"The Land Use Act is an Act that has been applied in a plethora of cases by this Court and the Apex Court and I believe that there is no section of that Act that has not acquired judicial notoriety or that will require fresh construction by the Courts. The intendment of Sections 28 and 36(2) of the Land Use Act have been considered in cases such as R. C. O. & S. LTD. VS. RAINBOWNET LTD. (2014) 5 NWLR (PT. 1407) 576; FHA VS. EMELIE (2013) 3 NWLR (PT. 1342) 478; MOYOSORE VS. GOVT. KWARA STATE (2012) 5 NWLR (PT. 1293) 242. AMALE VS. SOKOTO LOCAL GOVERNMENT (2012) 5 NWLR (PT, 1292) 181. MAKUN VS. F. U. T. MINNA (2011) 18 NWLR (PT. 1278) 190 SC. In the earlier case of OSHO VS. FOREIGN FIN. CORP. (1991) 4 NWLR (PT. 184) 157, the Supreme Court held: "The purposes for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State have been clearly set out in the Land Use Act. Any revocation for purpose outside the ones prescribed even though ostensibly for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared invalid and null and void by a competent Court of law. The Court of Appeal having found on the evidence that the Military Governor revoked the Plaintiff right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void." PER OBASEKI, J.S.C.
Under Section 28 of the Land Use Act, the power of revocation of a right of occupancy is provided for as follows: 1. It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest. 2. Overriding public interest in the case of a statutory right of occupancy means a. The alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy of part thereof contrary to the provisions of this Act or of any regulations made thereunder; b. 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; c. The requirement of the land or mining purposes or oil pipelines or for any purpose connected therewith. 3. Overriding public interest in the case of a customary right of occupancy means: a. 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; b. The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith. c. The requirement of the land for the extraction of building materials; d. 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. In the instant case, the claim of the Appellant concerns customary right of occupancy.
The question posed is whether the Government of Cross River State has the power to revoke a land with deemed customary right of occupancy especially prescribed for Agricultural purposes. The Reliefs of the Appellant before the Lower Court in the instant case has no direct bearing with any issue of revocation. The affidavit evidence however at paragraphs 14 to 15 clearly points out that the land in dispute had been revoked. These two paragraphs of the affidavit in support state as follows: 14. That on the 5th of January, 2010, the Government of Cross River State through its Ministry of Lands and Housing wrote a Letter with reference MLH/LD/19.583/26 titled Re: Notice of Revocation of Interest on Land at Odukpani and signed by T. O. S, Nelson, Director of Lands for the Commissioner. Attached and Marked Exhibit 'G' is the above captioned letter. 15. That on Wednesday, October 21, 2009 Tuesday, October 27 2009, there was a Newspaper Publication in the Nigerian Chronicle titled Government of Cross River State of Nigeria, Ministry of Lands and Housing 'Notice of Revocation of Occupancy, Land Use Act, 1978, giving a description of the area and public purpose absolutely for the establishment of Odukpani Local Government Housing Scheme'. Attached and Marked Exhibit 'H' is a Nigerian Chronicle Newspaper Publication on Wednesday, October 21, 2009 - Tuesday, October 27, 2009. Exhibit 'G' annexed to the paragraph of the affidavit, was re-produced in the judgment of the Lower Court. That letter Exhibit 'G' referred to the notice of revocation issued by the Respondents and published on the Nigerian Chronicle Newspaper of 21st October, 2009. That letter equally disclosed that the land was acquired by the State Government for the development of a housing scheme for the Odukpani Local Government Council. The letter materially stated as follows: The notice of revocation of interests on the subject site was published in the Nigerian chronicle of 21st October, 2009.
