CHAPTER FOUR
The Governor and Title to Land.
4.0 – Governor’s Management Power Under the Land Use Act, 1978:-
According to the provision of the Land Use Act, the Governor is seen as the trustee of all land within the jurisdiction of the state in question. He is empowered by the Act to manage or rather administer such land for the use and common benefit of all Nigerian, subject, however to the provisions of the Land Use Act. The Act provides thus in S.I “Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerian in accordance with the provisions of this Act.” To be taken note of as well is that the Act went ahead to emphasize on land situated in the urban area. This is as contained in S. 2(1) (a) of the Land Use Act.[73] In other for the Governor to discharge this onerous task vested on him, the Act further spell out some of the power entrusted on the Governor via the provision of S. 5 of the Act.
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Accordingly, the Governor is invested with the power to grant statutory rights of occupancy and also to grant easements appurtenant to such rights.[74] The Governor can demand rental as well as revise any such rental for any land granted to any person.[75] In case of any breach of any condition precedent or any covenant contained in the certificate of occupancy, the Governor is empowered to impose a penal rent for such a breach and he can as well revise such a penal rent in accordance with the provision of the Act.[76] By the Combine effects of S.5(1)(b) and (f), it follows that the right of occupancy is never absolute. The holder of such rights still has to pay rental to the Governor.
Secondly, the holder is precluded from any act or omission that purport to alienate the right of occupancy or any part thereof by sale, mortgage, transfer of possession sublease or bequest or otherwise howsoever without the poor consent of the Governor. Thirdly, by Sub-section (e) of the above section, the right of occupancy or any part thereof by sale, mortgage, and transfer of possession, sublease or bequest or otherwise howsoever without the prior consent of the Governor. Thirdly, by Sub-section (e) of the above section, the right of occupancy is always granted together with a condition that the holder must develop or effect improvements on the land.
On problem identified in this research on the powers of the Governor in relation to land is that the Act did not make it clear whether such exercise related to land situate in both urban and in non urban area. In any case, it is our contention that the power is exercisable in connection of land in either cases. This position is supported when we look into the wordings of the Act.[77] The above problem becomes clearer when we oppose the provision of S.5(1) with S.6(1) of the Land Use Act. According to S .5 (1), it shall be lawful for the Governor in respect of Land, whether or not in an urban area… And S.6(1) provided thus: it shall be lawful for a Local Government in respect of Land, land not in an urban area… the implication is that there may be a conflict or rather power tussle between the Governor and the Local Government over the grant of rights of occupancy with respect to land in the non urban area. Though we understand that while the Governor grants statutory rights, the Local Government on their parts grants customary rights. But our contention still remains that the phrase “whether or not in an urban area” as used by the Act in Section S (1) creates an ambiguity. Notwithstanding, we still wonder what the rights granted by the Governor over non urban land could be, that is, whether it is statutory rights or customary rights. Furthermore, to be taken note of is that the Governor is confided with the power of waiver by the Act. In other words, he may waive partly or wholly the fulfillment of any of the covenants or conditions attached to the statutory right of occupancy according to the facts and circumstances of each case. This is with respect to where the compliance with or the observation of a condition or covenants would be impossible or occasion a great hardship on the older of such a right.[78]
The Governor may as well extend the time or period prescribed for the bringing into effect any of the Covenants or conditions as would be contained in the certificate of occupancy, except as otherwise prescribed.[79]
However, as we may see later, the abuse of the above discussed power by the Governor or local authority as the case may be, brings about a negative effect on the national income of the Country. And where such abuse occurs, it will be against the spirit of the law in vesting such land on the Governor. The implication in case of any abuse by the Governor is that it tantamount a breach of trusteeship.
