TheCable

BY ONELE JOSEPH

Nothing could be more insulting to the citizenry than when the crops of people that have been saddled with the responsibility of ensuring that the interest of the citizenry is well protected veer off such great responsibility to steer their own course and champion their own selfish agenda.

It is against this backdrop that this article proceeds to examine the bill recently introduced at the national assembly which seeks to provide for the establishment, preservation and control of National Grazing Reserve Commission (the Bill), and considers how the bill affects the right to property of Nigerian citizens (and non-citizens alike).

The Grazing Bill: Much Ado About Nothing?

Whilst by the bill appears to have been “innocuously disguised” as one aimed at providing for the establishment, preservation and control of National Grazing Reserve Commission and for purpose connected therewith, a closer look will reveal its overreaching effects on the right to property as entrenched in the Nigerian groundnorm and protection of propriety rights in land under Land Use Act 1978.

Consequently, one would then understand why upon a careful read of the relevant provisions of the bill, most Nigerians have called for the withdrawal of the bill or advocated that the bill should not be allowed to see daylight.[1]

As a prefaratory remark, it is apt to note that the focus of this piece is to not do a section-by-section analysis but to test certain provisions of the bill against extant laws and see how same offends the right to property of citizens (and non-citizens alike). Equally important is the fact that this article briefly considers the seemly conflict between the bill and the Land Use Act 1978 and succinctly pinpoint how on certain provisions of the bill contravene the right to property as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution).

Be that as it may, whilst it is not in doubt that the fundamental rights of a citizen are not absolute under Nigerian law,[2] it only accords with reason, equity and good conscience that a citizen’s right should only be curtailed where such is permitted by law and upon satisfaction of any requirement imposed by the Constitution. However, there comes a problem when a law that attempts to take away one’s fundamental right to property, fails to comply with the extant law on the procedure for taking such huge step. Where such a situation arises, it is the author’s considered view that citizens’ resistance of such a move (amounting in local parlance, to “robbing Peter to pay Paul”), is reasonably justified and can be conveniently defended relying on the extant provisions of the Constitution.

While a cursory look at the Bill may seem to make it look “innocuous”, a careful perusal of the relevant sections of the Grazing Bill will reveal the intent of its sponsors who arguably seek to champion the interest of a sect – herdsmen and cattle owners while seeking to deny citizens of their fundamental right to property in a bid to the satisfy the sect.

Upon a read of Section 6 of the Bill, one may be right to assert that the draftsmen intended to confer enormous power on the Commission which includes the power to acquire any land for the purpose of the National Grazing Reserves and Stock Routes at will.

More disturbing, however, is the provision of Section 17(2) of the Bill which empowers the Commission to take over ownership, control and management of any existing Grazing Reserve and stock routes from any State Government on such terms and conditions as may be agreed between the Commission and the State concerned. In addition, 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.

Upon a read of the foregoing sections, it may be right to submit that should the bill be passed, the Commission can take any land belonging to any citizen at will all in the name of establishing a National Grazing Reserve and Stock Routes. Whilst some may argue that it is too early in the day to judge, one needs no soothsayer to come to the realization that the establishment of the Grazing Reserve will serve only the interest of the herdsmen and cattle owners. Whereas, owners of land acquired will be dispossessed of such land, a situation of robbing Peter to pay Paul is definitely inevitable should the Bill be allowed to see the light of day. It needs no telling that acquiring land for grazing purposes which ultimately serves the need of “a majority few” do not accord with th intent of the draftsman under Nigerian law in providing compulsory acquisition of land for “public purpose”.

Notably, Section 18(1) of the Bill requires that before any land is constituted as National Grazing Reserve and Stock routes, due notice is to be given to the State Governor, where such land is situate by the Commission on behalf of the President of the Federal Republic of Nigeria of the intention of the Commmission to constitute such land as National Grazing Reserve and stock routes and after the acquisition, same shall be published in the Official Gazette of the Federal Government. The pertinent question to ask is whether this accords with the Land Use Act 1978? I think not!

By Section 28(1) of the Land Use Act 1978, a revocation of a right of occupancy by a Governor will only be lawful where same is done for “overriding public interest.” Worth noting is that Section 28(2)(b) of the Land Use Act 1978 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 which means the requirement of the land by the government of the Federation for public purposes of the Federation.[3] The foregoing position may be further fortified by the decision of the Supreme Court in Osho v. Foreign Fin. Corp. (1991) 4 NWLR (Pt. 184)157 where the apex Court gave a judicial definition of ‘public purposes.”

Furthermore, the duty imposed on the Governor of a State to revoke a right of occupancy in the event of issue of notice by or on behalf of the President can only be triggered where such notice declares such land to be required by for “public purposes.”[4] Thus, where such land is not required for “public purposes,” a State Governor will be justified in refusing to act in accordance with such notice. In this regard, Section 51 of the Land Use Act provides guidance on what amounts to “public purposes.”

Whilst 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 contemplated as same relates to acquisition of land for agricultural development,[5] it is humbly submitted that this argument is not only fatally flawed but grossly misconceived in law. Whilst the author is not unaware that the Governor of a State[6] is obligated to revoke any right of occupancy where the President issues a notice that a land is needed for “Public purposes,” it is rightly submitted that where 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 as being null and void as this contradicts the spirit, if not the letters of the Land Use Act and even the Constitution.[7]

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.

Upon a community read of Section 44(1) of the Constitution and Section 28 of the Land Use Act, it may be rightly submitted that the Bill, despite purporting to compulsorily acquire land for the Federal Government for the establishment of a National Grazing Reserve and Stock Routes, containing provisions for prompt payment and access to court[8] is null and void to the extent that the purpose for which the Commission is to compulsorily acquire land cannot arguably be said to fall under the umbrella of “public purposes.”[9]

Conclusion

In the final analysis, it is humbly submitted that the Bill as it stands is not only unconstitutional but repugnant to natural justice, equity and good conscience. It is hoped that the legislators will allow reason to prevail and avoid creating more crisis whilst ensuring that the right of a “privileged few” is not allowed to override the rights of many others. In the unlikely 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 same as unconstitutional, null and void. After all, it is trite law that where is a right, there is always a remedy.[10]

Onele is Lawyer, and associate (Mergers, Acquisitions and Private Equity) at Olaniwun Ajayi LP.