Right to Property

This right has been defined as one of the earliest and most important rights known to man. According to John Locke, one of the reasons why man gave up his liberty under a social contract with the ruler was to secure his property. Property in the widest sense means all legal rights a person has. In a narrower sense, it has been held to mean tangible or physical property. The 1999 constitution defines property in the form of moveable and immovable property. Per Salmond, the only form of immovable property here is Land including all objects on such land and the grounds beneath it.

Based on the provisions of the Land Use Act however, all land is vested in the federal and state governments and individual ownership is made subject to it. Thus, the right to own property is not absolute and as such, land can sometimes be compulsorily acquired for public use provided adequate compensation is paid.

The right to own property is entrenched in Article 17 of the UDHR, Article 14 of the African Charter on Human and People’s Rights.

Sections 43 and 44 of the 1999 constitution provide:

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.

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 -

(a) 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.

By virtue of the provisions of S.28(1) and (4) of the Land Use Act, a right of occupancy can lawfully be revoked by the governor on behalf of the state or upon issue of notice by the President that the land is required for overriding public purpose. S.51 of the Act defines what public purpose entails.

In the case of Sokoto Local Government and others v Alhaji Tsoho Amale and another, the court held that the compulsory acquisition of a property acquired by a grant of statutory right of occupancy, by the local government for the purposes of expanding the cattle market was legal and within the contemplation of the provisions of the Constitution. In Ibafon Company ltd v Nigerian Ports Authority on the other hand, the court held that the alienation of land acquired compulsorily for public purposes to persons who used it for private business was illegal, null and void.

Going further, before a right of occupancy can be compulsorily acquired, notice of acquisition must be given to the holder of the land based on S.28(6) of the Land Use Act. Thus, in the same Sokoto Local Government v Tsoho Amale case stated above, the court stated that the fact that the respondent was aware of the revocation order in accordance with the provisions of the Act, was enough to extinguish his grant of the right of occupancy over the relevant land. It is not enough to publish notice in the official gazette. In the Ibafon case on the other hand, the court held that there was no acquisition known to law as notice of intention to acquire land was not served.

Also, the law providing for the manner of acquisition must also make provisions for prompt and adequate payment of compensation and give the person claiming compensation an opportunity to appeal to a court with respect to the amount of compensation to be paid. Thus, S.29 of the Land Use Act makes provision for the payment of compensation for lands acquired compulsorily and unexhausted improvements of such land. This stands to mean that where there are no improvements on a land in question, the holder will be owed no compensation.

The Land Use Act prohibits also, the alienation of any customary or statutory right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever, without the consent of the governor or local government thereof. S.26 of the Act further states that:

Any transaction or any instruments which purport to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.

In the case of Savannah Bank v Ajilo thus, the court held that any such transaction without the requisite consent was null and void.

The right to own property is not absolute and so, there are other limitations apart from compulsory acquisition of property for public use. See S.44(2) of the Constitution which states:

Nothing in subsection (1) of this section shall be construed as affecting any general law.

(a) for the imposition or enforcement of any tax, rate or duty;

(b) for the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;

(c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.

(d) relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound-up;

(e) relating to the execution of judgements or orders of court;

(f) providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;

(g) relating to enemy property;

(h) relating to trusts and trustees;

(i) relating to limitation of actions;

(j) relating to property vested in bodies corporate directly established by any law in force in Nigeria;

(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;

(l) providing for the carrying out of work on land for the purpose of soil-conservation; or

(m) subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.

Thus, in relation to the various exceptions, compensation is not necessary except with relation to (m) where there is damage to buildings or economic trees or crops on the land. Such compensation is not for the land but for the damage done.

Also see S.44(3) of the Constitution which poses another limitation to this right thus:

“Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly”.