4.1 - Approval of Alienation:-
By the combine strength of SS. 21 and 22 of the land Use Act, the act of alienation of the rights of occupancy without the prior consent of the Governor is not permitted. While S.21 talks about alienation of customary rights of occupancy, S.22 on the other hand provided for the alienation with respect to statutory rights of occupancy.[80] By the above provisions of the Act, 1 is tempted to say that what the holders are not absolute rights but to my mind an interest in land. Following the dictum in the case of Pradford Corp. v. Pickle, it was held by the Court that though the defendant’s conduct was morally reprehensible, but, however, he has right.[81] Looking at the meaning of the term right in the Black’s law Dictionary, it seems that the decision of the Court is supportable. Thus, right is defined by the Dictionary as: “something that is due to a person by just claim, legal guarantee, or moral principle. A power, privilege, or immunity secured to a person by law. A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong. The interest, claim, or ownership that one has in tangible or intangible property, etc”. With respect to the above definition of right, it is our contention, therefore, that a valid grant of statutory or customary right of occupancy requires no further interference from the grantor, nay, the Governor. That is to say that the holder of a valid rights of occupancy acquires a legal claim should not be interfered with. This position or argument gains credence considering the nature of political system. More often than not, the Governor may refuse to give consent on political or selfish ground. Again, the requirement of consent of the Governor before alienation may bring about unnecessary delay since no provision is l was made to checkmate the Governor’s personal whims and Caprices. This will, no doubt, result to economic waste for time is money, it is our submission under this head that the requirement of the Governor’s consent or approval for a valid alienation of land by a holder of either customary or statutory rights of occupancy is another identified factor behind our country’s economic ,malaise. The above argument notwithstanding, the Act has made no secret of the intention and purpose of its sweeping away all the unlimited rights and interest of any individual or group in their lands and substituted them with very limited rights and rigid control of the use of their limited rights by the Governors and Local Governments.[82] Be that as it may, our final submission on this point is that unless and until the contrary is provided by way of amendment, the law remains that the Governor’s consent must be first had and obtained before any alienation of the rights of occupancy or any part thereof. The case of Savannah Bank V. Ajilo is a locus classicus to this effect.
4.2 – Issuance of Certificate of Occupancy.
The Governor’s power to issue a certificate of occupancy is provided for in the Act. The Act in S.9 provides that (1) it shall be lawful for the Governor –
(a) When granting a statutory right of occupancy to any person; or
(b) When any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner; or
(c) When a person is entitled to a statutory right of occupancy, to issue a certificate under his hand in evidence of such certificate occupancy.
(d) (2) Such certificate shall be termed a certificate of occupancy and there shall be paid there for by the person in whose name it is issued such fee (if any) as may be prescribed.
Thus, is has been held that certificate of occupancy can extinguish one’s right as well as grant a right to another.[83] Also, in the case of Gonkon v. Ugochukwu,[84] it was held that “.. A statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted”. According to Prof. Omotola, “a right of occupancy is a hybrid form of right, something between a personal and proprietary right.[85] However, the Act empowered the Governor to cancel the certificate and recover from a holder any expenses incidental thereto where there is a refusal or neglect to accept and pay for the certificate.[86]
4.3 – Revocation of Rights of Occupancy:-
As we noted or discussed earlier, the rights of occupancy is an unlimited rights and never absolute and remains a subject f revocation by the Governor. A part from the request for notice before revocation, the Act expressly stipulated the ground upon which the right of occupancy would be revoked as we would discussed later.[87] In the words of Prof. I.A Umezulike, there is revocation of rights as an incident of tenure and revocation as an incident of sovereign power. When an act of revocation is exercised in accordance of the provision of the Act as contained in S.28, it is on the Later case, but when it is on the ground of a breach of any of the conditions or covenants as stipulated in S.21, 22 and 34, it is on the former. It follows that a receipt of a notice of revocation extinguishes the right of a holder of certificate of occupancy.[88]
To be mentioned is that the reason for the revocation of any rights of occupancy shall fall within those reasons as spelt out by the Act and never otherwise. The Court has taken the view that it is also expedient that these reason is being stated before revocation could become valid in accordance with the spirit of the Act.
