country, which had hitherto been a major controller of land. Soon after its enactment, meetings of traditional rulers in Lagos and Oyo States made public statements attacking the Decree as 'an attempt to bring chaos into the country', but these were later retracted when it became clear that the military government would entertain no opposition to the new law.25 In later months, when committees for land allocation came to be constituted, traditional rulers were to be well represented among their members, alongside the lawyers and surveyors whose presence was statutory under the Decree. In most local government areas chiefs also came to chair the Land Allocation Advisory Committee.

The variety of reactions to the Decree is understandable in the light of its being at the same time so apparently radical and yet so ambiguous. As has already been suggested, official exegesis did little to clarify the intentions behind the new law. The arcadian tones of the Decree preamble are uninformative:

Whereas it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved . ..

On the occasion of the Decree's announcement the head of state was equally vague, if more prosaic, about its purposes:

11




The main purpose of this Decree is to make land for development available to all including individuals, corporate bodies, institutions and Governments. When taken in conjunction with other measures we have adopted and other measures to be adopted, it will be evident that fast economic and social development at all levels and in all parts of the country is our main consideration.26

The specificity of the provisions relating to undeveloped urban land - which remove areas in excess of half a hectare from private ownership and make future allocation conditional upon the intent to develop - indicate that the elimination of speculation in land, which had become an increasing problem in urban areas since the 1960s, was one of the purposes of the Decree. However, speculation in rural land was hardly a problem. While it might be argued that the Land Tenure law of the northern states, seized upon as a solution to urban land speculation, became enacted without definite intentions with regard to customary tenure in rural areas, such an explanation is unsatisfactory in one crucial respect. If the provisions of the earlier legislation were borrowed simply to free urban land from the hands of speculators there would have been no reason to modify the provisions of that legislation relating to customary tenure, which per- mitted customary arrangements for tenure and transfer to continue without administrative approval.

But, as we have seen, the Land Use Decree modifies the definition of a customary right of occupancy to include rights over land granted by Local Govern- ment and gives Local Government extensive powers to make such grants. It also appears to make the transfer of customary rights of occupancy subject to Local Government approval. These modifications indicate that definite and specific legislative intentions existed with regard to rural land.

To assess these intentions, it will be helpful to examine briefly the opinions of some Nigerian agricultural economists on the implications of customary land tenure for agricultural development. A number of these economists allege that customary forms of tenure suffer from 'defects and inconsistencies'27 which militate against the most rational economic use of land. Their position is well summarized by Adegboye when he argues that 'any society seeking land reform must make a choice between economic efficiency and retention of traditional ties and institutions' (n.d.: 42). A moderately large literature on what are considered the main defects of customary law and appropriate solutions to them will be represented here by a paper published by Adegboye in 1967.28

Noting that over 70 per cent of Nigeria's population gain their livelihood from agriculture, Adegboye alleges that defects in land tenure, farm tenancy and the provision of agricultural credit represent obstacles to raising productivity both per acre and per farmer. With regard to land tenure: 'The present structure of land tenure makes it virtually impossible for enterprising young farmers to mobilize their labour and capital as freely as they would like to' (1967: 340). This is so, we are told, because sales of land are rare, and thus the cultivator and his descendents are confined to family land, and because the division of land on inheritance leads to holdings becoming uneconomic in size and productivity. The defects of customary farm tenancy are enumerated as follows: the terms of leases are often verbal and indefinite; the amount of tribute paid is governed more by the tenant's relationship to the landlord than by the fertility or location of the land; subleasing is common in some areas; and the tenant is sometimes forbidden to plant permanent crops. Overall, the tenant's insecure position discourages

12



NIGERIA S LAND USE DECREE

him from making substantial investments of capital or labour in the land which he occupies. The principal problem with regard to agricultural credit is also held to stem from customary land tenure: 'a piece of land that is communally owned cannot be used for collateral', and thus the commercial banks have not been lending to farmers (pp. 340-41). The validity of these arguments will be considered below in the context of the Decree's effects: meanwhile I turn directly to the solution which Adegboye offers to the problems which he has outlined. This is that the government hold all lands in Nigeria in trust: 'In essence what is being asked for here is simply that the Land and Native Rights Ordinance of 1910 which made acquisition of land for agricultural and other economic purposes possible in Northern Nigeria could be extended to the South, thereby putting all unoccupied lands within the reach and disposal of the Government' (pp. 348-9). Adegboye further suggests that land should be administered and allocated by local committees.

If these measures are supposed to remedy the 'defects' in customary land tenure described in the first part of his paper, Adegboye is clearly ignoring the fact that, as we have seen, the actual effects of the Land and Native Rights Ordinance on such tenure were negligible. Now, Adegboye was not a member of the Land Use Panel on whose minority report the Land Use Decree was based (although he did subsequently become the first chairman of the Oyo State Land Use and Allocation Committee). Nevertheless, the objectives of the programme of reform which he proposes are strikingly similar to the implications of those provisions of the Decree which apparently bring the tenure of rural land under bureaucratic control (provisions which were absent from the earlier legislation relating to the northern states). Most significantly, his own neglect of the real effects of that legislation and the contrast between these effects and the professed objectives of reform (that is, the modification of customary tenure practices) is exactly paralleled by what we have seen to be a fundamental ambiguity in the Land Use Decree about the continuing status of customary forms of tenure, transfer and lease. If Adegboye's proposals and the Decree share the aim of rationalizing customary tenure so as to make it more secure, uniform, available as security for raising capital, or otherwise suited to the needs of 'fast economic and social development at all levels', why should both be subject to this contradiction? I suggest that, although a number of what appear to be minor errors in the provisions of the Decree do betray hasty drafting, the uncertainties with regard to customary tenures are not the result of such random error; rather they are peculiarly determined by the contradictory relation of the Decree's ideology to its real intentions and implications. In respect of rural land tenure, the Decree reads as if it did not credit the effectiveness of its own provisions, while the incoherence of executive pronouncements about its interpretation bears witness to the centrality of the contradictions involved.

