Developing an Original Theoretical Account of the Constitutional Right to Property and Regulatory Taking in Nigerian Business Law

The constitutional right to property under section 44 of the 1999 Constitution as amended protects against compulsory acquisition of property without prompt payment of adequate compensation, but the doctrine of regulatory taking, which involves state action that substantially diminishes property value without formal expropriation, is theoretically underdeveloped in Nigerian constitutional and business law scholarship. This study makes an original theoretical contribution by developing a Nigerian Regulatory Taking Doctrine (NRTD) that provides a principled framework for identifying, characterising, and remedying regulatory actions that effectively expropriate property interests without formal acquisition. The theoretical framework draws on United States Fifth Amendment taking jurisprudence, the European Convention on Human Rights property protocol, South African constitutional property clause scholarship, and Nigerian constitutional jurisprudence to develop an original theory tailored to the Nigerian constitutional text, property holding traditions, and regulatory context. Original contributions include a Regulatory Intensity Scale for measuring the degree of interference with property rights, a constitutional proportionality framework adapted for the Nigerian property clause, and an original typology of regulatory takings applicable to Nigerian business regulation including land use planning restrictions, environmental regulations, licensing revocations, and price control measures. The framework is developed through systematic analysis of 60 Nigerian Supreme Court and Court of Appeal property decisions from 1980 to 2023 and comparative analysis of 40 international taking decisions. The study constitutes an original and comprehensive theoretical contribution to Nigerian constitutional property law scholarship.

Keywords: regulatory taking, property rights, constitutional law, expropriation, Nigeria