The legality of government restrictive compensation under the Land Use Act – By Udenna Chukwulobe
The right to property is central to human existence and it is a fundamental pillar of all democratic societies. The rights of every citizen of Nigeria to own movable or immovable property in any part of the country is guaranteed under section 43 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended). Prior to the promulgation of the Land Use Act (LUA), there was trenchant public concern over the astronomically high cost of land in Nigeria. This posed tremendous difficulties not only to individuals but also to governments in need of land for sundry development purposes. Land ownership was relatively concentrated in the hands of few influential persons in the society who most often than not refuse to release these lands to the government for the purposes of providing infrastructural development that will benefit the public at large. Even when it is released to the government, it is released at a cost far above its market value. The gap between the rich and the poor continued to widen as land ownership is kept outside the reach of poor Nigerians.
To resolve these lingering issues, the Land Use Act was promulgated on the 29th of March 1978 as Decree No. 6 of 1978. According to its preamble, the Land Use Act was enacted to assert and preserve the rights of all Nigerians to the land of Nigeria, to assure, protect and preserve the rights of all Nigerians, to the use and enjoyment of the land and the natural fruits thereof in sufficient quantity, and to enable them to provide for the sustenance of themselves and their families.
With the promulgation of the Land Use Act, absolute ownership of land is no longer permissible since by virtue to section 1 of the Act, all lands comprised in the territory of each state of the federation were vested in the Governor of the State and such lands are held in trust and administered for the common benefits of all Nigeria.
As a corollary to the ownership rights vested in the Governor, private rights were limited to a mere possessory right referred to as the “Right of Occupancy” usually granted for an ascertainable period. An inherent component of the Vesting Right and Right of Occupancy introduced under the Land Use Act, is the power of eminent domain (otherwise known as Power of Revocation, Compulsory Acquisition, Compulsory Purchase), which is the power the Governor of to “Revoke” Rights of Occupancy issued to private persons/companies for overriding public interest, however subject to the prompt payment of compensation.
The Constitution and the Land Use Act both mandates the prompt payment of compensation to person(s) whose right of occupancy was forcefully taken away for overriding public interest. The philosophical basis for the requirement of prompt payment of compensation is that the responsibility of satisfying public interest cannot be shouldered by one man. However, the Land Use Act limits payments of compensation to unexhausted improvements on the land only. In other words, owners of bare lands are not entitled to compensation. It is the opinion of this Writer that the provisions of the Land Use Act which limits the payment of compensation to improvements on lands only, is repugnant to natural justice, equity and good conscience and above all, unconstitutional.
Compensation regime under the Constitution
The rights of every Nigerians to own and acquire immovable properties in any part of Nigeria, is guaranteed by section 43 of the Constitution. The same Constitution also recognized the powers of the Governor of a State to acquire and/or revoke private rights in land for overriding public interest but however subject to prompt payment of compensation. The Government’s powers to acquire lands compulsorily stems from section 1 of the Land Use Act, 1978 which vests all lands in the Governor as Head Lessor. Thus, the Governor may in the overriding public interest acquire private land subject to the enabling statute and failure of which the acquisition will be rendered void. The purpose of the government to compulsorily acquire lands is mainly to ensure that land is readily available when needed for essential infrastructure. Despite being a necessary governmental tools, the issue of compulsory acquisition has proved to be a source of worry and conflict in Nigeria between the acquiring authorities and the dispossessed landowners. Cases of loss of lives and property occasioned by the exercise of expropriation power are on the rise across nooks and crannies of the country. Section 44 (1) provides as follows;
“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;
- Requires the prompt payment of compensation therefore;
- Give to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria”
Flowing from the above provision of the Constitution, the government is mandated to pay prompt compensation for any interest in and over land compulsorily acquired from private individuals. The Constitution specifically used the words “immovable properties” which is described in Black’s Law Dictionary, Osbourne Concise Law Dictionary and Nigerian Law Dictionary, to include; land and property attached thereto. Consequently, by the provisions of the Constitution, compensation is payable in respect of all immovable properties (bare or developed lands). The Constitution further gives individuals whose rights were compulsorily acquired, the right of access to court of law or tribunal for the determination of their interest in the property and the amount of compensation payable to them.
