Fundamental rights are rights derived from natural law, which are universal and inalienable. By Resolution 217A, the United Nations General Assembly on 10th December 1948 proclaimed the Universal Declaration of Human Rights (UDHR) setting out fundamental human rights to be universally protected. These rights include the right to life, liberty and security of person, the right to freedom of movement and residence, the right to own property alone as well as in association with others, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, etc. The UDHR has since gained worldwide recognition and acceptance, and has become the model or standard for regional treaties and constitutions of nations. The African Charter on Human and Peoples Rights, which was adopted in June, 1981 by the Organisation of African Unity (OAU), now the African Union (AU), and ratified by Nigeria on 17th March, 1983 refers to the UDHR in its Preamble.

Although there is no reference to the UDHR in the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the same incorporates the principles of the UDHR.1 Sections 43 and 44(1) thereof provide as follows:

"43. Subject to the provisions of this Constitution, every citizen of Nigeria shall

have the right to acquire and own immovable property anywhere in Nigeria. Compulsory acquisition of property.

44.(1) 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 that, among other things –

  1. requires the prompt payment of compensation therefor; and
  2. gives 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."

In the case of A-G Bendel State v. Aideyan2 where the apex court had to determine the purported acquisition of the Respondent's property by the Government of defunct Bendel State, Nnaemeka – Agu, JSC (as he then was) stated the position of the law on the rights to property as follows:

"In Nigeria, one's right to one's property was an entrenched constitutional right under Section 31 of the 1963 Constitution as indeed it is under Section 40 of the 1979 Constitution. That right is inviolate. In the ipsissimis verbis of the Constitution itself, such a property or any right attendant thereto can only be taken possession of or compulsorily acquired by or under the provisions of a law. Furthermore, such a law must provide for the payment of adequate compensation therefore to him and must give the owner the right of access to a High Court for the determination of his interest in the property and the amount of compensation due to him. It follows therefore that any purported acquisition which is not according to a law containing the above provisions is no acquisition at all in the eyes of the Constitution. I therefore agree with the learned Senior Advocate for the Respondent that there can be nothing like a de facto acquisition: any such purported acquisition outside, or not in complete compliance with, the provisions of a law with the above safeguards, is completely null and void. Any entry pursuant to such a void acquisition is trespass which will sound in damages. It would be an abuse of language to call an entry by a trespasser an acquisition." (emphasis supplied)

The Land Use Act, 1978 is the major legislation on lands in Nigeria3 as it is applicable throughout the federation. The Act vests in the Governor of each state of the federation all land comprised in the territory of each state, which land is held in trust by the Governor for all Nigerians.4 Under the Act, the Governor may grant the right of occupancy to any person,5 and a certificate of occupancy is issued as evidence of such grant.6 The right of occupancy under the Land Use Act is similar to leasehold interests7 as it entitles the holder to alienate, mortgage, etc, subject, however, to the consent of the Governor.8 The Act grants power to the Governor to revoke rights of occupancy for overriding public interest,9 and Act defines under sub – sections 2(a) – (c) & 3(a) – (d) thereof the set of circumstances that could be considered to be for overriding public interest. Thus, in the case of C.S.S. Bookshop Ltd v. Registered Trustees of Muslim Community in Rivers State & Ors.10, the Supreme Court of Nigeria per Mohammed, JSC held that any exercise of the power of revocation for purposes other than those provided for under Section 28 of the Act, or are not in compliance with the said section, should be regarded as being against the and intention of the Act and should be declared invalid, null and void by a competent court when it is approached with a complaint by an aggrieved party.

Apart from the Land Use Act, 1978 there are other expropriatory statutes in Nigeria under which governments acquire land held by citizens. One such statute is the Central Lagos Land (Acquisition) Law, 1975 under which the Lagos State Government acquired an area of approximately 4,682 hectares of land in Central Lagos.11

There has been a myriad of cases of violations of proprietary rights in Nigeria. The practice of courts in Nigeria has always been to apply the principle of fortissimo contra preferentes by construing strictly and sympathetically in favour of citizens the provisions of any statute which gives extraordinary powers to any public officer to acquire property. This principle of construction of statutes has been applied from time immemorial and has become universal. The Supreme Court of Nigeria in a plethora of decided cases has cited with approvals decisions of English courts wherein the principle was applied.

In Bello V. Diocesan Synod of Lagos & Ors.,12 Lagos Executive Development Board (L. E. D. B.) purported to compulsorily acquire a parcel of land at Nos. 1 – 3, Edwin Street, Lagos belonging to the Plaintiff by virtue of a notice dated 11th January 1967. The notice was alleged to have been posted on the property in dispute and served on the owners or occupiers which was denied by the Appellant. The Appellant as Plaintiff before the High Court of Lagos State claimed special and general damages and an injunction, contending that the purported acquisition was ultra vires, illegal, void and abuse of statutory powers by the L. E. D. B. The Learned Trial Chief Justice dismissed the Appellant's claims and he appealed to the Supreme Court. Coker, JSC (of blessed memory) held that "The present case exemplified the position where a statutory body in abuse of compulsive powers has taken over the property of a subject not for the purpose for which its powers are created and vested in it but for other purposes. We think that the powers vested in L. E. D. B. and by which the Board was empowered to acquire private property have been abused..."13 Accordingly, the apex court allowed the appeal and entered judgement for the Appellant on his claim for a declaration that the purported acquisition of his property by the 5th Respondent (L. E. D. B.) was void and of no effect and an injunction. Coker, JSC (of blessed memory) quoted with approval14 a fundamental pronouncement of Swift, J. on the principle of fortissime contra preferentes as follows:

