A Critical Appraisal of the Method of Revocation in the Nigerian Land Use Act and Government’s Compliance

The paper inquires whether there is government’s compliance with the method of revocation of right of occupancy stipulated in the Land Use Act (LUA) (1978). The LUA has prescribed the procedure for the revocation of right of occupancy. It is expected that government complies with the procedure. There have been cases where government did follow laid down procedure for the revocation of right occupancy. Therefore, when government flouts laws regulating the procedure for the acquisition of private property, it is the obligation of the Nigerian courts to intervene in favour of the private citizen. Though the courts are obliged to intervene, the question is: what happens, when government disobeys court orders? Or what happens when private citizens for lack of means did not challenge in court any wrong procedure adopted by government? Apart from calling for more judicial activism in this area, the paper argued that government should follow laid down procedure for the acquisition of private property; for even God who has laid down the procedure for man to be holy has also subjected himself to holiness.

plication of the eminent domain Kratovil and Harrison (1954).
Today a landowner's right in respect of his property is subject to governmental power to compulsorily acquire such land by revoking the existing interest on the land for overall public interest (LUA section 28) subject, however, to the payment compensation to the owner of the acquired land (Constitution section 44(1) and LUA section 29(1). It is in view of this that the LUA laid down the procedure through which government could compulsorily acquire land (LUA sections 28(6)(7) and 29(1)(2). This Paper will examine the extent of government's compliance with this procedure. The LUA was promulgated in 1978. It provided for a method of land acquisition not known in native land tenure (Otubu, 2012). It vests all lands in the territory of each state in the Governor who is to hold same in trust for all Nigerians. It then created a proprietary interest in land known as right of occupancy which is lesser than ownership. The right of occupancy is limited in duration and also defeasible under some conditions. From the promulgation of the LUA, the reversion in all lands is vested in the state (Otubu, 2012). Therefore, what is stipulated under the LUA is the revocation of the right of occupancy.

Theoretical Perspectives of Compulsory Acquisition
The word "revocation" was not defined by the LUA, but it has the effect of extinguishing all rights of a possessor of right of occupancy. Usually, the basis for most revocations of rights of occupancy is acquisition of the land for public purpose. The terms "revocation of right of occupancy for public purpose" and "compulsory land acquisition for public purpose" appear to be synonymous, because if either of them (is carried out by the government), it has the effect of extinguishing all existing rights in the land. It is in this light that the theoretical underpinning of compulsory acquisition will be used to explain the term "revocation of right of occupancy" being the term used by the LUA. Compulsory acquisition of land as it relates to the LUA will be explained herein. According to Umeh (1973) compulsory land acquisition is the forcible taking or acquisition of private lands (communal or individual) for public benefits or purposes. Also, Zhang and Lu (2011) explained compulsory land acquisition as government act of transferring ownership in land from private to state owned where the interest of the public is involved. Furthermore, Otubu (2013) explained it to be government's authority to acquire rights in land without the owner's consent for the benefit of the community. Michelman (1967) explained the justification for compulsory land acquisition to be development of various projects that will benefit the public. Otubu (2013) further explained that without the government's authority to compulsorily acquire private property for public purpose, performance of many desirable projects that will benefit the public will be undermined or frustrated by various holdouts. The LUA recognizes compulsory acquisition as revocation of right of rights of occupancy. And in this regard, section 28 of the LUA empowered the government to revoke rights of occupancy for either

Land Tenure since 1978
The promulgation of the LUA on the 29 th of March 1978 had the effect of bringing the whole of Nigeria under one statutory land law, Yakubu (1989).

Statutory Right of Occupancy
In section 5 of the LUA, the governor can give statutory right of occupancy to a person whether the land is located in the urban area or not Adeniran v Alao

Customary Right of Occupancy
In Dielu v Iwuno [1996] the Supreme Court stated that by section 6(1) of the LUA, a local government is empowered to give a customary right of occupancy of land not in an urban area for agricultural and other purposes. In Awaogbo v Eze [1995] the Supreme Court also held that section 6, of the LUA deals with the power and ability of a local government concerning land not in urban area. Section 6(3) makes it legal for a local government to access or enter and use land within its area of jurisdiction for public purpose.

