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PUBLIC INFRASTRUCTURE PROVISION AND RIGHTS OF WAY ACQUISITION IN NIGERIA

BY

CELESTINE M. UDIA Department of Estate Management

Cross River University of Technology, Calabar

Abstract The inability to develop the criteria for the efficient and equitable process of rights of way acquisition is one of the major reasons for our failure to achieve sustainable public infrastructure provision in Nigeria. This paper is aimed to evaluate rights of way acquisition in relation to public infrastructure provision against the principles of good land governance. The work shall concentrate on expropriation procedures, the nature of compensation, equity and transparency in decision making, public land management and dispute resolution process. The focus of the paper is to propose the criteria that can reduce the elements of conflict, confrontation and increase co-operation, participation and support in the process. INTRODUCTION What is the level of land administration process that can lead to a sustainable public infrastructure provision in Nigeria? It should be noted that one of the prominent problems facing public infrastructure provision is that of easy access to land. This arises from the fact that although the concept of compulsory acquisition is based on sovereign’s power of eminent domain (Barlowe, 1978; Farvacque & McAuslan, 1992), the process does not easily passes the land to the state for development. The reason is that of poor and ineffective land administration mechanism. The argument here is that before land administration can deliver appreciable tracks of land for public infrastructure provision in Nigeria, the concept of land governance becomes the working hypothesis. The point is that, land constitutes the foundation of the people, city and all economic, social, cultural, physical and political activities. In other words, it is the single greatest resource base in most countries. It is the foundation of life and the custodian of the norms and morals in any given society (Omotola, 1981). In fact, policies about land are policies about the society, hence, access to land and land management have significant implication for development (Udia, 2010). Land being a source of wealth and a platform for human activities, land governance is one of the central requirements for economic development (Silayo, 2009).

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Land governance is the totality of a nation’s guiding policies, implementation and enforcement of best practices to achieve the highest, rational and best use of land resources for the benefit and enjoyment of its citizen. It is the next level of advancement in internationally accepted land administration and development practices. It is built around the general framework of human rights (Udom, 2010). It is concerned with roles, practices and structures through which decisions are made about access to land and its use (Augustinus, 2009). The key principles of good land governance as identified by Bell (2007) are

Efficiency Effectiveness Transparency Accountability Autonomy Public participation Equity Rule of law

It should be noted that public infrastructure that are usually involved in rights of way acquisition may traverse many states, hence that usually involve large-scale land acquisition. Examples of such public infrastructure include:

Road and highway network infrastructure including bridges, culverts, side walk etc

Electricity infrastructure including the transmission lines, power stations, street lights

Gas/oil pipelines including the storage and distribution terminals as well as distribution network.

Water infrastructure including the system of pipes used in the collection and distribution of drinking water, sewage collection and disposal of water, drainage system.

Telephone infrastructure including telegraph lines. Apart from land acquisition not adhering to the principles of land governance other problems that hinder easy access to land for public infrastructure provision emanate from the distinctive characteristics of land. It is important to note that the very nature of land is to generate conflict of interest (Omirin, 2012). Even with the mere mention of the word “compulsory acquisition” it raises the interest or concern to the property owner, the estate surveyor and valuer and the acquiring authority (Umeh, 1973). Most of the concern comes from the processes of acquisition, issue of compensation, settlement of dispute, purpose of land acquisition. For instance, delays in completing the procedures of acquisition and payment of compensation may span up to 10years. Sometimes land may be acquired by public authority that do not have the financial capacity to pay for it, or to develop it and many at times the public objections are ignored.

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It should be noted that respecting the people’s rights in relation to land acquisition is specifically expressed within the human right framework. The Universal Declaration of Human Rights (Article 17) provides that “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”. Several regional conventions on human rights also protect rights to property, including:

The American Convention on Human Rights states that: i) “Everyone has the right to the use and enjoyment of his property. ii) No one shall be deprived of his property except upon payment of just

compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.”

The African Charter on Human and Peoples’ Rights, 1986:“Article 14. The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”

The European Convention on Human Rights and Fundamental Freedoms,

1950, (Article 8, First Protocol): i) “Everyone has the right to respect for his private and family life, his

home and his correspondence. ii) There shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country.

