CHAPTER TWO

LEGAL FRAMEWORK FOR OWNERSHIP OF MINERAL RESOURCES INNIGERIA

2.1.    Introduction

It can be said that the direct powers of the legislators to determine the impact of their laws, for the effects of legislation are conditioned by processes only some of which fall within the purview of the state. The distinction between legislative intention and effects is an impact of the disconnection between law and custom. In any case, where legislation produces an unintended effect or works hardship, an occasion arises for the repeal or amendment of the legislation in order to end the unintended result or injustice. 

On attaining independence, Nigeria adopted some significant number of laws that were passed by the British colonial power before independence. One of these laws was the Minerals Act 1958 now Minerals and Mining Act, No. 20 of 2007 which vested the right to all minerals found in the country in the crown.[1]

Section 1 of the Minerals and Mining Act states:

The entire property in and control of all Mineral Resources in, under or upon any land in Nigeria, its contiguous continental shelf and all rivers, streams andwater courses throughout Nigeria, and area covered by its territorial watersor constituency and the Exclusive Economic Zone is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria.

In order to underscore the right of ownership of the states to mineral resources, the provisions of the Minerals Act were incorporated into the various Constitutions of Nigeria. The Constitutions accorded exclusive power to legislate on mines, minerals, including oil fields, oil mining, geological surveys and natural gas to the Federal

Government.

For a proper understanding of this discussion an explanation of the concept of ownership is very important.

2.2       The Concept of Ownership

The Black’s Law Dictionary[2] defines Ownership as the collection of rights to use and enjoy property, including the right to transmit it to others. This implies the right to possess a thing regardless of any actual or constructive control.

The Oxford Advanced Learners Dictionary3 also defined Ownership as the fact of owning something. Owner literally means a person who owns something. To own means to have something as ones property; to possess. The term ownership is used with reference to things. Dias defines it as consisting of an innumerable number of claims, liberties, powers and immunities with regard to the things owned[3].

At common law, the owner of a piece of land owns whatever is found under the land or attached to the land. This is the legal principle of quic quid plantatur solo solo cedit. A landowner will, therefore, exercise the right of ownership, which includes the right to use, enjoy, manage and even to abuse, over his parcel of land. 

Austin who wrote at the beginning of the 19th century defines ownership as “a right indefinite in point of user-unrestricted, in point of disposition-and-unlimited, in point of duration over adeterminate thing”[4] The right of an owner of property to use the property as he likes is not unlimited. A person can only do what he likes with what he owns within certain limits which are determined by the interest of others. 

Furthermore, ownership connotes a complete and total right over a property. This includes the power to enjoyment, to determine the use to which the thing is to be put, to deal with, produce or to destroy it, as the owner pleases, the power of possession, the power to alienate, the power to bequeath, the power to charge as security and the power to grant to another person any or all of the rights for a stipulated time period. In Nigeria National Petroleum Corporation v. Sele,[5] the court held that the owner of land adjoining, abutting or encompassing waterways are entitled not only to fish there but also to settle or erect structures and even extract rent from others seeking to use the land. 

Hence, from the above definitions, it can be said that the owner of a thing manages and controls it. The most conclusive evidence of ownership is the owner’s ability to do as he pleases with his property without any super-imposed restrictions. But by the effect of Section 1, Land Use Act, 1978[6], the Governor of a state is the trustee of all the land comprised in the territory of the state. The result is that land rights are now vested in the state depriving the people their means of livelihood. The Land Use Act has become outdated in the Nigerian context because the desired result was not felt by the people for which the law was promulgated. The trusteeship talked about in Section 1, Land Use Act has failed completely since the beneficiaries of the trust have turned to victims. As they stand today, they are simply an imposition. Chukwuemeri[7] captured imposition thus:

As an imposition, it cannot be sustained for all times, not even with fiercest use  of the federal might. It can definitely not be sustained for so long in the face of 

the determined social and popular quest for change. A legal framework perceived as unjust and anachronistic cannot be long sustained. The will of a people at the            end of the day will normally win over Force however awesome or brutal the force            may be.

2.3       Ownership and Control of Mineral Resources in Nigeria             

The vesting of ownership and control of minerals and mineralresources in the Nigerian state is historical and dates back to the colonialera. This has had a great impact on the country’s legal system andconception of property rights. As a British colony, most laws in Nigeriawere fashioned after those of Britain[8]. Nigeria, therefore, inherited acolonial legacy in which ownership of mineral resources was vested in thecrown of England. This was due to the fact that the country, as a corporateentity, was regarded as the property of Great Britain. Thus, the thensuzerain authority[9] and, naturally the minerals in

Nigeriawhether oil andgas or solid mineralsalso belonged to Britain[10]. According to Sagay, “The imperial masters claimed all the minerals in Nigeria for itself,as was to be expected; Colonial rulers operated in their own interest, not inthe interest of the colonised people”[11] It was this concept of stateownership of minerals that Nigeria inherited at independence in 1960,which thereafter became entrenched in the 1963 Republican Constitution.