These contradictions reflect the double meaning of the Decree, of which there are two inconsistent interpretations. According to the first of these, the cultivator remains in occupation of his land; if formerly a tenant he appears to be no longer obliged to pay ground rent to his erstwhile landlord. Inheritance practices would remain undisturbed, continuing, as explicitly stated, to be regulated by customary law.29 As far as customary transfers are concerned, we have seen that the Decree may be interpreted as allowing them to continue in rural areas without administrative interference, with those to whom they are made having the option

13




of registering their rights with the local government. In these respects, then, the customary system of land tenure would remain undisturbed.

But the Decree has another reading. Its provisions entitle a Local Government to 'enter upon, use and occupy for public purposes any land within the area of its jurisdiction ... and for the purpose to revoke any customary right of occupancy on any such land'.30 Section 50 defines such 'public purposes' in extremely broad terms as including 'obtaining control over land required for or in connection with economic, industrial or agricultural development' and 'obtaining control over land required for or in connection with planned urban or rural development or settlement'.

Thus, the Decree empowers the local land allocation committees to expropriate almost any land within their areas of control and to allocate it for either public or private use. It is presumably to the holders of such administratively allocated 'customary' rights of occupancy that the provisions of the Decree introducing administrative controls over transfers of rural land are meant to apply. Thus, those allocated interests in land would not be able to deal further in them without reference to the relevant committee. An applicant need demonstrate, it seems, only his willingness and ability to invest in land to qualify for a grant. For his part, the expropriated occupier is entitled to nothing in compensation for his lost rights in land, but only for the 'unexhausted improvements' on such land. Although customary courts retain jurisdiction over rural land disputes - being able, for example, to make a declaration of title to a customary right of occupancy - this jurisdiction is relevant only to disputes between occupants who claim their rights through the actual operation of customary practices rather than those who have been allocated 'customary' rights of occupancy by the Local Government committees. For, under the Decree, the courts can offer no protec- tion to the occupier of land against his being deprived of his property by the decisions of such a body. Indeed even the level of compensation for unexhausted improvements is to be decided by the land allocation committees unchallenged by the courts.

Thus, drawing somewhat indiscriminately upon ideologies of developmentalism, egalitarianism and socialism, the Decree enacted a statism which operates beyond the rule of law. It converts erstwhile property rights to privileges held at the pleasure of executive and bureaucratic powers. The tenure of rural land is allowed to remain undisturbed except where it conflicts, at any point, with the interests of capital holding developers, whether public or private. In view of this, it is ironic that, as Adegboye's paper has illustrated, calls for the kind of reform which the Land Use Decree instituted have been made in the name of the mass of rural population whose title to land the decree debases. But the two elements of Adegboye's position - a belief in the economic irrationality of local custom and an unbounded faith in bureaucracy - are compatible only on an ideological level; they do not meet either in his own proposals for reform or in the Decree. The real relation between the two elements is that the alleged irrationality of custom justifies bureaucratic intervention, although the actual object of such intervention is the expropriation rather than the modification of customary rights.

The legitimation of this bureaucratic intervention in terms of economic ration- ality takes on the character of parody in the light of previous experience. The placing of enormous discretionary powers over land in the hands of local bureaucracies presents great potential for patronage. Administrative schemes for

14




the allocation of land have been instituted before in Nigeria, although on a much smaller scale. The conclusions of Okpala's review of evidence about the process of distribution of publicly managed land in a number of such schemes do not encourage optimism:

The sum total of the foregoing examples is to suggest that State Lands and other publicly controlled and managed land resources essentially benefit and are, in fact, monopolised by otherwise privileged groups and individuals - highly placed public servants, politi- cians, the economically powerful and the relations and friends of these privileged groups.

These examples also serve to illustrate the degree of abuse of office and the perver- sion of public policy goals and objectives by those charged with the execution of such policies. (1978: 20)

EFFECTS: GENERAL

The bureaucratic machinery which was to administer the Decree was formally constituted throughout the country soon after its enactment. In most areas, however, it was slow to take any action. In Oyo State, for example, the membership of the local government Land Use and Allocation Committee had been announced in May 1978, but by November 1979 few of these committees had even met.

Procedures for the administration of the Decree were to be complex. Consider, for example, the process of application for a certificate of occupancy merely to confirm existing occupation of land and not invoking the state's new powers of expropriation and reallocation. By the regulations applying in Oyo State in 1979, for example, a separate application had to be completed in respect of each property, developed or undeveloped, for which a certificate was required. Each such application had to be accompanied by a survey plan, a conveyance or receipt for the purchase of land (at a time when the sale of land was illegal), and a clearance certifying that income tax had been paid for the last three years. Notice of the intention to obtain a certificate of occupancy had to be published in a newspaper, towards the cost of which publication the applicant had to pay 42.50 Niara. In urban areas a local committee would first process the application, which, if ap- proved, would be forwarded to the state's Land Use and Allocation Committee. Should any objection follow the announcement in the press of the application for a certificate of occupancy, it was referred back to the applicant to resolve, for the allocation committee had no legal jurisdiction in disputes over the right to a certificate of occupancy.31 By the end of 1979, few certificates had been issued for land outside the main urban centres, and most of those which had were in respect of land already developed before March 1978.32

In spite of their being outlawed by the Decree (certainly in urban, possibly in rural areas), sales in land continued, although documents confirming such transfers had to be fraudulently backdated if they were to appear legal under the new legislation. The conditions of dubious legality created by the Decree in fact led to a rise in the price of land.

Uncertainty about the interpretation and implications of the Decree was com- pounded by doubt about its future under a civilian government. It had been enacted little more than a year before the elections which were to return Nigeria to civilian rule. The military government also ensured that the Decree became entrenched in the new constitution.33 A number of the political parties which

15




contested the 1979 election declared that they would re-examine it, but none made definite commitments about the direction of their policies on the issue, and it was not one on which they took up opposing positions. During the period of civilian rule which followed that election, the Decree was periodically mentioned as a law which might be changed,34 but its inclusion within the constitution would have meant that a two-thirds majority of all the members of both national Houses of Assembly as well as approval by resolution of the Houses of Assembly of not less than two-thirds of the nineteen states would have been required to alter or repeal it. The state administrations showed no eagerness to relinquish the massive powers which the Decree had given them (and which were the cause of some tension between state and federal executives). Although the guidelines to the 1981-85 Development Plan anticipate a review of the Decree 'with a view to correct any shortcomings'35 and claim that it will have a positive effect on agricultural production, no revision has occurred and the Decree seems in fact to have become increasingly a dead letter in the country. The abrogation of the constitution with the military coup of January 1984 leaves the future of the law as uncertain as ever.