Procedure for Revocation
The LUA expressly laid down the procedure for a valid revocation and they include: 1) the revocation is to be signed by an officer authorized for the purpose by the governor (section 28(6) LUA).
2) notice shall be issued stating the purpose of revocation that is either for  (6) and (7) LUA). 6) where the revocation is for public purpose (as against penal revocation under section 28(5) of the LUA, the holder or possessor or the occupier would be compensated for the value at the land for unexhausted improvements or under any relevant legislation (section 29 (1) and (2) LUA).

Non-Compliance on the Part of Government
In spite of this laid down procedure; there are still cases of non-compliance on the part of government. Non-compliance can either be in the form of improper notice/lack of notice or failure of public purpose.

Improper Notice or Lack of Notice
In Osho v Foreign Finance [1991], the Supreme Court held that the notice of revocation not having been duly served on the plaintiff was invalid. In Nitel v Ogunbiyi [1992], the Court of Appeal nullified a revocation notice that was not personally served on the property owner at the address known to the Govern-

Failure of Purpose and Principle of Reversion
One area of non-compliance as earlier stated is where there is a failure of purpose. Failure of purpose could arise in many ways. It could arise where portion of the land acquired was used for the public purpose and the remnant shared by the acquiring authority to private individuals Amokaye (2003). The second is where private citizens are divested of their land under section 28 but the Governor later reallocated the land to private interest Amokaye (2003). The question flowing from these scenarios is whether land should be returned to the original owner or the Governor should be allowed to hold onto the land-in trust until when the acquired land will be required for similar public purpose Amokaye (2003). The LUA did not lay down the procedure to follow when there is a failure of purpose but' the issue of failure of purpose has received judicial construc-

Compensation
One issue which arises for consideration after a valid revocation of right of occupancy is compensation for the possessor or holder of the right. Compensation is payable under the LUA if the revocation is for public purpose or for mining of building materials (section 29(1) LUA) and not for a bare land. Also, section 44(1) of the Constitution makes payment of compensation mandatory to the possessor of the right of occupancy which has been revoked. It is pertinent to note that both sections 44(1) of the Constitution and 29(1) of the LUA that make payment of compensation mandatory. The Supreme Court also confirmed the right of a citizen to compensation. In Osho v Foreign Finance & Anor [1991] it noted that a citizen whose right of occupancy has been revoked is entitled to compensation under section 29(1) of that LUA. Compensation is not a pre-requisite to valid revocation but only a fall out of it. Where a right of occupancy revoked is in respect of land required for mining purpose or oil pipelines or other purposes connected with the mining and oil pipeline, the occupier will be qualified for compensation in the appropriate legislation of the Mineral Act or Mineral Oil Act or any law after it (section 29(1) and (2) LUA).

Non-Entitlement to Compensation
One worrisome aspect of the LUA is that when the occupancy right is cancelled or revoked for public purpose only the "holder" and "occupier" that are entitled to compensation for the value of their unexhausted improvements on the land (section 29 (1) and (2) LUA. The meaning of "holder" and "occupier" under the LUA does not include the mortgagee (section 51 LUA). This may have the effect that though the mortgagee has right to improvements in the land, (which is a security for, his debt) yet on revocation, the mortgagee has no right to the compensation money Essien (2003). It appears that there is no judicial pronouncement on the point in Nigeria. However, the issue arose in the Tanzanian case of Manyara Estates Ltd. & Ors v. National Development Credit Agency [1970] where in the Land Ordinance (1923) compensation for improvements on land in a revocation of the right of occupancy was only payable to the "occupier". It was stated that a mortgagee was not an "occupier" and by this he was not qualified for compensation, and that the agreement designed by the mortgage did not attach compensation. The court also started further that the doctrine of tracing is not applicable in the circumstances because of the absence of any fiduciary relationship in the part of the paying authority to the mortgagee. The non-entitlement of compensation to a mortgagee under the LUA shows the precariousness of the right of occupancy as a mortgage security. James (1987) has made the following suggestion as a way out of such problem when he said that: a provision could be inserted in a law which state that compensation payable to the right holder should be applied to satisfy any mortgage debts in order of precedence. And that

