Need or Otherwise of Proving Title Before Succeeding In Action For Fundamental Human Rights on Compulsory Acquisition of Land.


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CASE TITLE:           GOVERNMENT OF ENUGU STATE OF NIGERIA & ORS v. SUNDAY                                         ONYA & ORS (2021) LPELR -52688(CA)






PRACTICE AREA:   Constitutional Law – Enforcement of Fundamental Human Rights.


​The Respondents, were allocated spaces to build stalls at what later became ENSEPA Mini Shops by the Enugu State Environmental Protection Agency (ENSEPA), an Agency of the Government of Enugu State. The Respondents paid the necessary approved fees, as demanded by the Appellants for the stalls/shop and were put in possession of their respective allocated spaces, following which they developed the stalls according to the prototype and specifications from ENSEPA.

The Appellants later issued notices to the Respondents to vacate their stalls in the park claiming compulsory acquisition of the stalls by the government. Subsequently, they demolished the stalls built by Respondents and which the Respondents occupied. The Respondents sought the services of Estate Surveyors and Valuers to value their demolished property and the firm valued the property at N850,000.00 each and issued certificates to each of the Respondents.

The Respondents as Applicants then filed a representative action at Enugu State High Court seeking to enforce their fundamental human rights and for compensation from the Appellants for the compulsory acquisition and demolition of their stalls. The High Court found the Appellants liable for breach of the Respondents Fundamental Rights and granted their reliefs, including the award of N850,000.00 to each of them and also exemplary damages and cost against the Appellants.

Dissatisfied, with the decision of the trial High Court, the Appellants appealed.


The appeal was determined upon consideration of the following issues:

(1) Whether the suit was properly instituted by the Applicants (Respondents), jointly.

(2) Whether the trial Court was right to hold the Appellants liable for breach of fundamental rights of Respondents, in the circumstances of the case.


On the whole, the Court found no merit in the appeal and accordingly dismissed same.

RATIOS: CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS: Whether an applicant needs to establish the title of the land he occupies before he can take out a case to enforce his fundamental rights against whoever violates his right of occupation of the land/property

