Granting Public properties to Private Persons: The Legal Perspectives

By Rotimi Ogunleye 

Public officials at the various tiers of government often misuse their powers and roles in relation to public properties within their areas of governance by granting the properties to persons (natural or artificial) for private use. Such properties or parcels of land were acquired under the Public Lands Acquisition Law of the States such as the Public Lands Acquisition Law of Lagos State 1973 as amended by the Public Lands (Amendment) Edict of Lagos State 1976 and subsequently under the Land Use Act 1978 now Land Use Act CAP L5 Laws of the Federation of Nigeria 2004 Volume 7 which is applicable to the States of the Federation and the Federal Capital Territory (FCT).

Section 1 of the Land Use Act provides that subject to the provisions of the Act, all land comprised in the territory of each State in the Federation is 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 the Act.

By virtue of Section 299 of the Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter called the Constitution) which provides that the Constitution shall apply to the Federal Capital Territory Abuja as if it were one of the States of the Federation, the Land Use Act applies mutatis mutandis to the Federal Capital Territory with the President of the Federal Republic of Nigeria fulfilling in the FCT the functions and roles earmarked by the Act for the Governors in the States subject to the President’s powers to delegate functions to the Minister of the Federal Capital Territory under sections 18 and 19 of the Federal Capital Territory Act Cap 503 The Laws of the Federal Capital Territory of Nigeria 2007 Volume 2.

The importance of the Land Use Act is underscored by the constitutional flavour given to it in section 315(5) of the Constitution which provides that nothing in the Constitution shall invalidate it and three other enactments therein and that their provisions shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of the Constitution and shall not be altered or repealed except in accordance with the provisions of section 9(2) which is on the alteration of the Constitution. It must be noted that by the provisions of the Land Use Act, the Governor of a State and the President of the Federal Republic of Nigeria or his delegate as regards Abuja do not have unrestrained proprietary right over land domiciled in their geographical areas. Any acquisition outside the purposes enumerated in section 28 of the Land Use Act is illegal Globa Fleet Oil & Gas Nigeria Limited v. Orok (2021) 1 N.W.L.R. Part 1758 page 451 at page 481 paragraph G to page 482 paragraph C ratio 1. In General Cotton Mill Limited v. Travelers Palace Hotel (2019) 6 N.W.L.R. Part 1669 page 507 at page 548 paragraphs F and G ratio 24.

The Supreme Court amplifies this position by holding that sections 28, 29 and 44 of the Land Use Act provide conditions for the exercise of the Governor’s power to invoke a right of occupancy and that it is not the intention of the legislature that the Governor should exercise his power arbitrarily. Where the conditions or procedures are not strictly adhered to, the acquisition will be invalid see Gbadamasi v. Julius Berger (Nig.) Limited (2021) 5 N.W.L.R. Part 1770 page 419 at page 447 paragraphs E and F ratio 1.

If the Governor is so encumbered by law, what right or power therefore exists for any head of government of a lower tier or governmental body to whimsically grant public property to anybody? It is submitted that no such right or power exists.

The operative phrase in the provision empowering the Governor to revoke a right of occupancy is “overriding public interest”. For emphasis section 28(2)(3) of the Land Use Act defines overriding public interest as follows

(2) Overriding public interest in the case of a statutory right of occupancy means –
the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder; the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation; the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.

(3) Overriding public interest in the case of customary right of occupancy means –
the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation; the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith; the requirement of the land for the extraction of building materials; the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.

See also General Cotton Mill Limited v. Travelers Palace Hotel supra at page 535 paragraphs A to D ratio 21 and CIL Risk Asset Management Limited v. Ekiti State Government (2020) 12 N.W.L.R. Part 1738 page 203 at page 279 paragraph H to page 280 paragraph C ratio 17.

In section 51, the Land Use Act defines public purposes referred to in section 28(2)(b) and 28(3)(a) of the Act as including-
for exclusive Government use or for general public use:
for use by any body corporate directly established by law or by any body corporate registered under the Companies and Allied Matters Act as respect which the Government owns shares, stocks or debentures;
for or in connection with sanitary improvements of any kind;
for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;
for obtaining control over land required for or in connection with development of telecommunications or provision of electricity;
for obtaining control over land required for or in connection with mining purposes;
for obtaining control over land required for or in connection with planned urban or rural development or settlement;
for obtaining control over land required for or in connection with economic, industrial or agricultural development;
for educational and other social services;

Therefore the right of occupancy revoked for public purpose or in the public interest cannot be vested in another person General Cotton Mill Limited v. Travelers Palace Hotel supra at page 535 paragraphs D and E ratio 28.

In a plethora of cases, the courts have held that it is unlawful for any public official to grant a parcel of land acquired for public purpose to an individual or private limited liability company for commercial purpose or private use see Muhammed v. Farmer Supply Company (KDS) Limited (2019) 17 N.W.L.R. Part 1701 page 187 at page 212 paragraph D to page 213 paragraph B and paragraphs G and H ratio 11. In Stodie Ventures Limited v. Alamieyeseigha (2016) 4 N.W.L.R. part 1502 page 271 at page 292 paragraph H ratio 6 and 7 the court pointedly held that no Government or individual has any right to acquire land compulsorily and alienate or transfer it to another private individual or body for his or its private use and that the public purpose for which the Government can compulsorily acquire land do not include acquisition for the purpose of making a grant to a third party. A parcel of land compulsorily acquired for overriding public purpose cannot even be allocated for religious purpose or as a place of worship see The Registered Trustees of Apostolic Church of Christ v. The Registered Trustees of Grace Church of Christ (2021) 16 N.W.L.R. Part 1801 page 105 at page 145 paragraphs E to H ratio 9.

To complicate the illegality of granting public properties to third parties for private use, this nefarious act often clothed with the façade of infrastructural development is done without compliance with the Public Procurement Act CAP P44 Laws of the Federation of Nigeria 2004 Volume 13 and the equivalent laws in the States of the Federation.

But there are consequences for the erring officials and their partners. Both the public official that disposes public properties illegally and the private person involved are liable on conviction to be committed to prison without option of fine in sections 58(1) and 58(5) of the Public Procurement Act. Where it is a juristic person that is culpable, every director of the company shall be liable on conviction to prison without option of fine under the Act. Section 76 of the Lagos State Public Procurement Agency Law Chapter L56 Laws of Lagos State 2015 Volume 6 provides for various offences and punishments for violating its provisions. Section 77 of the Law provides for the scope of application of the law while section 81 defines the procuring entity which definition ranges from any public body in Lagos State to Local Government Councils, Local Councils Development Authorities (LCDAs) and their derivative units.

Also worthy of mention are sections 15 and 16 of the Corrupt Practices and other Related Offences Act CAP C31 Laws of the Federation of Nigeria 2004 Volume 3 on fraudulent acquisition of property and fraudulent receipt of property respectively. The Recovery of Public Property (Special Provisions) Act CAP R4 Laws of the Federation of Nigeria 2004 Volume 13 in its preamble reads thus: An Act to make provisions for the investigation of the assets of any public officer who is alleged to have been engaged in corrupt practices, unjust enrichment of himself or any other person who has abused his office or has in any way breached the Code of Conduct for Public Officers contained in the Constitution of the Federal Republic of Nigeria. Section 10 of the Act provides for imprisonment of 21 years on conviction apart from forfeiture or any other penalty.

The Governors should therefore do an audit of all public properties in their States, recover those that have been illegally ceded to private persons by public officers in flagrant abuse of their offices and let the law take its course as appropriate. Public properties should be treasured for the common good rather than turning them into objects of patronage for private use.

Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.

Source: Loyalnigerialawyer