"When an owner of property against whom an order has been made under the Act comes into this Court and complains that there has been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right, I think, that his case should be entertained sympathetically and that a statute under which he is being deprived of his rights to property should be construed strictly against the local authority favourably towards the interest of the applicant, in as much as, he has for the benefit of the community is undoubtedly suffering a substantial loss, which in my view must not be inflicted upon him unless it is quite clear that Parliament has intended that it shall."15

In Provost, LACOED v. Edun,16 the Supreme Court per Tobi, JSC (of blessed memory) also made a pronouncement on the principle of fortissime contra preferentes as follow

"It is settled law that expropriatory statutes which encroach on a person's proprietary rights must be construed fortissime contra preferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition ..."

In Provost, LACOED v. Edun (supra), the Supreme Court construed the provisions of sections 5 and 9 of the Public Lands Acquisition Law of Lagos State which is in pari materia with the provisions of sections 5 and 9 of the Public Lands Acquisition Law of Bendel State. The apex court relied on its earlier decision in the case of A-G Bendel State v. Aideyan17 wherein Nnaemeka – Agu, JSC (of blessed memory) had stated that before a person's property could be acquired compulsorily for public purpose the procedures to comply with are as follows:

"(a) a notice of intention to do so must have been served upon him or the occupier or a person interested or upon such persons as were entitled to sell or convey the land; failing both, affixed conspicuously on the property;

(b) the notice must be by personal service or by being left at his last known place of abode or business; and

(c) the notice served on him must be published once in the State Gazette, and at least two national daily newspapers circulating in the state."18

In A-G Bendel State v. Aideyan (supra), the Supreme Court per Nnaemeka – Agu, JSC (of blessed memory) held that "It is therefore the clear intention of the law that publication of the notice served on him in the Gazette shall be after personal service of that or in the manner stated. Much as in certain other situations publication in the Gazette constitutes constructive notice to the whole world, the combined effect of sections 5 and 9 of the Public Lands Acquisition Law of Bendel State set out above is that constructive notice is not enough. The law insists upon actual notice of the intention to acquire. So, anything short of that amounts to non – compliance with the express provisions of the law. I therefore, find no difficulty in agreeing with the two lower courts that, even if I assume that the property in dispute could have been validly acquired compulsorily by the Appellants, it was, in any event, not acquired according to law."19 In Bello v. Diocesan Synod of Lagos & Ors. (supra) the apex court held that as the notice was neither addressed to the "owner" as required by section 75(2) of the Lagos Town Planning Act nor served at all, the property did not vest in L.E.D.B.

In the English Case of Galloway v. The Major and Commonalty of London,20 cited with approval by Coker, JSC (of blessed memory) in Bello v. Diocesan Synod of Lagos & Ors.,21 Lord Cranwell, L.C stated that "It has become a well – settled head of equity, that any company authorized by the legislature to take compulsorily the land of another for a definite object, will, if attempting to take it for any other object, be restrained by the injunction of the Court of Chancery from so doing." In Olaoye v. Mandilas & Anor.22 the Plaintiffs challenged the compulsory acquisition of their properties for the purpose of demolishing the existing buildings in order to erect a four–storey building on the land. The trial Magistrate, in dismissing the case, held that erecting a four–storey building on the land situated in a commercial area of Lagos would certainly add to the beauty of the city and therefore, that the acquisition was in 'the public interest.' This was however reversed on appeal as it was held that the construction of a commercial building, however big and however beautiful, is very obviously not a purpose which is in the 'public interest' within the meaning of that phrase as used in item (d) of the second schedule.

There has been a myriad of cases where properties were compulsorily acquired by the government from citizens and subsequently allocated to others. In proven cases, the courts have always applied the principle of fortissimo contra preferentes and ensured justice to the persons affected by nullifying such re-allocations. In one such case, the Supreme Court per Obaseki, JSC (as he then was) held that "An acquiring authority cannot rub Peter to pay Paul by divesting one citizen of his interest in property and vesting same in another."23 In the same vein, the apex court per Onnoghen, JSC (as he then was) in Ononuju v. A – G, Anambra State24 also nullified a subsequent grant as follows:

"It is clear from the above that the revocation of the rights of the Appellants on the land in question was invalid for reasons of non – service of the statutorily required notice of revocation/acquisition and consequently null and void ab initio. It follows therefore, and very clearly too, that any subsequent step taken by the 1st and 2nd respondents in consequence of the revocation/acquisition, such as a grant of the portion of the purportedly acquired land to the 3rd respondent for whatever purpose – whether public or private – is clearly null and void as you cannot put something on nothing and expect it to stand. Secondly, it is a principle of our law that you cannot give what you do not have as expressed in the latin maxim thus: Nemo dat quod non habet."