Indigenous Land Rights

Secure rights to land and other natural resources are essential for the livelihood of indigenous people. Numerous international statements and declarations recognise the rights of indigenous peoples to their lands. Amongst these are i) The Habitat Agenda, reaffirmed by the Istanbul Declaration on Human

Settlements (1996), commits to the following objectives: “Protecting, within the national context, the legal traditional rights of indigenous people to land and other resources, as well as strengthening of land management… [and] Protecting and maintaining the historical, cultural and natural heritage, including traditional shelter and settlement patterns, as appropriate, of indigenous and other people….”

ii) The International Labour Organisation’s Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) sets out in Article 14(1) that: “The rights of ownership and possession of [indigenous people] over the lands which they traditionally occupy shall

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be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities.”

Despite the plethora of laws and conventions relating to rights and land acquisition by government for public infrastructure, there still remains a wide gap in government desire to provide infrastructure and the citizens’ enthusiasm to accept the project by making their land available. The issues of our concern are:

How functional are the laws that govern the rights of way acquisition in Nigeria?

What should be the criteria for developing more efficient and equitable land acquisition process?

What are the challenges of rights of way acquisition to the estate surveyor and valuer?

2.0 THE RELEVANT LAWS GOVERNING RIGHTS OF WAY ACQUISITION IN NIGERIA These are:

Land use Act Cap L5 LFN 2004 Oil pipelines Act, Cap 07 LFN 2004 Electric power sector reform Act, No. 6 of 2005 1999 Constitution of the Federal Republic of Nigeria

2.1 LAND USE ACT, CAP L5 LFN 2004

It shall be necessary to examine the acquisition process under the Land Use Act Cap L5 LFN 2004 under three (3) valid conditions. The point is that a proper and valid acquisition of land must be subject to strict compliance with relevant provisions of the law. The conditions precedent for a valid acquisition by government are stated in sections 28 (1) – (6), 29(1), (4) and 50(1) of the Land Use Act. The conditions are: Service of notice on dispossessed owner Public purpose Payment of compensation

a) A survey of the area affected is usually preceded by an acquisition notice.

Section 28(6) states “the revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice therefore shall be given to the holder”. Notice must be served personally on the dispossessed owner before substituted service through publication in the newspaper and the government gazettes. According to Egwuatu (2011), the notices are rarely served. It therefore means that in the absence of notice of revocation any purported revocation of right of occupancy will be illegal and amounting to non-compliance with the law.

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b) The land acquired must be for public purpose. The law in section 50 defines

public purposes as far as rights of way is concerned to include: for or in connection with sanitary improvement of any kind for obtaining control over land contiguous to any part or over land the

value 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 acquired for or in connection with development of telecommunication or provision of electricity.

It is this element of public interest that justifies compulsion (James, 1987). If the purpose of compulsory acquisition is for the benefit of a private individual, such acquisition does not comply with the provision of the law.

c) Section 29(4) provides for compensation as follows:

the land for an amount equal to rent if any, paid by the occupier during the year in which the right of occupancy was revoked.

building, installation or improvement thereon, for the amount of the replacement cost . . . together with interest at the bank rate for delayed payment of compensation

crops on land for an amount equal to the value as prescribed and determined by the appropriate officer.

It should be noted that about 60% – 70% of every rights of way acquisition passes through crop land, forest/woodland. The point is that the law is salient on the method and basis of assessing compensation for crops as many rights of way acquisitions (road projects) have been hijacked in most states by government officials in the Ministry of Works who are not appropriate officers.

It is important to mention that with regards to compensation the law only recognises those who have ownership rights, excluding those who are directly or indirectly subjected to restriction on the access to land resources. Interestingly, section 47(2) prohibits the courts from having jurisdiction to inquire into the amount or adequacy of any compensation paid under the Act.

