The Bill appears to be “innocuously disguised” as one aimed at providing for the establishment, preservation, and control of the Grazing Commission and purposes connected to its the operation. But a closer look reveals the Bill has an overreaching effect on the right to property as entrenched in the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the Constitution) and protection of propriety rights in land under Land Use Act 1978.

 

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Introduction

A Bill was recently introduced at the National Assembly. Titled ‘National Grazing Reserve (Establishment) Bill 2016’, the Bill seeks to provide for the establishment, preservation, and control of a National Grazing Reserve Commission (the Grazing Commission) in Nigeria. I will consider how the Bill affects the right to property of Nigerian citizens (and non-citizens alike).

The Grazing Bill: Much Ado About Nothing?

The Bill appears to be “innocuously disguised” as one aimed at providing for the establishment, preservation, and control of the Grazing Commission and purposes connected to its the operation. But a closer look reveals the Bill has an overreaching effect on the right to property as entrenched in the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the Constitution) and protection of propriety rights in land under Land Use Act 1978. Consequently, one would understand why, most Nigerians have called for the withdrawal of the Bill from the National Assembly in its entirety.[i]

The focus of this piece is not to do a section-by-section analysis but to test certain provisions of the Bill against extant laws and see whether they offend the right to property in Nigeria. I will consider the seeming conflict between the Bill and the Land Use Act and pinpoint how certain provisions of the Bill contravene the right to property as guaranteed by the Constitution.

Though a citizen’s fundamental rights are not absolute under Nigerian law,[ii] it only accords with reason and equity that a citizen’s right should only be curtailed as permitted by law and upon satisfaction of any requirement imposed by the Constitution. But it becomes problematic when a law that attempts to take away one’s fundamental right to property, fails to comply with the extant law on the requirements for doing so. Whenever such requirements are not met, citizens’ resistance would be reasonably justifiable and could be conveniently defended relying on the extant provisions of the Constitution.

Reading section 6 of the Bill shows that the draftsmen intended to confer enormous power on the Grazing Commission. This power includes the power to acquire any land for the purpose of the National Grazing Reserves and Stock Routes at will. This provision is disturbing. More disturbing is the provision of section 17(2) of the Bill. Section 17(2) empowers the Commission to take over ownership, control and management of any existing Grazing Reserve and stock routes from any State Government. This ownership, control, and management would be subject to terms and conditions the Commission and the State may agree to.

Section 17(1) of the Bill provides that the “following lands, may, subject to the provisions of the Act, be constituted as National Grazing Reserve and Stock Routes.” Included in the list of lands that may be designated as National Grazing Reserve and Stock Routes are:

(x) lands at the disposal of the Federal Government;

(y) any land in respect of which it appears to the Commission that grazing on such land should be practiced and any land acquired by the Commission “through purchase, assignment, gift or otherwise howsoever;” and

(z) any land in respect of which it appears to the Commission that primary, secondary or tertiary routes be established.

From the foregoing sections, the Commission is empowered to take any land belonging to any citizen at will for the purpose of establishing a National Grazing Reserve and Stock Routes.

Whilst some may argue that it is too early in the day to draw conclusions, one needs no soothsayer to realize that establishing the proposed Grazing Reserve would serve only the interest of the herdsmen and cattle owners. Acquiring land for grazing which ultimately benefits “a majority few” does not accord with the intent of the Constitution in permitting compulsory acquisition of land for “public purposes” only.

Notably, section 18(1) of the Bill requires that before any land is constituted as National Grazing Reserve and Stock Routes, the Grazing Commission shall give due notice to the State Governor where the land is located communicating the Grazing Commission’s intention to constitute the land as National Grazing Reserve and Stock Routes. After acquisition, this information shall be shall be published in the Official Gazette of the Federal Government.

But the pertinent question is whether the Grazing Commission’s powers above accords with the Land Use Act? I don’t think so.

By section 28(1) of the Land Use Act, a revocation of a right of occupancy by a Governor will only be lawful where the revocation is done for “overriding public interest.” Noteworthy is that section 28(2)(b) of the Land Use Act defines “overriding public interest” to include the requirement of the land by the Government of the Federation for “public purposes of the Federation.” Same goes for “overriding public interest” in the case of customary right of occupancy—requirement of the land by the Government of the Federation for public purposes of the Federation.[iii] The foregoing is fortified by the decision of the Supreme Court in Osho v Foreign Finance Corporation (1991) 4 NWLR (Part 184) 157 where the Supreme Court defined “public purposes” as:

“(a) for exclusive Government use or for general public use;

(b) for use by anybody corporate directly established by law or by any body corporate registered under the Companies and Allied Matters Act;

(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;

(h) for obtaining control over land required for or in connection with economic, industrial or agricultural development

(i) for educational and other social services.”