Accordingly you are required to submit your claims for the compensation (computation?) of your unexhausted improvements thereat. You are also required to make yourself available for the enumeration of the interests that will take place on the site from 18th January, 2010. Your cooperation is highly solicited, please. Thank you. The intendment and import of this notification was considered by the Lower Court at pages 49 to 50 of the record as follows: From the above, it is clear that the revocation of the right of occupancy of the claimant was for a public purpose which is the development of a housing scheme for the Odukpani Local Government Council - this falls within the ambit of Sections 28(3)(a) and 29(1) of the Land Use Act, 1978 as well as Section 44(1) of the CFRN, 1999 (as amended). The purpose of the revocation which must be stated in the notice of revocation as was prescribed in the cases of - ATTORNEY GENERAL BENDEL STATE VS. AIDEYAN (1989) 14 NWLR (PT. 118) 646; NIGERIAN TELECOMMUNICATIONS LTD. VS. CHIEF OGUNBIYI (1992) 7 NWLR (PT. 255) 543; CSS BOOKSHOP LTD. VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY OF RIVERS STATE & ORS. (2006) LPELR 824 (SC); (2006) 11 NWLR (PT. 992) 530, was adhered to in compliance with the law as is conceded in the affidavit of the claimant paragraph 15. That to me was sufficient compliance with the law and I so hold. The law is well settled by the decisions of the Apex Court especially in C.S.S. BOOKSHOPS LTD. vs. R. T. M. C. R. S. (2006) 11 NWLR (PT. 992) 530 where it was held per Tobi, JSC that; "in exercising the Governor's power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor.
The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of notice of revocation of right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffectual. It was further held by his Lordship that where the land is to be revoked for public purpose there is the need to spell out the public purpose in the notice of revocation. In the instant case, the Appellant in paragraphs 14 and 15 of his affidavit in support of the originating summons had deposed to the notice given by the Respondents of the revocation and laid out the reason advanced by the Respondents was for the development of a Housing Scheme for the Odukpani Local Government Council. This deposition in the said paragraphs 14 to 15 of the Appellant's affidavit before he Lower Court was admitted by the Respondents in paragraph 6 of their counter-affidavit. There is therefore no controversy as to the fact that the Respondents gave notice and the reason for the revocation of the Land in issue.
The learned trial judge therefore was completely right in his decision that there was sufficient compliance with the Land Use Act in this case. The learned trial judge did not overlook any material issue raised in this case. It must be emphasized clearly here that the Land Use Act, 1978 did not forbid the Governor of a State from revoking any customary or statutory right of occupancy. The only check is that the revocation must be for public purpose and the public purpose must be duly specified and the appropriate notice must be issued to the holder of the Right of Occupancy. There cannot be argument in the instant case about the fact that the purpose given here which is for development of a Housing Estate for the Local Council is appropriately authentic purpose under the law for which a Governor can revoke land as that certainly is a public purpose.
In respect of Section 36(2) of the Land Use Act the Appellant in his brief referred to the decision of the Supreme Court In the case of NTOE ANDREW ANSA VS. CHIEF ASUQUO ARCHIBONG ISHIE & ORS. (2005) 6 s,c. (PT. 11) p.51 where pat Acholonu, JSC stated: "On another note, what is the implication of Section 36(2) of the Land Use Act 1978?, Section 36(2) states: ''Any occupier or holder of such land, whether under customary rights or otherwise however, shall, if that land was on the commencement of this Act being used for Agricultural purposes, continue to be entitled to possession of the Land for use for Agricultural purposes as if a Customary Right of Occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this sub-section to land being used for Agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil." Section 36 of the Land Use Act 1978 is the transitional provisions on land not in urban areas. That provision is very lucid and clear. Neither the Section 36 of the Act nor the decision in NTOE ANDREW ANSA VS. CHIEF ASUQUO ARCHIBONG ISHIE (supra) can constitute a bar to the Power of the Governor under Section 28 to revoke any land within the State for authorized purposes.
The decision in NTOE ANDREW ANSA VS. CHIEF ASUQUO ARCHIBONG ISHIE (supra) does not make any law forbidding the governor from revoking land for overriding public purpose. The Section clearly specified that on the commencement of the Act, any land being used for Agricultural purposes shall be utilized by the holder for that purpose and it will be deemed as if a customary right of occupancy had been granted the holder. When Section 28 of the Act is considered, the Governor has the power to revoke any right of occupancy whether statutory or customary occupancy. So a deemed customary right of occupancy is affortiori revocable by the Governor the fact of it being a land for Agricultural purposes notwithstanding."
Per ADAH, J.C.A. IN BALLANTYNE v. A.G CROSS RIVER STATE & ORS CITATION: (2017) LPELR-43527(CA)
