INTRODUCTION
Prior to the enactment of the Land Use Act (LUA), incidences of land ownership in Nigeria were vested in individuals, communities and families. This notion soon changed upon the commencement of the ILUA, 1978 wherein all lands in Nigeria were vested in the governor of a state. See Section 1 of the LUA. In this regard, lands in Nigeria became either subject to statutory right of occupancy or a customary right of occupancy. This right of occupancy is evidenced in the certificate of occupancy issued by the respective government authority (state or local government).
The Act in its succeeding provisions made salient stipulations on the regulation of land tenure in Nigeria. These stipulations over the years have been tested in courts of law and succinct pronouncements made by ebullient jurists even at the Supreme Court. One of such stipulations is the stirred waters which this article seeks to settle. Regardless of the powers given to the governor to own lands in their respective states, does same translate into a blank cheque to engage in the acquisition of the said lands without the revocation of an existing right of occupancy and without due process. This poser shall suffice as the scope upon which subsequent discussion on this topic will necessarily gravitate.
AN APPRAISAL OF THE ISSUE
Albeit the constitution of the Federal Republic of Nigeria, 1999 (as amended) gives its citizens rights that their property cannot be compulsorily acquired, this right is short-lived by virtue of the fact that the same provision of the constitution gives the government the right to compulsorily acquire lands of persons where the purpose of the acquisition will be for overriding public purposes. See Section 40 of the Constitution. See also Section 28 of the Land Use Act (LUA), 1978
Irrespective of this trite legal position, the acquisition of lands by respective government is not a blank cheque given to them to engage in the same in an unprecedented manner without recourse to due process. In this wise, the respective laws passed by the legislative houses, the Lands Use Act in particular, and succinct judicial pronouncement on the issue made it mandatory that certain processes must be followed for an acquisition to be tenable in law.
By Section 28(4) of the LUA it is the law that for an acquisition to be tenable there must be the payment of compensation to the persons whose land is sought to be acquired. See Ogunleye v. Oni (1990)) 2 NWLR (pt. 135) 745. This notwithstanding, it is not enough that there must be the payment of compensation by the acquiring government. The government must as well ensure that they revoke the right of occupancy apportioning to the land sought to be acquired and the notice of revocation served on the holder of the right of occupancy. This, the learned Justices of the Supreme Court in Samuel Ononuju & Anor v. Attorney Gen eral of Anambra State & Ors (2009) LPELR-SC.29/2000 stated when they held as follows:
"First there can be no argument that effective service of notice of revocation is a sine qua non to any valid acquisition of land by any government, be it Federal, State or Local Government".
The learned justices of the Supreme Court went further to state as follows:
"The revocation of a right of occupancy shall be signified under the hand of public officer duly authorised by the governor and notice thereof shall be given to the holder".
It is immaterial that the notice of revocation of compulsory acquisition was published and gazetted by the acquiring government without more. The incidence of publication and gazetting would not suffice for service notice to the holder of the right of occupancy. See Samuel Ononuju & Anor v. Attorney General of Anambra State & Ors, Supra.
It is our contention that the foregoing posits as the prerequisites germane to the activation of the powers of the governor to compulsorily acquire property in Nigeria. In essence, where these condition precedents are not observed to the latter, it makes the process of the compulsory acquisition defective and at the same time, null and void.
In corollary, the law is settled on this issue and the stipulations contained therein are mandatory and not permissive which would afford the governor to do as he pleases in observing the provisions contained therein. It is not an option to choose one and neglect the other or not to do any. They operate conjunctively and not disjunctively. The paramount nature of these stipulations becomes more pronounced that even when a governor has validly compulsorily acquired the property for overriding public interest and it turns out that same interest is actually a charade, the said acquisition becomes nul and void. This piece thus poses as a clarion call to actors in the compulsory acquisition of property in Nigeria, the respective ministry of lands in particular, to resort to the enabling laws in carrying out their lawful roles so as to obviate the high rise of litigious cases gracing the courts dockets on this subject matter.
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