Compulsory Acquisition Property (Land): The Legal Dimension to the Issue in Nigeria by Fortune C. Okorie, Esq., An Associate with Pegasus Legal & Associates.

PEGASUS LEGAL

From the period of agriculture to the period of industrial development, land has remained the most valuable property in the life of man and his development. It is a source of wealth to those who have it and the mother of all properties. In other words, virtually all the basic needs of human existence are land dependent. In view of the importance and usefulness of land to man and his development as well as the development of his society, every person generally desires to acquire and own a portion of land to achieve the various ends for which the land is meant.

According to Omotola J.A. in ‘Law and Land Rights’;

‘Every person requires land for his support, preservation and self-actualization within the general ideals of the society. Land is the foundation of shelter, food and employment. Man lives on land during his life and upon his demise, his remains are kept in it permanently. Even where the remains are cremated, the ashes eventually settle on land. It is therefore crucial to the existence of the individual and the society. It is inseparable from the concept of the society. Man has been aptly described as a land animal.’

With the above, we can rightly say that land remains pivotal to any meaningful development of man and his society. The continued existence of man and his growth depend on availability of land for the much-needed development. Land cannot be reproduced, destroyed nor depleted, albeit, it can be mismanaged. Once land is mismanaged, the whole economy is distorted, and the social and economic fabric of the state disintegrates to the detriment of man and his society. This is an inescapable consequence as land provides shelter, food, minerals and other resources needed for man’s development. Outside its physical direct importance to man, society and the state, land also remains to date the most viable and sought after security for bank advances and a pillar in the development of effective and efficient commerce in the country.  Thus the way and manner land ownership is structured, title is obtained and land documentation and transaction is framed has a direct impact on man’s development and the nation’s economy. It is therefore imperative that the management of such core resource should be such as to produce the best for the benefits of man. Therefore, to make land in Nigeria available to all and to ensure that land is acquired and put to a proper use for the needed development, governments during and after colonial period enacted laws to govern the use or administration of land in Nigeria.

Before the arrival of the colonial masters, there were customary laws which governed the administration of land in Nigeria. These customary laws varied from one locality to another because of the differences in customs of the people. This accounted for the multiplicity of land laws in Nigeria prior to the promulgation of the Land Use Act of 1978. These laws were applied in each region to regulate land in the region.

Notwithstanding the existence of laws regulating land, the problems of land tenure and land administration persisted both in the Northern and Southern Nigeria. There were new problems such as land racketeering and speculations. Exorbitant compensations were demanded by landowners whenever the government acquired land for development. Thus, acquisition of land by government or individuals was becoming almost impossible in Nigeria. In fact, one of the major factors that was said to be a stumbling block against efficient implementation of the Second Development Plan 1975-1980, was lack of land for development project. To break this barrier and monopolies of landlords, the Federal Military Government set up some panels to consider how best to solve the problems associated with land tenure and administration in Nigeria. The report of one of these panels i.e., the Land Use Panel of 1977 eventually formed the basis of the Land Use Act No. 6 of 1978.

Upon the enactment of the Land Use Act of 1978, all lands comprised in the territory of each state in Nigeria are vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians.

Notwithstanding the above, every citizen of Nigeria is entitled to own and acquire a property anywhere in Nigeria. To back the above, Section 43 of the 1999 Constitution of the Federal Republic of Nigeria as amended provides that ‘Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.’ The above provision of the law clearly shows that any citizen regardless of sex, religion or colour within Nigeria is entitled to own and acquire properties of their own anywhere in Nigeria. In other words, in Nigeria, every citizen possesses the right to acquire and own immovable property anywhere in Nigeria. However, like every other right, the right to own a property (immovable) is not without some limitations.

Section 44 of the Constitution provides that:

(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –

(a) requires the prompt payment of compensation therefore and

(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

(2) Nothing in subsection (1) of this section shall be construed as affecting any general law.

(a) for the imposition or enforcement of any tax, rate or duty;

(b) for the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;

(c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.

(d) relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound-up;

(e) relating to the execution of judgments or orders of court;

(f) providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;

(g) relating to enemy property;

(h) relating to trusts and trustees;

(i) relating to limitation of actions;

(j) relating to property vested in bodies corporate directly established by any law in force in Nigeria;

(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;

(l) providing for the carrying out of work on land for the purpose of soil-conservation; or

(m) subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.

(3) 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 of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

As a limitation to the right of acquisition of property, the government has the power to compulsorily acquire any piece of land for overriding public interest. This act is called government compulsory acquisition. Compulsory acquisition is the power of government to acquire private rights in land without the willing consent of its owner or occupant in order to benefit society. This power is often necessary for social and economic development and the protection of the natural environment.

Compulsory acquisition requires finding the balance between the public need for land on the one hand, and the provision of land tenure security and the protection of private property rights on the other hand. Compulsory acquisition is inherently disruptive. Even when compensation is generous and procedures are generally fair and efficient, the displacement of people from established homes, businesses and communities will still entail significant human costs. Where the process is designed or implemented poorly, the economic, social and political costs may be enormous. Attention to the procedures of compulsory acquisition is critical if a government’s exercise of compulsory acquisition is to be efficient, fair and legitimate.

