8th March, 2012
What a law! What a sin! Who were the members of this committee and who actually got title to those properties from this committee? The good thing about land is that it is fixed. Those landed properties had survey plans and still have the same dimensions and abuttal. They can be traced through the Land Registry of Rivers State, irrespective of the shapes and sizes of the structures on them presently. The rule is that what is attached to land is part of land. That sin which made the relevant provisions of the earlier constitution inapplicable and ousted the jurisdiction of the courts including terminating on-going cases and voiding court judgements already obtained, was made Chapter One of the Laws of the Federation of Nigeria, 1990. And Nigeria prays. That sin cannot stand the test of section 44(1) of 1999 Constitution which provides:
“No movable 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 manner and for the purposes prescribed by a law that, among other things:
(a) requires the prompt payment of compensation therefore, and
(b) 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.”
The only exceptions allowed by the Constitution include general laws relating to, inter alia, enforcement of court judgements and laws relating to enemy properties.
The above provisions of 1999 Constitution are similar to the provisions of the earlier Constitutions, given that those rights are mere re-enacted and domesticated universally acclaimed rights. That is why the Abandoned Properties Act made inapplicable similar provisions in the 1979 Constitution and ousted the jurisdiction of the court.
The fact that the Decree terminated pending claims, voided court judgements and ousted the jurisdiction of the courts, shows clearly that the properties in question were not abandoned, in the first place. And yet, it made no provision for compensation. Even where compensation is offered by government when it acquires private properties compulsorily under some constitutionally enacted laws, it is still unlawful if the citizen’s compulsorily acquired property is not to be used for public purposes. In other words, government has no legal rights to compulsorily acquire property of individuals if the reason is anything other than overriding public interest. And in what amounts to overriding public interest, government has no last say. It is the court that has. Ojukwu himself provided us with a locus classicus on that principle when he fought Lagos state government through the courts to reclaim his property in Ikoyi in the famous case of Ojukwu vs Attorney-General of Lagos State.
Even at that, overriding public interest is not a permanent fixation. A person whose private property is compulsorily acquired by government for public purposes has the right to reclaim it any time the public purpose fails. That is why today, with the loss of status as a federal capital by Lagos, a lot of lands in old Ikoyi are, by court pronouncements, reverting to the original family owners, the courts having found as facts that successive governments, both federal and state, had been reallocating such lands to private people for redevelopment.
How then do we threat the Port Harcourt land appropriation via the Abandoned Properties Act, where no compensation was paid and no reason given for the appropriation other than abandonment? Pray, where else in Nigeria, before and after that case, has any land been declared abandoned and such declaration used as basis for change of title? The only relevance abandonment has with regards to property is between landlord and tenant, where in certain circumstances the law treats the premises as abandoned by the tenant for the purposes of enabling the landlord to re-enter. Under both international and domestic laws, title to land can only be acquired by settlement, purchase, gift, inheritance, conquest or adverse long possession. Compulsory acquisition under a wrong law cannot give root to the kind of adverse long possession that would confer title in equity under the rule of larches and acquiescence.
Title to land cannot be said to have been abandoned. Even where the owner dies without will and without a child or spouse, the law of succession provides a guide as to the nearest relative to inherit the property. Such list must be exhausted before the property can revert to the state under existing law, not a purpose-built, target-oriented legislative judgement, as in Port Harcourt case. The body language of Abandoned Properties Decree is simply to treat the former owners, the Igbos, as “conquered” people. Anything short of that pronouncement cannot form a root for change of title to those properties. That bad law, surely, cannot.
The division, suspicion and enmity sought and created by the Federal Government between and among ex-Biafrans via the Abandoned Properties Act may not have been recognised or appreciated by many, but it has produced far-reaching consequences and adversely affected the growth of Port Harcourt as a metropolis to date. It even got to the absurd level of distorting the names of some areas and streets in Port Harcourt to obfuscate the Igbo in them, by the addition of the meaningless prefix ‘r’, like Rumuola. But the last time this writer checked, the names like Odili, Opara, Nwauche, Amechi, Ogbunabali, etc., have not been distorted with the prefix ‘r’.
Come to think of it, what is it that Lagos has that Port Harcourt doesn’t? In terms of natural resources, none. Both have international water and airways. But Lagos is more accommodating and more secure for hard-working people. It gives you opportunity to achieve what you can and to own it, subject to law. That is why the Igbos chose to cross rivers and mountains to come and transform the marshy swamp land of Ojo into an International market for electronics, rather than take a walk to Port Harcourt and do same. Today, how many containers of goods go or come through Port Harcourt sea ports? What is the consequential multiplier gains and losses to Lagos and Rivers states respectively? The Igbos do not just want to risk another generation of abandoned properties.
Even the people of Nothern Nigeria who fought against the Igbos, as it were, during the civil war, never treated any Igbo property in their land as abandoned. In fact stories have it that some northerners collected and kept rents for the Igbo landlords, which they handed over to them or their representatives at the end of the civil war. What else but division and planting of enmity could be the reason for the Federal Government to have decreed that properties of ex-Biafrans in former Biafran territory were abandoned, for purposes of extinguishing titles thereto?
The greatest sin the Nigerian state committed against God was the post-war promulgation of the Abandoned Property Decree no. 90 of 1979 by the Obasanjo-led military government. That the Decree was allowed to stand as an Act of Parliament during the operation of 1979 Constitution whose provisions the Decree was incompatible with, beats one’s imagination. Even if the Decree survived as a dictatorial instrument, it ought to be dead on arrival as an Act of Parliament under a constitution. But it was shamefully inserted into our laws as Chapter One of the Laws of the Federation of Nigeria, 1990. Is it not something to chew that during the four years that Shagari’s civilian administration lasted, our parliamentarians saw nothing wrong with that law, and never realised its inconsistency with the 1979 constitution. Obasanjo’s 1979 Constitution stood side by side with that law for 20 years until Obasanjo came back to power under Abubakar Constitution of 1999.
Something curious, however, happened in the current revised Laws of the Federation, 2004. No mention was made of the said Abandoned Properties Act which was chapter one of the 1990 Laws of the Federation. It was not even included in the table of Acts Considered, so as to show whether it was repealed, omitted or re-enacted as another chapter. Was it simply swept under the carpet? After using the Decree to do the damage intended, the Federal Government cannot just allow the law do disappear from our statute books. It must be dug out, re-examined and treated.
At the end of the day, the question is: did we need to go through a civil war? The answer is an obvious “no”. Ojukwu’s principled stand on Ogundipe, Fajuyi’s sacrificial protection of Aguiyi-Ironsi and Gowon’s immutable pronouncement of “no victor, no vanquished”, are monumental events that highlight how much we seem to deeply appreciate one another; and to make us to ask, in the words of Onyeka, the child-like question, “why are we fighting?”
So if we need not go through the war in the first place, would it not seem more disturbing to intentionally and childishly but wickedly continue to leave and maintain a permanent scare of it by allowing the taking away of title from former owners and conferment of same to new owners under the Abandoned Properties Act to continue to stand, even when the law itself has disappeared?
It is, therefore, time for the Nigerian state to confess her sins, and for the National Assembly to prescribe the mode of atonement, by way of express repeal legislation. Subsequently, acquired rights should, of course, be taken into consideration. The lands are still traceable. Restitution can still be made in specie or by adequate present value compensation. The time to do it is now. It will further promote true reconciliation. It will make God hear us and heal our land when Nigeria prays. It will be an honour to Ojukwu.
•Ugwuanyi, LLM, Bl, is a Lagos-based legal practitioner. 08033269501