When the state takes land, compensation must mean justice

Land is more than a physical asset. It is a source of shelter, livelihood, security and economic opportunity. For many Nigerian households, it represents the largest store of wealth they will ever own. For businesses, it is a critical input in investment, production and expansion. For the government, it is an essential resource for infrastructure, urban development and public services.

 

The challenge is to reconcile these competing interests without sacrificing the rights of citizens in the name of development.

 

Nigeria’s Land Use Act of 1978, particularly Section 29, raises fundamental questions about how that balance is struck. Read alongside Sections 43 and 44 of the 1999 Constitution and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Act invites a broader examination of property rights, compensation and the right to adequate housing.

 

The central question is straightforward: when the government acquires land for public purposes, is compensation designed to protect the people affected or merely to satisfy a statutory formula?

 

The compensation question

Section 29 of the Land Use Act provides for compensation following certain revocations of rights of occupancy. Its framework focuses principally on the value of unexhausted improvements on the land at the date of revocation. These may include buildings, installations and other qualifying developments. Compensation for crops and other improvements is also subject to the applicable statutory provisions and valuation rules.

 

The difficulty is that compensation for improvements is not necessarily equivalent to compensation for the market value of the land itself.

 

A landowner or occupier may have invested years of savings in acquiring, developing and maintaining a property. A family may have built its home incrementally over decades. A business may have established its premises, infrastructure and customer base around a particular location. When that property is compulsorily acquired, the loss may extend well beyond the physical structures standing on the land.

 

The statutory framework therefore raises a legitimate policy question: does the compensation available adequately reflect the economic and social consequences of compulsory acquisition?

 

Resettlement may provide an alternative or complementary response in appropriate circumstances. But relocation cannot be treated as an automatic substitute for fair compensation. Alternative land or housing must be suitable, accessible and capable of meeting the needs of those affected. A replacement home far from employment, schools, transport links and established social networks may impose costs that a simple valuation of buildings will not capture.

 

Public infrastructure and urban renewal can generate substantial economic benefits. Those benefits, however, should not be secured by transferring a disproportionate share of the costs to people whose homes or livelihoods are displaced.

 

The constitutional safeguards

Sections 43 and 44 of the Constitution provide important starting points for examining this issue.

 

Section 43 guarantees every Nigerian citizen the right to acquire and own immovable property anywhere in Nigeria, subject to the Constitution and applicable law. Section 44 provides safeguards against compulsory acquisition of property.

 

Under Section 44(1), compulsory acquisition must take place in the manner and for the purposes prescribed by law. The applicable law must, among other things, provide for prompt payment of compensation and give a person claiming compensation access to a court or tribunal for the determination of the person’s interest in the property and the amount of compensation.

 

These safeguards matter because compulsory acquisition involves an inherent imbalance of power. The government has the machinery to identify, acquire and redeploy land for public purposes. The affected individual may have limited resources with which to challenge the acquisition or contest the valuation.

 

The constitutional requirement of access to judicial determination is therefore not a technical detail. It is a safeguard against arbitrary exercise of public power.

 

The relationship between Section 44 of the Constitution and Section 47 of the Land Use Act deserves particular scrutiny. Section 47 contains provisions seeking to exclude judicial inquiry into specified questions concerning the vesting of land and the amount or adequacy of compensation under the Act.

 

Such restrictions raise a serious constitutional question. Section 1(3) of the Constitution establishes that any law inconsistent with the Constitution is void to the extent of the inconsistency. The Land Use Act cannot simply declare itself superior to the Constitution and thereby settle the question of its own constitutional validity.

 

The precise scope and effect of Section 47 must, however, be assessed against the constitutional provisions and relevant judicial decisions. It would be wrong to assume that every aspect of the section is necessarily invalid without examining the applicable authorities.

 

Equally, Section 47 should not be interpreted as a general licence for the government to demolish property without lawful acquisition or compliance with applicable legal requirements. The legality of a demolition depends on the circumstances, the legal basis asserted by the authorities and the relevant safeguards.

 

It should be noted, however, that while the literal text of Section 47 contains severe “ouster clauses” designed to block courts from questioning a Governor’s land-vesting decisions or the adequacy of compensation, Nigerian courts have repeatedly declared these restrictions null, void, and unconstitutional.

 

In Controller-General of Prisons v. Prince Elema & Another (Supreme Court of Nigeria) a dispute over compulsory land acquisition and compensation, the government invoked Section 47(2) of the Land Use Act to block judicial review of the compensation’s adequacy, where the legal issue was whether a statutory provision like Section 47(2) extinguishes the constitutional jurisdiction of courts to review executive decisions on civil rights. The Supreme Court struck down Section 47(2), ruling it inconsistent with Section 44(1) of the 1999 Constitution, which guarantees access to courts regarding compensation. The Court affirmed that constitutional supremacy renders any LUA ouster clause null and void.

