There is no doubt that government has the right to compulsorily acquire property on compensation to the owner.
Such acquisition must however be for overriding public purpose or interest in accordance with the enabling law.
This power is justifiable especially in a democratic setting and in view of the fact that government’s need for land for provision of infrastructural facilities, health, security and general wellbeing of the public far overrides individual needs hence the need for government to divest individuals of their acquisitions after payment of compensation thereof whenever the need arises and for the greater interest of majority.
It’s never intended as a tool for settling scores but indeed for a better organized, and service oriented society.
The observation of due process and payment of compensation for the compulsory acquisition all go a long way to adding human face to the process.
When properly applied, such power of compulsory acquisition can serve as a veritable source for the rapid expansion of the frontiers of socio-economic development of the society
By virtue of the Land and Use Act (LUA) 1978, it is lawful for a governor to revoke a right of occupancy for overriding public interest.
From the above power conferred on the governor by the Act, it is clear that such acquisition must be for public purpose as against private or selfish use.
Indeed, in Goldmark Nig. Ltd & 3 Ors v Ibafon .Co. Ltd & 4 Ors (2012) MRSCJ Vol. 2 pg. 111 B-C, the supreme court shed light on what constitutes public purpose when it held thus “ What is public purpose is not defined in the Act, but have been identified by the Courts in numerous cases. The acquisition must be bonafide puplic purpose. It is suggested that for a particular purpose to qualify as public purpose or public interest, it must not be vague and the way it benefits the public at large must capable of proof. The test is whether or not the purpose is meant to benefit the public and not just to aid the commercial transaction of a company or a group of people for their own selfish or financial purposes.”
Similarly, in Maiyegun V Gov., Lagos state (2011) 2 NWLR. (pt. 1230)154 at p. P174 paras. C-E, court identified public purpose include the following
(a) for exclusive government use or for general public use.
(b) for use by anybody corporate directly established by law or by anybody corporate registered under the Companies and Allied Matters Act;
(C) for obtaining control over land required for or in connection with planned urban or rural development or settlement;
(d) for obtaining control over land required for or in connection with economic, industrial or agricultural development;
(e) for educational and other social services.
It is therefore not overriding public purpose to revoke the right of a grantee for the purpose of vesting same on another. Neither is overriding public purpose served if an owner or occupier is divested of his landed property only for the benefit of another person or group of persons for their selfish ends. This is the position of supreme Court in Ibrahim v Mohamed (2003) 6 NWLR (Pt.817) page 615 at page 644 paras D-H per Kalgo JSC. See also Ibafon Co. Ltd v Nigerian Ports Plc (2000) 8 NWLR (pt.667) page 86 at page103 paras C-E per Aderemi JCA (as he then was).
Maiyegun v Gov., Lagos (Supra) per Rhodes -Vivour JCA (as he then was)
Where the land so compulsorily acquired for public purpose is not in strict compliance with the Act or channeled into use not provided for under the Land Use Act, such acquisition is invalid. See Goldmark Nig. Ltd &3 ors v Ibafon co Ltd & 4 ors (supra)
More importantly, a valid and sufficient notice must be served on the owner or occupier who is the target of the compulsory acquisition. Any failure to serve such notice renders the acquisition invalid.
It must be noted that publication in the government gazette does not relieve the government of the duty of personal service on the person to be divested of the land
Indeed, the supreme court in Gold Mark Ltd & 3 ors V Ibafon co Ltd &4 ors (supra) on page111 D-E has this to say “On the issue of notice, this court pronounced in several decisions that the publication in the gazette does not constitute sufficient notice; there must be personal service on the person.”
Same decision has been taken by the apex court in a plethora of cases including Ononuju & Anor v Attorney-General of Anambra State & 2 Ors (2009) 4-5SC pt 1.pg 163; Attorney-General of Bendel State v Aideyan (1989) 4 NWLR pt. 118 pg. 646@ 673.
It is therefore expected that public officers effecting the power of compulsory acquisition of land for overriding public interest should comply with the provisions of the law as well as the time-honoured judicial pronouncements of our superior courts in order not to defeat the noble intentions of the framers of the Act.
The Law also has a window for remedy in case of acquisition carried out not in accordance with the Act as any aggrieved owner of compulsorily acquired land can seek redress in court of competent jurisdiction, for as the supreme court clearly adumbrated in Goldmark casec(supra).
- “Where government disobeys its own laws by not complying with the laid down procedure for acquisition of property, it is the duty of the courts to intervene between the government and the private citizen. See also provost of college of education & Ors v Dr. Kolawole Edu & ors (2004) 6 NWLR pt 870 pg.476 @50
