CAPÍTULO II MARCO TEÓRICO
2.3 CLIMA ORGANIZACIONAL
2.3.2 IMPORTANCIA DEL CLIMA ORGANIZACIONAL EN LA ADMINISTRACIÓN DE LAS INSTITUCIONES EDUCATIVAS
Having considered theories on compensation, the legal regime available under Nigerian law to compensate a landowner for land acquired for mining shall be examined. Now, the applicability of efficiency and distributive justice theories under the Nigerian legal system shall be examined, and the judicial interpretation of statutes to resolve compensatory issues arising from compulsory acquisition under the 1999 Constitution and the Land Use Act of 1978.
3.1
Procedure for the acquisition of land for mining purpose
The right of every Nigerian to own, use and enjoy land in Nigeria is guaranteed by the Constitution of the Federal Republic of Nigeria, 1999. Section 43 thereof provides that every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria. Absolute right of ownership over land is limited by the Land Use Act which vests the absolute ownership of land in the Governor of a State, who holds the land of a State in trust for the benefit of all Nigerians.34 The greatest proprietary interest any person can have over land under the Act is the right of occupancy, which the Governor has the power to grant. Compulsory acquisition of land by the Federal, State or Local Government is for overriding public interest, defined to include, inter alia, the requirement of land for mining purposes, oil pipelines or public purposes.35 Where land has been validly acquired for mining purposes, a mineral prospecting32 RC Ellickson Order without law: How neighbors settle disputes (1991) 56, 234 - 36,
274 - 275.
33 MJ Radin Contested commodities (1996) 5 & 118.
34 Sec 1 of the Land Use Act of 1978.
Secs 28 & 29 (n 34 above). Secs 28(2)(c) and 3(b) provides for the ‘requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith’. Mining operations include ‘prospecting for and getting of minerals or petroleum and any activities preparatory to or incidental thereto’. See statues cited in note 4 above. Sec 22(1) of the Nigerian National Petroleum Corporation Act of 1977 define mining
company is empowered to enter upon, take possession of, or use a strip of the land specified in its licence to construct, maintain and operate pipelines and ancillary installations. The acquisition of land for public purpose under sections 28 and 51(1) of the Land Use Act does not admit of revocation of right of occupancy for the benefit of another private interest The liberal interpretation of the statutory power of revocation of the Governor by the judiciary reinforces and protects the proprietary land rights of Nigerians in many respects. Firstly, the right of every Nigerian to own property is constitutional and can only be divested under the legally permissible circumstances. Secondly, revocatory power has far reaching implication on the property right of the holder - it is expropriatory. Consequently, the person being deprived of his property has the right to know why his property is being taken over by the government. Thirdly, a statute that seeks to deprive an individual of his property should be strictly construed against the acquiring authority.
3.2
Compensation for land acquisition
The right of a landowner to be compensated for land compulsorily acquired for mining purposes is fixed in the Nigerian Constitution, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act),36 Land Use Act, Nigerian Minerals and Mining Act 2007, Petroleum Act and the Oil Pipeline Act. Compensation for compulsory acquisition of land means the sum of money to be paid by a public body carrying out some authorised undertaking, and includes loss of land, loss of farming rights, disturbance and injurious affection suffered by the landowner.37
3.2.1 The Nigerian Constitution and African Charter on Human and Peoples’ Rights
Under section 44(1)(a) of the 1999 Constitution, an acquiring authority must pay compensation promptly to an affected landowner. Article 14 of the African Charter on Human and Peoples’ Rights further provides that the right of every Nigerian to own property shall be guaranteed, and may only be encroached upon in the interest of public need or in the general
35 operation to include ‘prospecting for and getting of minerals or petroleum and any
activities preparatory or incidental thereto’. Sec 51 of the Act defines ‘Public purpose’ to include land acquired for exclusive Government use or for general public use, for use by any body corporate directly established by law or any body corporate registered under the Companies and Allied Matters as respects which Governments owns shares, stocks or debentures; for or in connection with sanitary improvement of any kind, telecommunication, mining, economic, industrial or agricultural development, education and other social services.
36 Cap A10 of Laws of the Federation of Nigeria.
37 JPH Soper ‘Arbitrations and analysis’ in DM Lawrence & JM Williams (eds) The estate
interest of the community and in accordance with the provisions of appropriate laws. Article 21 further provides that all peoples shall freely dispose of their wealth and natural resources, and in the event of compulsory acquisition, those dispossessed shall have the right to lawful recovery of its property and adequate compensation.
Opinions differ as to the scope and nature of compensation under the 1999 Constitution. The first view expressed by Nwabueze is that the 1999 Constitution does not guarantee ‘fair and adequate compensation’ (since the phrase is deliberately omitted from the Constitution), only ‘prompt’ compensation.38 This view fails to take cognisance of the fact that constitutional provisions are given purposeful interpretation, as opposed to plain grammatical expression, to ensure that the ends of justice is best served. It is trite law under Nigerian jurisprudence that, in the interest of justice and fair play, a statute that seeks to touch and concern the proprietary right should not be construed to deny a landowner of compensation. This view negates the principle of distributive justice which the Constitution seeks to achieve.