IBOKUN: THE PATTERN OF LANDHOLDING

I now turn to consider the impact of the Decree in the twenty or so months following its enactment on Ibokun, a community in the Ijesha area of Oyo State situated just within the northern limits of the Western Nigerian cocoa belt. (On the Ijesha generally, see Peel, 1983.) Some historical background is necessary to understand the patterns of settlement and tenure which pertained in the area at the time of the law's enactment. Consideration of the processes which conditioned these patterns will itself lead us to question the validity of the legalistic conception of customary law upon which the Decree was premised.

In 1979 Ibokun was a town of some 8000 people, most of whom were pri- marily dependent upon agriculture, especially on cocoa cultivation, for their living. In the ninety or so hamlets on surrounding territory there resided another 2500 or so people, almost exclusively migrant, cocoa-growing tenants renting land from the indigenes. These immigrants have moved into the Ijesha area from the Oyo culture area immediately to the north of Ibokun, especially from the towns of Oshogbo, Ikirun, Iragbiji and Ire. The wars of the nine- teenth century left this area relatively densely populated with refugees from the shattered Oyo empire, while much of the population of the Ijesha area itself had been scattered. Soon after the establishment of colonialism Oyos were moving into the Ijesha area seeking rights to collect palm fruit and to grow food crops. The process of immigration was intensified as it later became apparent that the northern border of the reconstituted Ijesha kingdom was coincident with the limits of land suitable for cocoa cultivation.

The arrangements which early migrants entered into with local claimants for the use of land, involved small and largely token annual payments of produce (a calabash of palm oil, a few yams). These were not very different from those which traditionally characterized political clientage in the area. However, as rights in land acquired an exchange value, payments for its use tended to become fixed, enforceable, made in cash, and related to the productivity of the land granted, while the land itself began to be apportioned in measured plots. This was especially

16




true of land granted for cocoa, for which the annual payment of from one to several quarters of the fermented and dried beans was expected and enforced (one- quarter = 12.7 kg). From the 1920s, annual payments for the use of land came to be called isakqlf, a term which, partly through the agency of the native courts, came to be used widely in the Yoruba-speaking area for payments by strangers in respect of land which were enforceable in such courts (Lloyd, 1962; Adegboye, 1966; Berry, 1975).

The influx of migrants opened political as well as economic opportunities to indigenous actors and communities. It led to competition between communities over the rights of their citizens to allocate land to strangers. In particular, powers in Ilesha, the Ijesha kingdom's capital, sought control over land around Ibokun through supporting the revival of the moribund traditional claims of minor polities in the area whose own strength had been depleted in the wars. Within Ibokun itself, chiefs and lineage heads were able to use their traditional patrimonial rights to take in strangers as clients as a fulcrum to secure rights of control over land amounting to ownership: under the influence of cocoa and courts, the legal concept of tenancy replaced clientage as the institution governing access to land for strangers. The traditional political structure of Ibokun was a variation on the Yoruba theme of an oba (here termed the Ogboni) heading a council of ranked chiefs, some of whose titles were considered to be open to all citizens and others to be hereditary in lineages (see Lloyd, 1954; Peel, 1983). Where the settler of tenants was the holder of an hereditary title, the land granted often came to be considered as il? oye, which meant that the right to receive rents passed on death to the title's new incumbent rather than being inherited like rights to other forms of property. (Like 'isakqle', 'title land' was a semi-traditional concept reinforced by the native courts.)

It was the town's three most important hereditary titles, those of the Ogboni, Baloro and Oyela, which came to control settlement on the largest areas of land around Ibokun, claims to which were often, though not always, supported by some tradition of earlier cultivation, the location of a shrine, or the site of an ancient battle. Other lineages, lineage segments and families granted smaller areas of land to tenants on similar conditions.

Has the system of land tenure and distribution entailed by this history of settlement been one whose inflexibility or inequity has inhibited the full economic use of land and its combination with other factors of production? To what extent has any differential access to land due to lineage or community membership led to its underuse by some holders while other cultivators faced a situation of shortage?

Obtaining a satisfactory measure of land shortage is difficult. A rigorous attempt to estimate its inhibiting effect on production would have to take into account the amount of land managed by each farmer, its differential quality and the crops grown on it, the marginal productivity of both land and labour, and the alter- native opportunities for investment outside the agricultural sector. In the circumstance of limited research resources I had to rely upon the cultivator's assessment of his own situation. In the event, this method yields conclusions that are both instructive and explicable, and the assertions against which they are posed are not even founded upon such subjective indicators.

A questionnaire administered to a random sample of 137 farmers in the Ibokun area concerning their enterprises and in particular their access to factors of pro-

17




duction included three questions which might have been answered by a reference to land shortage on the part of the respondent.36 The numbers of farmers who mentioned a shortage of land in response to any of these questions are given in Table 1 by their tenurial category.

TABLE 1 Farmers' perception of land shortage by lineage membership

Number suffering Percentage suffering Lineage membership shortage Size of sample shortage

Major titled lineages 11 25 44

(Ogboni, Oyela, Baloro) Other titled lineages 12 25 48 Non-titled lineages 15 28 54 Tenants 33 59 56 All respondents 71 137 52

This table suggests that there is little difference between the categories of informant with regard to their perceptions of land shortage. This would indicate that those kin-based groups with access to large areas of land, notably the Ogboni, Baloro and Oyela lineages, have not been able to monopolize their interests to the disadvantage of other natives of Ibokun, nor even of tenants. With regard to natives of Ibokun, the tendency for land to have become distributed among them so that the effects of shortage are felt fairly evenly throughout the farming population is due to genealogical, political and legal conditions of landholding which arise from two properties of the social and political system. The first of these properties is the relationship between personal choice, participation and lineage affiliation; the second that between political power and judicial decision- making.

