Since the appellant's title is predicated on the issuance to him of a statutory right of occupancy in 1995 by the Governor of Borno State by virtue of Section 5 (1)(a) & (2) of the Land Use Act, before it can become a valid title, there must be evidence that the respondent's title has been extinguished by revocation and upon payment of adequate compensation. It was held in Ogunleye v. Oni (1990) 2 NSCC (pt. 11) 72 that the Land Use Act never set out to abolish all existing titles and rights to possession of land. Rather where such rights or titles relate to developed lands in urban areas, the possessor or owner of the right of title is deemed to be a statutory grantee of a right of occupancy under Section 34 (2) of the Act. The full Court in Abioye v. Yakubu (1991) 5 NWLR (pt. 190) 130 held that there is a presumption that a person's right to his property will not be taken away without provision being made for adequate compensation.
The Land Use Act is an Act of the National Assembly embedded in the 1999 Constitution. The argument of the Appellants that by Section 47 (2) of the Land Use Act, the trial Court lacked jurisdiction to inquire into any question concerning the amount of compensation payable under the Act. The said Section 47 (2) of the Land Use Act is in violent conflict with Section 44 (1) of the 1999 Constitution which proscribes expropriation of property without compensation. In fact, the Constitution provides that prompt compensation be paid for acquired property.
Section 44 (1) (b) of the constitution gives the owner of acquired land the right to enter the land in order to assess the quantum of compensation he may demand. That argument by the Appellant that the Court cannot inquire into the amount of compensation payable cannot, therefore, hold up. This is simply because the Constitution is supreme. See Saraki v. Federal Republic of Nigeria (2016) LPELR – 40013 (SC) and Kayili v. Yilbuk & Ors (2015) LPELR-2432(SC).
Section 47 (2) of the Land Use Act is thus in conflict with Section 44 (2) of the 1999 Constitution and is void to the extent of its inconsistency with the Constitution. EMMANUEL AKOMAYE AGIM, J.S.C.
THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME The appellants have raised this issue for the first time at this stage of the proceedings. This is in keeping with the settled law that a challenge to the jurisdiction of the trial Court to entertain and or try a case can be raised at any stage of the proceedings even for the first time in an appeal to the Court of appeal or to this Court. EMMANUEL AKOMAYE AGIM, J.S.C.
It has been established that the land in dispute being a farmland is situate at Guga Village in Bakori Local Government Area. It is therefore not an Urban land. It has also been established through evidence that the said farmland belongs to the appellants having inherited same from their parents over three decades ago. It is not in dispute that the farmland was compulsory acquired by the respondent and it was allocated to individuals who built temporary market structures. The appellants were also allocated some part of the land to build market shops.
There is no evidence to show that the appellants were issued with a notice of compulsory acquisition. And there is no evidence to show that the appellants were given compensation as required by Section 44(1) (a) & (b) of the 1999 Constitution and Section 6(3) of the Land Use Act.
There is no dispute in the fact that the allocation of the farmland to individuals to build market shops, it falls within the purview of Section 6(3) of the Land Use Act which provides that: “It shall be lawful for local government to enter upon, use and occupy for public purpose any land within the area of its jurisdiction.” Section 6(5) of the Land Use Act provides: “The holder and the occupier according to their respective interest of any customary right of occupancy revoked under Subsection (3) of the Act shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.” And Section 6(6) of the Land Use Act provides that: “Where the land in respect of which a customary right of occupancy is revoked under this act was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use to the same purpose.” PER TALBA, J.C.A.