The reason behind this demand is nothing but to checkmate the above of such power by the Governor. Thus, in the case of Administrative/Executors of Estate of General Sani Abacha v. Samuel Eke Stiff,[89] it was held that it is not legitimate to revoke a private person’s land only to grant it to another. The case of Padfield v. Minister of Agriculture is also very apposite to this point.[90] However, suffice it to say that the Act made it clear the ground upon which the right of occupancy validly claimed could be revoked by the Governor. The act prescribes that he should only do so for “overriding public interest” an expression which sub-sections (2) and (3) of S. 28 take great pains to define and delimit. It is submitted with due respect to statutory rights of occupancy and that of customary rights of occupancy. In the case of the former, S.28(2) provides that – (2) overriding public interest in the case of a statutory right of occupancy means (a) the alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary of the provisions of the Act or any regulations made there under;
(b) The requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the state, or the requirement of the land by the land for mining purposes or oil pipelines or for any purpose connected therewith.
On the other hand, overriding public interest as is affects or relate to customary rights of occupancy is by S.28 (3) (a) the requirement of the land by the Government of the State or by a Local Government in the State, or the requirements of the land by the Government of the Federation for public purpose of the Federation;
(a) the requirement of the land for mining purposes or oil pipelines or for any purposes connected therewith;
(b) the requirement of the land for the extraction of building materials;
(c) the alienation by the occupier by sale, assignment, mortage, transfer of possession, sublease, bequest or otherwise of the rights of occupancy without the requisite consent or approval.
A common distinction observed is as it appear in sub-section (3)(c) which talks about the requirement of the land for the extraction of building materials. It is not clear whether or not the Governor can revoke a statutory right of occupancy upon requirement of the affected land for the extraction of building materials. This is because there is every tendency that building materials may be found in a piece of land subject of or under a statutory right of occupancy. And the act did not delimit or define the dividing line by way of definition. The above position having been noted, we wish to bring to your notice that the Act went further to define the phrase “public purposes” so as to protect the holder’s or occupier’s rights from being at the mercy of the Governor.[91] See the case of Chief Commissioner Eastern Provinces v. Ononye and others,[92]
4.4 – Effect of Revocation of right of occupancy On National Income:-
The power of revocation validly exercised in accordance with the provisions of the Act extinguishes the right or rather the title of the holder. This is provided in S.28(7) thus: “The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (5) or on such later date as may be stated in the notice”. Depending on the nature of the right of occupancy that is being revoked, the Act provided for the compensation to be paid to the holder and the occupier according to their respective interest; this is with respect to customary right of occupancy.[93]
Again, the Act provided for reallocation of such holder with an alternative land where the land is being used for agricultural purposes.[94] Accordingly, it is provides in S.29 (1) of the Act that (1) if a right of occupancy is revoked for the cause Set out in paragraph(6) of Subsection (2) of S. 28 of this Act or in paragraph (a) or (c) of subsection
(3) of the same section, the holder and the occupier shall be entitled to compensation for the value at date of revocation of their unexhausted improvements.[95] From the provision of the Act, it is clear that whether compensation is to be paid to the holder of the right of occupancy upon revocation depends on the nature of his title as well as the ground under which his right is being revoked. The amount of compensation to be paid to the holder is to be calculated taking into account the state of the land the subject of revocation. That is to say, whether the land is developed by way of building, installation or any improvements thereon.[96] In the case of any dispute that may arise as to the amount of compensation to be paid, the law is that such a dispute should not be entertained by any court of law, but rather or be referred to the appropriate Land Use and Allocation Committee.[97] Of important as well is that revocation shall not operate to extinguish any debt due to the Government under or in respect of such right of occupancy.[98] Where revocation affects a place where residential building has been erected, the Act provided that the holder and occupier may be compensated by means of resettlement in lieu of compensation payable thereon, in any other place or area by way of a reasonable alternative accommodation (if appropriate in the circumstances).[99] If follows that where the value of any alternative accommodation payable to the parties is higher than the compensation payable under the Act, the law is that the parties concerned may by agreement require that the excess in value in relation to the property concerned shall be treated as a loan which the person affected shall refund or repay to the Government in the prescribed manner.[100] Lastly, where the holder or occupier accepts a resettlement as provided in the Act, his right of occupancy shall be deemed to have been duly satisfied and he is not to demand for a further compensation.[101] However, it is our contention that the act of revocation brings about frustration, hardship as well as economic waste which in no small way affects the national income of the Country. This is supportable because more often than not, there is no adequate compensation upon revocation if at all.
