Guardian

ONE of the conditions prescribed by the provision of Section 44 of the 1999 Constitution for the validity of law that seeks to compulsorily take over private property is that such a law should make provision for the prompt compensation to the owner of the property and that such a law should also provide for right of access to the court to contest the quantum of compensation, the delay of payment or even non-payment.

Section 29 of the Land Use Act (LUA) 1978, is made pursuant to the provision of the Constitution referred to above. The said Section 29 of the Land Use Act provides as follows: 29 (1) if a right of occupancy is revoked for the cause set out in paragraph (b) of a section set out in paragraph (2) of section 28 of this act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of the revocation of their unexhausted improvements.

S.29 (2) if a right of occupancy is revoked for the cause set out in paragraph (c) of subsection (2) of section 28 of this act or in paragraph (b) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation under the appropriate provision of the minerals act or the petroleum act or any legislation replacing the same.

S.29 (4) compensation under subsection (1) of this section shall be as respects:

(a) The land, for an amount equal to the rent, if any, paid by the occupier during the year in which the right of occupancy was revoked;

(b) Buildings, installations or improvement thereon, for the amount of replacement cost of the buildings, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation, together with interest at the bank rate for delayed payment of compensation and in respect of any improvement in the nature of reclamation works, being such cost thereof as may be substantiated by documentary evidence and proof of the satisfaction of the appropriate officer.

(c) Crops on land from any building, installation or improvement thereon, for an amount equal to the value as prescribed and determined by the appropriate officer.

The classic rationale for compensation is that, in fairness and justice, one individual should not be forced to bear the burden that ought properly to be borne by society as a whole. See Amokaye Oludayo, G, “The Land Use Act and governor’s power to revoke interest in land: A critique” of the Land Use Act twenty-five years after, I. O Smith, Ed. A publication of the Department of Private and Property Law, Faculty of Law, University of Lagos, chapter 11, p.246 at 263.

A cursory look at the above provision of section 24 of the LUA will reveal that the section is a betrayal of section 44 of the constitution under which it derives its validity.

This submission is borne out of the communal reading of subsections (1), (2) and (4) (a – c) of the section which make it clear that compensation is payable for unexhausted improvement on the land only. in other words, no compensation is payable for the bare land.

It is difficult to understand what informed the thinking of those who enacted the legislation, because anyhow one looks at it, the inevitable conclusion is that the provision is a fraudulent legislation because it tends to give the impression that it is only the improvement on the land that is of value, yet the same legislation makes rent payable annually to the government on the land by the holders of certificate of occupancy.

If one can excuse the blunder of those who made the legislation in 1978, the failure of the present lawmakers to amend the legislation to reflect the current trend and rectify the lapse is unpardonable. The fact that today, a bare plot of land is worth hundreds of millions of naira in choice areas in some parts of the country, is a testimony that the legislation is outdated and archaic.

Beyond this, even in cases where compensation is paid, the quantum is always a caricature of compensation. a learned commentator on the point remarked thus, “while the constitution required prompt compensation, the fairness and adequacy of it can only flow from the value of compensation itself”.

The Black’s Law Dictionary, 7th Edition, defines compensation as, “indemnification….making whole, giving equivalent or substitute of equal value that which is necessary to restore an injured party to his former position”.

It is the essence of compensation from the legal meaning ascribed to it that it has to be fair and adequate, for that is the main essence of ‘making whole, giving an equivalent or substitute or equal value or restoration of an injured party to his former position”.

Any compensation short of this is unconstitutional for being unfair or inadequate and may be so challenged in court notwithstanding the non-specific mention of the two qualifying adjectives by the constitution.

Arriving at a fair and adequate compensation requires a painstaking consideration of such factors like nature and length of use, injurious affection, general inconvenience, the possibility of acquiring property of similar size within comparable location at affordable cost etc.

These factors are so fundamental to the realisation of the constitutional right to compensation that failure to take cognizance of them may amount to a breach of the constitution. See sidelining orthodoxy in oneness for reality: towards an efficient legal regime of land tenure in Nigeria, an annual lecture delivered at the university of Lagos on Wednesday, 18th June, 2008, by Professor I.  Oluwole Smith.

Furthermore, Section 33 of the act, which recommends alternative accommodation instead of compensation to the holder of the right of occupancy, disregards the need to consult the holder of the right of occupancy as to his preference or choice of alternative accommodation.

Though the section makes some pretentions to being fair by providing that a valuation of the alternative accommodation should be done, the valuer, however, is a government appointee (a member of the land use and allocation committee).

A worrisome dimension to this issue in recent time is the insistence of the government that people whose landed property are required for development project should provide documents of title before they can be entitled to compensation.

Those who have evidence of payment of tenement rates are not even excluded. For instance, in Lagos, many houses have been enumerated and assessed for the payment of land use charge and the owners have been paying without being asked to produce evidence of title to the land. Will it not amount to double standard to require such persons to produce evidence or title before they could be entitled to compensation if the houses of such people are acquired? Most importantly, the requirement or document of title as a basis of compensation in case of acquisition seems to ignore the fact that some holders hold their interest by the operation of law under section 36 of the act (deemed grantees) and that category of holders are not obliged to subject themselves to such conditions or limitations in interest in certificate of occupancy.

In the light of all the foregoing, one will be putting it mildly by saying that the provisions of Section 29 of the Land Use Act dissect above do not conform with the spirit and letter of the constitution and the need for reform cannot be overemphasized.