‘The Law Protects Investors and the FCT’

Ima Okpongete, general counsel and secretary, legal, Federal Capital Territory Administration speaks to Anayochukwu Agbo, general editor; Tajudeen Suleiman, senior associate editor; Chinenye Eseke, reporter and Adewale Adelola, senior photojournalist. Excerpts:



What is the legal framework for the land swap policy?

The landswap policy is a development strategy initiated by the Senator Bala Mohammed administration and it has a legal backing. The legal backing for this policy can be traced right from the 1999 Constitution as amended to the Land Use Act of 1978, and to the Federal Capital Territory Act 2004. By the provision of Section 5 of the constitution, Mr. President has executive powers to appoint ministers with whom he would administer the Federal Republic of Nigeria. Section 301 of the constitution still, the President is enjoined to appoint a minister for the FCT. As you know the minister of FCT is slightly different from other ministers, because [according to] Section 299 of the constitution, Abuja is regarded as a state. So the minister functions as a governor of a state while also functioning as a minister.

By the Land Use Act, land in every state is situated in the governor, especially land in the urban areas. But in the FCT, the status of land rests squarely on Mr. President. Land titles rest on the president. Every land in the FCT is urban land and it rests with the president. And that is supported by Section 51(2) of the Land Use Act 1978. Wherever federal land is situated, it rests with the president or any minister he may designate that power to. So the president has the power to delegate or designate a minister to run that office for him. With that power, the president made an Act – the Federal Capital Territory Act 2004. By Section 18 of that Act, power for land administration is delegated to the minister of the FCT to administer as a governor. So the minister holds it in trust for all of us.

Now in the Land Use Act of 1978, enormous powers are given to the governors to administer land for their people. These powers by the provision of section 5 of the Land Use Act, can also be exercised by the FCT minister because of the delegated authority given to him in the FCT Act. Section 13 of the FCT Act, which says the power exercisable by any governor can be exercised by the FCT minister. That provision also says that any law that can be exercisable by any governor or military administrator anywhere in Nigeria can also be exercised by the FCT minister. The 1978 Land Use Act is one of such laws in the country.

Now to the land swap, Section 8 of the Land Use Act provides for the governor to enter into special contract in the exercise of his power for land administration. That is where the land swap comes in. In exercising his powers in line with the provision of this section, land, by virtue of that provision, is to be given for a specific purpose, may be infrastructural provision, for a definite term. At the end of that term, that land reverts to the FCT. So what we’re having now is a situation where the minister, in exercising his powers as a governor and representative of the president, has taken a hold of the provision of that law to enter into special contract with investors towards the provision of integrated infrastructure in the FCT. This is in his effort to open more districts in the territory, so that when infrastructure is provided, you can conveniently pick a plot for development.

If you were an investor, what are the things you will look for to assure you that your investment will be safe?

As an investor, you must have a global view of what is going on. For the land swap, we have put indices in place to ensure that the investor is preserved, even from himself. Number one, we have introduced due diligence into any investor coming to us. We look at company details to make sure we’re not dealing with false personalities. To still protect the investor, there are conditions of that contract that can protect the investor. We have an agreement with an investor but it is not predicated on the government; government can change. But it does not mean that if government changes the investment should stop. If any investor looks at that he will not invest anywhere. So we are guided by agreements and MoU and the laws of the land are there to protect any investor.

What are the legal safeguards that would assure investors that if Senator Bala Mohammed goes tomorrow or the President goes, the next administration will not say away with these projects?

What guides any investment in any nation are the laws of that country. Number one is the agreement entered into by the parties. The agreement has set specific terms, and term of years within which this contract should exit – some could be 20 or 30 years. Those specific years are expected to be respected by the government. You may not know the next government, but the laws of the land transit power from one level of government to the other, that has to be respected. The terms of agreement is also there and the law is there to help the investor where there is a challenge. So I don’t think any investor should be afraid. The laws are there to protect the investor and protect us.

So the agreement is irrevocable?

The terms of agreement, there are conditions under which it can be revoked. Where there are breaches it could lead to the termination of the contract. Under the land swap administration, we have signed some MoUs. The investors are given specific responsibilities to undertake before we can enter into development agreement with them. That is to check their capacity, their ability to execute the contract. If by a definite timeline, they have not fulfilled the conditions given to them, naturally the MoU exit itself.

On our part, we make the land available; we make the Right of Occupancy available, we provide the enabling environment, making sure they sort out the compensation issues and then make sure they have access to the land. We give them all these parameters for working. If we on our part breach these conditions, the investors can either withdraw or use the condition of the contract to tackle us and make us go back to fulfil the condition of contract.



Is the FCT well protected in the land swap? What are the benefits for the FCT?

The first benefit is the opening of more districts. There was a time when there was a dearth of infrastructure in the FCT, it was just concentrated in a definite location. So more districts are being opened by this policy. Secondly, the citizens are benefiting in that there is a certain percentage of this land that reverts to government, and government holds that in trust for the people. Also it is going to generate lots of employment for our people.

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