CHAPTER FIVE
Land Use Act And Title To Land,
5.0 Administration of Land under the Act:-
In other that the Act will not be just a toothless bull dog, it empowered the National Council of States to make regulations tailored towards carrying into effect its provisions.
Accordingly, S.46(1) Stated that the National Council of States may make regulations for the purpose of carrying this Act into effect and particularly with regard to the following matters –
(a) the transfer by assignment or otherwise however of any rights of occupancy, whether statutory or customary, including the conditions applicable to the transfer of such rights to persons who are not Nigerians:
(b) The terms and conditions upon which special contracts may be made under S.8 of the Act;
(c) The grant of temporary rights of occupancy;
(d) The method of assessment of compensation for the purposed of S.29 of the Act.
(2) The Governor may, subject to Subsection (1) make regulations with regard to the following matters –
(a) The method of application for any license or permit and the terms and conditions under which licenses may be granted;
(b) The procedure to be observed in revising rents;
(c) The fees to be paid for any matter or thing done under this Act; and
(d) The forms to be used for any document or purpose.
Moreover, the Governor is also empowered by the strength of S.3 of the Land Use Act to designates “parts of the area of the territory of the State constituting land in an urban area.” Therefore, it follows that for purposes of land policy administration, all urban lands so declared were brought under the control and management of the Governor, and non-urban lands, under the control and management of the local Government. The Federal lands as well, are to remain under the management and control of the Federal Government.
However, it is expedient to recall that land policy fall under the exclusive list under which only the federal government can legislate upon. Be that as it may, what the Act gave to the Governor as explained earlier is a regulatory right. That is to say, right or power to make regulations on those matters specified thereon.[102] For the purpose of efficient administration of land matters and in view of the many commitments of the state governors, the Act permits the delegation of powers by the governors to State Commissioners Various States provided for delegation to the commissioner charged with responsibility for land matters, thus centralizing in one ministry the responsibilities for the administration of the various laws on land tenure, survey and registration. By no doubt, centralization of administration of land policy and land tenure law is important, for the Land Use Act does not form a complete code on land tenure.
According to S.4 of the Act, “until other provisions are made in that behalf and, subject to the provisions of this Act, land under the Control and management of the Governor under this Act shall be administered –
(a) In the case of any state where the Land Tenure Law of the former Northern Nigeria applies, in accordance with the provisions of the law; and
(b) In every other case, in accordance with the provisions of the state land law applicable in and the provisions of the Land Tenure Law applicable in respect of state Land in the state and the provisions of the Land Tenure Law or State
Land Law, as the case may be, shall have effect with such modifications as would bring those laws into conformity with this Act or its general intendment.
Another important provision is made by the Act in its S.48 to the effect that all existing laws relating to the registration of title to, or interest in land, shall effect subject to such modifications (whether by way of addition, alteration or omission) as will bring those laws into conformity with this Act or its general intendment.
It follows, therefore, that the scheme of administration was to apportion between the state and local governments responsibilities for land policy administration in the state. The manner in which the land use, management and control is administered between the tiers of government will be treated under separate headings.
5.1 – Delegation of Powers under the Act:-
In other that the Governors may carry out these onerous tasks and effectively discharge their duties, the Act make provisions for the delegation of those powers by them. According to S. 45(1), the Governor may delegate to the state commissioner all or any of the powers conferred on the Governor by this Act, subject to such restrictions, conditions and qualifications, not being inconsistent with the provisions, or general intendment, of this Act as the Governor may specify.
(2) Where the power to grant certificate has been delegated to the state commissioner such certificates shall be granted on behalf of the Governor.
Admittedly, it leaves no one in doubt that one of those restrictions, conditions and qualifications under which the Governor is that he cannot delegate same to a third party. This is captured by a Latin maxim delegatus non potest delegele, meaning that a delegated power cannot be delegated. In some states, the Governors have delegated to their commissioners (i.e commissioner for land matters) power to grant consent in respect of disposition of short – term rights such as rights for 5 years or less. Also, some commissioners were delegated with the power to revoke right of occupancy, though, the revocation right is to be construe strictly in the discharge of such delegated functions.