Ibokun conceives of itself as a town of patrilineages, and access to land is held to be derived from membership of one of these groups. In practice, however, links which later become rationalized as agnatic are publicly established and main- tained through exercise of the rights and acceptance of the obligations of lineage membership and through participation in the ceremonies, reciprocities and formalities which are the substance of communal life. Such include the payment of bridewealth, the sponsoring of naming ceremonies, the exchange of gifts at funerals, the acts of succession and inheritance and the acceptance of liability for the debts of a deceased, and the contesting of lineage titles. In cases of dispute it is such concrete and public evidences of participation rather than any abstract issue of paternity which concern litigants and adjudicators alike. In practice, therefore, there is considerable flexibility and individual choice in the matter of lineage membership, which may be established from the basis of such links as matrilateral kinship, coresidence, or cooperation in labour groups. This has meant, in turn, that those groups with the most to offer in terms of material, political and mystical resources have attracted the most members. Thus, about one-third of the town's population now trace their descent to one of the three major titles which are also the major controllers of land. (There are, in total, over a hundred town titles excluding the minor quarter titles.)

Competition and conflict both between and within these lineages often takes the form of disputes over the ownership and control of land. During the colonial

18




period this tendency was exaggerated as control over land assured increasing political importance. This was partly because of the emerging economic value of rights in land and partly because of colonial judicial conceptions, which accepted disputes over land (as opposed to, say, title disputes) as appropriate causes in the native courts. Within the lower courts, however, the establishment and maintenance of claims over land remained, as it always had been, largely a political affair. This was so not only because the flexibility of genealogical status and the multiplicity of the forms of evidence by which it was publicly established left ample room for manipulation, but also because of the political conditions of litigation.

In spite of the formal recognition given to some Ibokun chiefs through their integration into the colonial native court system, they remained unable or unwilling to interfere too directly in the affairs of other lineages or to attempt to impose judicial decisions which might prove unpopular. At the same time, norms governing landholding and inheritance, being themselves diffuse, flexible and multiple (except where tenants were involved), could be used to justify any of a number of outcomes to a particular dispute. A typical strategy on the part of native court judges in disputes between natives of Ibokun was to eschew norms of a decisive and quasi-legal nature and, exhorting the litigants to cooperation and compromise by stressing their kinship (no matter how distant or fictitious), to allow a solution to surface which was generally acceptable given the balance of power between the parties concerned. Thus, those whose influence enabled them to mobilize sufficient witnesses and supporters could make substantial gains from litigation.

Given the political dynamic underlying the ownership and control of land, it is clearly nonsense to speak of farmers being restricted in their farming enterprises by the defects and inconsistencies of an inflexible system of customary tenure. Rather, the opposite is the case: the various levels of normative indeterminacy in lineage recruitment and in litigation have allowed individuals a variety of means of asserting rights in land. Similarly, they have meant that lineages of declining strength and population could not sustain their claims to land against those of rising fortunes. These processes have led to land being distributed according to the needs and powers of its holders.

Tenants seem to be slightly less well situated with regard to land availability than natives of Ibokun. As Table 2 suggests, some of them have sought to remedy this by obtaining land from a number of different sources. Nevertheless, Table 1 indicates that such problems of land shortage as confront tenants are little greater than those faced by natives. Thus lineages and households with excess land available have not been unwilling to allow tenants to farm it even if this has resulted in recent years in some sections of those lineages themselves not having as much land at their disposal as they might have wished.

TABLE 2 Number of plots per farmer: natives and tenants

Total number of Average number of plots held by sample Size of sample plots per farmer

Natives 134 78 1.7 Tenants 152 59 2.6 All respondents 286 137 2.1

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This fairly equitable distribution of land between natives and tenants also has its origins in the political conditions of litigation and the normative indeterminacy which characterizes it, but for rather different, if not opposite, reasons from those outlined above. The flexibility inherent in the normative repertoire, in particular relating to the establishment of relationships construed as genealogical, has meant that indigenes, given sufficient support, may draw upon links such as matrilater- ality or coresidence in constructing their claims to land. But no such options have ever been open to tenants. Residing almost exclusively in hamlets and little involved in the political or social life of Ibokun, they maintain their primary affiliations with the town whence they or their ancestors originated. It is in those communities that they marry, build their houses, contest titles, spend their festivals and their retirement, and eventually are buried. Lacking manipulable connec- tions such as marriage, kinship or coresidence and further distinguished by their dialect and facial scarifications, their status as immigrant strangers is beyond repudiation in court. This is precisely why those with land available have allowed it to such immigrants, for as strangers they lack the means to construct claims to the ownership of land in competition with the grantor. The briefest acquain- tance with local litigation confirms that should a landowner allow other natives the use of land he might eventually be unable to sustain his own claims to it. Tenants, on the other hand, are useful as witnesses in the event of a dispute, for the acts of granting land and receiving isakgle are accepted in court as two of the strongest kinds of evidence for the ownership of land. Since early in the colonial period it has been the practice for many natives of Ibokun to spend the greater part of their working lives outside the community (typically engaged in trade) and thus such considerations are critical. Similarly, competition between communities has encouraged the granting of land to ilakole-paying migrants in the attempt to consolidate contested territorial claims.37

The survey of farmers revealed that the shortage of land was perceived by both natives and tenants to be much less of a constraint on production than the shortage of labour or capital. Lack of money to pay immigrant wage labourers was an almost universal complaint. As this point is being made in the context of the evaluation of the effects of government policy on agricultural production, it is worth remembering that the statutory monopsony imposed on cocoa by the Nigerian state in 1939 has since that time systematically deprived the producer of a large proportion of the price of his product on the international market (Helleiner, 1966). In any event, it can safely be said that even in this, one of the most intensively cultivated areas of Nigeria, inflexibility or irrationality in the structure of indigenous land tenure has contributed little to making it 'virtually impossible for enterprising young farmers to mobilize their capital as freely as they would like to' (Adegboye, 1967: 340).