One of the most notable decisions in defence of citizens' rights in Nigeria is the case of Governor of Lagos State & Ors. v. Ojukwu & Anor.25 made during the tyrannical era of military dictatorship in Nigeria. The subject matter of the case is the property situated at and known as 29, Queens Drive, Ikoyi, Lagos owned by Ojukwu Transport Ltd and occupied by the Ojukwu family. The property was however unoccupied during the Nigerian civil war, and the Lagos State Government had regarded the property as abandoned property. The Lagos State Government sought to eject Chief Emeka Odumegwu Ojukwu (the Appellant) from the property and he approached the High Court of Lagos State which granted him an interim injunction. The order of interim injunction was subsequently discharged and the application for interlocutory injunction was refused on the ground that the Appellant did not show any right over the property as he was not a director of Ojukwu Transport Ltd, and therefore, that he was a trespasser. The Appellant promptly appealed to the Court of Appeal, meanwhile, the Appellant had already been ejected from the property. The Court of Appeal on 13th November 1985 made an order restoring the Appellant to the property and restrained the Lagos State Government (the Respondents) from evicting the Appellant from the Property pending the determination of the appeal. Without first complying with the order of the Court of Appeal restoring the Appellant to the property, the Respondents appealed to the Supreme Court against the said order and also brought an application seeking to stay the said order. The Supreme Court unanimously dismissed the Respondents' application for stay. Delivering the lead judgment, Eso, JSC (of blessed memory) held thus:

"To use force to effect an act and while under the marshall of that force, seek the court's equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. A party has resort to self – help in these circumstances at its peril."26

In his concurring judgment, Obaseki, JSC (of blessed memory) also held as follows:

"I will be doing injustice to the cause of the rule of law if I grant this application and allow the eviction of the respondent to stand. The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as 'golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion' (see 4 Inst.41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p.22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985.

The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even - handed between the government and citizens.

It was for the above reasons and the reasons in the ruling of my learned brother, Kayode Eso, JSC, that I dismissed the application."27

CONCLUSION:

Proprietary rights form part of Fundamental Human Rights contained in the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples Rights, and are entrenched in the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). Under the Constitution, every citizen has the right to acquire and own immovable property anywhere in Nigeria subject to the power of government to compulsorily acquire property in the manner and for the purposes prescribed by law. All expropriatory statutes in Nigeria under which governments acquire land held by citizens usually make provisions, inter alia, for the issuance and service of notices on the owners of properties sought to be acquired by government and the prompt payment of compensation therefor.

It would be seen from the foregoing discourse that proprietary rights are well protected under Nigerian law. Though there have been innumerable cases of violations, citizens have easy access to courts which, applying the fortissimo contra preferentes rule, have always construed statutes strictly and sympathetically in favour of citizens, thus ensuring that justice is done to citizens whose proprietary rights are violated.

Footnotes

1. Chapter IV comprising Sections 33 – 46, Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

2. (1989) 9 SC 127 at 140.

3. The Act is entrenched under the provisions of Section 315(5)(d), Constitution of the Federal Republic of Nigeria, 1999 (As Amended)

4. Section 1, Land Use Act, 1978.

5. Section 5(1)(a), Land Use Act, 1978.

6. Section 9(1)(a) – (c), Land Use Act, 1978.

7. Abioye & Ors. v. Yakubu & Ors. (1991) LPELR – 43 (SC) at pages 93 – 94F – B.

8. Sections 21 & 22, Land Use Act, 1978.

9. Section 28, Land Use Act, 1978.

10. (2006) LPELR – 824 (SC) 31 – 32.

11. Section 1, Central Lagos Land (Acquisition) Law, 1975.

12. (1973) LPELR - 768 (SC).

13. Bello V. Diocesan Synod of Lagos & Ors. (1973) LPELR - 768 (SC) at page 38.

14. Bello V. Diocesan Synod of Lagos & Ors. (1973) LPELR - 768 (SC) at pages 30 -31.

15. Re Bowman, South Shields (Thames Street) Clearance Order, 1931) [1992] 2 K.B. 621 at 633.

16. (2004) 6 NWLR (Pt. 870) 476 at pages 509 – 510.

17. (1989) SC 127 at 150.

18. Provost, LACOED v. Edun (2004) 6 NWLR (Pt. 870) 476 at pages 509.

19. (1989) 9 SC 127 at 150.

20. (1866) L.R.I.H.L 34.

21. (1973) LPELR - 768 (SC) at page 37.

22. (1949)19 NLR59 at 60. See also Nigerian Law of Conveyancing by P. A. Oluyede at page 100.

23. Osho v. Foreign Finance Corporation (1991) 4NWLR (Pt. 184) 157 at 194.

24. (2009) 10 NWLR (Pt. 1148) 182 at 221F – H.

25. (1986) 1 NSCC Vol 17 (Pt. 1) 304.

26. (1986) 1 NSCC Vol 17 (Pt. 1) 304 at page 310.

27. (1986) 1 NSCC Vol. 17 (Pt. 1) 304 at page 313 - 314.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.