Judicial construction of the 1979 and 1999 Constitutions appears to support the latter view. In Attorney-General of Bendel State & Anor v Aideyan,39 the court held that:
In Nigeria, one’s right to one’s property was an entrenched constitutional right under section 31 of the 1963 Constitution as indeed, it is under section 40 of the 1979 Constitution. That right is inviolate. In the ipssimis verbis of the Constitution itself, such a property or any right attendant thereto can only be taken possession of or compulsorily acquired by or under the provisions of a law. Furthermore, such a law must provide for the payment of adequate compensation thereof to him and must give the owner the right to access a High Court for the determination of his interest in the property and amount of compensation due to him. It follows therefore that any purported acquisition which is not according to a law containing the above provisions is no acquisition at all in the eyes of the Constitution.40
3.2.2 Land Use Act
The method of valuation for compensation after compulsory acquisition is fixed in Section 29(3) of the Act. Unlike the common law approach, whereby compensation is based on open market value of the acquired land, the compensation under the Act is the unexhausted improvement on land
38 BO Nwabueze Presidentialism in Commonwealth Africa (1974) 361. Sec 44(1)(a) of the
Nigerian Constitution of 1999 reproduces sec 40(1) of the 1979 Constitution, but contrasts with the 1963 Constitution which expressly provided for the payment of ‘fair and adequate’ compensation.
39 Attorney-General of Bendel State & Anor v Aideyan (1989) 4 NWLR (Pt 118) 646; Ferguson v
Commissioner for Works and Planning Lagos State (1999) 14 NWLR (Pt 638) 315, 328;
Kukoyi & Anor v Aina (1999) 10 NWLR (Pt 624) 633.
based on depreciated replacement cost plus rent, if any, paid by the occupier in the year of revocation of the right of occupancy for overriding public purposes. The test for determining whether an improvement is exhausted is expenditure of capital or labour; where there is no pecuniary improvement or physical effort on the land, the land owner is not entitled to any compensation. Thus compensation is not paid for loss of land but only payable to any noticeable improvement permanently attached to the land; or the utility or amenity thereof, and includes building, plantation of long-lived crops or trees, fencing, well, road and irrigation or reclamation, but does not include the result of ordinary cultivation other than growing produce.41 Although the Act prescribes that replacement cost method of valuation should be used in assessing compensation for land and building, the valuation methodology for the crops and economic trees is not spelt out, but left to the acquiring authority. The result is that Land Officers of the acquiring authority usually fix prices for crops and economic trees arbitrarily, making compensation paid to the landowners meagre and inadequate. The nature and quantum of compensation payable under the Act for mining purposes is fixed in section 29(2) of the Act, which provides that it shall be under the appropriate Mineral Act or Mineral Oil Act or any legislation replacing them.
3.2.3 Nigerian Mineral and Mining Act
This Act applies to land acquired for the extraction of mineral resources42 other than oil and gas, and identifies three recognisable compensable items: loss of land, disturbance, and damages to crops and building. Compensation for loss of land right is payable to the holder of right of occupancy recognised by the Governor, whose responsibility is it to pay the displaced landowners. The valuation method is similar to that in Section 29(3) of the Land Use Act. The only liability imposed on the licensee is to reimburse the Governor with the compensation money paid by the Governor on its behalf to the landowners.43 In addition to this, a licensee must pay adequate compensation to a landowner for disturbance and damage to land or any crop, economic tree, building or work damaged, or removed by the holder of the mining license.44 What constitutes reasonable compensation is not defined in the Act, but the general principle should be the fair market value of the land in question.45
41 Sec 51 of the Land Use Act; Upper Benue River Basin Authority v Aika (1998) 2 NWLR (Pt
537) paras 328, 337, 339.
42 Mineral resources refers to any substance whether in solid, liquid or gaseous form
occurring in or on the earth, formed by or subjected to geological processes including occurrences or deposits of rocks, coal, bed gases, bituminous shales, tar sands, any substances that may be extracted from coal, shales, tar sands, mineral water and mineral components in tailings and waste piles including petroleum.
43 Nigerian Minerals and Mining Act (n 4 above) secs 164 & 104.
44 n 4 above, secs 164 & 107.