“…I start by observing that the Appellants in this Appeal appear to have completely misconceived, and changed the tenor of the suit at the Lower Court, when they belaboured over the issue of establishment of title to the land, as a condition for entitling the Respondents to assert right over the property, they were claiming the right to seek redress (compensation) for violation of their fundamental rights, under the Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria… As earlier observed in this judgment, I think all the arguments of Appellants and cases cited about the need to establish title to the land on which Respondents claim breach of fundamental rights, were, completely, misconceived and misplaced, as an applicant does not need to establish title of the land he occupies, before he can take out a case to enforce his fundamental rights against whoever violates his right of occupation of the land/property, pursuant to Sections 43 and 44 of the Constitution; as an occupier or one in possession he can apply for enforcement of his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009. This is because, one who is in rightful occupation or possession of property, being an allottee of the property, and who built the store/stall demolished by the assailant; or one who is a tenant, chased out, unlawfully, in a manner that deprives him of his right of peaceable enjoyment of the use of the property he is entitled to, can bring an action to enforce his fundamental right, thereto, where his fundamental rights are violated, in my opinion, as long as his unexhausted rights in the property, lasts… In the case of Master Vs Mansur & Ors (2014) LPELR – 23440 CA, it was held that: “… compulsorily taking possession of is not limited to cases of compulsory acquisition under the Public Lands Acquisition Decree. The word “compulsory” simply means, “having the force of compulsion” or “to compel”. The word “compulsory” in the first part of Section 40(1) of the 1979 Constitution, aforesaid, simply refers to situations where a citizens’ land is forcefully taken possession of…” (Section 40(1) of the 1979 Constitution is equivalent of Section 44(1) of the 1999 Constitution). See also Adeyemi -Bero Vs Lagos State Development Property Corporation & Anor (2012) LPELR – 20615 SC. Appellants did not deny the compulsory acquisition and demolition of the Respondents stores/stalls, but claimed that their (Appellants) Agent, ENSEPA, which allocated the spaces to build stalls to the Respondents, acted ultra vires, when it allocated the property spaces to the Respondents to build the stalls/stores. They also argued that the Respondents lacked statutory right to the property; that the Respondents were illegal occupiers of property at Murtala Mohammed Park, Works Road, Enugu; that the Government of Enugu State needed to restore the Park(s). . . I think the argument that the Agency of Appellants (ENSEPA) acted ultra vires their powers, when it allocated the property to Respondents to build stalls/stores, rather sounds self-defeating, strange and unhelpful to Appellants, in my view, especially as Appellants tried to disown responsibility for the said acts of their Agent, which they (Appellants) unleashed on the public, including Respondents, to relate with, in contractual relationships in the name of the Government, and they collected monies from Respondents and located them on the land, caused them to develop same (building the stalls/stores), only for Appellants to demolish, with impunity, and try to deny the obvious relationship! That was sad denial of responsibility and very wrong. The said use of force against the Respondents was a clear violation and breach of Respondents’ fundamental rights, in my opinion, just as the trial court held. There is no doubt that, under the Land Use Act, 1978, the Governor of Enugu State has the right of control and Custody of the entire lands in the State in trust for the people. The Governor can grant or revoke the right of occupancy on any portion, but the law also spells out how that can be done, lawfully. And where it has to do with revocation of the right of occupancy (which must be for overriding public interest), the law stipulates the need for notification of the landholder and for compensation. See Section 44(1) of the 1999 Constitution; Nkwocha VS Gov. of Anambra State & Ors (1984) LPELR – 2052 (SC). In the case of Adegunle VS The Governor of Lagos State & Ors (2019) LPELR – 48013 CA, my Lord, Garba J.C.A. (as he then was – now J.S.C.) said: “… Section 28 of the Land Use Act, empowers the Governor of a State to revoke rights of occupancy over land situate in a State for overriding public interest. It is expedient to call in the provisions of the Section for full appreciation of the powers provided therein… The exercise of the powers by the Governor to revoke a right of occupancy over a piece or parcel of land, personal or communal, is what has become known as the compulsory acquisition of land by the Government. Because the exercise of the power and authority to compulsorily acquire land by way of revocation involves, affects and expropriate personal or communal rights of person(s) or communities in question, guaranteed by the provisions of Section 44(1) of the Constitution, the attitude of the Courts over the years, has been to interpret the relevant statutory provisions under which the powers are exercised in order to ensure that the procedure stipulated therein are strictly complied with in the acquisition… Tobi J.S.C., in C.S.S. Bookshop Ltd Vs Reg. Trustees of Muslim Comm. In Rivers State (2006) 11 NWLR (Pt.992) 530, stated the position, thus: “The case law is in great proliferation. Any provision of the law which gives or governs the compulsory acquisition of a person’s property must be construed by the Court “fortissimo contra preferentes”. Such a statute should be construed by the Court, strictly, against the acquiring authority and sympathetically in favour of the complainant or the owner of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute… These judicial authorities are unanimous that for compulsory acquisition of land by the Governor /Government to be valid and legally effective to extinguish the existing right over a piece or parcel of land, the provisions of the Land Use Act and as the case may be, other enabling statutes on the procedure provided for the acquisition, must be strictly followed and observed in the process of acquisition…” I, therefore, agree completely with the learned trial Judge when he held: “The finding of this Court, therefore, is that no matter the limited nature of the applicants’ interests of the various stalls, in this case, they had an interest or right in the stalls by virtue of the allocations given them and which is protected in a Court of law. The right in the applicant is “an interest” in immovable property, which by Section 44 of the Constitution, is to be compensated upon a compulsory acquisition for unexhausted improvements, in line with the Land Use Act 1978…” Per MBABA, J.C.A.

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