5.2 – State and Local Government Relations:-
Having looked into the powers of both two tiers of governments, it appears that the local government possesses an absolute right or power to exercise its own function in the management of the land within their area of administration and never as agent of the state. The above position gained support by the provision of S.6 (3) (a) – (d) of the Land Use Act. According to the section, S. 6 (3) it shall be lawful for a local government to enter upon, use and occupy for public purposes any land within the area of its, jurisdiction which is not
(a) land within an area declared to be an urban area pursuant to S.3 of the Act;
(b) The subject of a statutory right of occupancy;
(c) Within any area compulsorily acquired by the Government of the Federation or f the State concerned;
(d) The subject of any laws relating to minerals or mineral oils, and for the purpose to revoke any customary right of occupancy on any such land. Thus, the above exclusive right given to the power of the state Governor. This is provided by Subsection (4) of S.6 thus, “The local Government shall have exclusive rights to the lands so occupied against all persons except the Governor. A pertinent question one may ask is whether the Governor’s power over the local Government in this respect has a legal back-up. The answer seems to be on the positive. For as it stipulated in its S.5 (1), it shall be lawful for the Governor in respect of land, “whether or not in an urban area…..” And also in S. 46(1) (a) the transfer by assignment or otherwise howsoever of any rights of occupancy, “whether statutory or customary”, including the conditions applicable to the transfer of such rights to persons who are not Nigerian.[103]
The above two sections, it appears, extended the Governor’s power to both statutory and customary right of occupancy and on land both in urban and non-urban areas. An example, Regulation I of The Land use Regulations of the Lagos State government provides for the maximum term of years for a grant of a statutory or customary right of occupancy as being 99 years.
Notwithstanding these seeming complexities, a hard look into the provision of S.I and S.6 (4) of the Land Use Act settles the problem. Thus, in its short title, the word “vesting of all land in the state is used. And in the principal provision, the Act provides that “Subject to the provision of the Act, all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the used and common benefit of all Nigerians in accordance with the provisions of this Act”.
S.6 (4) on the other hand, provides that: The Local Government shall have exclusive rights to the lands so occupied against all persons except the Governor. Therefore, it is not far from saying the obvious that by the combine effect of S.I and S.6 (4), that the Governor is empowered to exercise his management control and administrative power on land situated in both urban and non-urban area and also to grant both statutory and customary rights without contravening or interfering with the power of the local government. In any case, it is then our submission that the question whether restrictions imposed by the governor in areas within the exclusive powers of the local government would bind the later receives a positive answer. Also, it is our submission that by the strength of S. 6 (4) of the Act, that there is no exclusive power on the local government in relation to the use, management and control of land within their domain or jurisdiction, all land belongs to the state.
5.3 – Federal and State Relation:-
The first point worth of note is that the Land Use Act being a product of the Federal Military Government seems to be a Federal law relating to matters under the exclusive legislative list. In that case, the provisions of the Land Use Act are vulnerable to being altered by the National Assembly in accordance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
It follows that under the Act, Land under the control of the Federal government prior to the commencement of the Act or on its agents is vested on the President of the Federation. That is to say, on the Federal government. So also is with the land that situate in the Federal Capital territory. Thus, in the case of A.G Federation V. NEPA,[104] it was held that like any legal entity, the federal government can ask for the grant of the right of occupancy from the Governor of the state. the rationale being that the Federal government and its” agencies” have a continuing need for lands in the states for purposes of effecting their various functions, e.g creating national parks, for infrastructural developments such as roads and railways, provision of housing, etc etera.
The Federal government derives its power on land in S. 49 of the Land Use Act thus; S. 49(1) Nothing in this Act shall affect any title to land whether developed or undeveloped held by the federal government or any agency of the federal government at the commencement of this Act, and accordingly, any such land shall continue to vest in the federal government or the agency concerned.