Commissioner of Lands v Adeleye (1938) 14 NLR 111; Chairman L.E.D.B v Joye (1939) 15
NLR 50; Chairman L.E.D.B v Olopinkwu (1958) LLR 25, 26 - 27; Eugene Nzekwu & Anor v
Over the years the Nigerian courts have applied several criteria in determining the fair market value of a land compulsorily acquired. They have held that the market value of a compulsorily acquired land could be the price within a reasonable time of ownership; or the price at which the owner has sold a piece of land of the same size forming part of the area compulsorily acquired;46 or the price at which a piece of land of the same size has been sold generally at the locality; or capital value of rent payable in respect of the land;47 or average return per hectare of the land.48 In practice, it is doubtful if a reasonable compensation along the market value would be paid to a deprived landowner, because the valuation is to be done by the officials of the acquiring authority, after consultation with the State Minerals Resource and Environmental Management Committee and a Government licensed- valuer.
3.2.4 Oil Pipeline Act
Compulsory acquisition of land for laying oil pipelines necessarily requires the payment of compensation for land acquired, injurious affection and disturbance suffered by the landowner as a result of the acquisition. Unfortunately, the Act is silent on the payment of compensation for the bare land acquired but it recognises compensation for ‘injurious affection’49 suffered by a deprived landowner as a result of the exercise of the rights statutorily conferred on the licencee. In addition, compensation is payable for any damage done to any buildings, crops or profitable trees by the licensee.
It is pertinent to note that the Act does not offer much by way of analysis and interpretation of the phrase ‘injurious affection’. Injurious affection at common law relates to the depreciatory effect of the acquisition on the other land retained by the owner.50 Therefore, unless a landowner retains the other land depreciated by injurious affection, he may not be entitled to any compensation under this Act. It is settled law that the only compensation which can be obtained under this statute is the one based on injurious affection in respect of lands, that is, in respect of some loss of value of land, or in respect of some damage to lands; and that compensation cannot be obtained for any loss which is personal to the owner, or which is related to some particular user of the land.51 Both in
45 The Attorney-General East Central State & Anor (1972) 5 SC 224, 242 - 243. 46 Commissioner of Land v Efifa Stool (1955) WACA 712.
47 Nzekwu (n 45 above).
48 Minister of Lands & Housing v Ayonishan Family (1968) NMLR 483, 486.
49 Secs 11(5)(a) & 20(2) of Oil Pipeline Act (n 4 above). This should be contrasted with
section 29(1) of the Land Use Act which expressly prohibits compensation for injurious affection of land acquired for non-mining purposes. See sec 20(5) of the Oil Pipeline Act.
50 Edmunds v Minister of Transport (1964) 2 QB 134; Cowper Essex v Acton Local Board (1889)
14 AC 153.
51 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 253 per Lord Cranworth;
principle and on authority, it seems no landowner comes within the purview of this statute unless some damage has been occasioned to the land itself, in respect of which, but for the statute, the complainant might have maintained an action. The injury must be actual injury to the land itself such as by loosening the foundation of a building thereon, obstructing its light or its drains, making it inaccessible by lowering or raising the ground immediately in front of it, or by some such physical deterioration. Any other construction of ‘injurious affection’ would open the door to claims of so wide and indefinite a character as could not have been in the contemplation of the legislature.
In assessing compensation for injurious affection, the measure of compensation should be the diminution in the value of the land caused by that interference and a claimant had to establish his loss on ordinary principle of causation.52 However, assessment of compensation under the Oil Pipeline Act is based on the residual value of the land injuriously affected. This is arrived at by initially assessing both the value of the land or the interest injuriously affected at the date immediately before the grant of the licence and the residual value of the same land or interest consequent upon at the date of the grant of the licence.
Notwithstanding the statutory stricture, in practice, assessment of compensation payable to the land-owner under the Oil Pipeline Act is generally complex and unsatisfactory for two reasons. First, compensation is not paid for the land alone, since ownership of land is vested in the State held in trust by the Governor. Compensation is payable for the improvement made on the land.53 Second, in many mineral-prospecting areas most of the landowners are either farmers or fishermen; thus the only noticeable improvements on the land are the economic crops planted on the land or fish in their ponds. In the assessment of compensation, mining companies generally rely on the approved government rates or predetermined rates by the Shell Petroleum Development Company of Nigeria Limited Lands Department Procedure Guide (commonly called the Land Procedure Guide)54 and the Oil Producers Trade Section of the Lagos Chamber of Commerce, an organisation in which the oil producing companies have influence, as opposed to the appropriate market value in the compensatory calculus. The Land Procedure Guide and OPTS rates mostly disregard items such as claim for disturbance and injurious affected covered by the Petroleum Act and Oil Pipeline Act. In the valuation of crops in compulsory acquisition cases, the practice is that the estate surveyor employed by the oil company quantified the damage and the soil
52 This is based on the principle of equivalence espoused by Scott LJ in Horn v Sunderland
(1941) 2 KB 42 to the effect that a landowner is entitled to receive compensation commensurate in monetary terms to the value of expropriated land.
53 Sec 29 of the Land Use Act; sec 20(4) of the Oil Pipeline Act.
54 Issued by Shell in 1987 and updated from time to time. This manual has been used by
other oil companies notably Total, Chevron in assessment of compensation paid to communities.