CONTRIBUTOR: OLUGBADE JOHNSON ABIOLA
It is a constitutional right for every citizen in Nigeria to acquire and own a Land in Nigerian upon following the due process to acquire same.
Notwithstanding the aforestated, there are instances where the government could compulsorily acquire a parcel of land that had been initially allocated to a person.
It is therefore the intention of this article, to examine ways of proving ownership to Land, the legality of the government to compulsorily acquire someone’s land vis-à-vis the condition precedent to such compulsory acquisition and whether the original owner of the Land is entitled to compensation as of right from the government.
RIGHT TO AQUIRE AND OWN LAND
It is an inalienable fundamental human right of all persons above 21 years old to acquire and own land in any part of Nigeria pursuant to the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Land Use Act, 1978. The Court of Appeal in UKAOBASI V. EZIMORA &ORS[1] held thus; “Now for the purposes of the present matter which borders on an alleged violation of the proprietary rights of the applicant Section 43 of the 1999 Constitutions of the Federal Republic of Nigeria (as amended) is germane. It provides, inter alia: Right to acquire and own immovable property. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.”
Section 43[2] provides also; “Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria”
Similarly, the Land Used Act 1978[3] provide thus; “It shall not be lawful for the Governor to grant a statutory right of occupancy or consent to the assignment or subletting of a statutory right of occupancy to a person under the age of twenty-one years; Provided that –
- Where a guardian or trustee for a person under the age of 21 has been duly appointed for such purpose, the Governor may grant or consent to the assignment or subletting of a statutory right of occupancy to such guardian or trustee on behalf of such person under age;
- a person under the age of twenty-one years upon whom a statutory right of occupancy devolves on the death of the holder shall have the same liabilities and obligations under and in respect of his right of occupancy as if he were of full age notwithstanding the fact that no guardian or trustee has been appointed for him.
The above provisions imply that it is a constitutional right for a person to own and acquire land in Nigeria upon attaining the age of 21 years, or, alternatively, having a guardian or trustee duly appointed for the purpose of holding the land in trust for that person under the age of 21 years.Ways OF PROOF OF OWNERSHIP OF LAND IN NIGERIA
A claim to ownership of land in Nigeria may be established in any of the five main ways laid down by the Supreme Court in the celebrated case of IDUNDUN & ORS V. OKUMAGBA & ORS [4]as follows:
- By traditional evidence in the form of traditional history.
- By production of documents of title
- By proving act of ownership and possession over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.
- By proving acts of long possession and enjoyment of land; and
- By proof of possession of connected and adjacent land, in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
Nevertheless, it should be noted that the five ways of proving title are not mutually connected. The application of this principle can be seen in the case of BARTHOLOMEW V. ISAAC IGBOASOIYI[5] where the court held that one can establish ownership by any of the five means and need not prove all. However, one can also decide to prove one’s title using more than one of the ways stipulated.
LEGAL EFFECT OF COMPULSORY ACQUISITON OF LAND BY THE GOVERNMENT
By virtue of Section 44(1)[6], it is provided: “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 among other things”
Therefore,as regards to the pursuant to Section 28(1)[7], It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
According to Black’s Law Dictionary[8] Public interest simply implies;
- The general welfare of a populace considered as warranting recognition and protection.
- Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation.
Moreso, the Court of Appeal in the recent case of LAFARGE CEMENT WAPCO (NIG) PLC V. OLADIPO & ORS[9] held thus “The Governor of the State has the power to revoke the customary rights of any person in any land within the state and allocate same for a public purpose. See Section 28(1)[10], which provides thus: “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.”
CONDITION PRECEDENT TO COMPUSORILY ACQUISITON OF LAND
The Court of Appeal in OHANU & ANOR V. NWACHUKWU & ANOR[11] laid down some considerations that must be fulfilled before there can be legal compulsory acquisition of land. They include;
- Whether the title holder was served with a notice of revocation of his right of occupancy?
- Whether the public purpose or overriding public interest for such revocation was spelt out in the notice thereof?
- Whether acquiring authority revoke the holder’s title in the land, and thereupon, reallocated same to a private individual or private entity?
- Whether the revocation signified under the hand of a public officer was duly authorized in that behalf by the Governor?
- Whether the title holder was heard on the proposed revocation of its title?
Therefore, the original owners or persons deemed to be valid occupiers of the land as part of principle of fair hearing must be duly notified of the decision of the Governor to compulsorily acquire their land, and such notification spelling out the purpose of the revocation.
WHETHER THE ORIGINAL OWNER OF THE LAND IS ENTITLED TO COMPENSATION AS OF RIGHT FROM THE GOVERNMENT.
It is a trite law, that for a valid acquisition of land by government from original owners or persons deemed to be valid occupiers, there must be payment of due compensation to the land owners/holders.
Section 29(1)[12] provides; “If a right of occupancy is revoked for the cause set out in paragraph (b) of Subsection (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 revocation of their unexhausted improvements”
Very recently, the Supreme Court in OLATEJU V. COMMISSIONER FOR LANDS & HOUSING, KWARA STATE & ORS[13] held that evidence of prompt payment of compensation to the owners of the land, by the acquiring authority is a sine qua non for a valid compulsory acquisition of land.
The implication of the above Statutory cum Judicial Authorities is to the effect that original owners of the Land or persons deemed to be valid occupiers of the Land are as of right entitled to compensation from the government upon compulsorily acquisition of their land in accordance with the law.
CONCLUSION
The right to own or acquire property and the peaceful enjoyment of same is a right guaranteed by the constitution and therefore very sacrosanct.
Nevertheless, the Governor reserves the right to revoke and compulsorily acquire a parcel of land from the Original Owner/ Occupier only on the overriding public interest, and where he does so, he is obligated to adequately compensate the Original Owner/ Occupier.
KEYWORDS
Revocation, Acquisition, Compensation, Compulsory
SNIPPET
It is an inalienable fundamental human right of all persons above 21 years old to acquire and own land in any part of Nigeria pursuant to the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Land Use Act, 1978.