 

The broader principle, therefore, remains: public interest must be pursued within the law, not used as a substitute for it.

 

Housing is more than a roof

The debate cannot end with property valuation. It must also consider the right to adequate housing.

 

Nigeria acceded to the International Covenant on Economic, Social and Cultural Rights in 1993. Article 11(1) recognises the right of everyone to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, as well as the continuous improvement of living conditions.

 

Article 2(2) requires the rights recognised in the Covenant to be exercised without discrimination. Article 2(1) requires states parties to take steps, using the maximum of their available resources, towards the progressive realisation of the rights recognised in the Covenant.

 

The UN Committee on Economic, Social and Cultural Rights elaborated on the meaning of adequate housing in General Comment No. 4, adopted in 1991. Adequacy is not simply a question of whether a roof exists. It encompasses security of tenure, access to essential services, affordability, habitability, accessibility, suitable location and cultural adequacy.

 

This understanding has important implications for compulsory land acquisition and resettlement in Nigeria.

 

A house may be structurally sound yet remain inadequate if its occupants cannot afford to maintain it, lack access to clean water or sanitation, or are relocated so far from employment that their livelihoods become unsustainable. Similarly, the demolition of a dwelling may cause harm that cannot be measured solely by the replacement cost of its walls and roof.

 

General Comment No. 7, adopted in 1997, further clarifies the international standards applicable to forced evictions. It identifies procedural protections that include consultation with affected people, reasonable notice, access to legal remedies and appropriate compensation. Where evictions leave people unable to provide for themselves, governments must take appropriate measures, within their available resources, to ensure access to adequate alternative housing or other suitable arrangements.

 

The right to adequate housing does not create an absolute prohibition on eviction or lawful compulsory acquisition. It does, however, require governments to take the rights, circumstances and welfare of affected people seriously.

 

Housing adequacy is not just arithmetic

Nigeria’s housing challenge also illustrates why adequate housing cannot be measured solely by the number of available units.

 

Even where the aggregate housing stock appears sufficient relative to the population, shortages may persist in particular locations, especially where employment, transport, infrastructure and affordable services are concentrated.

 

A vacant dwelling in one part of a country does not necessarily solve the housing shortage in another. Nor does the construction of a large number of expensive homes resolve the needs of households that cannot afford them.

 

Housing adequacy must therefore be assessed in both quantitative and qualitative terms. The number of homes matters, but so do their location, affordability, condition and suitability for the people who need them.

 

For policymakers, the practical task is to understand housing demand at local level, improve the supply of affordable homes, strengthen infrastructure and ensure that development does not deepen existing inequalities.

 

Reforming the legal framework

The Land Use Act also deserves a careful legislative review. The original 1978 instrument contains drafting and language issues that warrant scrutiny, including the use of “compromised” where “comprised” appears to have been intended in the introductory text. Such errors may be minor in isolation, but a comprehensive review should distinguish typographical defects from substantive provisions that affect citizens’ rights.

 

More importantly, the review should examine whether the compensation framework adequately reflects contemporary land values, the consequences of displacement and the constitutional requirement of prompt compensation.

 

It should also clarify the relationship between the Act’s restrictions on judicial proceedings and the Constitution’s guarantees of access to judicial determination. The objective should be a legal framework that allows legitimate public acquisition while preserving effective remedies for those affected.

 

Reform should establish transparent valuation procedures, clear timelines for compensation, accessible dispute-resolution mechanisms and appropriate safeguards for resettlement. Where livelihoods, homes and community ties are disrupted, the assessment should consider the actual circumstances of displacement rather than relying exclusively on the value of physical improvements.

 

Such changes would not prevent the government from acquiring land for roads, transport networks, schools, hospitals or other essential projects. They would help ensure that the pursuit of public benefits does not impose unjustifiable burdens on individual citizens.

 

Development must not come at the expense of justice

Nigeria needs infrastructure, urban renewal, investment and a more efficient land administration system. These objectives are difficult to achieve without a workable framework for public acquisition of land.

 

But an effective framework must do more than confer powers on the government. It must also provide meaningful safeguards for those who bear the costs of exercising those powers.

 

The Land Use Act was enacted in 1978, under a military government. Its origins alone do not determine its validity or present-day usefulness. Its provisions must instead be judged against the Constitution, applicable judicial decisions and the country’s contemporary economic and social needs.

 

The ultimate test is whether the law strikes a fair balance between public necessity and individual rights.

 

Land acquired for public purposes may generate benefits for an entire community. Yet the people displaced by that acquisition should not be expected to absorb the losses simply because the project is considered desirable.

 

Compensation must be prompt, fair and consistent with the law. Judicial remedies must remain meaningful. Resettlement must take account of the realities of people’s lives, and housing policy must recognise that a home is more than a structure.

 

Development is essential. So is the rule of law. A credible land administration system must demonstrate that the two can coexist.

 

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