Adequacy of Compensation and Resettlement
Another important issue that should be examined is whether compensation or resettlement as stipulated in the LUA is adequate or not. The compensation due is the sum equivalent to rent paid by the occupier when the right of occupancy is revoked (section 29(4)(a) LUA). This means that if a person paid no rent, he is not qualified for compensation but his piece of land is taken away compulsorily' by the government Ikpe (1978). The implication of this provision is that compensation cannot also be paid for bare land. This is inadequate. If the Constitution (section 44(1) provides for compensation both movable and immovable property, and bare land is an immovable property, then compensation should be paid for its acquisition. Regarding buildings, installations and improvements in the land, the compensation to be paid is the cost of replacement as determined or assessed by the designated officer minus the depreciation plus interest at the current bank rate for any delay in compensation (section 29(4)(b) LUA). This will only be adequate if the officer that determined the cost of replacement adopts the current market value of such property. Regarding, crops on in the land, the compensation to be paid is a sum equal to the value determined by the designated officer (section 29(4)(c) LUA). This also is not adequate, it is suggested that an alternative land should be provided in addition to payment of the crops. This may be important in encouraging agriculture. Generally, it is, suggested that, compensation should be paid for loss of use of a right of occupancy and for "disturbance" for all the instances of section 29(4) of the LUA. On the issue of resettlement of displaced persons, where land in respect of which a customary occupancy right is revoked and the land was utilized for farming purposes by the possessor, he is eligible for another land for the purpose (section 6(6) LUA). This is fair enough or else many farmers will be displaced and sent out of job where they are not provided with any other alternative and this can lead to social upheaval Adigun (1978) Furthermore, where the occupancy right of any land on which a residential building is erected is revoked the government (local or governor) may instead of compensation resettle the holder on any other land as alternative accommodation (section 33 LUA). While it is agreed that alternative accommodation may prevent homelessness, this is not adequate because where the price of the land stipulated for resettlement is less than the acquired land, no reimbursement to the displaced person, i.e., the LUA is silent on cases when value of the land for resettlement is less than the acquired land. In other words, where the land for resettlement is of higher value, the displaced person is required to pay the "excess value" as a loan (section 33(2) LUA). One worrisome aspect of the LUA is the prohibition of the courts in the determination of the adequacy or otherwise of the compensation payable (section 47(2)

Conclusion
This Paper examined the extent of government's compliance to procedure for the acquisition of private property. Government has the constitutional right to acquire property for public purpose. At the same time, there are laid down procedure for acquiring property. Sometimes government does not comply with procedure. The practice of acquiring "juicy" land for private economic interest by most governors run contrary to the spirit and intendment of the LUA Amokaye (2003) This practice has been judicially deprecated by the courts. As stated by Nnaemeka-Agu J. S. C. "our law reports are replete with cases in which some of such compulsory acquisitions for public purposes" turned out to be mere bogus smokescreens for malefaction Attorney General of Bendel State v Aideyan [1989]. Where there is non-compliance with procedure, Tobi J. S. C. in Provost, [2004], was of the view that the courts should intervene against the government and favour of the private citizen.

Lagos State College of Education & Ors v Edun
A more difficult problem here is: what happens where government "tramples upon" and disobeys court orders? While the writer is encouraged by the judicial activism observed, more of it is recommended. Government is obliged not only to follow laid down procedure but also to obey court orders.

Conflicts of Interest
The author declares no conflicts of interest regarding the publication of this paper.