ANOTHER important derogation from fundamental human rights is Section 44 of the Constitution of the Federal Republic of Nigeria, as amended. The section provides thus, “no moveable property or any interest in any immoveable property shall be taken possession of compulsorily and no right over or any 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; requires the prompt payment of compensation, therefore, and gives to any person claiming such compensation and right of access for the determination of his interest in the property and the amount of compensation in a court of law or tribunal or body having jurisdiction in that part of Nigeria.

A look at the above provision will show that while the provision prohibits compulsory taking over of the property of anybody anywhere in the country, in general terms, the same section derogates from its provisions by allowing the compulsory taking over persons’ property subject to the conditions listed in Section 44 (1) (a) and (b) above.

One area issues usually arise from is the compulsory acquisition of land. See Sections 28 and 29 of the Land Use Act (LUA), which derive their validity from the above quoted Section 44 of the Constitution on derogation.

It should be noted that the quoted Section 44 of the Constitution highlights certain requirements and conditions that a law that takes over forcefully the property of a person, should meet. The section of the Constitution stipulates that a law that will authorise the taking over of private property should state the manner and the purpose of taking over.

The law should also state how to compensate the property owner and give access to court in case the person is not satisfied with the quantum of compensation or even the failure to pay it at all.

Here, we will subject Sections 28 and 29 of the LUA, which are typical examples of laws that sanction the acquisition of private property to the requirement of Section 44 of the Constitution quoted above to assess whether and to what extent the two sections meet the standard set by the Constitution.

Let us look at the wordings of the relevant parts of the sections verbatim. Section 28 provides as follows:

28 (1) it shall be lawful for the governor to revoke a right of occupancy for overriding public interest 29 (2) overriding public interest in the case of a statutory right of occupancy means:

• The alienation by the occupier by assignment, mortgage, transfer or possession, sublease or otherwise of any right of occupancy or part thereof contrary to the provision of this Act or any regulation made thereunder;

• The requirement of the land by the government of the state or by a local government in 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 mining purpose or oil pipelines or for any purpose connected therewith;

• 28 (4) the governor shall revoke the right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the government for public purpose;

• 28 (5) the governor may revoke a statutory right of occupancy on the ground of:

A breach of any of the provisions, which a certificate of occupancy is by section 10 of this Act deemed to contain.

A breach of any term contained in the certificate of occupancy or any special contract made under section 8 of this Act;

A refusal or neglect to pay for any certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection 3 of section 9 of this Act;

28 (6) The revocation of a right occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the governor or notice thereof shall be given to the holder.

It should be noted that Section 8 quoted above focuses on the purpose and manner of revocation. The section says that the only reason for revocation is overriding public interest. What constitutes overriding public interest has also been defined under sub-section 2 – 5 as quoted above.

The nature of overriding public interest defined above can be classified into two. One, requirement of the land by local, state or federal government for public purposes, be it for mining, laying of oil pipelines, construction of roads or for purpose of any infrastructure. Refer to section 28 (2) (b), (c) and 28 (4) above.

The second class of overriding public interest is penal in nature. This is where revocation for overriding public interest is as a result of the breach of the law by the holder of the right of occupancy. Refer to section 28 (2) (a) and 28 (5) above.

Extrinsically, the above provision conforms to the requirement of the 1999 Constitution as amended, from which it derives its validity. However, two issues of concern usually arise from the implementation of the law. First, what kind of public purpose may sustain a revocation under section 28 (2) and 28 (4) above? For instance, can a revocation of a large parcel of land belonging to an investor who legally purchased the land with a view to selling same subsequently at a profit only for government to thereafter allot the same land to other individuals. This was the subject matter of the pronouncement of the court in Lawson v Ajibulu (1997) 6 WLR pt 507 at p.14, where the Supreme Court held that revocation of right of occupancy for public purpose include a situation where the acquired land is transferred or leased to a private developer in furtherance of public purpose.

Another issue is what happens to the land if subsequently, the land, after being acquired is not put to use.  In other words, if there is a failure of the purpose for which the right of occupancy is revoked, will the land revert to the holder from whom it was revoked or will the government retain it thereafter?

This similarly was the issue in Ajao v Sole Administrator of Ibadan city Council (1971), NMLR 74, the defendant acquired the land of the plaintiff for the provision of pipe-born water for a public hospital. Later, the property was abandoned and plaintiff resumed possession of the land. The defendant Council fenced the land to frustrate the possession of the plaintiff. The plaintiff was granted an order of declaration of title to the land. The court reason thus, “it is the law that the reversion to the original owner of the land required by a native authority for a public purpose and which public purpose has failed, takes place by operation of the law. In other words, once the subject of acquisition has failed, no conveyance or any other assurances is needed to vest the property formerly acquired in the original owner”.

We are not aware of any more recent decision on this point. So, the position as stated in the case above remains the law. However, the decision has been severely criticized. The gravamen of the criticism is that the law allows double compensation to the holder since he is expected to have been adequately compensated at the point of revocation.

A middle course is probably preferable in suggesting that the government should retain such land if the government is able to show evidence of adequate compensation to the holder at the point of revocation on the other hand, the land should revert to the holder in the absence of such evidence of adequate compensation.

Incidentally, the question of compensation stated in Section 29 of the LUA is the focus of our next edition.

Finally, in our view, adequate attention has been paid to the question of the manner of revocation, by the combined provision of Section 28 (6) above, with its requirement of notice of revocation to the holder and the decision of the court which also requires proper service of the notice and that the notice should state the reason for the revocation.