2.2 OIL PIPELINES ACT, CAP 07 LFN 2004

This law made provision for licenses to be granted for the construction, maintenance and operation of pipelines incidental and supplemental to oil fields and oil mining. Section 4 empowers the minister to grant survey permit to a holder of an oil prospecting license to enter on any land upon the route specified in the permit. It means that this cannot be done without the consent

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of the owner, which must proceed from a mandatory notice to the occupier of at least 14days (Section 6(1)). Section 6(4) states “in the event of dispute as to the amount of compensation to be paid or as to whether or to whom any compensation shall be paid the provision of Part IV of this Act shall apply”. Part IV section 19 states “if there be any dispute as to whether any compensation is payable under any provision of this Act or if so as to the amount thereof, or as to the person to whom such dispute shall be determined by a Magistrate exercising civil jurisdiction in the area . . . and if there be no such magistrate by the High Court exercising jurisdiction in the area . . . There shall be an appeal to the Court of Appeal. Let us contrast this with the provisions of section 30 of the Land Use Act that refers dispute to Land Use and Allocation Committee and section 47(2) that exclude the jurisdiction of the court to inquire into any question concerning the amount or adequacy of compensation paid or to be paid under the Act. Section 20(5) states “in determining compensation in accordance with the provisions of this section, the court shall apply the provision of the Land Use Act so far as they are applicable and not in conflict with anything in this Act . . .” This section of the Oil Pipelines Act is very clear in its inconsistency with the provisions of the Land Use Act (Egwuatu, 2011). The basis of assessment under the Oil Pipelines Act is the open market value. Section 20(1) states “if a claim is made under sub-section (3) of section 6 of this Act, the court should award such compensation as it considers just in respect of any damage done to any buildings, crops or profitable trees…and in addition may award such sum in respect of disturbance (if any) as it may consider just”. The law defines an oil pipeline to mean: a pipeline for the conveyance of mineral oils, natural gas and any of their derivatives or components. It gives the licensee the power to construct, maintain and operate an oil pipeline including the power to construct maintain and operate on the route of such pipelines including roadways, telephone and telegraph lines, electric power cables . . . The point to be noted is that why do we always resort to the provisions of the Land Use Act in matters of oil/gas acquisition when the Oil Pipelines Act has clearly provided for the basis of assessment.

2.3 Electric Power Sector Reform No. 6, 2005

This Act deals with acquisition of land and access right. Section 77 of the Act empowers the Nigeria Electricity Regulatory Commission to make a declaration that land is required by a licenses for purpose of generation or

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distribution of electricity. Section 77 (9) states: “where the president issues a notice under sub-section 6, the Governor shall in accordance with the provisions of section 28(4) of the Land Use Act, revoke the existing right of occupancy respecting the land and grant a certificate of occupancy in favour of the concerned licensee in respect of the land identified by the commission in such notice . . . who shall be entitled to claim compensation in accordance with the provisions of the Land Use Act”.

2.4 1999 Constitution of the Federal Republic of Nigeria

Section 44(1) states “No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the moment and for the purposes prescribed by a law that, among other things – a) requires the prompt payment of compensation therefore and b) it 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.

2.5 Issues and Concern arising from Rights of Way Acquisition Laws in Nigeria

Lack of consultation The land acquisition laws in Nigeria have no provision for consultation or seeking consent of people who are likely to be affected by acquisition. The dispossessed owners have no room to object to any decision on land acquisition nor their views sought in the matter. This is not in line with the principles of land governance which sets standards for land acquisition.

Enforcement of rights All the land acquisition laws recognise individual and group rights, the worst part is that none recognise the right of the squatters or informal settlers to compensation. Apart from this, owners of land subject to customary rights are required to provide evidence of title before they can claim compensation. Their inability to provide such proof often provide the basis for dispossessing them without compensation

Weak acquisition process In all the acquisition laws, expropriation is warranted only for public purpose. The reality of the situation is that the process is weak and lack transparency in areas of service of notice, public purpose and payment of compensation when government acquires a citizen’s land with minimal notice, no right of objection and minimal compensation paid is bound to

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fuel resentment. It could be in the form of rioting at the least provocation, refusal to leave the land or attacking the officials.

Dispute resolution process There is a general absence of a well defined and generally acceptable appeal process and absence of public hearing. The Land Use Act rests the issue of dispute as to the amount of compensation on Land Use and Allocation Committee. The court is prohibited from inquiring into the adequacy or amount of compensation nor there is provision for alternative dispute resolution. Affected owners should be given opportunities to be heard and to have their concerns acknowledged and addressed by the acquiring authority.