In 2012, the Supreme Court of Nigeria delivered three decisions on the compulsory acquisition of land or the revocation of occupancy rights; Alhaji Tsoho Dan Amale v. Sokoto Local Government and Others (2012) LCN/3930(CS); Goldmark Nigeria Limited and Others v. Ibafon Company Limited and Others [2012]10 NWLR (pt 1308); and Ohochukwu v Attorney General of Rivers State and Others [2012] 49 NSCQR (pt II). These three cases laid down principles on the subject.

The law of compulsory acquisition of land in Nigeria is rooted in the Nigerian Constitution that every Nigerian has the right to own private property and that such property shall not be acquired compulsorily, except in the manner and for the purposes prescribed by a law that requires both the payment of prompt compensation and compliance with the rule of law on access to the court. It is however pertinent to state that the Governor may revoke a right of occupancy over any land in the state on account of overriding public interest. This write-up aims to highlight the compulsory acquisition of land in Nigeria by the Government.


WHEN CAN PRIVATE LAND BE COMPULSORILY ACQUIRED?

Land can be compulsorily acquired for Overriding public interest and public
purpose. Overriding public interest means the requirement of the land by the
Government of the State or by a Local Government in the State. In either case, for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation; the requirement of the land for farming purposes or mining purposes or for the laying of oil pipelines or for any related purpose.

It must however be noted that where it is discovered that such acquisition made by the government was not for public purpose, then such acquisition may be marred. Also, a land compulsorily acquired for public purpose can be vitiated where it was subsequently diverted to serve private need. In other words, if a property is ostensibly acquired for public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private needs, the acquisition can be vitiated. If the acquiring authority can no longer find a public purpose for the land so acquired the only avenue open to it is to de-acquire it and let the same revert to the person in whom it was taken from.

In Olatunji v. Military Governor of Oyo State (1994) LCN/0219(CA), the Court held that the acquiring authority is required to state one or a combination of the public purposes for which the land was being acquired in his notice to the holder of a right of occupancy to enable the holder or occupier to challenge the acquisition.

REMEDIES AVAILABLE TO LAND OWNERS

Land is a precious asset especially when it appreciates. When land is compulsorily acquired, it affects the constitutional rights of landowners who may in turn feel aggrieved and seek remedies. Some of the remedies available for an individual whose land has been compulsorily acquired include but not limited to compensation, challenge the acquisition, negotiation and alternative arrangements, judicial review, mediation and arbitration, consultation and participation.

In conclusion, it is important to state that failure to compensate the occupier of the land so acquired renders the acquisition a nullity. The prompt payment of compensation is provided for both statutorily and by judicial pronouncements.

In National Universities Commission v. Oluwo [2001] 3 NWLR (pt 699) 90, the Court of Appeal held that where land has been compulsorily acquired, the person whose land has been so compulsorily acquired is entitled to a reasonable compensation. The right to own property by an individual is well entrenched in the constitution of the Federal Republic of Nigeria and it carries with it, the right to dispose of the said property. The government with all its might cannot acquire the land of an individual without paying adequate compensation to the dispossessed citizen. Government has a duty to comply with the procedure for acquisition of land. This duty was emphasized by the Supreme Court of Nigeria in Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd.  (supra) in the following words: ‘The court has always emphasized that government has the right to compulsorily acquire property on payment of compensation. There is no argument about such constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted. Where government disobeys its own statute by not complying with the laid down procedure for acquisition of property, it is the duty of the courts to intervene between the government and the private citizen.’

Therefore, for there to be a valid acquisition of land by government, there must be notice of revocation of the existing title followed by payment of the statutorily prescribed compensation. See University of Ibadan v. Adetoro (1991) 4 NWLR (pt 542404.

Further note that one does not need to establish title of the land one occupies before one can bring action to enforce one’s right over an unlawful acquisition or to challenge same. See Government of Enugu State of Nigeria v. Sunday Onya & Ors (2021) LPELR-52688 (CA).

Above all, Citizens and individuals are forbidding by law to compulsorily acquire the property of another man’s landed property or land without being in breach of the law. As for Government, whether State or Federal Government, expropiratory Statues are strictly construed against the maker in the sense that the enforcing authority must comply with all the laid down procedures for acquisition of property in law having paid the appropriate and adequate compensation or have  it set aside for being ultra vires.

 Worthy of mention is the fact that can acquire immovable properties throughout the country pursuant to Section 43 of the Constitution giving citizens the right to acquire property, no section of the same Constitution or the Land Use Act 1978 provides for a private individual compulsory acquisition of land. Any attempt for such will amount to conquest which is treasonable.

Fortune C. Okorie, Esq., An Associates with Pegasus Legal & Associates is Ogun State Based Legal Practitioner @Pegasuslegalassociates@gmail.Com

What’s your Reaction?
+1
1
+1
0
+1
1
+1
0
+1
0
+1
0
+1
0

One Reply to “Compulsory Acquisition Property (Land): The Legal Dimension to the Issue in Nigeria by Fortune C. Okorie, Esq., An Associate with Pegasus Legal & Associates.”

  1. Eze, villages/community or burgeois does not have right for compulsory acqusitio of private land. Eze or villages acquisition of private land is one the greatest problems in Eastern Nigeria especially at Ebonyi state. This problems have lead to lost of lives, properties and at the same time disrupt peace and transquility in the state (s).

Leave a Reply

Your email address will not be published. Required fields are marked *