Government Acquisition of Land Under the Land Use Act 1978: Compulsory or Confiscatory?

Full text

THE JOURNAL OF COMMERCIAL PRIVATE
AND
PRO PERrY
LAW
VOL. 32000.
GOVERNMENT
ACQUISITION
OF
LAND
UNDER
THE
LAND
USE
ACT
1978:
COMPULSORY
OR
CONFISCATORY?
*
INTRODUCTION
In
fact Irikefe Jsc(as he then was) caught the import
of
the Act in
Nkw cha v Governor ,of Anarnbra
Statez
when he described the Act
as
"the most
impa~tful
of
all
legislations touching upon the land tenurial system
of
this
country before and after full-nationhood." .
·
fc
f s 1
of
the Land Use Act has been vanously
The
expropnatory e 1ect o · . . A h
acclaimed
or
disclaimed by juristic and judicial authorltles.
That
the ct
a~
adJ'usted the customary land tenure system
is
without doubt,
but
the extent o
· . . d d h that one
of
the enormous
adjustment
is
the question.
It
IS conce e owev:r, . . revoke
. . lded bv the Governors over land in Nlgena IS the power to .
powers
w1e
1 · 1
nd
It
1
s now
certificates and rights
of
occupancy that
is,
powe.r.
~o
acqwre a . I
intended to discuss briefly the nature
of
this acqwsmon by the government. s
it confiscatory or compulsory?
1.
Land Rights
In
Nigeria Before 1978 and
The
Effect 0 f
The
Land Use
Act Prior to the enactment
of
the Land Use Act in 1978, Nigeria had
th~
customary land tenure system which recognized the concept
of
pnvate
a~
al
h·p
of
land As observed by Viscount Haldene
111
Amo u
commun owners 1 · dh !din
Ti'aniv Secretary Southern Nigeria3. where he describedcommu_nal,lan o
gas
o~e
of
the features
of
pre- 1978 land tenure system in Nlgena, land
~elonged
.
vill
th
family
,
It
is
trite that certam commurunes also
to the commuruty, age
or
e . . . . . . u f th
reco . se individual ownership
of
land .
The
Head chief
or
n er o e
corr!:unity was regarded
as
the 'owner' and
ha~
power to manage and control
the communal land
on
behalf
of
the community.
*MRS
GRACE AKOLOKWU,
B.
Sc., LLB.
C
201
Vol
Xl
L~ws
of
the Federation
of
Nigeria, 1990
1.
ap.
, .
2.
(1984)6 S.C 362 at 363
3.
(1921)2
A.C
399
MRS
GRACE AxOLOICWtl
· But, where the land has been partitioned among family members in the case
of
family land, an individual had the right to transfer his interest
to
another. As
Tobi,
N.4 recognized in his work, vast lands within the states before the inception
of
the Land
Us~
Act, were vested in individuals, families and communities
as
absolute owners and they in
turn
could give
out
portions
on
specified conditions.
Since the coming into effect
of
the Land Use Act there has been series
of
debates
in
juristic and judicial circles as
to
the real effect
of
the
Act
on
existing
land rights. Some contend that
all
or
most
of
the existing land rights have been
swept
away,
transferring absolute ownership
of
all
lands to the State Governors.
Others however, contend that the above assertion is
not
the intendment
of
the
Act. Eso,
Q.S.C)
in Nk-wocha v Governor
of
Anambra State5 express the opinion
that "the tenor
of
the Act .. .
is
the nationalization
of
all
lands in the country
l:iy
vesting
its ownership
in
the state leaving the private individual with an interest in land which
is
a mere right
of
occupancy''.
It
would thus appear that the revolutionary effect ofS. 1
of
the Act
is
such that ownership
of
all
lands in the state
is
automatically transferred to the
governor
of
the state and erstwhile owners
of
the land have lost their interest.
