Review of Compulsory Acquisition and compensation of property in Nigeria

BY: ESV. Barr.  Adamu Keffi & ESV Zakari U. Burbur

Introduction

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. It is a power possessed in one form or another by governments of all modern nations. This power is often necessary for social and economic development and the protection of the natural environment. Land must be provided for investments such as roads, railways, markets, airports, hospitals etc. The Universal Declaration of Human Rights Article 17 provides that “everyone has the right to own property alone as well as in association with others”. Similarly, The African Charter on Human and Peoples ‘Rights, 1986:“Article 14also states that, the right to property shall be guaranteed. Section 43 of Constitution of federal republic of Nigeria (CFRN) 1999 as amended empowered every citizen of Nigeria to acquire and own immovable property anywhere in Nigeria. However, the right to own immovable property like every other right is not absolute but subject to certain qualifications. The law of compulsory acquisition of land in Nigeria is rooted in Section 44 of the said constitution which provided that, no immovable property or its interest shall be acquired compulsorily in any part of Nigeria, 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 (S. 28 and S.51 of Land Use Act 1978). The Land Use Act (LUA) of 1978 Specifically S. 1 provides that 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, while, S. 28 of LUA empowered the Governor to revoke a right of occupancy for overriding public interest.

REVOCATION OF RIGHT OF OCCUPANCY

The protection of public property is constitutionally guaranteed. It is universally accepted that private right must give way to overriding public interest. Accordingly, S.28 of LUA 1978, simply means the acquisition of private individual’s land for the use of the government for the benefit of the state. Thus, when an individual’s rights in land are being revoked for the purpose of using it for community projects, then we can say such land has been acquired for a public purpose.

In the acquisition of individual land by the government for overriding public purposes, the government must show that such land is being acquired for public use and such land cannot be used for individual benefit. The Court of Appeal, per Salami JCA in Olatunji v Military Governor of Oyo State held among other things 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, the court went further to state that it is not for an individual to speculate or presume that his land is being acquired for public use, he must be notified as to why his land is being acquired by the government.

Thus, where it is proven that the land is to be used for private purpose, such acquisition will be vitiated by that reason, also, a land compulsorily acquired for a public purpose can be vitiated where it was subsequently diverted to serve a private need. If a property is ostensibly acquired for a public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private needs, the acquisition may be vitiated.

PUBLICATION IN THE GAZETTE AND SERVING OF NOTICE   

Both the service of notice to holder and publication to national diaries are fundamental procedure in compulsory acquisition exercise. This was demonstrated in the Case of Olatunji v Military Governor of Oyo State held that the requirement that acquisition of private lands should be published in the national gazette only constitute notice to the whole world and cannot be taken as a substitute for the notice to be given to the individual owner of the land. Thus, nothing can waive the requirement of personal notice to the individual owner of the land compulsorily acquired. It should also be noted that such a Notice to the individual landowner must be personally served on the individual concern.

Specifically S. 51(1) of the Land Use Act 1979 highlighted those projects that can fall into the category of public purpose and they include: the building of public schools, construction of roads and bridges, laying of pipelines, construction of mines, etc.

It’s pertinent to note that, the element of public interest that justifies compulsory acquisition. So where the purpose for the acquisition of property was primarily to benefit an individual, private firm or private company such would violate the constitutional safeguard.  In Ereku v the military Governor of mid-western state the military governor acquired land for and on behalf of a Brazilian firm for the purpose of building an industry in the state. In an action brought by the lawful owner of the land determine whether the purpose was in fact a public purpose. The court held that it was not.      

     To the contention of the government that the industry will offer employment to the people of the state, the court held that the fact some incidental advantages like employment of indigenes will be guaranteed is not a solid reason for the governor to claim that the purpose was public.

COMPENSATION

Compensation is an integral part of the process of compulsory acquisition of land in Nigeria. Its importance cannot be overemphasized as a failure to compensate the occupier renders the acquisition a nullity. Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provided that no individual land should be acquired without compensation. It should as well be noticed that payment of compensation for lands acquired should be prompt and not delayed unnecessarily.

The Court in National University Commission v Oluwo stated that the rights of an individual to acquire properties anywhere in Nigeria is enshrined in the constitution and it carries with it the right to dispose of such properties, thus, any individual whose land was acquired  by the government compulsorily is entitled to prompt payment of reasonable compensation.

In Goldmark (Nig.) Ltd v Ibafon Co. Ltd, the Court held that there is no doubt the government has the power and authority to acquire land compulsorily for public use, however, such power is exercisable in accordance with the proper procedure for acquisition, that is, proper notice must be given to the owner of the land and reasonable compensation must be paid.

CONCLUSION

In summary, ownership of land is the right of every citizen in Nigeria, the right to acquire as well as the right to dispose of is enshrined in the constitution and legislation. However, this right to acquire and hold land is subject to the power given to the governor of each state by the Land Use Act as well as the right given under the constitution, therefore, the government can only acquire individuals’ lands compulsorily upon the payment of compensations. Where any individual find the acquisition of his/her land to be unlawful, such an individual can successfully challenge the acquisition in the court of law.