Furthermore, a State Governor’s power to revoke a right of occupancy when issued a notice on the President’s behalf is not without any restrictions. A Governor has a duty to ensure that the President’s power to acquire any land is not triggered until the public-purpose requirement is met.[iv] This means when such land is not required for “public purposes,” a State Governor would be justified in refusing to act in accordance with the notice. In this regard, section 51 of the Land Use Act provides guidance on what amounts to “public purposes.”

 

Though it is possible for the proponents of the Bill to argue that obtaining land for the purpose of establishing a National Grazing Reserve falls under the “public purpose” terrain since it relates to acquiring land for agricultural development,[v] this argument is not only flawed but grossly misconceived in law. I am aware that the Governor of a State[vi] is obliged to revoke any right of occupancy should the President issue a notice that a land is needed for “public purposes,” but my position is that when the intent of a law (disguised as being for “public purposes”) is to grant land to certain private persons for the conduct of their private business, the court is empowered to declare such law and void since it contradicts the spirit and letters of the Constitution and the Land Use Act.[vii] As gleaned from Section 44(1) of the Constitution:

 

“No moveable property or any interest in an immovable property is to be taken possession of compulsorily and no right over or interest in any such property is to 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.”

Though the Bill provides for payment of compensation and access to dispute-resolution system after any compulsory acquisition of land by the Grazing Commission,[viii] my view is that it is null and void. This is because the purpose for which the Grazing Commission is to compulsorily acquire land cannot (arguably) be said to fall under the umbrella of “public purposes”.[ix]

naij.comConclusion

In the final analysis, I submit that the Bill, as it stands before the National Assembly, is not only unconstitutional but repugnant to the principles of equity and equality. My hope is that the legislators will allow the voice of reason prevail and avoid creating more crises. The National Assembly must ensure that the right of a “privileged few” is not allowed to override the rights of many others. In the event that our “patriotic” legislators fail to do the needful by making sure that the Bill does not see the light of day, it should be noted that section 46 of the Constitution has provided the leeway for any aggrieved person to approach a court of competent jurisdiction to declare the Act unconstitutional, null, and void. After all, where is a right, there is always a remedy.[x]

By Joseph Onele. Joseph practices law in Nigeria and advises on a wide range of issues including real estate investments in Nigeria.

[i] Vanguard, April 30 2016, “Nigerians say “NO” to National Grazing Reserves Bill,” available at

http://www.vanguardngr.com/2016/04/nigerians-say-no-national-grazing-reserves-bill/ See also Ebun-Olu Adegboruwa, “Grazing bill: An ill wind that will blow no good,” available at http://www.vanguardngr.com/2016/05/grazing-bill-ill-wind-will-blow-no-good/

[ii] See Salihu V. Gana & Ors (2014) LPELR-23069 (CA).

[iii] See Section 28(3)(a) Land Use Act 1978.

[iv] See Attorney General of Lagos State v. NEPA Suit No LD/372/81 of 5/7/82 –High Court of Lagos State (Unreported) cited in Prof. I.O. Smith, Practical Approach to Law of Real Property in Nigeria, (Revised Edition 2013), Ecowatch Publications Limited, Ilupeju, Lagos, Nigeria, p. 525.

[v] See Section 51(h) of the Land Use Act 1978

[vi] By Section 1 of the Land Use Act 1978, all land comprised in 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 use and common benefit of all Nigerians in accordance with the provisions of this Act.

[vii] Prof. I.O. Smith, Practical Approach to Law of Real Property in Nigeria, (Revised Edition 2013), Ecowatch Publications Limited, Ilupeju, Lagos, Nigeria, p. 524.

[viii] Under the Bill, the Grazing Commission is to pay the requisite compensation to the affected persons whose lands are acquired for the purpose of establishing the National Grazing Reserve and Stock Routes. See Section Section 18(2) of the Bill. Also, by Section 19 of the Bill, the Grazing Commission is to refer any dispute over claim for compensation on any land acquired by it to the appropriate Land Use and Allocation Committee of the State in respect of which the Land is acquired.

[ix] See further Prof. I.O. Smith, Practical Approach to Law of Real Property in Nigeria, (Revised Edition 2013), Ecowatch Publications Limited, Ilupeju, Lagos, Nigeria, p. 524.

[x] The Latin maxim for this ibi jus, ibi remedium

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