meeting the land needs of electric sector licensees

The answer is provided under Section 77 of the Electric Power sector Reform Act, 2005. But, firstly, it needs to be recalled that traditionally almost every piece and square meter of land used to be fully and completely owned, legally or in equity, by some person or persons, families and communities. That got a bit watered down by the entry of the Land Use Act regime in 1978, whereby, as enunciated by the Supreme Court in the case of Nkwocha V. The Gov. Of Anambra State (1984) SCNLR 634 what is left for the person or persons, families and communities is now only beneficial Right of Occupancy (C of O) as the full title now vests in the State Governor who holds same in trust for and on behalf of the entire people of the State. It then was held to be that the only title citizens have over the land is the one of mere right to use, and no more. Notwithstanding, same Supreme Court did later in Salami V. Oke (1987) 4 NWLR (Pt. 63) 1 seemed to desire to let be known that C of O should be accorded recognition as meaning no less than “possessory right in land” which, without any intervention by the State, means everything that ownership of land means.

This means, in all practical essence, the owner still has the right to use the land, rent or lease it, sell and convey it, mortgage it, gift it out as he may wish to do. And when his rights are revoked, he is still recognized as the one to deal with, including payment of compensation, even if it is not the land that is paid for, but crops, economic trees, improvements and the unexhausted developments on the land. So we see, in that Section 77 of the Electric Power Sector Reform Act, 2005, that it is required of such electricity power Licensee/operator to apply to the Commission (that is NERC) which will, working together with the State Ministry of Lands (& Surveys) to scrutinize the request for the land, examine the stated reason for which the land is needed, and if satisfied, make a declaration that the land is needed for ‘public purpose’ or ‘overriding public interest’.

The Commission notifies the President who publishes and Gazettes the need of the land for the electricity purpose and notifies the Governor of the fact of that particular land being needed. Armed with this the Governor is enabled to revoke the rights of the owner(s) of the earmarked land under the compulsory acquisition powers conferred on the Governor by section 28 of the Land Use Act, and allocate same to the Electric Power Sector operator after the requirements of Sections 29 and 44 of the Land Use Act, and Section 44 of the CFRN, 1999 (as amended) must have been met.

Of course, the land owners are given opportunity to be heard. Where a distribution company or a transmission or generation company requires any land in connection with its obligation under its license, the licensee may apply to the Commission for a declaration that the particular land is required for a specific purpose. The Commission will then call for further information as it deems necessary. The Commission may also invite and consider submissions from the commissioner of lands of the state where the concerned land is located. The person who also has interest or claims to have interest in the land or owns it contacted or notified also. No declaration regarding the land’s availability for use by a licensee will be made by the commission if the above is not complied with. Section 77 EPSRA 2005

No. The revocation and compulsory acquisition must be in line and strict compliance with the relevant provisions of the law, as under Section 44 of the CFRN, 1999 (as amended), and Sections 28, 29, 44 of the Land Use Act with respect to giving of Notice to the owners of the Governor’s intention to so acquire the land, of the exact acquisition when made, assessment of the value of the unexhausted value developments in the land, prompt payment of compensation, etc. etc. Any half measure or non-compliance with the provisions of these said sections of the Constitution and the Land Use Act will invalidate any revocation, compulsory acquisition and allocation of land made by the Governor on behalf of any person or institution. Again, see these earlier referenced judicial authorities Ibrahhim V. Mohammed (2003) 6 NWLR (Pt. 917) 615; Nigerian Engineering Works Ltd. V. Denap Ltd. (1997) 10 NWLR (Pt. 525) 481; Goldmark (Nig.) Ltd. V. Ibafon Co. Ltd. (2012) 10 NWLR (Pt. 1308) 291; Orianzi V. A. G. Rivers State (2017) LPELR – 41737

No. quite thoughtfully, the makers of the subject matter law saw this possibility, and provided, under subsection(11) of Section 77 of the Electirc Power Sector Reform Act, 2005, that Licensee in such situation will have to give the previous holder of C of O over the land the Right of First Refusal’ to buy the land back at no more cost/value than the compensation that was paid to him when his own rights were revoked for the same to be acquire and given to the Licensee. And where such previous holder of the rights is not interested, then to transfer to another person on ‘such terms and conditions as the Commission may direct’.

This kind of operation Permits are provided for under Section 78 of the Electric Power Sector Reform Act (EPSRA). The licensee will have to apply to the relevant Authority, which of course will be determined by the kind of likely interference to be encountered – waterways, urban & regional planning, ministry of works, etc. etc. Under subsection (3) and (4) of the said Section 78, any other law made by or for such Authorities that seeks to prohibit such application for Permit for Electric Sector Licensee for any one of these things, or that imposes any limitations that will undermine the doing of such things in execution of the things required for electricity activity are made null and void as subsection (2) is inserted to override any limiting powers in any other law as far as the operation of electricity business is concerned. This law seems to make electricity provision business subsector so superior and overbearing, over and above other very important sectors for the good of the economy generally. It can only be hoped that the Electricity business Licensees and the captains of the other sectors will always amicably find ways of operating and co-existing without much conflicts and collisions.

Not at all. There are such provisions in the Mineral and Mining Act Cap M12 LFN, 2004, in the Petroleum Act Cap P10, LFN, 2004, and in all other such public service sectors, even of State laws. It is also important to remark that they all are made subject to the powerful protection of the citizens’ rights as stated in Section 44 of the CFRN, 1999, and that any such expropriatory provision in any law not made subject to Section 44 of the CFRN, 1999, Sections 28, 29 and 44 of the land Use Act will be null and void.