IBOKUN: THE IMPACT OF REFORM

What were the effects of the Decree on some of the specific features of customary land tenure which have been regarded as the proper objects of reform? For con- venience I shall continue to treat Adegboye's paper as representative of a body of opinion which holds customary tenure to be a constraining influence on agricultural development. The fundamental misconceptions underlying the asser- tion that customary tenure 'confined the cultivator and his future generations

20




to his family land' (1967: 340) have been dealt with. On the question of fragmentation on inheritance; this would not seem to be a serious problem in the light of the figures given in Table 2, especially if it is borne in mind that it has been a long-established practice in the Yoruba culture area for cultivators to maintain one farm near their urban residences and another in the hamlets. In any case, the Land Use Decree explicitly states that succession to customary rights of occupancy is to be governed by local customary law, and would thus appear to have no effect on customary inheritance practices.

Adegboye asserts that the institution of customary tenancy is insecure, its terms being verbal and indefinite; that the rent paid is governed more by the landlord's relationship to his tenant than by the fertility and location of the land in question; that sub-leasing is common in some areas; and that the planting of permanent crops is sometimes forbidden. None of these have any force in the area under consideration. Tenants have not for a generation been precluded from planting permanent crops on the land allocated to them and have only occasionally been subject to eviction, and then almost always for strong reasons and with compensation for their crops. The massive investment in cocoa by tenants on Ibokun land bespeaks their sense of security.38 It might also be noted that the verbal form which tenancy takes is not here due, as Adegboye asserts elsewhere (1966: 450), to 'illiteracy'. Written agreements, usually framed by public letter writers, are commonly entered into in other circumstances (for example when cocoa trees are rented out), but for the ordinary terms of tenancy over vacant land, such agreements are simply considered unnecessary. As will be seen below, the effect of the Land Use Decree on this situation was to create a good deal of insecurity among tenants. Simultaneously it made the payment of rents, which formerly had been agreed and altered by explicit reference to the economic productivity of the land in question, dependent upon nothing other than what were, in an economic sense, quite arbitrary aspects of the relationship between landholders and tenants.

The third major feature of customary tenure which Adegboye held to constitute an obstacle to development was that land so held could not be used as collateral. Since I have argued that the shortage of capital has been the principal constraint on farmers in the fieldwork area the effects of the Decree in this respect are potentially critical. Here, too, some confusion was created, but certificates of occupancy issued under the Decree, even if obtained (which, as we have seen, would be both optional and tortuous), would appear to be less suitable as collateral than the most dubious claims to traditional tenure. For, legally, land no longer has a market value as its ownership is vested in the state. The prospective borrower is, of course, left with any improvements on the land. The mortgage of these, however, requires, according to the provisions of the Decree relating to rural land, the approval of the Local Government (for improvements on urban land, the consent of the Governor would be needed). Furthermore, if on failure of the mortgagor to honour his debt, a court ordered the sale of his property, the consent of the Governor would be required before it could proceed even if such property were on rural land. To both potential creditors and borrowers, the bureaucratic implications of such procedures would be discouraging. By customary arrangements, in contrast, the mortgaging of cocoa trees has long been a widespread and effective means of raising cash for capital or other expenditure.

Thus, the effects of the Decree bear no relation (beyond being predominantly

21




in the reverse direction), to the supposed objectives of rational intervention in customary tenure. In the Ibokun area, the consequences of this potentially radical legislation were in fact rather slight. Whatever the correct interpretation of the Decree's provisions on customary tenure, the allocation of land for houses continued as before, as did practices such as the division of land among segments of descent groups. The sale of land, although it had never been very common in the area, also continued. Thus, if the Decree had any effect on the distribution of land, it was purely incidental.

The effects of the Decree were manifested principally in the changed relations which it brought about between landowners and tenants. We have seen that its meaning is uncertain with regard to the continued validity of collateral claims in land, but that the construction put on it by both federal and state administrations was that erstwhile tenants were no longer obliged to pay ground rent in respect of rural land. Given these announcements, the customary courts (whose judges and members received no other guidance on the intepretation of the new law), became unable to enforce the payment of isakole.

It has already been suggested that an important precondition for the emergence of tenancy as a legal institution was its guaranty by the colonial native court system. The Decree, in removing that guaranty, brought about a disjunction between what had become locally accepted practice and the rules of behaviour whose breach could be remedied by resort to state coercion. In this sense customary law in the field governing tenancy ceased to be law and became once again truly customary - the means by which it was enforced and the balance of interests which dictated whether it would be complied with were returned once again to the local level.

In the customary courts with jurisdiction over the Ibokun area, for a year after the enactment of the Decree all cases concerning interests in land were adjourned. In May 1979, several cases in which isakole was claimed were re-opened in the Grade B Court. The court ruled that it was unable to give judgment on the cases at present as they were 'connected with the Land Use Decree which prohibits the receiving of isakolq from tenants'. (The judge added parenthetically but off the record that should the Decree be changed the following day the case would still be there.) In one of these cases, in which the plaintiff claimed the sum of 25 Naira as isakol?, the defendant, his tenant, rather than refusing to pay anything, offered the sum of 5 Naira. Told that the court could not enforce the payment of the remainder, the plaintiff accepted this compromise.

The conditions of uncertainty created by the Decree made it difficult to obtain reliable information on the continued payment of ifakole. Some tenants were unwilling to discuss the question while others sought to deny ever having paid isakole to landowners. Nevertheless, the available data will bear some conclusions.

Most generally, it may be said that the reaction of tenants to the Decree was far from uniform. Some refused outright to pay further ifakole, some refused but were later persuaded to change their minds, others paid a reduced amount or sought new agreements with the landowners, while yet others paid the usual sum. Of the thirty-four cases on which I believe my information to be reliable, sixteen had continued to pay isakole after the enactment of the Decree and eighteen had not.

Given the history of the area and its settlement patterns, a number of factors seemed likely to correlate with tenants' willingness to continue paying isakole.

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Tenants from Oshogbo, a town founded from Ijesha with which it retains con- nections in tradition and ritual, settled land under rather different political conditions from immigrants from other towns and have often been allowed tenancies on somewhat less rigorous terms than tenants from other, purely Oyo, towns. Yet this did not seem to have any bearing on their reaction to the Decree. Again, resident in some hamlets was a native of Ibokun, usually a descendant of the man who brought the original tenants to the land and to or through whom tenants had been used to pay their ifakqle. The closeness of the resultant relationship between landowner and tenant seems if anything to have made the former reluctant to press his claims too strongly simply because he had to go on living with his tenants, but this was not always the case. A number of other potential correlatives such as the generation of the tenant and the size of the lineage on whose land he was working are similarly unsupported by the data.

