By Nnamani Ogbonna
By section 1 and 2 of the land use Act, land is vested on the Governor and local government chairman. Thus, the announcement by minister of Agriculture urging the state to carve out cattle colonies is unlawful. The federal government has power over land in Abuja alone. Land in state are being held by the governor who exercises control over the land. Section 1 and 2 of land use Act states:
Subject to the provisions of this Act, all land comprised the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the us and common benefit of all Nigerians in accordance with the provisions of this Act.
2 (1) As from the commencement of this Act – (a) all land in urban areas shall be under the control and management of the Governor of each State. And (b)all other land shall, subject to this Act, be under the control and management of the Local Government, within the area of jurisdiction of which the land is situated.
Cattle colonies must be shown to be within the confines of the law. The land to be acquired must be for public purpose. A land is for public purpose if government acquires the land to build school, road, and other public infrastructure. Is the land to be used for cattle colonies meant for public purpose? Who owns the cattle? DOES THE CATTLE BELONG TO THE GOVERNMENT?
In the case of SAMUEL ONONUJU & ANOR. V. ATTORNEY-GENERAL, ANAMBRA STATE & ORS. 2009) LPELR-SC.29/2000, the supreme court decided on this. The fact of the case is a follows:
The appellants in this appeal were the plaintiffs in Suit No. HN/53/90; (1) Eng. Samuel Ononuju and (2) Frederick Azubuine (representing Ndumanya Family of Umuohi, Okija) as plaintiffs and (1) Attorney-General, Anambra State, (2) Commissioner for Works, Lands and Transport, Anambra State and (3) Chief Emmanuel Eze Onwuka, as defendants. The plaintiffs had before the High Court of Justice, Anambra State sitting at Nnewi Judicial Division, taken action against the defendants, claiming against them jointly and severally as follows:
“(1) A declaration that the purported acquisition of the plaintiffs’ land, of the Annual Value of N100,000.00 by the Anambra State Government acting through the 2nd defendant is unconstitutional, null and void and not effective to divest the plaintiffs of their title to the said land.
(2) A declaration that the Certificate of Occupancy issued by the Chairman of the Ihiala Local Government Authority and dated 27th April, 1989, purportedly granting a portion of the plaintiffs’ land to the 3rd defendant is otiose, ineffective to transfer any title to the 3rd defendant and contravenes the constitutional rights of the plaintiffs to their land.
(3) IN THE ALTERNATIVE, if the plaintiffs’ land was at any time legally vested in the Federal Government, a declaration that it is unconstitutional and a contravention of the law empowering the compulsory taking over of a subject’s land to grant a portion of the plaintiffs’ land to the 3rd defendant for his private purpose.
(4) IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that the Chairman, Ihiala Local Government Authority was and is not competent to grant the Certificate of Occupancy dated 27th April 1989, in respect of the said land to the 3rd defendant and the said Certificate conveyed no legal interest in the plaintiffs’ land to the 3rd defendant.
IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that on failure of the object of public purpose for which the land was acquired compulsorily the land reverted to the plaintiffs.
N10,000.00 general damages against the 3rd defendant for his continuing trespass to the plaintiff s said land.
and (7) An injunction restraining the defendants and each of them by themselves or through their agents, servants or privies from remaining on the plaintiffs’ land or doing any act thereon which interferes with the plaintiffs’ possession of the same.”
Pleadings filed and exchanged by the parties are (1) the statement of claim dated 14th August 1990, (2) the statement of defence of the 3rd defendant dated 25th October 1990 and (3) the statement of defence of the 1st and 2nd defendants dated 12th November 1990. Both parties called evidence at the trial, to prove the respective averments contained in their different pleadings. After taking the final addresses of the counsel appearing for the parties, in a reserved judgment delivered on the 24th October 1994, the trial judge dismissed the plaintiffs’ claims in toto.
Being dissatisfied with the said judgment, the plaintiffs appealed to the court below. After hearing the counsel appearing for the parties on the respective briefs of arguments filed on behalf of the clients, the court below, in reserved judgments delivered on the 13th of July 1998, by a majority judgment (Akpabio JCA and Tobi JCA – as he then was), dismissed the appeal of the plaintiffs/appellants with costs. But on the same date, by a minority judgment wherein Salami JCA dissented, the appeal of the plaintiffs/appellants was allowed, the decision of the trial court including the order as to costs were set aside.
Being dissatisfied with the majority judgment of the court below, the present appellants have appealed to this court by way of a Notice of Appeal filed on 3rd September 1998 which carries five grounds of appeal. Also, the 1st and 2nd respondents being dissatisfied with part of the majority judgment relating to the issue of proof of title to the land in dispute by the appellants prior to the Land Use Act as averred in paragraph 4 of the statement of claim and for which, according to the 1st and 2nd respondents, they joined issue with the plaintiffs/appellants, that aspect have been struck out in the majority judgment on the ground that it was a non-issue, they have cross-appealed to this court by a Notice of Cross-Appeal dated 15th July 2002 which carries three grounds.
The Supreme Court held:
“It follows that no one, including the government, can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act e.g. for overriding public interest or for public purpose by the Local Government or State Government. See Sec. 28 (1), (2) and (3) of the Land Use Act; and by virtue of Section 28 (4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See OGUNLEYE V. ONI (1990) 2 NWLR (pt.135) 745”.
In Olatunji v. Military Governor of Oyo State88 (1994) LPELR-14116 the Court of Appeal, per Salami JCA (as he then was) held as follows:
The Appellant can legitimately protest the acquisition if the purpose for which the land was being acquired was not within the confines of definition of public purpose as defined in Section 50 of the Act. The acquiring authority failed to state the public purpose for which the property was acquired. He kept it up his sleeve. In this connection Waddington, J., said in the case of Chief Commissioner, Eastern province v. Ononye 17 NLR 142 at 143 thus- “the notice merely states “for public purposes” and I find it difficult to understand why the particular public purpose is not stated. When the matter comes into court it has to be admitted that there is no public purpose involved at all; and the impression is liable to be conveyed, no doubt erroneously, that there was something ulterior in the failure to make the purpose public.
Assuming that the governor or federal government must acquire the land for cattle colonies, the government must ensure that the owners of land must be paid adequate compensation. A land cannot be taken by the government without paying the owners of the land of land the necessary compensation. But as we have noted the taken of the land must be for public purposes.
Section 44. (1)(2) of the 1999 constitution as amended 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 that, among other things – (1)) requires the prompt payment of compensation therefore and
(b) 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.
Government has a duty to comply with the procedure for acquisition of land. This duty was emphasized by the Supreme Court of Nigeria in Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd In the following words:
The court has always emphasized that government has the right to compulsorily acquire property on payment of compensation. There is no argument about such constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted. Where government disobeys its own statute 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.
*Ogbonna is an Abuja-based legal practitioner and can be reached via [email protected]