AN EXAMINATION OF THE APPLICATION OF THE TEMPORAL ORDER RULE OF PRIORITY UNDER THE LAND USE ACT(AS AMENDED)

Abstract

In response to a potential crisis in land distribution, the Federal Military Government of Nigeria promulgated the Land Use Act of March 1978 establishing a uniform tenure system for Nigeria. In Nigeria, before the enactment of the Land Use Act, there was no uniform land policy because the historical backgrounds of the land tenure system of the regions were not identical. In establishing a uniform tenure system therefore, the Act intended to address the problem of lack of uniformity in the laws governing Land Use and ownership, the issue of uncontrolled speculation in urban land, the question of access to land right by Nigerians on equal legal basis and the issue of fragmentation of rural land, to stimulate investment in agriculture by enhancing land use security, to optimize land use, to ensure sustained land use, to ensure sustained improvements to land quality and to enlighten the people on the right to use land. The Act effectively nationalized all land by requiring land users to obtain statutory right of occupancy and customary right of occupancy from the state and local governments respectively. In this regard, the innovation introduced by the Land Use Act is that it divest any claimant of radial title and limit the claim to a right of occupancy. However, the Act stipulates that anyone in rural or urban area who normally occupied land and developed it before the commencement of the Act would continue to enjoy the right of occupancy and could assign his interest in the developed land. It is obvious from the above and other provisions that would be considered in this paper that the Act address itself to the issue of priority of competing interests in land. Generally the need to rank competing interests in land in order of priority arises when two or more persons claim to have derived title to land from the same person who previously owned that land and in such cases it could happen that the various competing interests cannot be satisfied from the total aggregate value of the land that is subject to these interests. With regard to transaction under the Land use Act, the need to determine priority of interest in land arises when one consider the right of an occupier of land either developed or undeveloped before the commencement of the Act (otherwise known as deemed holder of a statutory right of occupancy) and the subsequent grant of a right of occupancy by the Governor over the same land without first revoking the deemed right of occupancy held before the commencement of the Act. It also seldom happen that there exist at the same time two valid rights of occupancy granted to different persons in respect of the same land by the same authority or Government and the question arises as to which of the two valid grants takes precedence over the other. Thus in all the above cases, there is a need to determine priority among competing interest in land under the Act. This paper therefore considers whether the Temporal Order Rule of priority i.e. “he who is first in time is stronger in law” is applicable in determining priority of competing interests in land under the Land Use Act or whether the Act itself has evolved its own rules of priority. In achieving this objective, the paper examines the basic rules of priority with particular reference to the Temporal Order Rule and its application or otherwise to specific provisions of the Land Use Act, particularly section 40, 5(2), 34 and 36 of the Act respectively which address the issue of priority. The paper ends with the conclusion and recommendation of the research.