Each tenant's decision as to whether or not to continue to pay ifakqle appears to have been made in the light of his assessment of the political situation of which he was a part at a particularly local level, the most important factor in which was his estimation of the potential disadvantages of alienating the landowner. Just as the tenants had done, the landowners reacted to the Decree in a variety of ways: some did not even make any request for isakolf from their tenants while others not only demanded it, but sought to utilize the channels of traditional authority, and sometimes the police, in pressing their claims. Sometimes tenants found that they had misjudged the amount of pressure which a landowner could bring to bear and decided to pay up after an initial refusal.

Apart from the possibility of such direct pressure there were a number of other reasons for which tenants might be unwilling to incur the ill-will of the landowners. Many tenants had already planted all the land which they had been allocated with permanent grass and were dependent upon separate grants of land for the cultivation of food crops. Such grants were obtained for the cultivation of seasonal crops only, but the critical feature of them is that they were always temporary, usually being made for one or two years only. Thus, many tenants' access to land for growing food was dependent upon the goodwill of their landowners. Similarly, it was common for tenants to rent cocoa trees which the landowner had planted himself; the refusal to pay isakole would have jeopardized such arrangements.

Tenants were also hesitant to break with usual practice because of their uncertainty about the future of the Land Use Decree as well as the intentions towards it on the part of the enacting government and its successors (uncertainty which landowners exploited fully in their arguments). The prospect of a change in the administration in the near future and the cynicism about the goals and effects of government policies, which earlier experiences had made general among farmers, led many to comply with custom to ensure their future security of tenure.

All this suggests that the persistence of traditional practice in the face of state directives is not due to an irrational inertia but rather to perceived mutual advantage, the need for security, and a rational assessment of long-term interests. As in most communities in the area, tenants farming on Ibokun land were organized into an association, the Egbe Oyo Pejo, which articulated the interests of the migrant community and was sometimes used as a forum for dispute settl- ing. Circumspection at times led its baalf (chairman), who had not himself paid ifakqlf since the promulgation of the Decree, to advise others to do so. In May

23




1979, for example, two complaints were brought before a meeting of the association by Ibokun landowners. One was a straightforward demand for isakole while the other was complicated by a dispute among members of a family about their respective rights to allocate land to tenants. In both cases the baalf, expressing concern about the good name of Oyo tenants in general, recommended that the tenants in question should pay their isakole. A public announcement in this forum that tenants should no longer pay isakole would have led to direct confrontation between the tenants as a political unit and the native landowners. The association appeared to be unwilling to make the matter one of principle, at least until the intentions of the government were made clear.

CONCLUSION

The government did not divest a whole nation of property in land simply to save these tenants their quarters of cocoa. The somewhat arbitrary local effects of the Decree make it difficult to interpret its general significance. It is clear that, as Renner (1949) tells us, the law does not cause economic development. Laws similar to the Land Use Decree, as we have seen, formed the basis for paternalistic non- intervention in colonial Northern Nigeria. In Tanganyika under British Man- date, powers vested in the Governor by legislation on the same principles were used to dispossess indigenous occupiers of land in favour of European settlers. After independence, the same legislation formed the basis for the policy of socializ- ing land tenure (James, 1971). Thus, the potential impact of the Nigerian law must be viewed in the light of policies being pursued simultaneously by the government, in particular those towards agriculture. These include the lending policies of the Nigerian Agricultural and Co-operative Bank, the government supported credit guidelines for the commercial banks under the Agricultural Credit Guarantee Scheme, land clearance grants, and duty-free access to all kinds of imported agricultural machinery. All these measures are aimed at the encourage- ment and subsidization of a class of large-scale, capitalist farmers. In addition, foreign investment in agriculture has been allowed generous new terms (Forrest, 1981).

There is some irony in the prospect of agrarian capitalism being founded upon the abolition of private property in land, as such property -- in the name of economic modernization - becomes dissolved once more into a network of patronage administered by committees on which traditional rulers sit alongside more bureaucratic patrons. Nevertheless, even with access to land and cheap capital guaranteed (and this assumes an adequate administrative and technical capacity on the part of the state), there are other constraints to the establishment of large-scale agriculture. Prime among these are the problems of recruiting and organizing labour and offering it a price competitive with self-employment. There is, in addition, a lack of capacity to manage agricultural enterprises on this scale. Further, the government is likely to be reluctant in the present economic circumstances to sustain the subsidies to mechanized agriculture which are so costly in terms of foreign exchange. These factors, along with the probable political repercussions of such action, make wholesale dispossession improbable. The majority of the peasantry are likely to escape the benevolence of a 'rationaliza- tion' of their land tenure system.

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NOTES

Land Use Decree. Federal Republic of Nigeria, No. 6 of 1978 (hereinafter LUD). 2 LUD, Section 1. 3See, for example, Bates (1981); Hart (1982); Shepherd (1981); Williams (1980). 4As witness the large literature and several government enquiries on the subject. 5West African Lands Committee: Minutes of Evidence, Colonial Office, Confidential, Africa (West)

No. 1047, 1916. See also Francis (1981: 124-31). 6 In the higher courts whose principal area of jurisdiction was Lagos, a complex and ramified body

of case law grew up which, conceiving of customary rights legalistically, attempted to relate them to the titles of English common law. See for example Elias (1951). In the native and customary courts, by contrast, a system of precedent never became established.

7 See, for example, Ijaodola (1970), and works cited in note 28 below. 8 Federal Government White Paper on the Report and Recommendations of the Land Use Panel,

Federal Ministry of Information, Lagos, pp. 1 and 5. On the preceding bodies, see First Report of the Anti-inflation Task Force, 1975; The Attack on Inflation: Government Views on the First Report of the Anti-inflation Task Force, 1975; Federal Military Governments Views on the Report of the Rent Panel (1976). (All Federal Ministry of Information, Lagos.)