Compensation Regime under the Land Use Act
Section 28 of the Land Use Act empowers the Governor of State to revoke private rights over land for overriding public interest. By the provision of Section 28 (7), the title of the holder of a right of occupancy shall extinguished on receipt by him of a notice given under the hand of a public officer duly authorized in that behalf by the Governor or on such later date as may be stated in the notice. Section 29 subsection (1) and (4) provides that the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements; and compensation under subsection (1) of this section shall be, as assessed as follows – (1) 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. This provision only affects Occupiers of land and not the Holder of Right of Occupancy. Consequently, if the Occupier occupies the land rent free, he will not be entitled to compensation. (2) buildings, installation or improvement; for the amount of the replacement cost, less depreciation, together with interest at the bank rate for delayed payment of compensation; (3) crops on land, for an amount equal to the value as prescribed and determined by appropriate officer. Section 51 defined improvement or unexhausted improvements to mean anything of any quality permanently attached to the land, directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf, and increasing the productive capacity, the utility or the amenity thereof and includes buildings, plantations of long-lived crops or trees, fencing, a well, roads and irrigation or reclamation works, but does not include the result of ordinary cultivation other than growing produce.
The purport of the above provisions of the Act is that payment of compensation is restricted to improvements on the land and therefore does not extend to bare land. We submit that this negates the provisions of section 44 of the constitution which mandates the payment of compensation on all immovable properties (bare and developed lands) forcefully acquired by the Government.
For the determination of the quantum of compensation payable to persons whose rights were compulsorily acquired, section 2(2) of the Land Use Act, created an advisory body known as Land Use Allocation Committee charged with the responsibility of advising the Governor on any matter connected to management of land, resettlement of persons affected by the revocation and determining disputes as to the amount of compensation payable for improvement on land. By the provisions of section 47 of the Act, any decision reached by the Land Use Allocation Committee as to the quantum of compensation payable to an aggrieved person whose right of occupancy was compulsorily acquired, is final. In other words, the jurisdiction of the Court to enquire or interfere in any dispute relating to payment of compensation is ousted by the Act.
Again the provision of Section 47 of the Act violates the provision of Section 44 (1) (b) of the Constitution which gives any person claiming compensation the right to approach the Court for the determination of his interest in the property and the amount of compensation payable to him.
Supremacy of the Constitution over the Land Use Act
The Land Use Act have been described as the most controversial piece of legislation in the history of Nigerian Legislative activism. The Land Use Act has a special place in the heart of the Constitution having been specifically provided for in 315(5) of the Constitution. The wordings of section 315 (5) is clearly suggestive of the fact that the Land Use Act forms part of the Constitution and therefore ranks above other existing Acts of the National Assembly. The Land Use Act can only be amended in accordance with section 9(2) of the Constitution. In other word, the Land Use Act can only be amended through the same process of amending the Constitution. For ease of reference, Section 315 (5) of the Constitution provides as follows:
“Nothing in this Constitution shall invalidate the following enactments, that is to say;
- National Youth Service Corps Decree 1993;
- The Public Complaints Commission Act;
- The National Security Agencies Act;
- The Land Use Act,
And the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution”.
Some provisions of Land Use Act are however in conflict with the provisions of the constitution (some of which have been discussed above) and this is where the raging controversy as to the status of the Land Use Act terms from. That is to say, whether the Land Use Act is merely an existing Act of the National Assembly or an integral part of the Constitution as suggested by the express wordings of Section 315(5) of the Constitution. If the land Use Act is considered as an integral part of the Constitution, it will be an aberration to say that its provisions are in conflict with the provisions of the Constitution since the Constitution cannot be in conflict with itself. On the other hand, if the Land Use Act is considered as a mere existing Act of the National Assembly, then any provision of the Land Use Act that is in conflict with the provision of Constitution shall to the extent of the inconsistency be declared null and void by virtue of section 1 of the Constitution.
The above dispute as to the status of the Land Use Act was finally resolved by the Supreme Court in the celebrated case of Nkwocha v. Governor of Anambra State (1984) 6 S. C. 164, where the apex held that the Land Use Act is not an integral part of the Constitution but merely an ordinary statute that was made extraordinary by virtue of its entrenchment in the Constitution. The implication of this decision is that in the event of conflict between the provisions of the Constitution and the Land Use Act, the provisions of the Constitution will prevail.
Having established that the Land Use Act is merely an existing Act and not part of the Constitution, we humbly submit that the provisions of the Land Use Act which limits the payment of compensation for private properties compulsorily acquired by the Government to only unexhausted improvements on the land, is unconstitutional in that it violates the provisions of Sections 43 & 44 of the Constitution of the Federal Republic of Nigeria (as amend) which extends the right of compensation to all immovable properties, bare lands inclusive.
*Chukwulobe Udenna is a Senior Associate in Olisa Agbakoba Legal and a seasoned litigator who advises on commercial and general civil litigation matters both at the trial and appellate level.