On
the other
hand
however,
other
commentators contend that
S.1
of
the Act
should
not
be read to mean that absolute ownership
is
now
vested in the governor
since that
will
make S.28
of
the same statute which gives the
Governor
the power
of
revocation , unnecessary he is already the owner
of
all
lands, there should be nothing to
revoke. There
is
thus an implicit recognition in this section that real ownership resides
elsewhere and
what
the governor has is a bare trust. Despite the argument for and
against the effect
of
the. provision ofS.1
of
the Act, section 28
of
the same
Act
gives the
governor the power to revoke certificates and rights
of
occupancy which means that the
owner
of
such a right is forced to part with his land whether
he
likes it
or
not.
The
nature
of
this acquisition
as
provided in the Act is the issue addressed by this paper.
1.
Compulsory Acquisition
Of
Land-
Nature, Rationale And
General Authority For Acquisition.
Private ownership ofland by its very nature recognises the freedom
of
the owner
to alienate
or
refuse to alienate his property.
In
certain circumstances however this right
or
freedom
of
the "owner" may be scuttled by
law.
As Lord
Donovan
puts it in
Birmingham corporation V West Midland Baptist
Trust
incorporated6,
"in
any devel-
oping Community there
must
be power to take land from private owners for public
Niki,
Tobi : Cases and Materials on Nigerian L·md
L~w
(1992)
Supra : see note 2
(1969)
3 A.E.R
172.

GovERNMENT
AcoosmoN
OF
LAHo
UNDER
THE
lAND
Use
Ar:r
1978:
COMPULSORY
OR
COHRSCATORY?
purposes, and in a society where private ownership
of
land
is
permitted, justice
requires that compensation should be paid for such taking". According to Omosu,J.
C.
A.
in Nwanganga V Mmtatr.y
Governor
of
Imo
State State7, there must be need to
compulsorily acquire land
as
private rights must give way to public interest
if
society
must develop.
As
Oluyede8 puts it, a private owner
of
land has the right to
use
his land
but
"that right should orJy be protected to the extent that it does
not
prevent development
which
will
benefit the whole
or
part
of
the community. Therefore, where the commu-
nity requires land for modern facilities which it considers essential, it should have the
right to compulsorily acquire such a plot provided the occupiers are adequately compen-
sated for their improvements and are given substitutes where necessary .
The
use
of
compulsory powers
is
commonly reserved for cases where negotia-
tion for purchase
has
failed
or in cases where land required for a major social amenity
like
a railway line or road
is
owned
by
different people and failure to acquire just one interest
may defeat the entire project .
It
is
essential that the body acquiring a private interest
must possess the power
to
do
so.
And this
is
not
an assumed power,
as
it must be
conferred
on
it
by
legislation. The rationale for compulsory acquisition
of
land accord-
ing to Omosu, J.C.A
is
to aid societal development
as
private rights must give
way
to public interest. Private interests should
not
always stand in the
way
of
public
improvements hence the need to compulsorily acquire land
by
government9 This
acquisition must however recognise the fact that works for common profit must
not
mean loss to the owner
of
the property. This fact therefore, recognizes the need for
adequate compensation
of
the owner whose land
is
compulsorily acquired.
The nature
of
compulsory acquisition
ofland
is
that various owners' rights in
land are transferred compulsorily, either
by
redistribution
or
expropriation, the com-
pulsion being sanctioned by statute.
The
acquiring body
will
also be required in
all
cases
to justify its need for the land and to demonstrate why that need should outweigh the
claim
of
the owner
of
the land to use it.
On
the general authority for compulsory acquisition in Nigeria, the first basic law
which had a universal applic;-.tion in the Federation was the
PUBUC
LANDS ACQUI-
SITION ACT Cap 167, 1958with identical provisions
in
the Public Lands Acquisition
Laws
of
each region. Section 3(1)
of
this Statute provides that the acquisition must be
for a public purposes such
as
1. For exclusive government use
or
for general public use
2.
For
or
in connection with sanitary improvement
of
any land, including recla
mations
7.
8 (Unreported) Appeal
No.
Ct\/E/
15/88
of
I
0/7/89.
.O
luyede
,P.