Lack of co-operation and understanding by professionals There is a general lack of co-operation and understanding by consultants representing the acquiring authority and the claimants. In most cases the consultant estate surveyor and valuer to the acquiring authority by arrogation to herself of the roles of judge, jury and hangman, thereby leaving the dispossessed owners and their valuers in doubt as to the fairness of such compensation. At times, this attitude leads some clients to ask “why did we employ the valuer who has not value our property nor negotiate on our behalf”.

Publication of notice The notice should be widely published and served to all affected individuals. The notice should state the purpose of the acquisition, the notice should explain the rights of people in the process and provide information on where to get help. It should also include a comprehensive map of the land (line profile) to be acquired.

The nature of compensation It is the issue of compensation that gives rise to so much confrontation between the acquiring authority and the citizen. Is it that the amount of compensation that is not adequate, is it the nature of compensation or the manner in which it is determined or the delayed payment?

It should be noted that there are two known concepts of compensation. The first is the market value concept, which seems to provide the claimant with the financial equivalent of the loss suffered. In this wise, compensation is not seen as having any social purpose than providing the dispossessed owner money worth of his asset with which he can buy an equivalent property (Aluku, Omisore and Amidu, 2008). The second concept; the purpose of which is to provide an institutional response to the claimant. That is, to indemnify

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him of the loss but not necessarily equal harm by way of financial equivalent. It has been argued that the concept of open market value in compensation losses its validity since the government is protecting and preserving the rights of everybody over land and at the same carrying out project on parts of the land for the benefit of all including the dispossessed owner. Whatever is the argument, the courts have held that in the case of compulsory acquisition, just compensation should be paid to the deprived owners.

3.0 THE CRITERIA FOR DEVELOPING MORE EFFICIENT AND EQUITABLE RIGHTS

OF WAY ACQUISITION PROCESS

This section is to address the issues raised. What are the practical steps that should be taken to reduce conflict and confrontation in rights of way acquisition? The point is that part of the public’s hostility to compulsory acquisition of land is that it is seen as one of the extreme action that a government can take against citizen especially when the process lacks transparency. The process of land acquisition should include:

3.1 Fairness: there should be opportunities open to the dispossessed owners to

object and challenge the decision to acquire their land, or challenge the compensation paid in court or in alternative dispute resolution if dissatisfied with the amount of compensation. There should be provision for bodies of judicial and quasi-judicial, which can give independent decision. Fairness should also include minimum delay in the payment of compensation.

3.2 There should be transparency in rights of way acquisition process. The officials

should be forthcoming and open in the process of acquisition through service of notice to dispossessed owner, stating the purpose of acquisition. They should let the people know how the project is going to impact on their community. The citizens are likely to respond positively or at least with less hostility if they can understand how the taking of their projects fits into a wider scheme of public interest (Farvacque & McAuslan, 1992; FAO, 2008).

3.3 All the existing acquisition laws are inconsistent with the historical property

rights trend in the country. For expropriation to have meaning and be supported, it must respond to the historical realities of the people. Our existing laws and policies are biased towards common pool land resources, which have historically provided the greatest opportunities to the indigenous people. The forest land of this country, for instance sustain a large extent of common pool activities supporting human livelihood like hunting, firewood collection, gathering of snails. If these sources of income are ignored when land is acquired compulsorily, then grief, discontent, lies at the heart of the affected people. It is our place as estate surveyors and valuers to let the people know what rights in land they can claim and how to claim those rights.

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3.4 Land acquisition should also respond to the cultural, social and economic realities of the people (UN HABITAT, 1987). For instance, if expropriation will destroy a community, then compensation should take the form of rebuilding that community elsewhere. If expropriation will destroy livelihood, then income supporting programme should be introduced. When people view land as having meaning beyond a capital asset, then land must be replaced by land.

3.5 The community should be involved in making decisions about the nature of

compensation to be made available to them. At all times, the community or their agents should be fully involved in matters of compulsory acquisition.

3.6 The process should be fair and equitable to all. For instance, facts should

determine those who are to obtain compensation; those actually living on the land deriving a livelihood from the land should not be ignored.

