The unwholesome activities of land grabbers popularly known as “omoonile”, who are in the habit of forcefully dispossessing lawful owners of their landed properties and in some instances sell a particular parcel of land to several persons is a common feature in the acquisition of real property in Lagos State. Their activities have remained unchecked for a long time and have resulted in the loss of confidence by investors who are often swindled and in some cases, are made to pay several times for a particular property. It is in the light of these negative effects of the activities of these land grabbers and the attendant effects on the economic development that the Lagos State Government enacted the Lagos State Properties Protection Law.3 This paper takes a cursory look at the law with particular reference to its advantages and shortcomings.
The intendment of the Law is aptly captured in the long title which states as follows:
“[A] law to prohibit forceful entry and illegal occupation of landed properties, violent and fraudulent conducts in relation to landed properties in Lagos State and for connected purposes.”
With the enactment of this law, it is now an offence for any person or group of persons to employ force or self-help to take over any landed property or engage in acts inconsistent with the proprietary right of the owner.4
The applicability of the law is extended to persons who are in forceful occupation of land and who remain in possession, 3 months after the commencement of the law.5 This provision, no doubt, is intended to deal with all cases of forceful entry before the enactment of the law and it is aimed at rekindling investors’ confidence. Persons who have a right to possession or occupation of landed properties are prohibited from using or threatening violence either by themselves or through their agents for the purpose of securing entry into that property.6 This provision clearly prohibits the use of self- help in recovery of possession by an owner of landed property.
Further, there are provisions dealing with encroachers and persons who derive title from encroachers. An encroacher who fails to vacate a property after being asked to do so by or on behalf of the owner commits an offence.7 Anyone who enters any property by virtue of a title, license or right derived from an encroacher shall be construed as an encroacher and therefore liable to the prescribed punishment8 . This provision places a burden on purchasers of landed properties to conduct their due diligence before embarking on any acquisition/development.
Under this new law, law enforcement agents, vigilante groups, ethnic/cultural militias are prohibited from extra judicial means in executing the judgment of a court of law.9
Again, any person who offers for sale any property that does not have title or authority of the owner is guilty of an offence10. The law goes further to prohibit any person from knowingly selling a property that he has no lawful title to or which have been previously sold by him or his privies or without lawful authority of the owner.11 For family property, the consent of the family head or accredited family members is what is required while the authority of the state is required for Government land.12 This section stresses the importance of obtaining lawful authority - preferably a power of attorney before dealing in landed property.
The law also seeks to regulate professionals who are involved in the process of acquisition of landed properties. For this purpose, an agent is defined in the law as a person who acts on behalf of any party to a real property transaction, whether in respect of sale, lease, license, mortgage or other dealings or disposal of, or relating to the property including any person engaged for the purpose of forceful takeover or sale of a landed property. It prohibits professionals from facilitating agreements that will contravene the provisions of the law. By virtue of section 10 of this law, petitions in respect of landed property are required to be accompanied by a sworn declaration by the petitioner. This, in our view, is a welcome development as it will stem the tide of frivolous and unwarranted petitions.
With regards to demand for levy, the law provides that a person shall not, whether for himself or acting as an agent demand for any fee or levy in respect of construction activities on any property, disrupt or obstruct construction works provided that the provision shall not be interpreted to preclude land owning families under the authorization of the family head to demand for the customary fee for possession (in the name of foundation levy) from buyers, or ratification fee pursuant to judgment of a court of competent jurisdiction.
Some Potential Loopholes and How to avoid them
The loophole observed with respect to the provision contained in section 4 (3) (a & b) of the law is that it appears narrow having not covered situations where a person unknowingly purchases a land from an encroacher. The law appears not only to have jettisoned the principle of purchaser for value without notice, but in fact categorizes such a purchaser as an encroacher and provides punishment for him along with the encroacher/seller. We hope that both the Task Force Unit13 empowered to enforce this law as well as our courts 14 will be mindful of this loophole in the implementation of the law.
With reference to Section 8(1) (b & c), (2), the professionals engaged in assisting clients with acquisition of a piece of real estate in Lagos State will now do well to insist on obtaining not only a written instruction under oath from their client but also a declaration in that oath the person giving the instruction is who he describes himself to be and there is no known encumbrances stopping him from giving instructions to the professional to dispose or alienate the property in order to avoid being caught on the wrong side of the law. With this new law in place, a genuine would-be petitioner should have no fears, if he is sure of his title or cause of action. Conversely, frivolous petitioners must be careful before embarking on the journey as there are now criminal consequences attached to such action.
The most significant loophole, in our view, that will require some tact in maneuvering relates to section 11 of this law. This provision seems to run in conflict with the developmental objective of the law because it appears to encourage land owning families to forcibly enter a landed property to demand for such customary fees. The law does not specifically prohibit the demand and collection of possession fee in the name of ‘foundation levy’. It will be difficult, in our view, to really stop the family owning land from naming all fees previously being collected as foundation levy or possession fees and charging exorbitantly to cover all such proliferated fees previously being demanded from the person purchasing real estate. Given that the mischief that this law aspires to cure relates more to the forceful and violent fraudulent conducts of the omooniles, it is recommended for the Task Force Unit and the Courts to interpret the provisions of section 11 restrictively against the land owning family as it concerns their demand and collection of the customary fee for possession (in the name of foundation levy). Any unreasonable fees contrived in the guise of customary possession payments ought to be struck down to ensure the law achieves its critical objective.
A successful implementation of this law, no doubt will drastically reduce incidences of land grabbing which will, in turn, lead to rapid development of the state. One question that needs urgent answer is the modalities for the implementation of this law as experience has shown that land grabbers do so in collusion with their family heads and accredited members.
It is hoped that the Lagos State Government will muster the courage to implement the law and not allow it to go the way of other populist laws which are hardly implemented effectively. It is indeed a useful legislative intervention in real estate acquisition in Lagos State but we wait to see how the stakeholders navigate the loopholes in the law.