A : Modern Nigeria Land
Law
(1989).
MRs
GRACE
AKOLOKWU
3.
For
or
in connection with the layout
of
any new township
or
government
station
or
the extension
or
improvement
of
any existing township
or
gov
ernment station
4.
For
obtaining
contr
ol over land contiguous to any
port
5.
For
obtaining
contr
ol over land the value
of
which will been
hanced
by
the construction
of
any
railway,
road
or
other public work
or
convenience about to
be
undertaken
or
provided by the government.
6.
For
obtaining control over land required for
or
in connection with ,
mining purposes;
7.
For
obtaining control over land required for
or
in connexion with planned
rural development
or
settlement
8.
For
or in connexion with housing estate, economic, industrial, agricultural
development and for obtaining coni:rol over land required for
or
in connexion
with such purposes.
Secondly, there was also the
Pttblic
Lands Acquisition
(Miscella11eous
Provisiot~s)
Act
1976 which extended the purposes for compulsory acquisition to include educational
and social purposes.
The
law governing interests in land in Nigeria today
is
the Land
Use Act of1978 which makes provisions for compulsory acquisition
ofland
by vesting
the governors with power to revoke rights
of
occupancy.
S.
28
(1)
Land Use Act 1978,
provides that "it shall be lawful for the
Governor
to revoke a right
of
occupancy for
overriding public interest" And
S.
28 (2)(3) goes ahead to explain what the phrase
"overriding public interest" in the cases
of
statutory
or
customary right
of
occupancy
means. According to
S.
28
(2)
which deals with statutory right
of
occupancy, the Gov-
ernor has the right to revoke for some reasons including:
1)
Any alienation which
is
contrary
to
the provisions
of
the Act
(2)
For
requirement
of
the land by the government
of
the state
or
by a local
government for public purposes within the state
or
requirement
of
land by
the federal government for public purposes
of
the federation
~3)
For
the requirement
of
land for mining
or
oil pipelines purposes
...
S.
29
(1)
Land Use Act, provides that compensation shall be payable on-revocation
of
right
of
occupancy
by
the Government
S.51
(1)
defines public purposes
as
provided in
S.
28
(1)
to include
(a)
for exclusive Government use
or
for general public use;
(b) for use
by
any body corporate directly established
by
law
or
by any body
corporate registered under
tl1e
Companies and Allied Matters Act.
(
c)
for or in connection with sanitary inlprovements
of
any kind;
(d) for obtaining control over land continuous to any part or over land the value
of
which
will
be enhanced
by
the construction
of
any
railway,
road
or
other
public work or convenience about to be undertaken
or
provided
by
the

GoVERNMENT
AcOU1SmON
OF
lAND
UNDER
THE
lAND
Use
Acr
1978:
Cci.IPUL.SCL:
.: 1
Cc:nc;.;c~Y
;
(e)
(f)
(g)
(h)
(i)
Government
for obtaining control over land required for
or
in
mnnection
with
development
of
telecommunications
or
provisiof
of
ele~tricit~
for obtaining control over land required for
or
inconnectJon
w1th
mining purposes;
for obtaining control over land required for
or
in connection with planned
urban
or
rural development
or
settlement;
for obtaining control over land required for
or
in connection with economic,
industrial
or
agricultural development;
for educational and other social services;
GOVERNMENT'S
POWER 1lO ACQUIRE
LAND.
IS
IT
COMPULSORY
OR
CONFISCATORY?
The
process
of
acquiring land by the government from individual land owners
or
communities should be compulsory as provided by
law'
but
not
confiscatory as the
land owners rights to their lands are converted into rights to
clai~
compensation .for
their loss10• Compulsory acquisition
ofland
by the government by
Its
very connotatJon
recognizes private ownership
ofland
and when viewed against the background ofS.1
Land Use Act 1978 which vests all lands in the state
or
the governor
of
the state, the
question, whether the Land really expropriates remains unanswered.
The
requirement
of
payment
of
adequate compensation at current market value to the owner
of
the
acquired property makes any acquisition compulsory rather than confiscatory
as
the
latter does
not
suggest any form
of
remediation.