To put it in Sagay’s words, “After Nigeria gained independence;the new state adopted and institutionalised this vestige of colonialexperience[12].  It is important to note that the issue of ownership was of noconsequence in the Mineral Oils Ordinances of 1914 as amended in 1925,and only began to feature as a legal provision in the Minerals Act of

1958, now Petroleum Act, 1969[13]

According to Ajomo, the provision of Section 1 of the Petroleum Act on ownership ofmineral resources was remodeled under the Constitution of the Federal Republic of

Nigeria, 1979 to read: “Mineral oil and natural gas in, under or upon any land in Nigeria or in,under or upon the territorial waters and the Exclusive Economic Zone(EEZ) of

Nigeria shall vest in the Government of the Federation”.

The Exclusive Economic Zone (EEZ) was added following a new resource regime of the sea created by Decree No. 28 of 1978, now calledthe Exclusive Economic Zone Act. This new creation is a resource regime,which has now been conceded to littoral States under the United NationsMontego Bay Convention on the Law of the Sea of 1982.Presumably, it is against the recognition of territory as an attribute ofstatehood. The inspiration drawn from the United Nations GeneralAssembly Resolution of 1962, which declared that the right of peoples andnations to permanent sovereignty over their natural wealth and resourcesmust be exercised in the interest of their national development and of thewellbeing of the people of the State15. The current legal regime governing ownership of mineral resources and land in Nigeria retainsand vests ownership in the Government ofthe Federation. 

2.4       The Current Applicable Legal Regime

The applicable legal regimes are:

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Petroleum Act, 1969 Cap P10 Laws of the Federation of Nigeria, 2004

 Nigerian Minerals and Mining Act, No. 20, 2007

Exclusive Economic Zone Act, 1978 Cap E17 Laws of the Federation of Nigeria, 2004

Land Use Act, 1978 Cap L5, Laws of the Federation of Nigeria, 2004

15Permanent Sovereignty over Natural Resources, General Assembly Resolution, 1803 (XVII) (Dec. 14,

1962), http://www.untreaty.un.org/cod/avl/ha/ga_1803.html, accessed on the 1/7/2016 at 4:31pm

2.4.1.    Constitution of the Federal Republic of Nigeria, 1999

The Constitution of the Federal Republic of Nigeria, 1999 made provisions for the ownership and control of mineral resources in Nigeria. Section 44(3) of the Constitution provides thus:  

Notwithstanding the foregoing provisions of this Section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone ofNigeria shall vest in the government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.[14]

In addition to the above provision, mines and minerals including oil fields, oil mining, geological surveys and natural gaswere included inPart I of the Second Schedule of the Exclusive Legislative List in respect ofwhich only the National Assembly have legislative power. The inclusion of this subject matter in the Exclusive Legislative List follows the samepattern in both the Republican Constitution of 1963 and the Constitution of the Federal Republic of Nigeria, 1979.

[1] This Act consolidated all the existing Legislations on Mines and Minerals.

[2] Garner, B.A., (2009), Black’s Law Dictionary, 9th Ed. St. Paul, Minn.: West Thompson Reuters, p. 955.. 3Hornby, A.S., (1997), Oxford Advanced Learners Dictionary, Oxford University Press, 7th Edition, p.1045.

[3] Dias, R.W.M., (1970), On Jurisprudence, Butterworth’s 3rd Ed. London, p.361.

[4] Ewa Odu, R. I., (2008), Resource Control: Legal Right of Niger Delta Region of Nigeria, Lagos, University of Lagos Press, p.113.

[5] (2004) 5 NWLR, pt. 866 at 379. 

[6] Cap L5 Laws of the Federation of Nigeria, 2004.

[7] Martins C., A Critical Appraisal of the Legal Regime of Ownership of Petroleum and Land in Nigeria http://www.martinslibrary.blogspot.com, Accessed on the 31/5/2015 at 12:14pm.

[8] Aladeitan, L., Ownership and Control of Oil, Gas and Mineral Resources in Nigeria: Between Legality and Legitimacy, Thurgood Marshal Law Review, Vol. 38, http://www.ownership-of-oil.com, Accessed on the 1/7/2016 at 12:56pm.

[9] Controlling Nation: A Ruler or Nation that controls a dependent Nations International Affairs but allows it to control its Internal Affairs.

[10] Ajomo, M.A., (2001), The Legal Framework of the Petroleum Industry, Being Paper Presented at the Centre for Petroleum, Environment and Development Studies with the theme Essentials of Oil and Gas Law, Lagos State, p.165.

[11] Aladeitan, L., Ownership and Control of Oil, Gas and Mineral Resources in Nigeria: Between Legality and Legitimacy, (Ibid).

[12] Ajomo M.A., (2001), The Legal Framework of the Petroleum Industry (Ibid).

[13] Section 1 Petroleum Act (Op.cit)

[14] Similar provisions are contained in Section 1, Minerals and Mining Act, No, 20, 2007. 17 Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999.