9 LUD, Sections 1, 2, 3. 0 LUD, Sections 50, 6, 21. 1 LUD, Sections 28, 29.

12 LUD, Section 36. '3 LUD, Sections 41, 40, 2(2c), 30. 14 LUD, Section 50. 15 Reform in Nigerian Land Tenure Structure (address to the nation on 29 March 1978, by His

Excellency Lt General Olusegun Obasanjo, Head of the Federal Military Government, Commander- in-Chief of the Armed Forces), Federal Ministry of Information, Lagos, 1978, p. 5.

16 Reform in Nigerian Land Tenure Structure, p. 5. 17 The Land Use Decree and You (text of an interview with Brigadier David M. Jemibewon, Military

Governor of Oyo State, Oyo State Ministry of Local Government and Information), Ibadan, 1978, p. 3. 18 Nigeria's New Land Tenure System: questions and answers, Federal Ministry of Information,

Lagos, 1978. 19 Daily Times, 17 April 1978, 19 April 1978. 20 Daily Times, 4 April 1978. 21 New Nigerian, 4 April 1978. 22 New Nigerian, 5 April 1978. 23 Daily Times, 11 May 1978. 24 The Constitution of the Federal Republic of Nigeria 1979, Federal Ministry of Information,

Lagos, S. 40. 25 Daily Times, 8 April 1978; New Nigerian, 15 April 1978; Daily Times, 15 April 1978. 26 Reform in Nigerian Land Tenure Structure, p. 7. 27 Famoriyo (1973a: 3). 28 Others might equally be cited. For example, Oluwasanmi: 'Social institutions may be so rigid

as to constitute formidable barriers to agricultural production .... The traditional system of tenure may sometimes constitute a formidable obstacle to the enterprising farmer desirous of increasing the size of his farm business' (1966: 23, 55). Or Famoriyo: 'The problems may be considered as institutional barriers to development and stem largely from the failure to intervene in order to direct and streamline the customary tenure system so that it could become more conducive to economic development. If there had been objective intervention the result could conceivably have been the existence today of a powerful, dynamic and flexible land tenure system making a positive contribution to Nigeria's agricultural development. . . . The complexity of the land tenure system in Nigeria shows that it is a single aspect of Nigeria's agrarian structure. It clearly requires intervention at both state and local levels .... The policy should consolidate the existing social situation. . .. This is saying that the policy should give due regard to farmers as individuals whose willing participation will promote the integration of the rural community, thus mobilizing it for the achievement of set goals' (1972: 56-65). See also Adegboye (1964, n.d.); Adeniyi (1972a, 1972b); Fabiyi (1974); Famoriyo (1973a, 1973b); Qlatunbosun (1975); Oluwasanmi (1966: 22-47, 55-7, 193-7); Osuntogun (1976); Wells (1974: 52, 110, 201-2, 362); Williams (1978: 4, 12, 65-6). Also the contributions to 'Rural Develop- ment in Nigeria' (Nigerian Economic Society, 1973). The assumptions of this school have become part of the conventional mythology of development planning. Thus the second national plan states:

25




'The prevailing land tenure system in the country sometimes hinders agricultural development.... If Nigeria's agriculture is then to develop very rapidly and have the desired impact on the standard of living, there must be reform in the system of land tenure.' (Second National Development Plan, 1970-74, Federal Ministry of Economic Development, Lagos, 1970). According to the third: 'The under-utilization of agricultural land is itself a function of some institutional constraints, in particular, the land tenure system and seasonal labour shortages. The land tenure system is mainly responsible for fragmentation of holdings and the difficulties in mechanization and modernization of agricultural production.' (Third National Development Plan, 1975-80, Federal Ministry of Economic Develop- ment, Lagos, 1975, Vol. 1, p. 63). However, neither plan made any concrete proposals for reform.

29 LUD, Section 24(b).

30 LUD, Section 6(3).

31 Interviews with Mr E. A. Adelekun (22 September 1979) and Chief S. O. Ogedengbe (15 October 1979), Ilesha legal practitioners, and with Professor R. O. Adegboye, Chairman, Oyo State Land Use and Allocation Committee, 24 October 1979: The Land Use (Declaration of Urban Areas, Fees and Forms) Regulations, 1978, Supplement to Oyo State of Nigeria Gazette Extraordinary No. 20, Vol. 3, 4 May 1978, Government Printer, Ibadan.

32 See Daily Sketch, 24 May 1979, 29 October 1979. 33 Constitution of the Federal Republic of Nigeria, 1979, S. 274. 34 For example, interview with President Shagari, West Africa, 9 June 1980. 35 Guidelines for the Fourth National Development Plan 1981-85, Federal Ministry of National

Planning, Lagos, 1979, p. 20. 36 Namely: Why did you not plant more cocoa than you did last year? Could you obtain more land

for cocoa if you wanted it? What are the main problems with your farming enterprise? (Kil'o de ti e ko gbin koko si i I'ldun t'o koja? Ti e ba fee gbin koko, se eleri ile miran si i? Kil'o nje nkan soro fun nyin ninu ise agbe?). 37 The above account of litigation in Ibokun is based on detailed case material presented in Francis (1981), which also considers the political history of migration and tenancy in the area.

38 For the importance of tenancy in other parts of the cocoa belt see Berry (1975); Clarke (1979).

REFERENCES

Adegboye, R. O. 1964. 'Improving Land Use in Nigeria Through Defects in Land Inheritance', Ph.D. dissertation, Iowa State University. 1966. 'Farm tenancy in Western Nigeria', Nigerian Journal of Economic and Social Studies, 8(3), 441-53. 1967. 'The need for land reform in Nigeria', Nigerian Journal of Economic and Social Studies, 9(4), 339-50. (n.d) 'Land Tenure in some parts of West Africa', Ibadan, Department of Agricultural Economics and Extension, University of Ibadan.

Adeniyi, E. O. 1972a. 'Land tenure and agricultural development in Nupeland', The Nigerian Geographical Journal 15(1), 49-59. 1972b. 'Land tenure as a socio-cultural factor in rural development in the middle belt of Nigeria', Proceedings of the 1972 Annual Conference of the Nigerian Economic Society.