Now, the question is whether the federal government can compel a state Governor to grant them land particularly in cases where the area it designated for federal purposes is required by the state government for state purposes? Put differently, it is this; in the case of any conflict of interest to land between the state government and the federal government, which interest overrides? In A. G. Lagos State V. NEPA (Supra) the court gave an affirmative answer to the above questions.
Moreover, it is noted that the above decision of the court was in tandem with the provision of the Land Use Act. This is because S. 5 of it stipulates that the executive powers of the state government “shall be so exercised as not to impede or prejudice the exercise of executive powers of the federation.[105]
In addition, it is still our opinion that the trusteeship imposed on the governors and state governments in whom state lands are vested is for the benefit of all Nigerians, which indicate a national preference. It therefore follows that where the federal government requires land for public purposes, this is an overriding interest justifying the revocation of any rights in that land in order that it may be made available to the federal government.[106] In practice, where the federal government serves a notice that any particular piece of land is required for such purposes enumerated in the Act, and that land is subject to any existing right, it is mandatory that the governor revokes the right in order to make a grant to the federal government. According to S.28 (4) of the Act, “The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the president if such notice declares such land to be required by the Government for public purposes.[107] In item 67 of the exclusive legislative lists, the National Assembly has the power to legislate over “any matter incidental or supplementary to any matter mentioned elsewhere in this list”. Thus, “incidental matters” include the “acquisition and tenure of land”. To sum up, the fact that the federal government can compel a grant from the state government or governor should not operate to nullify its compulsory powers of acquisition which inheres from the doctrine of sovereignty,
5 .4- Land Allocations and Advisory Committee:-
According to S.2 (2) of the Land Use Act, there shall be established in each state a body to be known as “the Land Use and Allocation Committee” which shall have responsibility for –
(a) advising the governor on any matter connected with the management of land to which paragraph (a) f subsection (1) above relates;
(b) advising the Governor on any matter connected with the resettlement of persons affected by the revocation of rights of occupancy on the ground of overriding public interest under this Act; and
(c) determining disputes as to the amount of compensation payable under this Act for improvements on land.
Accordingly, the above provision, it is noted, is for land that situate in urban area. Therefore, for the purpose of non-urban land, it s provided further in S. 2 (s) that; “There shall also be established for each local Government a body to be known as “the Land Allocation Advisory Committee” which shall consist of such persons as may be determined by the Governor acting after consultation with the local Government on any matter connected with the management of land to which paragraph (b) f subsection (1) above relates.
Looking into the provisions of the Land Use Act above, it appears that the Land Use and Allocation Committee are given advisory and judicial or quasi – judicial powers. This is because they have to advice the Governor with respect to the matter mentioned therein, and as well determine disputes as regards to compensation. On the other hand, it is not clear from the provision of the Act with respect to the Land Allocation Advisory Committee” whether if they should exercise same advisory and judicial or quasi – judicial powers just as the Land Use and Allocation Committee. The answer to this is on the negative. This is because it would have been expressly stated in the Act just as it did in paragraph (c) f S. 2(2).
Another important issues to be considered is whether S.2 (2) (c) of the Land Use Act is inconsistent or in conflict with 3. 44 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? In S. 44(1)(b) of the Constitution, an aggrieved person is given a right of access for the determination of his interest in the property (in this case land) and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria. Thus, from the wordings of the constitution, it is clear that the phrase “or body having jurisdiction” as used refers to either the Land Use and Allocation Committee or such other body as the case may be.
The above positions notwithstanding, the Land Use Act went further to onset Court from entertaining any matter concerning or pertaining to the amount of or adequacy of any compensation paid or to be paid. In S. 47(1) of the Land Use Act, the Act provides that” This Act shall have effect notwithstanding anything to the contrary in any law or rule of law including the constitution of the Federal Republic of Nigeria and, without prejudice to the generality of the foregoing, no court shall have jurisdiction to inquire into ….
(2) No Court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act.
Zeroing in from the above discussion, it becomes clear that apart from advising the Governor on the use, management and control of land, that the land use and Allocation Committee is the body that has jurisdiction when it comes to the amount or adequacy of any compensation paid or to be paid.