Can land acquired for public purpose be diverted to private need?


In A. O. Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 at 195 para D, the Supreme Court, per Obaseki JSC, held that,

When therefore public purpose is stated to be the ground for revocation, any of above purposes is impliedly incorporated in order. If as has occurred in the instant appeal the land taken ostensibly for public purposes in the order of revocation is later discovered to be in use for other purposes, the revocation of the statutory right of occupancy is vitiated and the order becomes unlawful.

At page 187, para G to H, of A. O. Osho v. Foreign Finance Corporation (supra) the Court further stated as follows,

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 purposes 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 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’s right of occupancy not in the manner and for the purposes prescribed y the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void.

Similarly, in Chief Ereku v. Military Governor, Mid-Western State of Nigeria (1974) 1 ALL NLR (Pt. 2) 163 at 171-172 para 25 to 30, the Supreme Court, per Elias CJN, as he then was, noted as follows

We are of the view that it is wrong for counsel for the respondents to assume that the notice of acquisition has by itself settled the matter by saying that it is “for public purpose absolutely”. That counsel argued that the mere claim in the notice of acquisition that it was for “public purpose” is sufficient and no attempt should be made to go beind it in order to look at what was done subsequently. We think that the following observation of the learned trial judge is a sufficient answer:

‘The public purpose for which the Government can compulsorily acquire lands are clearly defined in s. 2 of the Public Lands Acquisition Law, Cap. 105, Vol. IV L/W.N. 1959 and does not include acquisition for the purpose of making a grant of it to a third party and Notice having declared that it was acquired for a public purpose absolutely, I am not prepared to read any purpose outside of the purposes defined in the law. The learned Senior State Counsel has ured the Court to hold that the grant of the lease to Mc-Dermott Overseas Inc. Was in accordance with the public purpose for which the land was acquired because the objects stated in the Articles of Association of the Company were in consonance with the declared objectives of Government to advance the industrial and economic development of the State. This submission is untenable and cannot stand in the face of the express provisions of the Public Lands Acquisition Law. If this had been the expressed purpose on the Notice, I would not have hesitated to declare the acquisition ultra vires the Public Lands Acquisition Law. The fact that the Company has the same objectives as the Government and serves the whole Nigerian public does not bring the act of the Government in granting the lease within the definition of Public Purpose under the Public Lands Acquisition Law. There is no doubt that McDermott Overseas Inc. Is a Company working with a view to earning for its members (not the Nigerian Public) and is a private person in law’ 

In Olatunji v. Military Governor of Oyo State (1995) 5 N.W.L.R. (pt. 397) 586 @ 602 paras F to H, the Court of Appeal instructively stated thus,

The case of A. O. Osho v. Foreing Finance Corporation (1991) 4 NWLR (Pt. 184) 157, Chief A. O. Lawson v. Chief A.A. Ajibulu (1991) 6 NWLR (Pt. 195) 44 and Chief Ereku v. Military Governor, Mid-Western State of Nigeria (1974) 10 SC 59; (1974) 1 ALL NLR (Pt. 2) 163 are all decisions saying if a property is ostensibly acquired for public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private need the acquisition can be vitiated. The acquiring authority cannot rob Peter to pay Paul by divesting one citizen of his interest in a property by vesting same in another; Dzungwe v. Gbishe (supra). If the acquiring authority can no longer find a public purpose for the land so acquired the only avenue open to it is to deacquire it and let the same rever to the person in whom it was already vested. And in all cases where public purpose failed, the land reverted to original owner: Ajao & Another v. Sole Administrator for Ibadan City Council (1971) 1 NMLR 74.



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