In
Kodilinye v Anatogu
11
,
It
was
decided that where government acquires land , persons in occupation
of
land either
with the consent
or
acquiesance
of
the owners have acquired some rights in the land
and should be paid compensation money arising from the land to the extent
of
their
interests.
The
case
of
L. E.
D.
B.
y;
Williams
12 emphasized that it
is
the duty
of
the court
to base assessment
of
compensation
on
an estimate
of
the fair market value
of
the
land acquired.
The
Act provides that government's acquisition
of
land should.be
f~r
overriding public interests
or
purposes following laid down procedures
as
pro:1d~d
m
S28
(6)
Land Use Act to wit, "revocation
of
a right
of
occupancy shall be
s1grufi.ed
under land
of
a public officer duly authorised in that behalf
by
the Governor and notJce
thereof shall be given to the holder".
9.
10.
11.
12.
Supra :see note 7
Burn , E. H : Cheshire's Modern Law
Of
Real
Property
(1935) 1
WL.R
231
(1963) 2 All
N.
L.
R 267
MRs
GRACE
AKowKWU
According
to
S.28(7), the title
of
the holder
of
a right
of
occupancy shall be
extinguished
on
receipt
by
him
of
a notice
under
S.
28(6)
or
in a later date as stated.
It
is
thus,
when
the appropriate steps as provided by
the
law are
not
followed that the
acquisition of private lands
by
the government become confiscatory rather than com-
pulsor
y.
In
Obikoya and Sons V
Governor
of
Lagos State
13
, land belonging to the plain-
tiff
was
said to be part
of
a larger parcel
ofland
acquired by the government
by
virtue
of
a Notice
of
a Acquisition although the notice was ne
ve
r served
on
any
of
the officers
of
the plaintiff.
The
plaintiff's claim that the Notice
of
acquisition
was
a nullity was
rejected by the trial court.
On
appeal, the court, unanimously allowing the appeal held
amongst others that
(1)
if
a statute encroaches
on
private rights, the courts
must
insist
on
strict and rigid adherence
to
the formalities laid
down
by the statute
(2)
Non-
compliance with the procedure laid down
by
the enabling statute for
tl1e
compulsory
acquisition
of
a person's property renders sucll acquisition invalid.
Under the Land Use Act the reason for revoking a persons right
of
occupancy
must be stated in ilie Notice
of
Revocation. \'\!hen this
is
not
done as in ilie Obikoya's
case, the acquisition becomes confiscatory.
In
the case
of
Nkwocha
v.
Governor
of
Anambra
State
14
, dealing with ilie
public purpose requirement under S 28 (2)b
of
the Land Use Act 1978, the plaintiff's
counsel contended iliat ilie compulsory taking
of
the dwelling house
of
a private
citizen by any Nigerian government so that a Minister
or
Commissioner
ma
y use it for
his own private residence
is
not a public purpose.
The
court however held that ilie
revocation
of
the plaintiff's right
of
occupancy
was
valid.
The
court held further that
providing suitable quarters for ministers/ commissioners
of
ilie state
is
an overriding
public purpose such
as
is
contemplated under the Land Use Decree. According to the
court, evidence
of
bad faiili becomes irrelevant so long as ilie revocation followed the
provisions
of
the Act.
The
question is,
how
do
we really determine what
is
for public
purpose
or
not
and can a litigant successfully challenge a confiscatory acquisition
or
revocation he perceives
not
to be in public interest?
There are plethora
of
cases dealing with
government
acquisition
of
land
which are supposedly
not
for public interest.
In
Chief
Commissioner Eastern
Provinces V S .N Onoye
15
, a compulsory acquisition was successfully challenged
on
the ground that it was
not
for a public purpose.
It
was argued that the piece
of
land acquired for public purposes by the
government according to ilieir notice could hardly be for public interest
if
in fact
the sole reason
is
to grant it to a firm which will improve it for its own
13.
14.
15.