3.7 One of the problems of land acquisition is that it sets up a confrontation

between the acquiring authority and the people so that the proposed development runs the risk of being stigmatised as something undesirable. It is necessary to revise the legal framework empowering public authorities to acquire land so as to enhance consultation. Capacity building is equally essential to enable land administration staff performs creditably.

4.0 THE CHALLENGES OF RIGHTS OF WAY ACQUISITION PRACTICE TO THE

ESTATE SURVEYOR AND VALUER The issues of concern are:

What are the challenges of rights of way acquisition for public infrastructure to the estate surveyor and valuer?

What role is the estate surveyor and valuer expected to play in achieving efficient and equitable rights of way acquisition process in Nigeria?

4.1 THE CHALLENGES OF RIGHTS OF WAY ACQUISITION TO THE ESTATE

SURVEYOR AND VALUER The estate surveyor and valuer is faced with the challenges of protecting

its job by finding ways to eliminate or minimize the overwhelming presence of non-estate surveyors in land acquisition. It is now a common practice to find non-estate surveyor as a consultant even to the acquiring authority in matters of land acquisition.

He has to project a better image to the society, maintain standard procedures for sourcing and accepting briefs especially in compensation matters. He should not behave like a market trader or tout blackmailing each other in the process of securing briefs.

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Since about 60% - 70% of the rights of way acquisition passes through cropland, forest/woodland, the greatest challenges is to actively verify the true land owners/occupiers where there is no clear defined title to land.

As presently observed, there is no specialization in the profession. This is one of the challenges facing the estate surveyor and valuer.

That of claims and counter claims from owners of land and buildings close to the rights of way, which comes up after the rights of way has been cleared and digging commenced. That their landed properties are not quite safe from the on-going activity.

Escalating community problems such as demanding for promises of welfare packages apart from compensation from the acquired site before the estate surveyor can enter the site for enumeration.

That of community leaders submitting a list of names containing mostly those who do not have an inch of land within the acquired site. This is mostly experienced by the community surveyors.

4.2 WHAT ROLE IS THE ESTATE SURVEYOR AND VALUER EXPECTED TO PLAY IN

ACHIEVING EFFICIENT AND EQUITABLE RIGHTS OF WAY ACQUISITION To understand the law under which land acquisition is made and advise his

client based on the law. Identifying and applying the proper valuation method given the fact that it

is a statutory valuation To be more focused, innovative and dynamic. He should apply the

knowledge he gained from the practice for conceptual thinking. Good reasoning, ethical professional approach coupled with love will

enable us to play a good role in the practice of our noble profession Practitioners must liaise with their colleagues (retained by the acquiring

authority) and agree on approach and methodology of the work. In fact, with proper understanding the relevant data needed for accurate valuation will be obtained with ease

5.0 CONCLUSION

Land acquisition is a delicate issue and requires finding the balance between the public need for land and the protection of property rights of the people. In seeking the balance, there must be a respect for the human rights of owners and occupiers of the land to be acquired. When land acquisition does not follow the required process, this may create opportunity for corruption and abuse of power. For instance, unfair procedures for the compulsory acquisition of land and inequitable compensation for the loss can reduce tenure security, increase tension between the government and the citizen and reduce public confidence in governance. In fact, good land governance is necessary to provide a balance between the needs of the government to

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acquire land. Conflict is reduced when there is clear policy and procedure. It is important to note that compulsory acquisition is both the power of government to acquire land and the process by which that power is exercised (FAO, 2008). The general consensus is that whatever benefits are provided in rights of way acquisition as currently practiced in Nigeria is eroded by inefficiency and inequity. That reform in acquisition practice or process is necessary in order to meet the international best practices. The paper has identified the problems that frustrate the current land acquisition process from delivering appreciable tracks of land for public infrastructure provision. It has equally proposed the criteria that can be employed to develop more efficient and equitable rights of way acquisition process. It is necessary to state that the greatest challenge to rights of way acquisition in Nigeria is to improve land governance. Improving land governance in this context will be defined by our capacities to develop policies, processes and institutions by which land is managed so as to improve its access for a sustainable public infrastructure provision in this country.

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