Bates, R. H. 1981. Markets and States in Tropical Africa: the political basis of agricultural policies. Berkeley: University of California Press.

Berry, S. S. 1975. Cocoa, Custom and Socio-Economic Change in Rural Western Nigeria. Oxford: Clarendon Press.

Clarke, J. 1979. 'Agricultural Production in a Rural Yoruba Community', unpublished Ph.D. thesis, University of London.

Elias, T. O. 1951. Nigerian Land Law and Custom. London: Routledge and Kegan Paul. Fabiyi, Y. L. 1974. 'Land tenure innovations in rural development: the problems in western

Nigeria with some Tanzanian comparisons' Ph.D. dissertation, University of Wisconsin.

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Famoriyo, S. 1973a. 'Some problems of the customary land tenure system in Nigeria', Land Reform, Land Settlement and Co-operatives, 2, 1-11. 1973b. 'Land tenure and food production in Nigeria', Land Tenure Centre News- letter, 41, 10-15.

Forrest, T. 1981. 'Agricultural policies in Nigeria', in J. Heyer, P. Roberts and G. Williams (eds.), Rural Development in Tropical Africa. New York: St. Martins Press.

Francis, P. A. 1981. 'Power and order: a study of litigation in a Yoruba community', unpublished Ph.D. thesis, University of Liverpool.

Hart, K. 1982. The Political Economy of West African Agriculture. Cambridge: Cambridge University Press.

Helleiner, G. K. 1966. Peasant Agriculture, Government and Economic Growth in Nigeria, Homewood, Ill.: Irwin.

Hill, P. 1972. Rural Hausa: A Village and a Setting. Cambridge: Cambridge University Press.

Ijaodola, J. 0. 1970. 'The creation of states in Nigeria: an opportunity for amending the law of land tenure in the former Northern Region', Law in Society, 4, 1-12.

James, R. W. 1971. Land Tenure and Policy in Tanzania. Toronto: Unversity of Toronto Press.

Lloyd, P. C. 1954b. 'The traditional political system of the Yoruba', Southwestern Journal of Anthropology, 10, 366-84. 1962. Yoruba Land Law. London: Oxford University Press.

Lugard, F. D. 1922. The Dual Mandate in British Tropical Africa. London: Allen and Unwin.

Okpala, I. 1978. 'The Land Use Decree of 1978: if the past should be prologue ...!' Nigerian Institute of Social and Economic Research, Reprint series No. 119.

Olatunbosun, D. 1975. Nigeria's Neglected Rural Majority. Ibadan: Oxford University Press for Nigerian Institute of Social and Economic Research.

Oluwasanmi, H. A. 1966. Agriculture and Nigerian Economic Development. Ibadan: Oxford University Press.

Osuntogun, A. (ed.) 1976. Institutional Determinants and Constraints on Agricultural Develop- ment: Case Studies from the Western States of Nigeria. University of Reading/ODI joint programme on agricultural development overseas.

Peel, J. D. Y. 1983. Ijeshas and Nigerians: the incorporation of a Yoruba kingdom, 1890s-1970s. Cambridge: Cambridge University Press.

Renner, K. 1949. The Institutions of Private Law and their Social Functions. London: Routledge and Kegan Paul.

Shepherd, A. W. 1981. 'Capitalist Agriculture in Africa', Afrique et Developpement, 6(3), 5-21.

Wells, J. C. 1974. Agricultural Policy and Economic Growth in Nigeria, 1962-1968. Ibadan: Oxford University Press for Nigerian Institute of Social and Economic Research.

Williams, G. P. 1980. State and Society in Nigeria. Idanre: Afrografica Publishers. Williams, S. K. T. 1978. Rural Development in Nigeria. Ife: University of Ife Press.

Resume

Consequences de la nationalisation des terres au Nigeria en 1978

Cet article considere les origines et les effets du Decret sur l'Utilisation des Terres nigeriennes, qui nationalisa toutes les terres du pays en 1978, passant de fagon notionelle leur administration a des comites constitu6s a l'echelon national ainsi que local. L'analyse

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des clauses du decret montre son ambiguite dans deux secteurs, a savoir celui de la question de la validite toujours en existence des formes de bail coutumieres et celui du transfert et du louage de la terre rurale. L'examen des arguments technocratiques elabores au cours de nombreuses annees par des economistes agricoles en faveur d'une reforme semblable a celle institutee par le decret, et fondes sur les 'defauts et inconsistances' supposes d'un systeme traditionel rigide de propriete, demontre des ambiguites paralleles en ce qui concerne le statut futur de la tenure coutumiere. Ces contradictions emergent a partir de la divergence d'interets entre la bureaucratie de l'etat (et ses clients potentiels) et le proprietaire terrien, contre lequel le decret est un outil potentiel d'expropriation plutot qu'une reforme.

L'impact du decret est examine tout d'abord en termes generaux et ensuite en rapport a ses effets locaux dans la region de Ibokun, une communaute situee juste a l'interieur des limites du nord de la ceinture de cacao qui a vu, depuis le debut du siecle, l'adoption etendue de la vente des recoltes pour un revenu et influx de locataires emigrants de la region vers son nord. L'examen de l'histoire du peuplement et des institutions gouvernant les droits de propriete et le control de la terre dans la region revele, qu'en depit des vues de ceux en faveur de la reforme, la flexibilite meme du systeme de bail coutumier a permis un acces facile a la terre et pour les natifs et pour les emigrants. Cette flexibilite est retracee jusqu'aux conditions politiques et sociales de la propriete et montre qu'un modele de pratique legale coutumiere est errone.

Les effets du decret sur ce systeme de bail furent en fait mineurs, bien que pour la plupart contraires aux objectifs evidents de la reforme. Les pratiques coutumieres continuerent en depit de leur illegalite, qui plus est certains locataires tournerent a leur advantage l'inaptitude des cours a exiger le paiement des loyers. Les consequences specifiques de la reforme sont liees aux facteurs politiques au niveau local. En depit de ses effets limites a present, le potentiel expropriant du decret et l'enorme puissance discretionnaire qu'il place dans les mains des fonctionnaires de l'etat demeurent tres significatifs.

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