By Afe Babalola
“As herdsmen are in reality business men engaged in the business of cattle rearing for their own personal financial gain I do not see how the provision of land for the grazing of their cattle, even at the payment of a fee, would satisfy the provisions of the law if the land is acquired from other private individuals”.
For a long time now, the country has witnessed violent attacks on defenceless citizens by persons suspected to be Fulani Herdsmen. At the last count, thousands of victims have fallen victims of these attacks. Such is the enormity of the problem and the risk it poses to national unity, cohesion and security, that the government set up a committee comprised of the Vice President and some state governors with a view to bringing about an immediate cessation to the attacks. However, the government some days back also announced an additional measure which it believes will help in reducing the friction between herdsmen and farmers; the establishment of cattle colonies across the states of the Federation. Announcing this decision, the Minister of Agriculture, Audu Ogbeh is reported to have stated as follows:
“One of the most topical issues we have today is that of farmers and herdsmen clashes. If we do not deal with it quickly, we run the risk of damaging the harmony and the co-existence of Nigeria as a country. The killings are getting too many. In our attempt to solve the problem, we have proffered certain solutions but perhaps we were not sensitive enough to Nigeria’s fragile sensitivities and suspicions. When we spoke of colonies, we were immediately greeted with reactions that this was an attempt to seize Nigeria’s land and give to the Fulanis to colonise.
Graze under controlled environment
The intention is not for Fulanis or anyone to colonise any territory. It is to provide a haven for cattle to graze in peace under controlled environments to prevent the conflicts between farmers and herdsmen. Only yesterday, a committee was set up by the Vice President with members, most of them, state governors discussing this matter and resolving that states that are interested will begin work on this matter as soon as next week.”Herdsmen with their cattle
While this announcement has understandably and quite reasonably met with criticism from a vast majority of public commentators, some states have indicated their intention to provide land for the take off of the cattle colonies. These States, which are all located in the North include, Adamawa, Kano, Kaduna, Katsina, Zamfara, Kebbi, Nasarawa and Plateau, Bauchi, Gombe, Borno, Jigawa, Yobe, Niger, Kogi and Kwara states. Other states including Benue and Taraba States which have experienced most of the attacks have either declined to donate land or are yet to take a clear position on the matter. While most of the criticism offered thus far against the proposal have focused on its political implications, there is to my mind, a more pressing legal aspect or impediment to it. This simply is the legality of the proposal. To meet up with the expected quota of 10,000 hectares required from each state, the states would inevitably have to acquire land from private citizens and thereafter allocate it for the establishment of the colonies which after all is considered would qualify really as private interests.
Land can only be acquired for public purpose
Without a doubt, the Land Use Act empowers the Governors of the States to acquire private land for public use. What constitutes public purpose is statutorily defined in Section 51 of the Land Use Act as:
“51(1) In this Act, unless the context otherwise requires “Public Purposes” includes:for exclusive government use for general public use; for use by body corporate directly established by law or by anybody corporate registered under the Companies and Allied Matters Act as respects which the government owns shares, stocks or debentures; for or in connection with sanitary improvement of any kind; for obtaining control over land contiguous to any part or over land the value of 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 required for or in connection with development of telecommunications or provision of electricity; for obtaining control over land required for or in connection with mining purposes; to obtaining control over land required for or in connection with planted urban or rural development or settlement; for obtaining control over land required for or in connection with economic, industrial or agricultural development; for educational and social services.
Interpreting the above provisions, the Courts of Law have held on several occasions that governments cannot acquire land from a private individual only to make same available for the use of another private individual as this would not amount to “Public Purpose. In Wuyah v. Jama’a Local Govt, Kafanchan (2013) All FWLR (Pt. 659) the Court stated as follows:
“The law does not give licence to anybody, an individual, constituted authority or government, such as the respondent, to acquire, compulsorily or otherwise, any land that belongs to a person and alienate or transfer it to another private individual or body for his/its private use. To do so will run foul of the aforementioned sacrosanct provisions of the Land Use Act is an expropriatory legislation which must be construed fortissimo contra p[reference – strictly against the acquiring authority, but sympathetically in favour of the person whose property rights are being taken away.”
Restating the position, the Courts again in Stodic Ventures Ltd. v. Alamieyeshia (2016) 4 NWLR (Pt. 1502) held as follows:
“It is pertinent to highlight that an overriding public interest in the case of a statutory right of occupancy means the requirement of the land by Government by the State or by a Local Government in the State, in either case, for public purpose within the State or the requirement of the land by the Government of the Federation for public purposes of the Federation. Also, in Wuyah v. Jama’a L.G. Kafanchan (2011) LPELR CA/K/7/2007. Ogbuinaya, J.C.A. expressed that the law does not give licence to anybody or individual, constituted authority or Government to acquire compulsorily or otherwise any land that belongs to a person and alienate or transfer it to another private individual or body for his or its private use. The aim of the Act is not to divest citizens of their pre-existing titles to land.
It is thoroughly reprehensible that the 1st defendant, who was the Governor of Bayelsa State as at time the said compulsory acquisition was made seemingly for an overriding public interest later allocated the said land to himself and his wife who was then First Lady of Bayelsa State.
…No Government or individual has any right to acquire land compulsorily and alienate or transfer it to another private individual or body for his or its private use.
I would however say in passing that the public purpose for which the government can compulsorily acquires lands are clearly defined in the Act and do not include acquisition for the purpose of making a grant to a third party. In Chief Commissioner, Easter Province v. S.N. Ononye & ors. (1944) 17 NLR 142, it was held that the acquisition of land by the ten Central Government of Nigeria in Onitsha for the purpose of granting a lease of it to a commercial company was not in public purpose within public Lands Acquisition Ordinance Cap. 88″.
Acquisition of land
Applied to the proposed establishment of the cattle colonies, I do not see how any acquisition of land by any state government for the establishment of the cattle colonies would qualify as a public purpose. As stated earlier, the approach of the Courts is to strictly construe any statute by which government can or purports to exercise the expropriation of the proprietary rights of the citizen. Therefore as herdsmen are in reality business men engaged in the business of cattle rearing for their own personal financial gain I do not see how the provision of land for the grazing of their cattle, even at the payment of a fee, would satisfy the provisions of the law if the land is acquired from other private individuals.
In stating the above, I am not unmindful of the provisions of Section 51(1)(h) which permits acquisition “for obtaining control over land required for or in connection with economic, industrial or agricultural development.” This in my estimation, contemplates a situation in which the land is acquired for the use by the government of its own plans for agricultural development. What is however clear from the stated intention of government is a plan to make the land available for the use of the herdsmen and their cattle.
Next week, I will write on how other countries have successfully curbed and or prevented farmers and herdsmen clashes without taking over landed property of individual farmers.