By Sam Akpologun
Introduction
The recent confrontation between the FCT Minister, Nyesom Wike (Wike/the Minister), and Major Lt Col. Yerima, acting as private security aide, during an attempted demolition in Abuja, raises questions about the lawful limits of executive power, rights of property owners, and the legality of resisting unlawful government action.
It has been argued that Wike acted within his rights as provided by Section 11 Land Use Act, which empowers the governor of a state (and indeed with respect to the FCT, the minister of the FCT) to enter upon a land (which of course he holds in trust for the people of the state) for inspection. No one is permitted to obstruct him in the process.
It must be stressed, however, that that power is limited to INSPECTION ONLY at reasonable hours and not demolition, seizure, or forced entry.
Facts available in the public domain (without prejudice to ongoing investigations and judicial processes) point to the allegation that the Minister of the FCT was not on an inspection exercise, but to ensure the demolition and or takeover of the property which was earlier allocated to senior military personnel. In fact, the Minister was said to have gone to the property with bulldozers.
The presence of demolition equipment strongly indicates that the Minister’s visit exceeded the contemplated ‘inspection’ under Section 11 of the Land Use Act. It was reported that the allocation of the property had been illegally revoked earlier, without regard for proper procedures and in disregard of court processes.
It was also gathered that the minister had tried to allocate the property to his allies and cronies. This is allegedly why the owners of the property decided to defend the property from such an illegal takeover.
Where the visit of the Minister extends beyond inspection to stop work, or demolition
While it is uncontestable that the minister has the power to stop the work in the property or even direct the demolition in qualifying instances, such powers cannot be exercised summarily by simply entering upon the property to enforce them.
There are procedures for that. According to the Nigerian Urban and Regional Planning Act (NURPA), 1992, the owner or occupier must be served with a Contravention Notice (NURPA Section 57(2)). This is issued when a development has no building approval, violates zoning, exceeds the approved design or contravenes the Abuja Master Plan. The notice must specify the breach, what must be corrected, and the timeline to correct it.
If the breach continues, the developer is to be served with a Stop-Work Notice without which the Minister cannot lawfully proceed. After this, the Occupier may then be served with a Demolition Removal Notice.
This notice must specify the part or whole of the structure to be removed, give a reasonable time for compliance, and must be served personally or posted conspicuously.
Even at that, the Minister ought to allow the right to an administrative review and/or appeal to the Urban and Regional Planning Tribunal or High Court.
A demolition carried out before exhaustion of these rights is unlawful. The court ruled that publishing a notice of revocation in a government gazette without personal service on the affected party is not valid.
For example, in the case of Ononuju v A-G Anambra State (2009), the court held that demolition without proper personal notice is considered illegal, as Section 44 of the Land Use Act mandates personal service for acquisition or revocation of occupancy rights.
Section 11 of the LUA cannot avail the Minister if the purpose of his visit is beyond inspection.
If it is true that the Minister was present in the property for anything beyond inspection, then Section 11 of the Land Use Act cannot avail him. In such an instance, it will be legal for the owner or the occupier of the property to resist his entry upon the land unless he follows due process.
No demolition or possession is lawful unless preceded by a properly issued and served revocation notice and compensation in accordance with the Constitution.
Indeed, as has been argued, Section 28 and 38 Sections 28 & 38 of the LUA empower the Governor (FCT Minister) to revoke a right of occupancy, but it must be for overriding public interest or breach of the conditions of grant.
Even then, it must be for the stated reason, and the law prescribed a very clear procedure to be followed in making the revocation, and or eviction. See Sections 28 & 29 LUA and Section 44 of the Constitution. Where the purpose and/or procedure stipulated by the law are either not adhered to or are subject to legal dispute in a competent court of law, it would not be right for the Minister to enter upon the land and attempt to demolish property therein. Courts have consistently held that revocation or demolition without strict compliance with statutory notice requirements is unconstitutional and void.
Self-help can be lawful: Citizens May Use Reasonable Force to Resist Unlawful Trespass.
It is agreed that aggrieved persons are to approach the court of law to ventilate their claims. However, there are instances where a situation of helplessness is foisted on the court such that by the time the court determines the rights of a person, the evil deed would have been done, such that the court may not be able to restore the person in the right to his original position.
This is evidently why the law allows you to defend yourself and property even before the court can make pronouncements about that. Section 33(2)(b) of the Constitution recognises reasonable force in defence of property. This reasonable force may even result in the death of the assailant.
Yerima’s Intervention as Security Aide Is Lawful
I am also aware of the argument that the primary duties of a soldier strictly involve the protection of the territorial integrity of the Nigerian land, air and sea, and not to stand as a sentry in front of private properties. Nevertheless, by virtue of sections 18, 20, 22, 26 and 283 of the Armed Forces Act, the regulations made pursuant to it and Section 218 of the 1999 Constitution, the Service Chiefs are empowered to issue postings and directives in accordance with military command requirements.
Such assignments are lawful, especially when they are official military postings carried out within the chain of command. On this note, a soldier assigned or so posted cannot be said to be acting illegally. He can, on the instruction of the principal he is posted to protect, protect the said principal and his property, just the same way the said principal could have protected himself and his property.
Where military personnel are clearly acting under the orders of their superior in this regard, the Minister should have addressed his concerns to the said superior and not have engaged in verbal exchanges with the officer who is simply obeying lawful orders.
Conclusion
Citizens are not required to submit to unlawful demolition or seizure. Government must act strictly within the confines of the Constitution and the Land Use Act. In all, both citizens and government must rise against anything that threatens the rule of law. We lose everything when the rule of law is lost.
Lawyer Sam Akpologun FCIM, CMC. Principal Partner, Ace & Vanguard Legal Practitioners, Executive Director, Open Society on Justice Reform Project (OSJRP)