(1987) 1 NWLR
(PTSO)
385
Supra : see note 2
(1944)
17
N.L.R
142

GovERNMENT
AcautsmoN
OF
LAND
UNDER
THE
l.ANo
Use
Acr
1978:
CoMPULSORY
OR CoNASCATORY?
commercial benetit.
In
the Onoye's case , the govern
ment
acquired land and made
it available
to
a private company to build houses.
The
argument by the
defendant's counsel that the housing scheme was
part
of
the government
programme was rejected by the court
as
the government was
not
the agent
of
the private company.
In
Chief Adeyemi Lawson V Chief Ayodele Ajibulu
16
, the first respondent
who was the plaintiff at the court
of
first instance ,bought a parcel
of
land
on
which he affixed a signboard bearing his names
as
the owner. This land was later
acquired by the Ogun State government for
d1e
purpose
of
developing same into
housing estates, industrial and economic estates for the general development
of
the
state.
The
government later however released land to the appellant for develop-
ment.
The
trial court found for the respondent/plaintiff and dismissed
d1e
acquisition
as
invalid for non compliance with the provision
of
S.2 paragraphs
(f-
h)
of
the Public Lands Acquisiti
on
Law Cap. 105 Laws
of
Western State
of
Nigeria.
The
defendant/appellant appealed against the decision .but lost.
On
further appeal to the supreme court , the apex court held that the
provisions
of
the enabling law allowed the government to acquire land required
for the purpose stated therein,
but
the carrying
out
of
such purposes need
not
be
by the government itself.
It
would thus appear from this case that the issue
of
acquisition for public purposes has somewhat changed to accommodate private
purposes linked to the government . This would appear
to
be more confiscatory
than compulsory
as
provided by
d1e
Land Use Act.
Ogundare
J.S
.C , however distinguished
d1is
case from
Ereku
v:
The
Governor
of
Mid-Western State
17
in which he described the compulsory acquisi-
tion by the government
as
the " naked exercise
of
power".
The
exercise
of
acquisition in the Ereku's case was "arbitrary and contrary to the law
as
it was"
(per Belgore J.S.C)'s
The
court
therefore declared the acqutsttlon by the government a nullity
since it was at variance with the provisions
of
the law .
CONCLUSION:
The
power to compulsorily acquire private lands by
d1e
government for the
public good
is
recognised and provided for by the Land Use Act
of
1978.
The
16.
(1997) 6
NWL.R
(pt
507)
14
17.
( 1
974)
10
sc
59
18.
Supra : see note 16
l,
Mas
GRACE
AxOLOQU
•
auth~rity
t~
d_o
so
however ,according
to
the
tenor
of
S.28
of
the
Act
is
to
be
exercts_ed wtthm
~e
_ambit
of
the enabling statute which requires such acquisitions
to
~e
m the pubuc
mtere~t
that
is,
for the general
good
of
all
and sundry in the
society,
n~~
~or
the
good
of
the privileged few vith access to government.
Thus,
any acqutsltlon
made
for
other
r asons
not
provided for in the
Act
bard
fi
· f . , er
on
con tscatlon o
pnvate
lands which
is
out
of
the
contemp
lation
of
the Land Use
Act.
.
Co~pulsory
acqw~ttlo~
must
also
go
with adequate compensation as
provided m ilie Act.
The
Situation where land
is
acquired by government and on! .
a paltr 1 -h · ' y
Y sum w
11<.
.
lS
not
oased
on
proper
assessment
is
paid
to
the land
owner
should be frowned
at
by the
cour
ts
since the
a;~
of
. · · th
. • • . • '
uu
exerctsmg e
power
to
acqwre. compulsorily
1s
to :ud societal
development
and
not
to use state
power
~o
~epnve
persons
of
theJr lands.
The
courts are enjoined
as
d1e custodians
of
JUStice
to co_urageously declare any acquisition
not
made in ilie interest
of
the
public and _m conformity wiili ilie requirements
of
the
law,
ultra vires and
ilierefore
v01d.